When Dr. Warren Brown took a job starting in March leading a small private foundation, he suddenly found himself needing to get current on remote workplaces. Here, he shares his research and draft plan in detail to help inform others. For nonprofits, there is lots to consider in this realm as we move forward, so stay tuned as we explore the topic more deeply in the next few months, including in our September 24 webinar, Tech Policies for Virtual Teams. NPQ encourages article submissions or pitches in this realm, and particularly on the topic of workforces that are split between being eligible to telework and not.

College Spark Washington is a six-employee, private nonprofit foundation that provides grants for education reform. I became the new executive director for College Spark Washington on March 23, 2020, and since my first day, all the staff were teleworking due to the pandemic. During my orientation from the retiring executive director, she noted that due to the pandemic and Washington State’s “stay at home” order, she reluctantly allowed employees to telework through the organization’s inclement weather policy. Since she was against teleworking, the organization did not have a telework policy nor a broader policy on alternative work schedules. With this reluctance, she felt evoking the inclement weather policy, which allows employees to work from home only if their child’s school was closed, met the urgent pandemic response.

As the retiring executive director was walking out the door, she handed me a file of her notes on alternative work schedules and teleworking. In that file was an article critiquing all forms of alternative work schedules. Bird (2010) claims that employers believe in an unscientific generalization on the benefits of alternative work schedules. More specifically, Bird (2010) states that prior teleworking research had “passing consideration to its costs, implications, and the substantial and decidedly missed prior research on the subject” (p. 1079). Since literature in this field often frames teleworking and telecommuting within the broader context of flexible work environments, the paper will integrate the terminology.

Just last week, the State of Washington’s “stay at home” order expired, allowing employees to gradually return to work over the next two months. At the same time, I have heard from my staff that they wish to continue teleworking into the future.

The purpose of this paper is to interrogate the literature to determine if my thesis, that telework is a positive benefit for both employees and the nonprofit, is correct. I will do this by comparing human resources literature versus legal literature, and then noting research based best practices for developing a telework policy.

Flexible work arrangements from a human resource perspective

Based on the Bird (2010) article, it is evident that there are conflicting thoughts about the efficacy and advocacy in having employees telework. However, a closer examination from the human resources literature note significantly more advocacy for an organizational telework policy. The Gallup Organization (2017) has the most complete research methodology on this topic, as they periodically conduct interviews with over 100,000 respondents regarding the work environment. Their most recent report indicates strong empirical support for a majority of worktime being telework as “optimal engagement boost occurs when employees spend 60 to 80 percent of their time…working remotely most of the time but still getting face time with managers and coworkers” (The Gallup Organization, 2017, p. 153).

In regard to telework’s efficacy, research indicates that because there is a higher degree of autonomy and control for an employee while they are teleworking, there is a corresponding higher level of quality and fewer errors in their work (Hsu, Chen, & Shaffer, 2019).

Although teleworking provides support for employees to balance their work-life commitments, it creates greater permeability between the two, which can increase family level stressors. Ollier-Malaterre, Jacobs, and Rothbard (2019) note that employees need to be supported in complex home intrusions of work technology, “boundary management can best be understood as a multidimensional construct involving time, space, and relationships, and we point out that adjusting to a more intensively connected world requires considerable effort to manage” (p. 445).

From the human resources perspective, although there are cautions to the intrusiveness of work duties while at home, the majority for the research indicates strong advocacy and efficacy for employers to support teleworking employees (Hsu, Chen, & Shaffer, 2019; The Gallup Organization, 2017). In a recent study by Choudhury, Foroughi, & Larson (2019) “workers are willing to accept eight percent lower wages in exchange for a remote work option, suggesting that remote work policies are perceived as a valuable non-pecuniary benefit by employees (p. 10).” Thus, the conclusions from Bird (2010), are dated and not substantiated in current human resources research. The next section explores the legal and risk management issues that must be addressed for a successful telework policy.

Telework from a legal and risk management perspective

As many nonprofits directed that telework occur as a response to the pandemic, whatever current telework processes will set a future precedent for telework policies and employee accommodations. Even if nonprofits wish to extend regular telework practices, there are several issues that nonprofits need to consider from a legal and risk-reduction perspective.

As noted in the previous section, telework blurs the boundaries between our home spaces and workspaces, which may exacerbate work-life conflicts. This blurred boundary is due to mobile technologies. Having work emails and texts sent to your phone outside standard workdays, creates legal questions about when employees are expected to work. The law is beginning to address this issue through what is called legal “rights to disconnect” (Von Bergen, Bressler, & Proctor, 2019). For example, the New York City Council has drafted a regulation that curtails electronic work communications outside of normal work hours. Currently, the regulation has not yet passed given legal arguments that the US Fair Labor Standards Act and New York law already addresses exempt and nonexempt labor law (Von Bergen, Bressler, & Proctor, 2019). However, France and a few other countries are establishing such national laws.

