Teleworker, or teleslacker? Here's how employers can tell the difference.

You all know that I love telecommuting, although it works better in some instances than in others.

Before any employer starts a telecommuting program, it should ask itself three questions:

1) Does the job lend itself to a telecommuting arrangement? (You can't very well assemble Cadillac Escalades from your home office, now can you?)

2) Is the employee's home worksite conducive to work? Does the employee have proper equipment, or does she have a Commodore 64 with dial-up modem, and a rotary phone? (If the latter, are you willing to provide her with a decent set-up as part of the deal?) Is the home environment free of distractions?

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and the big one, which is really the one I want to talk about today . . .

3) Is this particular employee fit to telecommute? Can she work independently? Is the quality of his work satisfactory? Is she reliable and responsible? Is he motivated, even when the supervisor isn't nearby? Has she demonstrated personal integrity?

Telecommuting works with good, reliable employees, but it can be a disaster with lazy, incompetent, or dishonest ones. If the latter have not quite been fired yet (and, if not, you ought to be working on it), do NOT let them work from home.

This post was inspired by a recent Washington Post article about an internal investigation of the acclaimed "telework" program instituted by the U.S. Patent and Trademark Office. In 2012, four whistleblowers reported that patent examiners (the people who recommend whether your invention ought to have legal protection or not) were goofing off and totally getting away with it. The USPTO conducted an investigation* and found that many examiners were committing time fraud (i.e., not working when they claimed to be working and were getting paid to work), "end-loading" (more commonly known as procrastination), and "mortgaging" their work (when they had a deadline, they'd submit incomplete or shoddy work which allowed them to meet their quota, and then finish it up - if ever - after the deadline).

*According to the Post article, the initial USPTO report linked above was later "sanitized" before being submitted to the Inspector General of the U.S. Department of Commerce. (You may need a paid subscription to be able to access the full article.)

This, in an agency that has a backlog of 600,000 patent applications and a five-year estimated waiting period.

And patent examiners are not minimum-wage workers, either. They have scientific or engineering backgrounds, and average $79,000 a year. At the top of the pay scale, they may make as much as $148,000.

The moral of the story: Don't let your marginal employees telecommute. But how can you make sure that even the average and above-average telecommuters are really working when they say they are? Here are some things to watch out for, and some suggested solutions.

Time Fraud. When you call or send your employee an email, how long does it normally take for the employee to respond? Of course, the employee may not be able to respond promptly every time, but he ought to be able to be reasonably prompt and have a good explanation for any delays. Is the employee willing to share her cell phone and home phone numbers with you? If the employee has to leave in the middle of the work day, does he notify you in advance, with an estimated time of return? If she's interrupted during the business day, do you know that she usually makes up the lost time later in the evening, or on the weekend?

In the USPTO case, some patent examiners would reportedly disappear for hours and would not take calls or respond to emails. They also apparently either did not have cell phones, or did not provide the numbers to their supervisors. Granted, the nature of their work required them to study technical material without interruption. But they should have been accessible to their supervisors as appropriate under the circumstances.

It might also be a good idea to require the examiners to enter time each day with detailed descriptions of what they did. (It's harder to cheat when you have to affirmatively lie to do it.)

I'm proud to be a member of Constangy's new e-Law Practice Group, led by Nancy Leonard and Susan Bassford Wilson, which will help employers navigate the complex landscape of the digital workplace by combining legal acumen and technical expertise. The group will cut across traditional legal practice areas and provide help with issues like social media policies, electronic discovery and document preservation, online hiring processes, and much more - including dealing with teleslackers (tehe). You can follow us on Twitter at @eLawConstangy, and join our discussion group on LinkedIn.

"End-loading"/procrastination. This is waiting until the last possible minute to get your work done before the deadline, and then dumping it all on your boss at once. "End-loading" allows the teleslacker to take the entire production period off except for the very end.

In the case of the USPTO, the patent examiners had quarterly production quotas. Their supervisors said that some examiners completed reviews at rates of 500 percent or even 1,000 percent in the last two weeks of the quarter (which shows that they were capable of getting the work done when they had to). They turned in such a heavy volume of work so close to deadlines that the supervisors could not meaningfully review it, and as a result the Thomas Edisons, Bill Gateses, and Bette Nesmith Grahams of the world were not getting the consideration their work deserved.

I am an authority on the subject of procrastination, being (ahem!) "deadline-driven" myself. Here's what you do to deal with people like me: Require smaller chunks of the work to be turned in on a weekly basis, or even a daily basis. Make the deadlines a little artificially tight, although still realistic. Accept excuses only in the most dire circumstances. Don't praise employees who meet the deadlines - that just makes them think that being late is "less than ideal but still ok" instead of "completely unacceptable." Penalize the ones who miss the deadlines. No mercy! (Well, hardly any mercy.) Quickly enough, you will stop getting 12 weeks' worth of work in two weeks.

"I'll think about it tomorrow. . . . oh, fiddle-dee-dee! I guess I'd better do it now, or I might get fired."

"Mortgaging" work. This is beating the deadline by turning in sloppy work, and then fixing it later (after the work has already been counted toward meeting the quota). Easy solution: Incomplete or sloppy work will not be counted in the employee's quota and, unless there is a really good excuse, will also result in progressive discipline. The shorter deadlines discussed above ought to help with "mortgaging," too.

Those were the good solutions to teleslacking. Here are "solutions" suggested by some of the USPTO management that I think will NOT work:

Requiring employees to be signed into the VPN during work hours. First, this will not guarantee that they are working. Employees can surf the internet and goof off even when they're in the VPN. Second, VPN connections can be unreliable. Sometimes it's easier to get the work done on the "outside" and then email it back in when it's done. Your focus should be on whether the work is timely and of sufficient quality, not whether it's done inside or outside a VPN.

Requiring employees to be in their offices or at their home work stations during work hours. This is no guarantee against slacking (you can goof off in an office, and you sure as heck can goof off at home), and it unfairly penalizes employees who are doing their jobs.

Monitoring everybody. Too "Big Brother," as some of the honchos at the USPTO correctly noted. On the other hand, these same people didn't want to single anyone out, which I think is a mistake. To be fair and avoid discrimination, make sure you use objective and consistent criteria for determining who is an "alleged slacker" deserving of closer monitoring. It's fine to make distinctions among employees based on their accessibility, quality of work, and compliance with deadlines.

Did you notice how the good solutions do not require any special technology or systems upgrades? All they require is low-tech attentive management and a firm-but-fair hand. (Hmm . . . is that good, or bad?)

Some other Constangy publications from the past week that may interest you

Please, make it stop! Be sure to read Cara Crotty's latest on the proposed rule from the Office of Federal Contract Compliance Programs relating to the new "Equal Pay Report" requirement for federal contractors. What doesn't kill you will make you stronger.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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