Teleworking and Associated Legal Issues

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Table of Contents

Introduction
Problem Statement
Purpose of the Study
Limitations of the Study
Definition of Terms
Legal Aspects of Teleworking
Conclusion
References

Introduction

The COVID-19 pandemic has forced most organizations to consider teleworking. In the aftermath of the pandemic, the return to the usual way of working from the office has been slow due to social distancing regulations and inadequate office space. The advantages of teleworking have demonstrated themselves to many managers, and as a result, more companies now have a more significant number of employees who work remotely. Notable advantages of remote work include work-life balance, increased productivity, saving of time, and reduction of costs for office space for employers. Both employees and employers have special rights when it comes to remote work while at the same time not losing the privileges enjoyed by standard employers and employees. Since this discipline is relatively new, its laws and regulations are less known. One law that all stakeholders need to be familiar with is the Telework enhancement act which addresses the rights that a person who chooses to work from home must enjoy. Stakeholders must also familiarize themselves with various studies on the issue, although there are only a few to date.

Problem Statement

Numerous studies have been conducted to investigate the impact of virtual work on the broad experience of the employees. Hill et al. (1998) found that workers who chose to work from home had better morale and good work/life balance in comparison to those who worked in an office setting. The same study also found that the cost of equipment used for telework, such as laptops, continues to decrease while the cost of office space needed for work is constantly increasing. Thus, it is beneficial for employees and employers to go the remote work route. However, an unresolved issue remains when permission for remote work should be granted. Likewise, workers’ rights who operate remotely are not well defined, although the law states that they are the same as those who work from the office. The US should, however, borrow from specific external legislations like the Irish remote work bill. It should also ensure that issues such as teleworker’s occupational health, unaddressed legal issues in remote work, and how to maintain work/life balance are addressed.

Purpose of the Study

The main objective of this study is to define and discuss the significant legal issues that affect teleworking programs. As stated above, the scope of this study has been limited, and thus decision makers have few reference points. This study interlinks various legislations and studies with real-life legal issues that affect teleworkers and employers in the workplace. In doing so, the study will first determine how one achieves the status of being considered an employee. Secondly, the study will look at how excess work can be measured and how legislation can be implemented to limit it. This study also seeks to define and discuss issues of termination in remote work-specific cases as well as issues of civil liability. Finally, the study will examine the employee’s right to telework and the employer’s right to refuse to grant telework.

Limitations of the Study

This study relies on secondary data to address the legal rights concerning teleworking; thus, it had finite information. Additionally, there were no samples conducted for this study; therefore, deductive reasoning was used to come up with conclusions. This is always risky since the argument could be biased. The lack of previous contemporary research has also restricted this study. Thus, the secondary data collected was of insufficient quality and quantity. The time provided to do the study was also less than required; thus, some aspects could not be exploited fully.

Definition of Terms

Since aspects of teleworking differ from one organization to the other, there is no actual legal definition of the term teleworking. However, most people agree that it is a flexible arrangement where employees operate in any other place apart from the regular operation center of the organization (Baruch & Smith, 2002). Teleworking has benefits not enjoyed by people who work in a workstation. Studies show that individuals who work from home are healthier, and their well-being is also better (Montreuil & Lippel, 2003). Other words synonymously for telework are telecommuting, virtual work, remote work, working at home, and working at a distance.

Legal Aspects of Teleworking

Determining the Status of the Employee

Unlike definitions and components of remote working, the legal aspects of teleworking have been less studied. The employment relationships should continue unless the contracts are breached, termination period reachers, or both parties agree to terminate. As employment has evolved, the legislations have also evolved to keep with its changing nature. However, the distinction between employees and self-employed persons has remained narrow, and it is blurry when working from home (Baruch & Smith, 2002). The law clearly states that a home employee works like any other and is entitled to all employment rights (Viktorovich et al., 2020). The determination of whether a person is an employee is done using the control test. This is determined based on the supervision, choice of activities, and work schedule flexibility. A remote worker could fail to pass the control test due to some of the outdated requirements. The conditions are ineffective since the traditional in-office mindset of office work is used in drafting them.

Legal Interventions against Excess Remote Work

Another legal aspect affecting teleworking is the criteria for determining minimum wages and the number of hours an employee is legally supposed to work. In the traditional settings, it was easy to calculate the wage based on the hours done and still manage the maximum number of hours an employee will work. Montreuil & Lippel (2003) found that employees who worked remotely worked longer hours than those operating from a workstation. This is possible since an employee’s work schedule from a work setting is observable, but that is not the case in remote work. Many governments have failed to find regulations limiting this extra work, although the EU has had a somewhat working solution. Its work time regulations state that there should be the maximum number of hours worked in a week, there should be regulation on night working, mandatory resting periods, and four-week paid vacations every year (Baruch & Smith, 2002). Thus, all responsible bodies should take statutory interventions to ensure that employees are not overworked in these remote settings.

Issues on Dismissal

The issue of dismissal should not even form any part of the discussion of remote workers since they are employees, and general dismissal protocol should be followed. However, unique challenges make the dismissal procedure different for a remote worker. First, before one is dismissed, a notice is usually given, and the employee continues working until the end of the notice period (Kot, 2021). This has not been the case as many remote employees have had their roles and remuneration cut immediately upon dismissal. Secondly is the dismissal issue due to matters specific to remote work. Misuse of office equipment or exposing the organization’s data are issues that have led to the dismissal of employees that would have otherwise not lost their jobs. These are not in the contract but are expected as part of the professional competence of a worker. Legislations should, however, enforce that all factors that may lead to the dismissal of remote workers be explicitly explained in the contract.

