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Working from home: Firms should set guidelines if they offer the privilege

By David Baugher
Special to Missouri Lawyers Weekly

The wired world presents more options than ever for flexible work arrangements. Thanks to the march of mobile technology, attorneys and staff are able to take their offices on the go, working not just from the cubicle, but from the coffee shop, the beach or their own living rooms. But while technology redefines what’s meant by going to work, it can also create potential problems. Some important guidelines can help firm leaders decide when to allow people to work from home and when it’s better to go the traditional route.

Keep labor laws in mind. For starters, exempt employees are much easier to deal with in regard to working from home than are nonexempt workers, who must track hours for overtime purposes.
Cheri Harlow, director of human resources at Spencer Fane Britt & Browne in Kansas City, says you want to steer clear of any violations of the Fair Labor Standards Act, and having nonexempt employees working from home makes that difficult. “If I have an iPhone and am logging on to check email for any substantial period of time, say, more than five minutes, that needs to be clocked as work time,” she says.

Have a reason. Laura Jordan, a defense-side employment lawyer and partner at Thompson Coburn in St. Louis, says work-from-home arrangements can hurt morale among staff members who do not get to work from home and want the same deal. A firm needs to establish objective standards to determine eligibility. “Have you identified whether it is appropriate for one type of position or one department? And, if so, is there a limit to how many of the employees get that option? How are you deciding who gets to do it and who doesn’t?”

Mind the Americans with Disabilities Act. Work-from-home setups sometimes are meant to accommodate an employee with a disability. But if an employee without a disability is allowed to work from home because he or she has a long drive, that could raise questions under the ADA, Jordan says, if the privilege is refused to employees with disabilities in a similar job description.

“It will difficult for the company to deny that request to the local disabled worker if they are offering it to a similar employee who is just not within the commuting distance.”

Safeguard information. Data security is another issue, Jordan says. Is the employee in question working on a company laptop or on their own computer, where a spouse and children have the password and access to potentially confidential information? Give explicit instructions to the worker on this point. “It’s best if their work computer is separate from their personal computer to enable a company to retrieve information quickly and efficiently if the employment relationship ends,” she says.

Make a list. Check it. Russ Welsh, chairman of Polsinelli Shughart in Kansas City, says that even with exempt attorneys, a firm must ensure they are working diligently. Someone in charge should understand the list of tasks to be accomplished, and they should get done. “When you bill by the hour, there is the risk that you are not efficient — and our clients want us to be efficient,” he says. “We strive for that, and you want to watch that carefully for someone who is not physically in the office.”

Don’t let anyone get too isolated. Lawyers are in a “people” field, Welsh notes. They shouldn’t use their homes as cocoons during work hours. “I think at some point the lawyer needs to ask himself or herself what is it they are really looking for in a career because it does take relationship-building, and exclusively working from home the person tends to gravitate toward a more project-oriented practice, as opposed to an overall engagement kind of practice,” he says.

Consider other arrangements. If the working-from-home idea doesn’t work for a firm, flextime is another option, Harlow says. “We give people a lot of flexibility to alter their start times, their end times, do work on the weekend,” she says. “We have ‘make-up’ time so if they have to be out of the office for a doctor’s appointment they can make up that work.”

Make sure work can be accomplished. Does the attorney or staffer in question have the ability to get the work done? “Some people aren’t built for being on their own,” Harlow says. “There are also technological skills. If they are going to need support on the computer, it might be best to be at the office.”

Formalize the situation. Working from home is a privilege, not a right. It can — and should — be revoked if it does not work. “Get the agreement in writing, and make clear that it is a business arrangement, not a benefit or an entitlement, and that it may change at any time,” Harlow says.

Clarify what is expected. If a person needs to attend staff meetings or be at the office at certain times, make that clear. If an employee needs to be accessible or near the phone during certain hours, leave instructions to that effect. “The expectations have to be clear of when the employee is expected to be working in the office versus at home,” Jordan says. “Flexibility doesn’t mean that an employee doesn’t have to be accessible during regular work hours.”

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