How Telecommuters Drive Home the Need for Confidentiality and Privacy Policies

This week we get to meet Well-Meaning Willie (“Willie”), a consultant engaged by Corporate Confidential (“Corporate”) to help them protect their data and trade secrets and address  privacy issues.  Willie has come up with confidentiality policies and procedures that everyone must follow. Willie also, with the help of an attorney, (and previous posts here, here and here on The Emplawyerologist ) drafted a confidentiality agreement that all employees must sign. (Click here if you wish to pause and learn a bit more about the pros and cons of telecommuting arrangements.) Corporate’s officers and managers are feeling pretty smug right now, but they shouldn’t–not yet, anyway. There is one key area that Dave missed, and it’s not entirely Dave’s fault. Dave didn’t ask about it and Corporate didn’t tell him. What did they miss? Both Corporate and Dave overlooked Corporate’s telecommuters. Let’s take a look at how telecommuting and privacy and confidentiality issues intersect after the jump…

What are the privacy concerns? You have access to your employees’ workspaces when they work on your  premises, but what happens when their homes become the workspace? We all have a reasonable expectation of privacy in our homes.  If your telecommuting employees  use the internet and email from their own home to do their jobs (and particularly if they are using their own equipment) they might well retain a reasonable expectation of privacy. Now, before you throw in the towel on telecommuting (which, you learned here that you may have to allow from time to time) there are things you can do to ensure that you still have access to company information and  property and that you can still make sure your employees are working when they should be and not putting the company at risk.

First, as I’ve mentioned in previous posts, you need a telecommuting agreement, in which you address all the issues and potential issues. You can condition allowing employees to telecommute on them granting physical access to their home office. (We already established here that you need for them to designate a particular space within their home as their office). You can agree on the times and conditions under which you will have access. Your company may have email, voicemail and internet usage policies. Does your telecommuting agreement specifically state that those policies apply to telecommuters? If so, do you actually have the means to enforce them? Whose equipment does the employee use? If they use their own equipment your agreement should stipulate how and when you have access to it and how and when you may monitor their activities using it. Alternatively, you might want to provide company-issued equipment, with provisions as to the employee’s responsibilities.

What about confidential and proprietary information or other employees’ personal information to which the telecommuter may have access? It’s relatively easy to protect such information when it (and your employees) are all in one place, but how do you control access when they work from their own homes? Admittedly, some of that is an IT issue. If you just write it off as an IT issue though, you could then have a legal issue. What to do? Again, consider requiring all employees to work on company-issued equipment, especially if s/he will have access to highly sensitive information. Company-issued equipment can be remotely linked to the company’s computer system  so that the company can monitor use and control access. (I’m sure I’m not using the right technical terminology, but I’m not an IT expert, so work with me, OK?)  If you can’t provide company laptops, phones,  etc,  then you will need those employees to consent to installation of appropriate security software on their computer system. You will also need their consent to access their system to ensure that software used for work is installed (and used) in compliance with all licensing agreements.  Again, you can make consent a condition of being allowed to telecommute. Whether or not you are issuing the equipment they are using, you will need consent for access and monitoring.

What if your employee is involved with development or invention of new products or processes? You may have a work-for-hire or similar clause in your employment agreements, but how does that work with a telecommuter? How do you determine when a product or process was developed using company resources or on company time when that employee works out of his or her home? Hate to sound like a broken record, but go back to the telecommuting agreement and get some stipulations in there! If you don’t, your employee may develop an idea or product that you know but cannot prove s/he did on company time, using company resources–which effectively means the employee and not the company will own it.

We still have one more base to cover: the occasional telecommuter.  You also need to train, write and implement policies and procedures with them in mind. For example, the employee who calls out because his or her child is sick and s/he wants to work from home that day probably does not have company-issued equipment and will not be connected to the company system. If you email that employee and s/he retrieves the email and documents from the home computer system, have you now compromised the confidentiality of that information? Maybe–and that confidentiality can be further compromised depending on what the employee does with that information after s/he receives it.

Does this mean you should not allow teleworking? Not at all!  The confidentiality and   privacy issues are there no matter where your employees are doing their work.   As with any business and with any work arrangement, you will want to discuss your specific needs and concerns with your IT people, and, of course, your attorney!

This teleworking topic has lots of twists! How about this one: What happens when the company office is in one state and you have telecommuting employees that live/work a few different states? Tune in next week to find out! Meanwhile how about another cute video clip on telecommuting and the teleconference:

Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an atorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.

Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.

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