Telecommuting & The Digital Workplace

In martial arts, everything starts with position. You can’t execute or defend against a technique without it. And maintaining position is one of the most important keys to success in sparring, competitions, and street fights (who better to know about street fights than a white-collar suburban lawyer who is extremely averse to getting hit?). But maintaining position is not about using force to statically holding an opponent in place. Instead, especially in certain  styles, e.g., jiu jitsu and aikido, a martial artist wants to be able to gain a strategic position, adjust to the situation, and steadily advance for better position while holding onto prior gains (this almost sounds like good business advice). Obtaining positional control or defending against it starts with the fundamentals.

For employers, the Digital Workplace has extended the physical “position” of the work site. A recent survey found that the number of Americans whose employer allows them to work remotely at least one day per month increased 63 %, from 7.6 million in 2004 to 12.4 million in 2006. The total number of teleworkers (both employed and self-employed) working remotely at least one day per month has risen from 26.1 million in 2005 to 28.7 million in 2006. And it is estimated that this number will increase to 100 million U.S. workers by 2010.

Technology has changed the position of the traditional workplace.

Telecommuting may or may not make business sense. But telecommuting does not change the fundamentals of the employee-employer relationship, or basic risk assessment. And before making a commitment and a corresponding investment in transitioning to a telecommuting plan, employers should consider the following points:

1. Meeting business and regulatory requirements: Telecommuting places a significant amount of responsibility on the employee to maintain productivity. And how this will be measured should be made clear. Also, employers still must comply with state and federal record keeping requirements for remote employees. For example, under the Fair Labor Standards Act (FLSA) employers must record hours worked by a non-exempt employee. The other side of this compensation coin is the possibility for a remote employee to pad his or her time records. These issues, to some degree, may be easily addressed through technology e.g., employee logs in and out of the company network (I would recommend against Web cameras: When I work at home, it isn’t a pretty sight seeing me work in my boxers). Employers also need to address fulfilling record retention requirements for off-site documents. This is especially important in the context of litigation and preservation obligations. See Using Ancient Chinese Martial Arts to Control Litigation Costs and Risks.
2. Suitable Work Environment: Obviously employers must apply an even-handed telecommuting program to its employees to avoid discrimination charges. But even without a telecommuting program, telecommuting may be a reasonable accommodation under the Americans with Disabilities Act (ADA). See Equal Employment Opportunity Commission (EEOC): “May permitting an employee to work at home be a reasonable accommodation, even if the employer has no telework program? Yes”). Additionally, if a telecommuting program is implemented and if essential job functions can be performed remotely, does the employer now have to make modifications to an employee’s remote office to perform these essential job functions? The EEOC has taken the position that it will apply the same hardship analysis for on-site accommodations. See the October 17, 2002 revision to EEOC Notice No. 915.0021. It is also worth noting that the Occupational Safety and Health Administration originally issued an advisory opinion that asserted, “The OSH Act applies to work performed by an employee in any workplace within the United States, including a workplace located in the employee’s home.” After severe criticism, this opinion was later retracted and eventually reversed (with respect to home offices but not home work sites). See OSHA’s Policies and Procedures for Employee Worksites. But, worker’s compensation laws may still apply to remote offices.
3. Insuring the Remote Office: Employers should also ensure that worker’s compensation insurance coverage includes remote employees. The same holds true for other insurance coverages, including personal injury, property loss, or professional liability coverage.
4. Protecting Business Assets – External Risks: There are a number of risks to company assets maintained in remote work sites. These include outside threats such as viruses, physical disasters, and data breaches (either through technological means or physically stealing the storage container holding the data). These risks can significantly reduced by setting up remote access to the employer’s network so that information is only maintained on the employer’s network and not the remote office and by automatically syncing laptops with the network.
5. Protecting Business Assets – Internal Risks: Telecommuting also opens up employers to internal threats because it may be more difficult to manage business information and other proprietary information that is created and stored remotely. For example, remote employees may maintain separate files for clients,  customer lists, pricing, sales data, profit-margin data, engineering drawings, etc. And retrieving this information from a remote office is likely to be more difficult than from an on-site office. For these reasons, it is highly recommended that all remote work either be done on an employer owned laptop or through a direct connection to the network. Please take my word: It is a technological head ache ripe with legitimate privacy concerns for both the employer and employee when (not if) the retrieval and search of information from an employee’s home PC or laptop becomes an issue.

