Policy changes can be emotional events as evidenced by today’s reader note.
I was a telecommuter for 10 years. After the company was sold, we were told that everyone living less than 60 minutes from the office can no longer telecommute. Of the 5 people that hold the same position as me, I am the only one who qualifies to no longer be a telecommuter.
The new company did not have a telecommuting policy but agreed to keep telecommuters providing they live far enough away. I lost 90 minutes of family time a day and feel slighted hearing from my co-workers how they work in their pajamas, go to the gym at lunch, pick their kids up from school, or run a quick errand during the day. Can employers make unwritten policies like, if you live near the office, you can no longer telecommute?
Kate Bischoff recently helped us answer another telecommuting question so I asked her if she would help with this one. Gratefully, she said yes. Kate is an attorney with the firm Zelle LLP in Minneapolis. Just a reminder that Kate’s comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have specific detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Kate, I know you’ve answered this before, but just to remind readers, there’s no law that requires employers to offer telecommuting – correct?
[Bischoff] Right. There is no affirmative obligation to allow employees to telecommute. It is a bummer for many, many employees, but still no requirement. This could change if telecommuting is a reasonable accommodation for the employee under disability laws.
Let’s talk briefly about the company sale. There are many employee issues that are mentioned in company sale documents, but I don’t believe policies like telecommuting would be one of them. When a company is sold, what should employees expect?
[Bischoff] When a company is sold, employees are rightfully anxious about what is going to happen. Here’s what I can say is true at least 90 percent of the time – things will change. Even salaries and benefit options could be subject to change when a new entity takes over. It is rare when a sale does not affect the culture of the workplace.
Because telecommuters are part of the culture, telecommuting policies are subject to change. Heck, even a CEO change can lead to dramatic changes in telecommuting policies. My advice to employees is be patient. The changes will announce themselves. If the policy changes alter the culture to a place you don’t want to work any longer, there are other organizations looking for you.
In your experience, how do employers determine who gets to telecommute? Is it by position, distance to work, or something completely different?
[Bischoff] Whether an employee can telecommute is based on the position and the work of the position. For me, there are two main factors to determining if work can be done remotely.
- Are there physical items involved in the position? A stocker at a grocery store, a server in a restaurant, or a factory worker who puts together widgets are not going to be able to telecommute and do their jobs.
- Can performance expectations be set and monitored away from where the work is performed? If a regional sales manager is required to visit with and shadow her sales representatives twice a week, she is not going to be able work from home during those required visits.
All other concerns (or according to some, myths), like not being able to work collaboratively or build comradery among the team are quickly going away with the advent of collaborative tools and use of video. Technology has made telecommuting possible and will continue to make it easier.
On a few occasions, it may be necessary to revoke telecommuting. Most often, this happens when there is a performance issue where a manager needs to provide more individual, eyes-on supervision and training to an employee to improve productivity or work quality. When this happens the manager may request that the employee stop working from home and spend some time in the office under more direct and in-person supervision. If performance improves, telecommuting may again become an option.
If a company doesn’t have a telecommuting policy, can employees still telecommute? Is a policy required?
[Bischoff] No. I’m a lawyer, so I’m predisposed to write a policy, love a policy, and work the policy. But a telecommuting policy is not required. That said, policies help set employee expectations and give guidance that employees can use to ‘self-evaluate’ whether they can benefit under the policy. This guidance is a good thing because it sets a standard that can be uniformly applied across business units. (The other symptom of being a lawyer is a penchant for consistency.) But even if an employer does not have a policy, it can still offer employees telecommuting as an option.
The one thing I do recommend is when an employee is about to telecommute, work with the employee to set expectations and goals, and then monitor performance to those goals. While some employers use formal telecommuting agreements, all that is really necessary is clear communication about what is expected of a telecommuting employee for having the work arrangement be a success.
Finally, for those employees who are working in their pajamas and dropping off the kid’s lunch, can employers place “rules” on an employee’s workday, even when they telecommute?
[Bischoff] Of course. Employers can still set standards when necessary. Can employers require workers take off their PJs and wear a suit at home while they are working? Maybe if a video conference is scheduled with a client, but employers should not have the requirement if the work does not involve the worker being seen. Can an employer set specific times when an employee should be working? Absolutely. Just remember that employees may need to take a forgotten lunch to school on occasion.
Another concern some employers have is workers’ compensation. Workers’ compensation laws do apply even when the worker is at home. Because so many accidents occur in the home, if the worker was injured while working, the employer’s comp coverage will likely cover the injury. So, employers may require employees work in a safe location and not near a pit of poisonous snakes or in a hazardous home.
My thanks to Kate for sharing her knowledge with us. Be sure to follow her on Twitter and check out the Zelle blog, “The Employment Law Navigator.” As someone who works from home, I can certainly empathize. Organizations need to understand the full implications of their decisions and when implementing policy changes work with employees to ensure a smooth transition.
Image taken by Sharlyn Lauby while wondering Sawgrass Mills2