Things to keep in mind when employees work from home

What are the risks and potential pitfalls of allowing an employee to work at home?

Colin Gibson
Question: We are looking at having some employees work from home. The employees really want this, but we have concerns about the issues and liabilities that may arise. What are the risks and potential pitfalls of allowing an employee to work at home?

Answer: In recent years, there has been a steady increase in the number of employees working at home. With advances in technology, employees can often be set up in home offices that allow them to communicate with colleagues and clients, and access their organization’s local area network, as effectively as if they were physically present in the workplace. This type of arrangement can benefit employees by eliminating commutes, reducing expenses and providing increased flexibility and greater autonomy. Home work can also result in advantages for employers by freeing up office space and reducing operating expenses and capital costs.

Employers must be careful to ensure that allowing employees to work at home is not exposing the organization to unexpected liabilities. The potential pitfalls that may arise include issues relating to workplace safety and insurance, remuneration, hours of work, performance, conduct and the protection of confidential information.

Employees are usually covered under the applicable workers’ compensation legislation regardless of whether they are working from home or at the employer’s premises. But this should always be checked before an employee is permitted to work at home. It is also important to ensure appropriate insurance coverage is in place to cover injuries to the person or property of clients or other third parties who attend at the employee’s home. Municipal and strata bylaws should also be reviewed to ensure compliance.

Mechanisms must be put in place for the effective control and supervision of employees who work at home. How and by whom will the employee’s work and conduct be supervised? What sort of reports are expected from the employee and how frequently? Many employers find it useful to establish a set of written expectations to deal with such issues as:

•a regular schedule of in-person meetings between the employee and her supervisor;

•additional scheduled telephone discussions;

•a requirement to attend periodic team meetings at the workplace; and

•the protocol for copying the employee’s supervisor on outgoing or incoming emails.

The applicable employment standards legislation should be reviewed to determine whether and how it applies to the work performed by the employee at home. In British Columbia, for example, the statutory definition of “work” includes work performed at an employee’s residence and overtime wages are payable where an employer requires “or directly or indirectly allows” an employee to work more than eight hours in a day or 40 hours in a week. Where this type of regime exists, an employer must establish rules regarding hours of work and overtime for employees who work at home. Careful record keeping is important to avoid unexpected liabilities if the employment relationship turns sour.

Where employees are permitted to work at home, steps must be taken to protect the employer’s confidential information from unauthorized disclosure or misuse.

In this regard, an employer may find it advisable to require the employee to sign a detailed confidentiality agreement, that covers not only the employee’s obligation to refrain from disclosing or misusing confidential information, but also requires the employee to have a monitored home security system, imposes an obligation to ensure any wireless network is properly secured, and places restrictions on sending confidential documents by e-mail.

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at cgibson@harrisco.com or (604) 891-2212

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