Telecommuting Agreements: Key Drafting Considerations

This practice note addresses the purposes for entering into telecommuting agreements (also known as teleworking and remote working agreements), the essential components of effective telecommuting agreements, and practical drafting suggestions and tips.

The ongoing novel coronavirus (COVID-19) pandemic, and the shelter in place orders resulting therefrom, have forced numerous employers throughout the United States to implement or expand telecommuting programs. Such programs generally permit employees to “work from home,” subject to certain terms and conditions set forth in a telecommuting policy and in a written telecommuting agreement between the employer and the telecommuting employee.

A telecommuting agreement is meant to supplement, not replace, an existing employment agreement, though it will often include, and nearly always reference, terms and conditions from the employment agreement, such as restrictions on sharing confidential information, compensation arrangements, and termination.

Telecommuting agreements will also typically reference and incorporate an employer’s existing internal policies and protocols. However, because the nature of remote work (i.e., work performed outside the office) creates a unique set of risks from an employer’s perspective, a telecommuting agreement serves a separate and distinct purpose from a general employment agreement. Therefore, employment counsel must prepare an unambiguous and comprehensive telecommuting agreement with the same care as it would with a standard employment agreement.