Accountability in the Virtual Workplace

Date: March 22, 2019
It is an understandable tendency to want one-size-fits-all policies and employment handbook provisions in the workplace, but the virtual workplace modality creates a need to re-examine that tendency.  After all, the conditions at play in the virtual workplace involve issues of control and accountability not present when all employees are easily observed and reachable by merely walking the halls.
An immediate and obvious challenge in the virtual workplace model is verifying that the employer is getting a full day’s employment service and accurate records of hours worked.  This challenge coincides with the Fair Labor Standards Act's legal requirement that employers maintain accurate records of the time actually worked – even if the employee is working from home.  Employers, not employees, are the party required to maintain accurate hours worked records, and cannot blame inaccurate record keeping on its employees.  A record keeping system must not understate actual hours worked, for example, a computer pay system that automatically indicates “40 hours” each week regardless of whether the employee works more hours.  Neither should the system, by ease of abuse, facilitate employee overstatement of hours worked. 
A further challenge is the ability to immediately dialogue with the virtual workplace employee – a problem not existent when a single location defines the whereabouts.  Many critics of the virtual workplace model point to the synergy of having employees in a common workplace easily available to collaborate on issues.  Defenders of virtual workplace models often respond that employees can still collaborate electronically or by conference call.  Proponents need to self-inspect whether emails or text messages are really going to satisfy intra-employer collaboration or communication exchanges in a timely manner.  How can the employer be assured that it is not speaking to an unattended screen or a phone left off the hook, intentionally or accidentally? 
So too, the virtual workplace creates significant risk to the maintenance of confidentiality.  Employer trade secret documents, easily maintained in the traditional workplace under a “do not leave the building” rule, are now in a person’s virtual workplace with no control whatsoever as to who may walk by.  In a traditional workplace, access is easily denied to outsiders.  Even more complicated is maintaining electronic security as the router in each virtual employee workplace may be subject to surreptitious electronic access.
Also problematic, the employer’s exposure to occupational safety and workers compensation claims is not extinguished by an employee’s virtual employment.  A slip, trip or fall occurring while walking from the employee’s home office to the employee’s bathroom is no less compensable under state workers compensation coverage than if it occurred in the traditional office setting.  In fact the employer’s risk of claims is increased, as it has no way to assure the safety of the environment as it would in a traditional office setting, nor will it have any ability in most cases to find witnesses who might support the claim that injury was not work related.  In some ways, the virtual office is a blank check to a less-than honest employee who suffers any injury while away from a conventional office.
There is no easy answer to the accountability issue, especially if an employee chooses to abuse the workplace modality.  Nevertheless, at a minimum, the employer should consider certain minimal steps:
  • From the beginning, establish that virtual employment is not tantamount to come and go as you please employment.  Get the expectation right from the start;
  • Establish a firm schedule as to when the accountable workplace starts and finishes.  It need not be identical for all employees, but it must be sufficient to define when the employee is fully accountable to the employer;
  • Establish a directive that departure from the schedule requires advance confirmed notice, preferably by confirmed responsive email;
  • Establish the specific lunch or break times during the day, such that non-responsive time is not mischaracterized;
  • Establish that employees during the scheduled time are to be readily available.  Define readily available in terms such as, “all calls to be returned within X minutes,” or “all emails to be responded to within Y minutes”;
  • Establish that any hours worked beyond the regular schedule are not authorized, and must be approved in advance;
  • Direct that the employee take reasonable steps to assure a safe environment;
  • Emphasize more than in the traditional workplace, that any injury must be reported immediately;
  • Provide clear acknowledgement that any equipment, especially computer related equipment provided by the employer is to be used only for business purposes, without the right of the employee to insert personal information or to delete business information.  Obtain a receipt and agreement to return all employer provided equipment, with the option of the employer to set-off against any final pay the cost of failed equipment return;
  • Emphasize the need for confidentiality.  Consider the need for inscription of all communications.  Consider or develop standards for the type of security measures that are required for any remote communications system;
  • Advise supervisors of the need for strictly enforcing the above expectations and avoid a culture in which the rules are not followed; and
  • Be realistic and direct in evaluating whether the quantity of work product received appears consistent with the compensated time allowed.
So in answer to the opening query whether the same policies fit the virtual workplace as they do the traditional workplace, the answer is yes and no – the same employer responsibilities exist, but the steps necessary to assure those responsibilities are satisfied, and a fair days work for a fair days pay is increased.  To that end, we recommend that each employer maintaining a virtual workplace format create a separate, stand-alone statement detailing the expectations described above, and signed by the employee.
The attorneys of Whiteford, Taylor & Preston’s Employment Law Section can assist employers in developing appropriate, fair and legal policy documents and programs to address the accountability, security and oversight needs of the virtual workplace.