Regarding the growing implementation of “rights to disconnect,” the Fair Labor Standards Act (FLSA) creates critical employment standards that nonprofits need to address. For example, Sudbury & Towns (1997) paraphrases FLSA 29 C.F.R § 785.12 by stating FLSA does not distinguish between work inside or outside the office. Thus, if the employer either knows or should have known about work conducted outside the office, those become compensable hours (Sudbury & Towns, 1997). Thus, nonprofits should have clear accounting for daily work hours for nonexempt employees and create policies that should restrict the telework hours for nonexempt employees (Sudbury & Towns, 1997).

Furthermore, under the Families First Coronavirus Response Act (FFCRA) nonprofits with under 500 employees must follow the new rules regarding sick leave. The FFCRA has another provision noted as the Emergency Paid Sick Leave Act (EPSLA) requiring that paid sick leave is allowed for up to 80 hours over a two-week period (Department of Labor, 2020a). The most relevant issue for nonprofits is to create a telework sick policy. This policy should clarify nonprofits’ attitudes regarding employees concurrently teleworking while they are also on paid sick leave (Sudbury & Towns, 1997). The FFCRA states, “to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available” (Department of Labor, 2020b). However, if the nonprofit permits teleworking but the employee is “unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave” (Department of Labor, 2020b).

Occupational Safety and Health Act (OSHA) provides some intriguing liability issues for teleworking. As Swink (2000) notes, “OSHA requires employers to use reasonable diligence to identify in advance possible hazards that may be associated with particular home-based work assignments” (p. 864). The test of liability is if the condition was known or should have been known by the nonprofit no matter where the work occurs. Thus, it becomes critical for nonprofits to know where employees conduct their telework and any potentially hazardous conditions (Wade, 1999). Furthermore, an injury occurs during telework, then the nonprofit must follow workers compensation laws. Even if the teleworking employee is intersecting personal and work tasks, there is workers compensation liability for the nonprofit (Guiler & Kelly, 2009).

Another significant legal issue regarding teleworking is the Americans with Disabilities Act (ADA). Qualifying employees and employers are subject to the regulation of the ADA through the Equal Employment Opportunity Commission (EEOC) (Dolch & Herson, 2020). What complicates ADA in the context of teleworking policy is legal interpretations are understood through case-by-case evaluations. “Although no court has held that telecommuting can never be a reasonable accommodation, many courts have ruled that, in specific cases under consideration, telecommuting was not a reasonable option.” (Kaplan, Weiss, Moon, & Baker, 2006, p. 432). However, other authors argue that if a job can be restructured, no need for immediate access to original documents, if the employee can be adequately supervised, and standard office technologies are available, then eventually courts will determine teleworking is an accommodation (Dwoskin & Squire, 2013).

Given space constraints, I am not able to provide additional examples of telecommuting laws and risk reduction issues. Pasini (2019) lists seven laws that can apply to teleworkers, but I will not be able to discuss the following: Family and Medical Leave Act (FMLA); Equal Pay Act; and Age Discrimination in Employment Act (ADEA). Yet, a model telework policy must address these legal implications.

Best practices for a model telework policy

Peters & Heusinkveld (2010) note “CEOs are shown to hold less positive attitudes towards teleworking than HR managers. Yet, CEOs appeared to be more likely to [give in] under pressure” (p. 125). Thus, supportive, positive, and proactive measures by executives are critical for the success of a telework plan (Bae, Lee, & Sohn, 2019). Leadership must embrace a contingent reward system, a holistic and clear policy, and focusing on work results versus time doing the work (Mayo, Pastor, Gomez‐Mejia, & Cruz, 2009). Through a comprehensive literature review, I was unsuccessful finding one source that captured all the critical human relations and legal telework issues into a policy recommendation. Thus, the following six themes captures the critical elements identified across the literature to build a successful telework policy:

Clarify who qualifies for telework, either based on job duties or employment type.
Update job descriptions to note which functions are essential in-office duties or can be conducted via teleworking. This also addresses the ADA test of legitimate business justification for telework accommodations.
Help employees manage home/work boundaries. Research notes that work-family dynamics are reduced. However, family-work dynamics can increase.
Clarify communication expectations between supervisor and employee. Review communications between non-teleworking and teleworking staff, given that research shows fewer helping behaviors from teleworking staff.
Ensure there is a common set of technology tools for teleworking employees and adequate off-site workspaces.

