Setting Expectations and Minimizing Risk Through Remote Working Agreements

Date: March 22, 2019
Remote working is commonplace in the workplace today, though some organizations treat this as an informal perk.  If your company allows this flexibility, be sure that you have taken appropriate steps to adopt a formal policy that includes the requirement for execution of a telework agreement between the company and the employee in order to minimize the risk that can accompany this arrangement.  When adopting the policy, ensure that it works for your organization.  There is no one-size-fits-all policy and certainly not every position is suitable for remote working, which needs to be clearly articulated in the policy.  Once the policy is adopted, educate the managers and apply it consistently to avoid claims of discrimination.

Remote working comes in many different iterations.  While some remote working relationships are full-time where every day is worked from home, others may be on a part-time fixed schedule, for example, one day per week while others may be ad hoc, only when the need arises.  In any of these circumstances, employees who are permitted to work remotely should be required to enter into a remote working agreement. 

Remote working agreements should include the following provisions:
  • The nature of the remote working relationship.  Is it permanent and full-time?  Is it temporary as part of an accommodation request?  Is it fixed for a specific day per week?  Is it flexible?
  • Hours worked.  This is particularly important if non-exempt employees are working from home.
  • Equipment.  Who is providing the computer and related equipment?  If the company is providing, what is the process if equipment is damaged and who is responsible for repair?  Who is responsible for the costs of supplies such as printer ink, paper, and pens?  If the employer is providing equipment, set forth the specific equipment being provided.
  • Security.  Employers take care in ensuring its computer systems at work are secure.  This must include equipment at home, particularly if the employee is providing his or her own equipment.  If the employee handles confidential files that would require lock and key at work, the same requirements should be followed for files at home.
  • Suitable workspace.  The agreement should require a safe, suitable work space, free from distraction.  This does not necessarily require a special room/office as this could result in a disparate impact for employees with smaller homes.  The work space must be safe and comply with OSHA requirements.
  • Right to inspect.  While the company may not ever choose to inspect the home working environment, it should reserve the right to do so.
  • Prohibition on meetings in the home.  Employees should not be holding meetings in their home.
  • Address of home office.  Require the employee to provide the address and to notify HR of any changes to that address.
  • Not a substitute for day care, elder care or sick leave.  Make sure the agreement is clear that remote working is not a substitute for dependent care and that the employee will not provide dependent care during work hours.
  • For the employee’s benefit.  With remote working comes the risk of “doing business” in other jurisdictions with potential to subject the employer to jurisdiction of other state courts.  Ensure that the agreement is clear that the arrangement is solely for the employee’s benefit and that the employee agrees that working from home does not subject the employer to jurisdiction in that state.
  • At-will.  Unless the employee is a contracted employee, the agreement should be clear that it does not alter the at-will nature of the employment relationship.
  • Termination of arrangement.  The agreement should provide that the remote working arrangement can be terminated at any time.

While the above provisions should be considered for all remote working agreements, there may be other considerations, including, but not limited to, tax concerns, required attendance in the office, and performance requirements, depending on the position being worked remotely and the location of the remote office.  Before entering into any contract with an employee, it is best practices to have the agreement reviewed by counsel to ensure that the agreement is clear, legally binding, and minimizes risk to the organization.