Legal Aspect of Civil Liability in Remote Work

Apart from determining when a remote worker is at work, there is another concern concerning civil liabilities in remote work. According to the common law, every employer has a duty of civil liability towards their employees. If they break that duty of due care, they are liable to be sued and pay any losses the employee may receive (Pearce, 2018). However, employees may easily refuse to take liability for injuries or losses incurred in a teleworking environment (Weiner, 2018). This raises concerns about the work time and how the litigations for such cases are addressed when injuries occur. In the traditional sense, injuries caused by work were easily identifiable. However, it is now hard to determine long-term injuries such as illnesses caused by strain. The law is unclear on how this problem can be addressed, and further research needs to be done.

Right to Teleworking

Different state legislation and bills support the Telework enhancement act. According to this law, every employee has a right to be granted permission for remote work (Rosenberg, 2021). If this bill is introduced and passed, employees will have a right to approve or refuse to accept remote work. Under regulations in the telework enhancement act, companies will have to set formal documentation that workers can use to request remote work. After receiving an employee’s appeal, the worker can send another plea for the same in 24 hours. According to this act, employees are only liable to apply for remote work if they have worked in the organization for more than six months (Rosenberg, 2021). This does not mean that employees who have not worked for less than six months cannot be allowed to work virtually. An employee can file an appeal with relevant institutions should the employer refuse to grant their request. This act states that no worker should be penalized for requesting to work remotely.

Right of Employer to Refuse Requests for Teleworking

Laws in different states give reasons employers may refuse to grant their employee’s requests for teleworking. For apparent reasons, whenever the worker needs to be physically available in the workstation, the employer can refuse the request for remote work. Employers sometimes cannot reorganize their work among the remaining staff to merit one to leave for remote work. If this condition is met, the manager can refuse the request. Some employees deliver poor quality work whenever given a chance to work remotely (Arnow-Richman, 2020). There are also some occupations where it is almost impossible to deliver good quality output when working from home. If the quality of work is sure to be poor when done remotely, then the employer has the right to refuse to grant permission for the work.

Some employees’ home environments are not ideal for work, and working from a public place may also prove problematic. In the case that telework negatively influences the level of performance of staff, the organization is granted permission not to grant it. Structural changes comprise changes in management, employee hierarchy, and departments and affect almost all employees in an organization (Boshoff, 2020). The remote work bill permits the refusal of telework should the organization be in the process of implementing such changes. However, remote work is generally more cost-effective on rare occasions the burden increases. If such a case happens and adopting remote work is costly, the employer can deny requests.

When the employer is sure that their business’s intellectual property and confidentiality will be risked by remote work, then they are allowed by the law to refuse to approve the request for virtual work. Similarly, they may be concerned about their employees’ health and safety. The employer can refute the remote work requests if there are such concerns. In some cases, the manager may need to physically visit the place where telework is done (Aloisi, 2022). The bill permits the employer to refuse the request when the distance is deemed very far from the onsite location. The bill also allows refusal for remote when where genuine data concerns arise. Since remote work necessitates a good internet connection, people who reside in locations that do not have it should be granted permission, according to the bill. If the agreement when signing the contract conflicts with the request for remote work, then the employer has a right to say no to the request. Finally, if the employee has an ongoing or recent disciplinary case, their request for remote work may be declined.

Conclusion

Both employers and employees need to be protected when it comes to issues concerning teleworking. However, although this form of work started long ago, the study and implementation of legislation on remote work have been slow. This paper found some significant legal issues concerning teleworking through secondary sources and laws. First are the primary legal aspects of teleworking, such as the number of working hours and how they are handled, civil liability concerns, legal issues on dismissal, and legally determining the status of an employee. The study also examined the legal aspect of an employee’s right to telework and when employers can refuse to grant this offer. This study raised more questions than answers concerning the scope of telework; thus, more research needs to be done on the topic.

References

Aloisi, A., & De Stefano, V. (2022). Essential jobs, remote work, and digital surveillance: Addressing the COVID‐19 pandemic panopticon.International Labour Review, 161(2), 289-314. Web.

Arnow-Richman, R. S. (2020). Is there an individual right to remote work? A private law analysis. ABA J. of Labor & Emp. L. (forthcoming 2020), University of Florida Levin College of Law Research Paper, (20-46).

Baruch, Y., & Smith, I. (2002). The legal aspects of teleworking. Human Resource Management Journal, 12(3), 61-75.

Boshoff, W. H. (Ed.). (2020). Business Cycles and Structural Change in South Africa: An Integrated View. Springer Nature.

Hill, E. J., Miller, B. C., Weiner, S. P., & Colihan, J. (1998). Influences of the virtual office on aspects of work and work/life balance.Personnel Psychology, 51(3), 667–683. Web.

Kot, M. K. (2021). Social and legal aspects of remote employment. In S. I. Ashmarina and V.V. Mantulenko (Eds.), Current achievements, challenges and digital chances of the knowledge-based economy (pp. 719-724). Springer, Cham.

Montreuil, S., & Lippel, K. (2003). Telework and occupational health: A Quebec empirical study and regulatory implications.Safety Science, 41(4), 339–358. Web.

Pearce, J. A. (2018). The future of independent contractors and their status as non-employees: Moving on from a common law standard.Hastings Bus. LJ, 14, 1. Web.

Rosenberg, M. B. (2021). Federal Telework: Key Practices That Can Help Ensure the Success of Telework Programs.Defense AR Journal, 28(3), 351-351. Web.

Viktorovich, K. E., Rozentsvaig, A. I., Bakhteeva, E. I., Soshnikova, I. V., Sherpaev, V. I., & Novikova, Y. A. (2020). The development of remote workers with disability for the entrepreneurship system. Journal of Entrepreneurship Education, 23(1), 1-10.

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