Make sure the work location is known, secure, and within the same state of the nonprofit.

Conclusion

Through interrogating the literature, comparing human resources perspectives versus legal perspectives, I was able to verify the efficacy, value, and legal considerations for telework policy. Using the best practices from the literature, I was able to draft a new telework policy (see appendix) and will present this to College Spark Washington for adoption.

Nonprofits are facing a litany of economic, health, and employment crises during the pandemic. Yet Vardarlier (2016) notes, “Employee trust and faith in an organization are the driving factors for morale and motivation. Therefore, the top management should lead policies to maintain employee trust, not only during crises, but also in normal market conditions” (p. 471). Although College Spark Washington was not proactive in the development of a telework policy, getting the policy completed at this critical time will help the nonprofit and employee morale.

References:

Bae, K. B., Lee, D., Sohn, H. (2019). How to increase participation in telework programs in U.S. Federal Agencies: Examining the effects of being a female supervisor, supportive leadership, and diversity management. Public Personnel Management, 48(4), 565-583.

Bailey, D. E. & Kurland, N. B. (2002). A review of telework research: Findings, new directions, and lessons for the study of modern work. Journal of Organizational Behavior, 23, 383-400. Doi: 10.1002/job.144

Bird, C. R. (2010). The four-day work week: Old lessons, new questions. Connecticut Law Review, 42(4), 1059-1080.

Choudhury, P., Foroughi, C. & Larson, B. (2019). Work-from-anywhere: The productivity effects of geographic Flexibility. Harvard Business School Technology & Operations Management. Unit Working Paper No. 19-054; Northeastern University School of Law Research Paper No. #3494473.

Delanoeije, J., Verbruggen, M., & Germeys, L. (2019). Boundary role transitions: A day-to-day approach to explain the effects of home-based telework on work-to-home conflict and home-to-work conflict. Human Relations, 72(12), 1843-1868.

Department of Labor (2020a). COVID-19 and the American Workplace. U.S. Department of Labor.

Department of Labor (2020b). Families First Coronavirus Response Act: Questions and Answers. U.S. Department of Labor.

Dolch, N. A. & Herson, B. A. (2020). Nonprofit Law. Urbana, IL: Sagamore Venture Publishing

Dwoskin, L. B., & Squire, M. B. (2013). Reasonable accommodation under the new ADA: How far must employers go. Employee Relations Law Journal, 38(4), 3-27.

Gallup (2020). COVID-19: A leader’s guide to developing a work-from-home strategy. Gallup Organization.

Gallup (2017). State of the American workplace. Gallup Organization.

Guiler, J. K., & Kelly, M. (2009). Don’t look for me, I’ll be working from Starbucks today: a review of regulations that may apply to off-site workplaces. SAM Advanced Management Journal, 74(2), 23-31.

Hsu, Y. S., Chen, Y. P., & Shaffer, M. A. (2019). Reducing work and home cognitive failures: The roles of workplace flextime use and perceived control. Journal of Business and Psychology, 1-18.

Kaplan, S., Weiss, S., Moon, N. W., & Baker, P. (2006). A framework for providing telecommuting as a reasonable accommodation: Some considerations on a comparative case study. Work, 27(4), 431-440.

Lautsch, B. A., Kossek, E. E., & Eaton, S. C. (2009). Supervisory approaches and paradoxes in managing telecommuting implementation. Human Relations, 62(6), 795-827. Doi: 10.1177/0018726709104543

Li, J., Ghosh, R., & Nachmias, S. (2020). In a time of COVID-19 pandemic, stay healthy, connected, productive, and learning: words from the editorial team of HRDI. Human Resource Development International, 23(3), 199-207. Doi: 10.1080/13678868.2020.1752493

Manager’s Legal Bulletin (2019, March 1). Check the map: Legal complications lurk when telecommuting crosses state lines. Manager’s Legal Bulletin, 33(5), 2.

Mayo, M., Pastor, J.‐C., Gomez‐Mejia, L. and Cruz, C. (2009). Why some firms adopt telecommuting while others do not: A contingency perspective. Human Resource Management, 48(6), 917-939. doi:10.1002/hrm.20322

Ollier-Malaterre, A., Jacobs, J. A. & Rothbard, N. P. (2019). Technology, work, and family: Digital cultural capital and boundary management. Annual Review of Sociology, 45(1), 425-447. https://doi.org/10.1146/annurev-soc-073018-022433

Pasini, R. (2019). Federal protections: 7 laws that may apply to remote workers. Virtual Vocations. Retrieved June 1, 2020.

