Ask a Zenefits Advisor: How Can We Set Up a Fair Telecommuting Policy?

Bud Bowlin has been advising business owners about health insurance and benefits for more than 35 years. For his 70th birthday, we gave him his own advice column. Got a burning benefits question for Bud? Send it to [email protected].

Hi Bud,
We’re a 15-person company in California. Since we’re small, many of us need to cover multiple aspects of the business (with and without direct supervision). We don’t have a very hierarchic organizational structure, and most of the time we’re quite flexible. Lately (holiday time), a few employees have been sending emails that they’re working from home that day. (This does not go over well with the management.) We don’t want to outright forbid the flexibility of working from home on rare occasions, but can we grant such a privilege to only a few selected employees without violating any employment discrimination laws?
Thank you,
Considering Allowing Telecommuting Employees

Dear C.A.T.E.,

With increased professional, social, and familial commitments this time of year, flex-time requests are definitely common. To answer your question—yes, in general, you can have a policy that permits only some employees to work from home. You’ll want any telecommuting to be tied to job description and functions, rather than who the employees are as people. The policy should include language making clear that all decisions are at management’s discretion, and that violations may result in disciplinary actions. No discipline should be imposed for anything that happened before the policy was written, and the policy should be enforced uniformly and fairly.
Larger companies need a more comprehensive telecommuting policy, but even at your size, you should ensure consistency and visibility by putting the policy in writing. Xerox and Aetna are two companies that view their decades-long telecommuting policies as a business strategy, not a perk. With 11% of Xerox’s US staff (8,000 employees) working remotely full-time, and 43% of Aetna’s staff (20,000 employees) telecommuting in some form, we can look to them for a little guidance in how to address your situation. Forbes reports that at Xerox, both employees and managers take assessments to determine if telecommuting is realistic. They then discuss the options together. Aetna evaluates remote working options based on the employee’s capabilities, the type of work, and the security of the home environment.
Advice for small businesses setting up telecommuting policies isn’t so different. Intuit urges small businesses to pinpoint several motivating factors that benefit the company and the employees, and then incorporate them into the telecommuting policy. The next step is to identify who will telecommute, echoing Aetna’s guidelines on which jobs can be performed outside the office and which workers have suitable habits and homes. Finally, trust isn’t built on out-of-sight/out of mind: managers should provide employees with clear job expectations and regular face-to-face check-ins using available technology.
Our colleagues across the pond also have some good guidance on telecommuting. The UK’s Employment Rights Act of 1996 gives every employee the right to ask for work flexibility after 26 weeks of employment. Employees can make a written request to change their work hours or location once in any 12-month period. Under the regulations, the request must include a statement of how the change would impact the employer and how, in the employee’s opinion, this could be mitigated. Looking to the UK legislation as guidance, we find that requests for flexibility may be rejected for one of the following business reasons: burden of additional costs; inability to reorganize existing staff or recruit additional staff; and detrimental impact on quality, performance, or ability to meet customer demand.
Hopefully, this column clarifies your legal rights in approving or rejecting telecommuting requests, and puts you on the way to developing a written telecommuting policy for the new year.

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