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Best Practices for Managing Employees While on Telework Status

As more and more states order businesses to close their physical locations because of the novel coronavirus pandemic, employers are being encouraged by the federal and state governments to work remotely and not have their employees report to worksites unless they fit into the definition of “essential.”

The United States Department of Labor Wage and Hour Division issued guidance to employers seeking to sustain business operations using telework. In it, the DOL confirmed employers can encourage or require employees to telework as an infection control or prevention strategy.

With more businesses turning to telework as an alternative to completely suspending business operations, employers who allow employees, particularly non-exempt employees, to telework should consider the following best practices to ensure maximum productivity and timekeeping among such non-exempt employees while they telework.

1. Update Your Workplace Policies (Before Teleworking Begins, if Possible)

The Telework Policy

For businesses contemplating telework for the first time, or introducing telework to non-exempt employees for the first time, it is important to educate employees about what telework is, and how employees will be expected to perform their job duties while teleworking. To that end, a well-crafted telework policy should define telework, explain who is subject to the policy, and outline the schedule employees will be required to maintain while teleworking. It should also explain how employees will receive assignments, and identify company points of contact who are available to assist employees with any work-related issues they experience while in telework status. Since employees will be accessing company information while at home, a telework policy should stress the importance of safeguarding confidential company information in a safe location that is inaccessible to others. If you do not have a policy you should issue one; if you do have a policy you should see if it requires updating.

Technology, Device and Privacy Policies

In addition to providing an up to date telework policy, employers would be well served to ensure they have updated technology, device and privacy policies. Particularly for those employers who plan to provide employees with company-issued laptops or cellphones to complete their work remotely, an updated technology or device policy can help safeguard an employer’s property from potential employee misuse or damage. An updated technology or privacy policy can also be used to put employees on notice that they have no expectation of privacy when using their company-issued equipment, even while on telework.

For those employers who plan to allow employees to use personal devices to perform company work, an updated technology or device policy can appropriately inform employees of the inherent risks associated with employees using their personal devices to perform company work.

Timekeeping Policy

Lastly, an employer should update its timekeeping policy, particularly for non-exempt employees. Under the Fair Labor Standards Act, non-exempt employees are only entitled to pay for work they actually perform. As a result, non-exempt employees should be required to keep accurate records of when they are and are not working. Employers should provide non-exempt employees who telework with an example of how to keep time while teleworking, in addition to the circumstances when they should mark themselves as not working. Note that when employees are working from home, it is likely that they will have more interruptions from family and other home events than normal at work, and they are less likely to provide services during a standard 9 to 5 schedule. Your policy should make it clear that this is understood, and that employees are expected to note the actual time they start and stop work during the day, including time taken out for lunch, family needs and other matters. Employees should be directed to send in this daily statement of their work time. Managers should not enter employee hours.

Lawyers in the Arent Fox Labor & Employment Group are available to review or draft telework, device, privacy and/or timekeeping policies that appropriately explain company expectations during telework in the current COVID-19 climate.

2. Train Employees on the New Policies You Will Implement Virtually

Once the appropriate policies have been established, a short training may be needed to ensure employees understand their telework expectations. Opting to create a prerecorded video, connecting with employees via videoconference, or circulating the policies via email may be helpful in cementing telework responsibilities with employees if employees are already working from home.

3. Take Care to Provide Accommodations for Employees who Require them under the Americans with Disabilities Act

Furthermore, when requiring employees to telework, employers should take care to ensure that employees who traditionally receive reasonable accommodation in the workplace are similarly afforded a telework accommodation. Historically, the EEOC has provided Telework/Work at Home guidance. It should be the first step to assessing how to provide an employee a reasonable accommodation involving telework.

4. Monitoring Employee Performance

Just as employees are monitored while in the workplace, so should employers monitor employees performing telework. As always, front-line supervisors provide the first level of defense for employers to ensure productivity among telework employees. Supervisors may contact employees through traditional means, such as phone calls and email, to ensure employees stay on task while teleworking.

However, employers may wish to monitor employee movement via telephone, laptop, and email.  Employers who seek to engage in this style of monitoring are subject to the Electronic Communication Privacy Act (ECPA), as well as the Stored Communications Act (SCA). The ECPA protects the interception of digital and electronic communications, while the SCA covers the disclosure of stored communications.

Whether an employer can monitor employee movement via telephone, laptop, or email is largely dictated by whether the communication subject to monitoring was performed using company-issued equipment versus an employee’s personal device.

Generally, under the business exception of the ECPA, which provides that an employer may intercept communications on systems provided by the employer when done in the ordinary course of business, an employer may track an employee’s electronic transmissions. Similarly, under an exception under the SCA, employers may access stored information on its work systems even outside the ordinary course of business. 

Company-Issued Phones

For example, if an employer has given employees company-issued phones, the employer may monitor the employee’s phone usage, the content of the phone calls, and employee text messages. Case law widely supports an employer’s ability to monitor phone usage and the content of phone calls; however, employers should inform employees that their text messages, in addition to the phone calls themselves, may be monitored at the employer’s discretion. 

Company-Issued Laptops

If an employer provides employees with company-issued laptops, the employer may monitor the employee’s company-issued laptop in most instances. The law favors employers in this regard.  However, due to nuances that may exist in certain state laws, employers should contact counsel when seeking to monitor company-issued work computers. In most instances, a well-crafted technology and privacy policy will protect employers who seek to monitor employees’ company-issued laptops. 

Company Email

If an employer provides employees with a company-issued email address on a company run email system, the law allows the employer to monitor company run email so long as the employer informs employees that the computer and email system will be monitored and is not for personal use. 

Personal Phones, Laptops, and Email

While allowing employees to use their personal phones, laptops, and email to perform company telework may seem like an economical alternative to supplying one’s entire workforce with company-issued equipment, the law surrounding an employer’s ability to review an employee’s personal email for work-related content is more ambiguous. At a minimum, employees who use their personal devices to access company information make their devices subject to company data-retention policies. Therefore, employers should require employees only use company-issued phones, computer systems, and email to perform company-related work, while also informing employees about the potential data-retention risks posed if they deviate from the policy and use their own personal devices.

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