Library Worklife

Volume 3, No. 3 • March 2006

HR Practice

Overtime, Discrimination, Liability

Legal Issues to Consider Regarding Flextime or Telecommuting

By Christine Martin

Many employees want to work at home and on their own schedules. Or, if they must report to a workplace, they like flexible hours. And many employers want to accommodate them, especially if it can be done at a fairly low cost. Still, legal pitfalls abound. Employers must be sure that granting flextime or allowing employees to telecommute does not result in increased liability, allegations of discrimination, or unbudgeted overtime. The following article is not legal advice, but rather some issues to consider if you are thinking about instituting flextime or telecommuting in your workplace.

Overtime is a flextime issue for some

Overtime and allegations of discrimination seem to be the biggest legal issues for employers who offer flextime to full-time employees (e.g., allowing them to work less than 40 hours one week and more than 40 hours the following week). Though this article uses a 40-hour workweek, the ideas apply regardless of your library's definition of full-time . Following are tips on how to avoid problems with both:

Make sure "non-exempt" (usually hourly) employees don't flex into overtime by working more than 40 hours per week . Obviously, this is not an issue for employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA). The U.S. Department of Labor defines an exempt employee as anyone making $455 or more per week who works in a job that entails certain executive, administrative, professional, sales or computer responsibilities. The $455 minimum salary does not apply to all sales employees. One way to provide flextime to non-exempt employees is to institute a compressed workweek, e.g., ten hours a day Monday through Thursday with Friday off.
Make sure working fewer than 40 hours a week does not render employees ineligible for group insurance . Don't inadvertently deprive your employees of their health insurance or other benefits. Find out whether your policies require them to work a minimum number of hours per week.
Develop a written policy as to which jobs are eligible for flextime . Not having a written policy leaves you open to charges of discrimination. For example, women employees may have a legitimate cause of action if they see male, but not female, employees coming and going under the guise of flextime--or telecommuting, for that matter. Don't use flextime as a reward. Instead make it a part of a job description. Specify when it will be allowed. Don't make any secret side deals with employees because they have childcare responsibilities or are unusually "self-directed" or "organized."

Telecommuting legal issues include insurance, injuries

Telecommuting seems to engender more issues than flextime, probably because it removes traditional employer control over not only when work is done, but also where and how. In general, you must consider how to keep attendance records, and who will be responsible for equipment, insurance, and any on-the-job injuries sustained at home. Also, telecommuting may be a great option for employees who must be accommodated under the Americans with Disabilities Act.

Figure out how timekeeping will work for attendance and overtime requirements . Of course, attendance may not be an issue for salaried employees. But for hourly employees who are not exempt from the overtime requirements of the Fair Labor Standards Act (FLSA-see above), it is important to track hours and any overtime incurred. Even apart from timekeeping requirements, you may wish to establish when employees will be required to check in or otherwise be available. For example, will they be asked to call in once a day? Once a week? Some employers require telecommuters to be available during certain core hours, such as from 10 a.m. to 2 p.m.
Figure out what, if any, home equipment the employer will supply and whether the employee may use it for personal purposes . Some employers offer low-cost loans to employees who want to purchase home computers. You may also have to think about footing at least some of the bill for consumables, such as paper and ink. And the employee may want you to pick up the tab for any telephone calls to clients and co-workers.
Adopt a written policy that shows that telecommuting is not being awarded in a discriminatory way . As with flextime, don't venture into arguably subjective determinations of who is responsible, self-directed or organized enough to work well outside the office. Instead, focus on job functions that lend themselves to remote work.
Determine who will be responsible for injuries sustained by employees working for an employer at home . Workers compensation laws may apply if a worker is injured while working at home for an employer. Employers may find this liability especially problematic because they usually have little control over conditions in an employee's home. Some lawyers advise making the employee redesign the space to make it comply with office standards. Others say employers should take a hands-off approach because any involvement increases employer liability for in-home conditions. At a minimum, figure out how your organization's accident reporting rules will apply to employees working at home.

Consider an employee survey, pilot program first

Not sure your team is ready for either flextime or telecommuting? Consider a pilot program that includes a well-defined re-evaluation date. Then, after several weeks or months, you can decide whether to keep, expand, or junk the program. The pilot program may also give you valuable input from your employees as to what worked and what did not. In fact, you may wish to survey them at the start. Involving them will not only tell you what they need and want, but will also generate good will and help create "buy-in" as you embark on a new non-traditional, but very popular, work arrangement.

Christine Martin is a freelance writer and 1997 graduate of the University of Illinois Graduate School of Library and Information Science.

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