A little over six years ago, Yahoo! CEO Marissa Mayer issued her edict (well, memo) kiboshing work-from-home arrangements, driving Yahoo! workers back to their desks and sending shock waves that reached far beyond affected employees.  Mayer’s mantra was that in order to be “one Yahoo!,” workers needed to be physically connected in the workplace.  Her ultimatum ground the notion of telecommuting at Yahoo! to a screeching halt:  Get back to the office or don’t let the door hit you on the way out.

With probably more fallout externally than internally, Mayer’s remote work ban generated much criticism (amid some praise) and has continued to draw scrutiny even years later.  Whether her move was brilliant or a fool’s errand, one universal lesson to be drawn is that companies need to think critically about whether and to what extent remote work arrangements make good business sense.  This is particularly true as the workforce continues to trend away from traditional employment concepts toward freelancing, consultants, and gig workers.  More and more workers expect, if not demand, flexibility, including the ability to telecommute for at least some portion of their workweek.  With limited exceptions, however, this is privilege not a right.

If your company does provide this perk to some workers, or widely embraces this concept as an essential part of your culture to retain and attract talent, you need to be sure your practices regarding non-traditional workplace arrangements align with your business needs and are not unknowingly subjecting you to legal risk.  To this end, best practices to keep in mind include:

  • Maintain written policies and conduct periodic reviews. The last thing you want is an ambiguous or outdated policy or, worse yet, inconsistent application of your policies among employees.  Ensure that employees are actually working within the limits of the policy.  Make sure your company retains flexibility to modify or terminate the arrangement, or evaluate it on a trial basis.
  • Be aware that telecommuting may be a reasonable accommodation for an employee’s mental or physical disability. This is true even if you ascribe to the Mayer school of thought and do not allow employees to work from home.  As technology continues to evolve, it is becoming increasingly more difficult for employers to convince courts that regular and predictable attendance means the employee must be present at the brick and mortar location.  Accommodations should be distinguished from voluntary arrangements.
  • Make sure you are properly tracking and compensating hourly, non-exempt remote workers for all time worked (including overtime) and they are taking required meal and rest breaks. Also, be clear about scheduling—remote work does not mean that the employee does not have to be available and working during set hours.  Nor does it mean that you alter how you evaluate the employee’s productivity or overall performance.
  • Safeguard confidential and proprietary information and make sure appropriate security protocols are in place. Define who is supplying what equipment, paying for internet fees, providing locked file cabinets, and the like.  A site inspection of the employee’s remote worksite may be prudent.

We continue to work with Oregon employers to navigate successful and legally sound work-from-home arrangements, and can further discuss any practical or compliance challenges you face.

The article was originally published on March 22, 2019, by the Portland Business Journal as part of its How Oregon Works series.