District leaders find themselves in chaotic and unfamiliar circumstances.  Many spend days addressing how to effectively feed students, how to support students through distance learning, and how to plan for an unknown future.  During this time, districts must still ensure they are meeting their obligation as an employer and effectively leading, managing, and supervising employees who are working in ways that were unexpected just weeks ago.

In monitoring and guiding employees working remotely, establishing clear procedures and processes and including explicit expectations about work hours and work product can assist districts in their obligation as an employer.  Below are several areas of consideration that should be included in a telecommuting policy or telecommuting agreement.

Acceptable Use Policies

District employees using district-provided technology – whether hardware or software –including district networks, emails, and applications, are included within the parameters of the district’s Acceptable Use Policy (“AUP”).  This means that even if staff are using their own personal device (e.g., mobile phone, laptop, etc.) and internet, but using district-provided applications, using district provided e-mail, and logging into district resources (e.g., Google Drive), the AUP applies to the employee’s actions.

Each AUP is unique and addresses the individual need within a district; however, this is an appropriate time to review your AUP and ensure that several key elements are included, such as:

• Limitations on sites that can be visited;
• Restrictions on copying software;
• Prohibition against using another individual’s account;
• Prohibition against using technology for non-district purposes; and
• Implementation of a “civility” policy or guidance related to appropriate language and content in e-mails and electronic communications.

Districts should consider including “bring your own device” (BYOD) elements into the AUP, or developing a separate BYOD policy.  This policy would incorporate restrictions and advisements against using personal software applications for district business or require license verification for software applications employees utilize on their personal devices for completing district business.

How to Track and Monitor Employee Work Time

As supervisors learn how to manage telecommuting employees it is important to begin with fundamentals, including, but not limited to:

1. Establish employees’ expected hours of work. Such hours should be as consistent as possible.  Amongst other things, supervisors should also address how absences are expected to be reported, and establish that any overtime worked must have advance approval by the employee’s supervisor. Questions you may consider asking include: When is the employee expected to be “logged in” and working?  Will the employee take pre-scheduled breaks?  Should the employee notify their supervisor when they are taking a lunch break?  When will the employee be considered “done” working for the day?
2. Establish how employees will check-in with their supervisors, including how often. Questions you may consider asking include: Are employees expected to contact their supervisor with project updates on a weekly basis?  On a daily basis?  Should employees notify their supervisor when they have “logged in” for the day, and when they are “logging” off?
3. Consider discussing any new or altered duties that have occurred as a result of the COVID-19 pandemic and the transition to telecommuting and distance learning.

Assessing Home Setup Capabilities

Employees should be advised to maintain appropriate and safe workspaces at home.  For example, because injuries sustained by an employee in a home office location and in conjunction with their regular work duties may be covered by workers’ compensation, employees should be advised to maintain a hazard-free working environment while telecommuting.  Additionally, employees should be advised that they are responsible for notifying their supervisor of any work-related injuries as soon as practicable.

Additionally, with regard to the propriety of employer-issued equipment, or personal equipment that will be used for work, employees must be advised that they are expected to abide by good network security measures, including regular password maintenance and any other measures appropriate for the job and the environment.  Employees should also be advised to inform the district if any issues, including potential unauthorized access to information, are experienced while telecommuting.

Using Zoom / Google Meet / Others for meetings

If employees are using platforms such as Zoom, employees should be reminded to review their account security settings, and be advised as to best practices for scheduling meetings, and distributing meeting links and passwords. 

Reimbursement Issues

Education Code section 44032 provides that the governing board of any school district shall provide for the payment of actual and necessary expenses of any employee of the district incurred in the course of performing services of the district, whether this occurs within or outside the district.  Many employees now find themselves working from home, incurring necessary expenses (e.g., internet access, personal phones) to complete their required daily work.  If it is possible to determine an employee’s actual and exact usage, this may be the easiest and most accurate way to reimburse the employee for the expense.  The actual cost of an employee’s use of technology may be difficult to determine when the employee uses technology for personal and business reasons when working remotely, particularly when an employee has an unlimited minutes/texting plan, or unlimited data usage.  In such situations some reasonable percentage of the expense should be reimbursed. 

While districts must reimburse employees for the actual and necessary expenses of any employee for remote work expenses incurred as a result of performing services for a district pursuant to Education Code section 44032, a district may consider various different methods of reimbursement.  Some districts are considering a monthly stipend and others offer a fixed percentage of an employee’s expense.  No matter the method used, a district will likely be required to reimburse employees for a reasonable percentage of the expenses incurred, even if the employee would have incurred the expenses in the absence of working remotely.  The actual and necessary expenses to be reimbursed may vary depending on the employee’s position and the services to be provided.  We note that such changes may have collective bargaining implications.

Developing a Telecommuting Policy

To ensure equity in work and expectations, districts should consider implementing a clear telecommunicating policy.  The policy, negotiated with employee bargaining units, should include specific expectations and guidelines for staff telecommuting, while recognizing that there may be some individual circumstances requiring modifications.

Typical components of a telecommuting policy should include, but not be limited to:

• Clarification about receipt of pay and benefits including salary, retirement, vacation and sick leave benefits, and ensuring that insurance coverage shall remain the same;
• Identification of the range of job duties that should be completed;
• Expectation regarding the level and availability for communication;
• Communication regarding expectation for work day hours, including whether modifications are permitted and how they are arranged;
• Identification of technology available and expected to be used;
• Employee obligations related to ensure the safety and security of technology and data while working remotely; and
• Identification of the expectation that employees must provide a safe work area.

Working from home inherently changes the workplace dynamic for employees.  Nevertheless, employees are expected to continue to adhere to all district policies.  Employers are certainly facing unique challenges in implementing effective “work from home” policies quickly, but keeping the above in mind while doing so will help ensure your bases are covered.

The information above provides general guidelines and is meant to assist you in developing compliant and lawful practices to support employees who are working remotely.  If you have specific questions, please contact the authors or the AALRR attorney you regularly work with.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

©2020 Atkinson, Andelson, Loya, Ruud & Romo