Assuming there was a business justification for considering a telecommuting policy in the first place, the preceding legal and business concerns should not put an end to the discussion. Instead, employers — knowing the legal issues — can position themselves to reduce these concerns. And the starting point for this position is a written telecommuting policy, which should be made part of the employee handbook. The points that should be addressed in  the telecommuting policy include:

• Job classifications eligible to telecommute (remember – neutral, non-discriminatory determinations);
• Employer expectations and requirements, e.g., job duties, hours employee is expected to work, recording hours (for non-exempt FLSA employees, don’t forget to address tracking cel/Blackberry usage), virus software updates, backing up company information stored/created remotely, protecting employer’s confidential information, especially information relating to customers and consumers,  the physical location of where work will be performed,
• Under what circumstances, if any, the employer may visit the remote office;
• The duration of the telecommuting assignment or provisions for cancelling it;
• What equipment and reimbursement, if any, the employer will provide (as noted above, keep business info on business equipment). This should also include those relics called paper, pens, envelopes, etc.;
• Provisions concerning the employee’s agreement to keep all employer provided equipment in good working order and returning it to the same condition;
• A provision providing that the employee agrees that access to the employer’s network and all information owned by the employer will not be misappropriated by the employee and will not be used for the employee’s own personal benefit. Also, if a telecommuting employee’s employment status  changes, don’t forget to change the locks to the network (you may laugh, but it happens); and
• Specifying the applicable jurisdiction, which is especially important in the context of telecommuting and an ever flattening global economy.

There are a number of reasons why expanding the “position” of your workplace in today’s global economy may or may not make sense. If it does fit into your business strategy, then the starting point for reducing risks and maximizing returns is implementing a written policy addressing the fundamental aspects of the telecommuting relationship. This policy, of course, should be done in consultation with competent legal counsel (sorry: my legal malpractice carrier makes me provide these reminders).

I’m interested in your experience with telecommuting and suggestions you may have. Thanks.

Enter the Digital Dragon: Michigan Adopts E-Discovery Amendments to Civil Court Rules

The process by which Bruce Lee revolutionized the martial arts world provides valuable insight for business organizations in responding to the January 1, 2009 Amendments to the Michigan Court Rules. These amendments expressly require litigants to address electronically stored information (ESI) or — as it is often referred to — e-discovery. Click here for a copy of these amendments.

In regard to Bruce Lee, in 1964 he was challenged to a fight by a Hong Kong martial artist, Wong J. Man. This challenge was accepted and Lee, of course, won. But Lee was disappointed in his performance because the fight lasted too long (approximately 3 minutes!). This disappointment resulted in Lee looking at his fighting style, Wing Chun, and what was effective, what was ineffective, and how it could be improved by researching other combat styles. Ultimately, Lee  synthesized his analysis and research, which borrowed heavily from Western Boxers Jim Driscoll and Jack Dempsey and the fencing genius Aldo Nadi into a “new style” he called “Jeet Kune Do,” or the “Way of the Intercepting Fist.”

While incorporating a thing or two from the likes of Lee, Driscoll, Dempsey (and I guess the French guy) into my business law practice would likely expedite resolutions, there are more practical (and less risky) take-a-aways for defending the Digital Workplace in response to e-discovery rules:

First, companies subject to Michigan state court jurisdiction should evaluate their litigation strategies under Michigan’s amended rules. These rules substantially follow the 2006 e-discovery amendments to the Federal Rules of Civil Procedure and, accordingly, address how ESI should be preserved, produced, allocation of e-discovery costs, use of claw back agreements, and form of production. The new rules also include a “safe harbor” provision intended to protect parties who, in good faith, inadvertently delete ESI relevant to litigation. This Safe Harbor provision is especially important for corporate clients and with respect to sanctions. Michigan is one of approximately 19 states that have added court rules to address e-discovery.

Second, while litigation under e-discovery rules is slightly less than mildly interesting, it takes on a sudden significance when you consider that 25% of the approximately 138 reported e-discovery opinions issued under the federal rules from Jan. 1, 2008 to Oct. 31, 2008, 25% concerned sanctions (including $8,568,633.24 in sanctions against a party and a referral of its inside and outside counsel to the State Bar of California for further investigation and possible imposition of sanctions). See my prior post: The Silver Bullet for Business Success. So the well-reasoned take away for business organizations and their attorneys is, don’t screw up.

Third, and borrowing from a black belt management guru, Peter Drucker said, “[t]o defend yesterday is a larger risk than to create tomorrow.” A black belt legal strategy will go along way in minimizing the challenges and leveraging opportunities under both Michigan and federal e-discovery rules. Hopefully it won’t take a litigation fight that lasts too long for business organizations to  revise yesterday’s legal strategies to address today’s challenges under both state and federal e-discovery rules.