5 important legal issues for organisations hiring remote workers
There are real benefits for organisations who hire remote (or distributed) teams and permit existing employees to work from home. Productivity, cheaper rental or real estate costs and a unique culture of employee engagement and happier employees are only some of the benefits. I can vouch for this personally, having worked from home in a Partner equivalent role with newlaw firm LegalVision for a number of years.
However, as great as working from home is, the lawyer in me is lurking below the surface fretting about the risks to employers of work from home arrangements. But the good news is that with the right arrangements in place, the risks can be managed and your organisation can get on with the real work that makes your organisation great.
Legal Issue 1 - Make sure everything is in writing
Everything needs to be in writing and I mean, everything.
That is a great piece of general advice for employment agreements and work arrangements full stop. However, where a work from home arrangement is in place or proposed, the work from home arrangements need to be specifically referred to and documented in any employee contracts.
For new employees, this includes:
a letter of offer;
an employment agreement for remote work; and
the incorporation of a remote work policy within the employment agreement or letter of offer.
For existing employees:
their existing employment agreement will need to be varied to document the work from home arrangements; and
they will need to be given and made aware of your work from home policy which sets out your expectations and boundaries surrounding the remote work arrangement.
It is also prudent to make any new work from home arrangements a trial or probationary arrangement to ensure that the employee is able to or suited to working from home. While some employees are far more efficient at home, others work better in a collaborative office environment. A probationary work from home period at the start of any agreement or variation to an employment will allow both parties to assess whether working from home is compatible with that particular employee.
Further, before you permit an employee to work from home you should ensure they return a checklist documenting their workspace, photographs of their workspace, their address and arrangements for working at home. For example, will they have a designated work space or are they working from the dining room table.
2. Privacy and Data Security
No doubt your employment agreement will contain confidentiality provisions (if it does not contain these provisions, then that is another blog!). Note that these obligations extend to to client details and data.
When an employee works from home there is a new level to data security in that the employee must not show family members or friends confidential or sensitive client information. Further to that, if not updated or protected properly, technology systems could be vulnerable to compromise by computer hackers.
This can be managed by:
specifying who will supply the computer hardware and software in the work from home agreement; and
confirming where the employees’ workspace will be and ensuring the employee is aware of their confidentiality obligations.
An employment agreement, or variation to an employment agreement and work from home policy are crucial to protect the employer with respect to privacy and data security issues.
3. Occupational Health & Safety (OH&S)
The fact an employee works from home does not mean you cease to have responsibility for their health and welfare while they are doing their job.
For this reason it is crucial that you:
establish where in the home they will work; and
have a checklist and photos of their work space, including the ergonomic benefits and placement of furniture, exits and other safety requirements.
You should also specify in the employment agreement or variation to employment agreement if an existing employee commences working from home, the hours the employee will work and how they will conduct those hours.
Flowing on from the OH & S requirements is the requirement for you to ensure that your workers compensation insurance adequately covers the employee working from home.
If it doesn’t, you must amend the workers compensation insurance policy. Additionally, it is a good idea to obtain copies of the employees’ home and contents and/ or building insurance to determine that they have adequate coverage for items such as work computers and damage to the premises. If the employee drives from their home to other locations in the course of work, you should obtain details of their motor vehicle and motor vehicle insurance.
Finally, details of the employees workspace including checklists and photos will help you defend or participate in a workers compensation claim if one arises.
5. Human Resource Policies and equal opportunities
Consistency is key when it comes to remote work policies.
If you permit one employee to work from home, should you permit all of them to work from home? With this in mind, establish clear parameters over who can work from home. For example, it is a seniority measure or are there certain roles that can be done from home while others require client facing contact and are not suitable.
Clear thought and intention needs to be given to this matter. A refusal to allow an employee without clear reasons why the refusal is given could lead to a discrimination claim.
Want more information?
If you would like to discuss work from home policies, we provide template and bespoke policy options.