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STAFF & BENEFITS MARCH 20, 2000


Telecommuting: A Legal Primer

Out of sight shouldn't mean out of mind when it comes to liability

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Sure, letting your employees telecommute may help them get a life, but legally speaking, it could complicate yours. As employer, you may find yourself liable for workplace injuries, as well as theft or damage to your important documents and equipment. You could also face discrimination lawsuits filed by workers you don't allow to work at home.

Bob Blackstone, an attorney focusing on telecommuting issues at Seattle-based Davis, Wright, Tremaine LLP, suggests you plan ahead by reviewing your potential liabilities in four key areas. Also, talk to your insurer to make sure your coverage is adequate, and find out what your employees' policy covers. Key areas to consider:

Workplace Safety: The federal Occupational Safety and Health Administration said in February that it will not inspect employees' homes for compliance with federal safety standards, nor expect employers to do so. But don't get too comfortable. Even with OSHA out of the picture, you may not be off the hook for a work-related injury that occurs in your employee's home office. "There well may be employee claims that employers have to honor or investigate or pay based on state Workers' Compensation laws," says Charles Jeffress, assistant secretary of Labor for OSHA.

Based on recent court rulings, you probably won't be held accountable if your employee bangs a knee on a filing cabinet while working at home. But there's still no legal precedent regarding telecommuters who claim work-related musculosketal injuries such as carpal-tunnel syndrome, a painful wrist condition.

To reduce the chances your employees will suffer a work-related injury, educate them about good ergonomic habits. Offer to pay for ergonomically designed equipment, such as telephone headsets and adjustable desk chairs. For ideas on setting up an ergonomic office, check out OSHA'S Website at www.osha.gov, and our guide to ergonomics called The Comfort Zone.

Information Theft: As the employer, you are legally responsible for both electronic and paper files related to your business. For example, if a client's confidential information is stolen in your employee's home, and he or she then engages in illegal activity, you could be held liable. The rule-of-thumb: "If you would be liable for your employees on-site," says attorney Nicole Goluboff, author of a forthcoming book on the legal implications of telecommuting, "then you wouldn't be less liable just because you have someone working off-site."

Although the courts haven't ruled on the issue of information theft from an employee's home, making good-faith efforts to secure information at your employees' homes improves your legal standing against claims of negligence. To prevent hackers from penetrating your company network through an employee's home computer, ask your computer consultant to install personal firewall software such as Symantec's Norton Internet Security 2000 on your employee's home computer. C. Andrew Head, an associate in the Atlanta office of the law firm Holland & Knight LLP who has studied telecommuting liability, says you should also make sure your employees secure any client papers they keep at home.

Equipment Theft or Damage: If you're paying for a computer in an employee's home, make sure that person has a homeowner's policy that covers the equipment in the event of theft or a natural disaster. If not, plan on adding protection under your existing business policy.

Discrimination: So far, there have been no court rulings in favor of employees who alleged discrimination under the Americans with Disabilities Act because they weren't allowed to work at home. However, the Equal Employment Opportunity Commission stated last year that it viewed telecommuting as a reasonable accommodation in its enforcement of the ADA.

In general, if you have more than 15 employees, you had better have a rock-solid rationale for why one employee gets to work from home, but not another. Most discrimination laws apply to these larger small companies, says Head. Put this policy in writing, for extra protection in case you are sued. In 1997, the Ninth Circuit Court rejected an employee's claim that her employer discriminated against her by not letting her telecommute. But in doing so, attorney Head says, the court equated the company's denial of telecommuting with the denial of promotions. The woman didn't prove her case, but that doesn't mean one of your employees won't succeed in the future.


By Chris Sandlund in New York


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