MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Dacey Romberg UCOR, Associate General Counsel
LAWYERS’ SUPERVISORY OBLIGATIONS AND TELEWORKING TIPS With the rise in vaccination rates, some firms are returning to the office. After more than a year of teleworking, many employers are instead reconsidering their structure and implementing more flexible telework policies. Wherever you are working (in an office or at home in your pajamas), we can all agree that COVID has changed how we work. One thing that should not change is lawyers’ supervision of their associates and staff. “Out of sight, out of mind” is not an advisable approach. Tennessee’s Rules of Professional Conduct require lawyers to supervise associates and non-lawyer staff. Rule 5.1 mandates that partners and lawyers in managerial roles must make “reasonable efforts” to ensure all lawyers in the firm conform to the Rules of Professional Conduct.1 Similarly, lawyers must make “reasonable efforts” to confirm that non-lawyers’ conduct complies with the lawyers’ professional obligations.2 In fact, a supervising lawyer can be responsible for associates’ and non-lawyers’ conduct if he or she ordered the conduct, knew of the conduct and ratified it, or knew of the conduct at a time when it could have been stopped but failed to do so.3 Therefore, lawyers should ensure that associates and non-lawyers who they supervise are adhering to the duties of confidentiality,4 competence,5 and diligence.6 Make sure your employees have a secure place to keep confidential documents and have a way to lock their computer screens when they step away from their home office. Teleworking employees should be instructed to have confidential phone calls in a private area of their homes. Additionally, check in frequently enough to make sure deadlines are being met. Finally, require associates and non-lawyers to keep up with training and accreditations. In addition to considering how telework impacts supervisory responsibilities under the Rules of Professional Conduct, lawyers and firm managers should establish teleworking practices that comply with the Fair Labor Standards Act (FLSA). Under the FLSA, employers must pay non-exempt (generally, this means non-salaried or hourly) employees for all time that they work and time and a half rates for hours worked over forty in a week. Employers must pay employees for time it requested the employee to work and time it “suffered or permitted” the employee to work.7 If the employer knows or has reason to believe that work was performed, it must pay for that time. Courts consider whether the employer should have learned about unapproved worked time through reasonable diligence.8 Having a reasonable reporting procedure for non-scheduled time and compensating employees for all reported hours (even those outside of the employee’s normal schedule) can establish reasonable diligence.9 This reporting system may be undermined if employers prevent or discourage employees from reporting their true time.10 If a reasonable reporting system exists and employees are encouraged to accurately report their time, employers do not have to investigate further to discover unreported hours.11
Employers should consider the following time-reporting measures: •
Establish a written policy requiring all employees to report hours worked at the end of each day;
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Include in the policy a prohibition on unauthorized overtime;
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Monitor compliance with the overtime policy and discipline employees for violations (still pay the overtime, at least for the first infraction);
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Use a software that allows employees to remotely submit their hours;
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Require teleworkers to sign an acknowledgment that they will accurately report all their time on this software; and
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Treat time that teleworkers spend driving into the office as worked time.
Finally, employers should consider the safety of their employees’ home offices. The Occupational Safety and Health Act of 1970 requires employers to provide a workplace free from recognized, serious hazards; record work-related injuries and illnesses; and comply with OSHA standards and regulations.12 Although home offices are considered “workplaces”, the Department of Labor has taken the position that it will not inspect home offices, expect employers to inspect home offices, or hold employers liable for home offices.13 However, teleworking employees’ work-related injuries or illnesses may have to be reported on the OSHA300 log.14 Additionally, home office injuries may qualify for workers’ compensation benefits. Because of these risks, employers should encourage employees to keep their home offices safe. Employers can provide resources for ergonomic work stations, require fire and electrical safety precautions (smoke detectors, clear access to exits, surge protectors, etc.), and create first aid kits for employees to have in their homes. 3 4 5 6 7 8 9 1 2
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Tenn. R. Sup. Ct. 5.1(a)-(b). Tenn. R. Sup. Ct. 5.3(a)-(b). Tenn. R. Sup. Ct. 5.1(c) & 5.3(c). Tenn. R. Sup. Ct. 1.6. Tenn. R. Sup. Ct. 1.1. Tenn. R. Sup. Ct. 1.3. 29 C.F.R. § 785.11-12. Allen v. City of Chicago, 865 F.3d 936, 945 (7th Cir. 2017). Id. Id. at 939. Id. at 945. 29 U.S.C.S. § 651 et seq. See OSHA Instruction, Directive Number CPL 2-0.125, “Home-Based Worksites” (Feb. 25, 2000). Id.
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646. August 2021
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