Peters, P. & Heusinkveld, S. (2010). Institutional explanations for managers’ attitudes towards telehomeworking. Human Relations, 63(1), 107-135. Doi: 10.1177/0018726709336025

Rocco, D. A. (2014). Telecommuting as a reasonable accommodation: A remote possibility. Employee Relations Law Journal, 40(3), 48-52.

Smith, R. (2020). How CEOs can support employee mental health in a crisis. Harvard Business Review Digital Articles, 2-5.

Sudbury, D. A. & Towns, D. M. (1997). Traps for the unwary: Employment law implications of telecommuting. Employee Relations Law Journal, 23(3), 5-29.

Swink, D. R. (2000). Telecommuter law: A new frontier in legal liability. American Business Law Journal, 38, 857-900.

Vardarlıer, P. (2016). Strategic approach to human resources management during crisis. Procedia-Social and Behavioral Sciences, 235(10), 463-472.

Virgin Group (n.d.). Give the people the freedom of where to work. Retrieved June 1, 2020.

Von Bergen, C. W., Bressler, M. S., & Proctor, T. L. (2019). On the grid 24/7/365 and the right to disconnect. Employee Relations Law Journal, 45(2), 3-20.

Wade, D. (1999). The expanding workplace: Telecommuting and legal liability under OSHA, ADA, and Workers’ Compensation. Labor Law Journal, 50(4), 252-263.

Appendix: DRAFT TELEWORK POLICY (June 8, 2020)

College Spark Washington (CSW) supports the concept of teleworking and encourages the practice when it does not detract from the efficient and effective functions of the office. CSW recognizes the benefits of teleworking, which includes increased productivity, higher morale, and decreased traffic congestion.

CSW hires hourly, exempt, and non-exempt employees. Each of those employee types have different rules based on the Federal Fair Labor Standard Act (FFLSA) and The Occupational Safety and Health Administration (OSHA). It is the responsibility of both the employee and CSW to understand and apply those regulations, in general, but especially during the scope of teleworking.

CSW supports teleworking as sees that as an employee benefit when certain conditions are met to the satisfaction of the CSW Executive Director. These conditions include:

The regular workweek begins at 12:01 a.m. Saturday and ends at midnight the following Friday. The Foundation’s normal business hours are from Monday – Friday 8:00 a.m. to 5:00 p.m. If you are an exempt employee with an approved telework plan, you are permitted to telework based on the days approved in your plan and additional hours. If you are an hourly or non-exempt employee, and if you have an approved telework plan, under no circumstances will you be able to telework beyond the specific days and times noted in your plan. Non-exempt and hourly employees will be required to maintain a timesheet subject to the approval of the supervisor. If a CSW hourly or non-exempt employee is ill during an approved telework schedule, they must not work and must take the appropriate leave.
Teleworking is subject to written approval of the Executive Director and may be terminated by the Executive Director or the direct supervisor at any time.
Such issues as staffing needs, ensuring adequate coverage during normal business hours, availability for collaboration, performance history, and the nature of the job will be considered before approval of teleworking.
Requests to telework, as a disability accommodation are handled separately through the disability accommodation process.
Not all job duties are suitable for teleworking. Prior to approval of a telework plan, the employee and their supervisor will review and approve a modified job description noting which duties must occur in the CSW office.
Not all locations are suitable for teleworking. Employees will not be able to telework while they are outside of the State of Washington. Employees will not be able to telework at any location that has the potential of harm or hazardous conditions. The telework approval process requires the employee to identify the telework space and certify the safety of that location. If an injury occurs while teleworking report it immediately to the Executive Director.
Employees may be required to report to work on a telework day, if required by the supervisor. Hourly and non-exempt employees are subject to FFLSA if they are required to telework and report to the office in the same day.
CSW will provide appropriate office equipment and technology needed to complete your official job duties while teleworking. Property loaned to the teleworking employee must be returned by the end of the telework agreement. Employees are responsible for any intentional damage to loaned CSW equipment.
CSW employees should save all their files to the SharePoint site. Employees must prevent any unauthorized access to any CSW system and/or equipment. Employees must always take precautions necessary to keep proprietary and confidential information secured.
Teleworking provides great flexibility for the employee. Research has shown that it positively affects the work-life balance. However, research has also identified that it can be detrimental to the life-work balance. Teleworking is not a substitute for family care. Employees should maintain an appropriate separate workspace. If you are finding that life-work boundaries are stressful, please communicate with your supervisor and consult with the CSW Employee Assistance Plan.