Technology is not only changing how we work, but also where we work. According to 2017 State of Telecommuting in the US Employee Workforce Report, 3.9 million workers in the US are working from home for at least half their work time. This figure represents a 115% increase over the same time just over a decade ago. According to the Bureau of Labor Statistics, a quarter of the workforce did some or all of their work from home. But how do federal labor laws interact with such a drastically changing workplace?
Last month, the U.S. Fifth Circuit Court of Appeals weighed in on that very question in the context of the Family Medical Leave Act (FMLA). In D’Onofrio v. Vacation Publications, Inc., a sales representative requested FMLA leave to care for her husband who had recently been involved in a car accident. Her employer, a vacation sales agency, gave her two options: she could take unpaid leave, or occasionally work from home to service her existing clients while still receiving commissions. The employee sued alleging the employer interfered with FMLA entitlements by requesting that she work during her leave. Upholding the trial court’s dismissal, the Fifth Circuit held that giving employees the option to work from home while on leave does not amount to interference with FMLA rights so long as working while on leave is not a condition of continued employment.
In the context of the Fair Labor Standards Act (FLSA), employers are required to maintain certain time-keeping records for non-exempt employees. This presents a unique challenge to employers with non-exempt employees working from home. The Department of Labor requires employers to keep records of total hours worked each day and each workweek. Many employers accomplish this by using software. As a result, employers need to ensure remote-workers have access to log-in and log-out software when working from home, and ensure they’re using the software consistently.
The Department of Labor has also recognized that some remote-work arrangements might involve hazardous activities. These include assembly of electronics, lead casting, and some metallurgy work. The DOL states they will only conduct OSHA inspections at the homes of employees when they receive a complaint or referral that indicates a violation of safety or health standards exists at the home. The DOL notes that employers are responsible for hazardous conditions at home worksites caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee’s home.
While not a comprehensive list, these issues illustrate the need for employers to engage in careful planning and monitoring of employees working from home.
Feel free to call Stephanie Schoolcraft (sschoolcraft@fisheldowney.com) by email or phone (614) 221-1216 if you have any questions.