Classic “he said/she said” exchanges are typically at the root of such full-blown legal conflicts between workers and managers; these usually result from improperly trained managers and poor communication on both sides.
What can you do to avoid trouble before it starts? If your company is new to telework arrangements, develop a specific legal telework policy you can turn to if things get out of hand. And if you’ve already drafted a legal policy, be sure to review it periodically and make tweaks and updates based on feedback from employees and your human resources and legal departments.
Take the case of former Aetna Life & Casualty employee Virginia Daley, who sued the company claiming she was fired because she asked her supervisor to let her telework one day a week soon after the birth of her son.
Although Daley had returned to work full-time, she soon yearned to spend more time at home, as well as well as cut down on her daily two-hour commute. When she broached the subject of telework with her supervisor, he denied her request, arguing, according to Daley, that one’s private and professional lives should be kept separate, and that Daley should “get a nanny” to care for her child.
Soon after, and during the course of a routine session with a human resources representative, Daley expressed her strong desire to work one day a week from home. When the HR officer discussed the remark with Daley’s supervisor, she said her supervisor challenged her for “going over [his] head.”
According to Daley, from that point on, she continued to perform her job well but was unable to please her supervisor. In frustration, she wrote a letter to Aetna’s CEO suggesting that there was room for improvement in Aetna’s policies, which, in turn, further enraged her boss. A year from the time she first requested a flexible work arrangement, Daley was fired.
Aetna, recognized as a bellwether for flexible work arrangements, claimed the firing had nothing to do with Daley’s request to telework nor her writing the letter to the CEO, but was the result of poor performance. However, during the time of the conflict, Aetna was in the process of downsizing its operation, and had elected to keep Daley in her position.
Although a jury ruled in favor of Aetna in 1994, subsequent motions and appeals kept the case in court until a Connecticut Supreme Court upheld the jury’s ruling in August 1999. All in all, the case of Aetna v Daley dragged on for eight years.
Make a Plan
According to C. Andrew Head, an employment attorney and author of the report “Telecommuting: Panacea or Pandora’s Box?”, telework arrangements can create a host of problems for employers as well as for the courts, which must reconcile the evolving telework paradigm with employment laws dating back to the 19th century.
Besides drawing up a written legal agreement before dispatching any workers home, Head lists the following important considerations that can help you and your employees avoid future conflicts while embarking on telework situations:
* Identify the jobs in your organization that are suitable for remote working, and produce job descriptions detailing the essential functions for those positions.
* Create legitimate, nondiscriminatory selection guidelines for granting telecommuting privileges to employees.
* Document equipment expenses, technical support, training, and courier or express mail services, as well as space, facilities, furniture, or equipment provided for the telework position.
* Determine whether the employer or the employee is responsible for insuring equipment and the home work area.
Besides these guidelines, Head says there are three common telework pitfalls managers and workers should make every effort to avoid.
Never use telework as a solution for a problem worker. Performance problems exhibited in the office are not likely to improve at home. Specifically, Head cites the case of an employee with chronic attendance problems who viewed working from home as a remedy.
When the employer refused to grant a telework arrangement, the worker sued the company, but lost the case. The judge ruled that the company’s flex-time policy needn’t apply in a situation in which the employee was expected to do his job during normal business hours.
Second, severe conflicts may stem from a lack of control, either real or imagined, on the part of the manager. Often the work-at-home employee is thought not to be working at all.
Another root of potential conflict comes from the manager who takes an “out of sight, out of mind” stance. Consider the case of Ellen, a software developer who had teleworked for a construction company for years. When a new supervisor joined the company, Ellen’s attempts to communicate via e-mail and phone were ignored, and before long, the boss attempted to eliminate her position. Although the supervisor offered to let Ellen continue her position from company headquarters, that would have entailed moving out of state, so she opted to leave the company instead.
Although Ellen never considered taking legal action against her former employer, she regrets the loss of her telework position.
Greasing The Wheel
A no-nonsense legal policy goes a long way toward helping you sidestep worker-manager conflicts, but so does a detailed communications policy. If possible, require new teleworkers to spend time in the office initially, both to establish contact with colleagues and to help them feel part of the team. Moreover, make sure teleworkers come in for meetings, face-to-face sessions with managers, and even social occasions.
Telework: More Than Just a Perk
According to a recent survey conducted by the International Telework Association & Council (ITAC), employers sent more than 19.6 million workers home last year, bringing the total number of teleworkers to 10 percent of the U.S. population.
The report cites three factors in the increase: the Internet, technology, and “work/life choices.” With fast and inexpensive access to the Internet and a wide range of technology options, such as cell phones and notebook computers, the report says telework is increasingly being recognized not as a perk, but as a necessary component of the modern office.