In recent years, the practice of telecommuting (also known ...
Legal and Policy Considerations in Telework
C. W. Von Bergen, William (Will) T. Mawer, and Edward Hobbs
(sequence of authorship has not been decided)
Southeastern Oklahoma State University
Legal and Policy Considerations in Telework
Abstract
More and more employees are working outside of traditional on-site work environments in locations tied electronically to a central office. This telework or telecommuting practice has become an increasingly important employment tool, fulfilling key business needs while helping employees balance their work and personal commitments. Using the flexibility to work in a location other than ones official duty station when it is effective to do so is clearly the wave of the future, and for many employees and organizations the future is clearly here. As this telework trend grows, legal and policy issues surrounding this popular working arrangement have multiplied. This paper examines a number of key legal and policy factors employers should review before implementing telecommuting.
Legal and Policy Considerations in Telework
A teleworker, working on a company laptop in his
living room, takes a coffee break and goes to the
kitchen to make a peanut-butter sandwich. On his
way back to the work area, he trips and injures his
head on the laptop. Who is responsible for the injury?
While this may be a far-fetched scenario, in the real world of telework or telecommuting (the terms are used interchangeably) wacky things occur, and it would behoove organizations to consider adequately a number of issues before they hand their workers a laptop computer and a password to access the corporate network off-premises. This paper addresses legal and policy matters surrounding telework. It begins with a discussion of telework and its popularity, where telework occurs, key legal factors in telecommuting, and concludes with telecommuting policy considerations.
Introduction
Over the years, a variety of work structures have emerged and been considered by employers in an effort to attract and retain qualified workers while minimizing rising employee costs.[1] Additionally, due to shifting workplace demographics, organizations are examining various strategies to accommodate workers from two-income families, single-parent households, and employees taking care of younger and older relatives.[2] Furthermore, as the manufacturing sector of the economy discarded jobs, the services sector was adding them.[3] Manufacturing businesses traditionally house their operations at a “central office” site where employees are expected to report for work. While most service businesses also use their operations at a specified location, the need for employers to work at this central office is not nearly so obvious.[4] Indeed, the technology that allows service businesses such as banks, insurance companies, accounting firms, and retail establishments to work—email, fax machines, cellular phones, and laptop computers—also permits employees to communicate with customers and co-workers from any number of locations. Lastly, a recent set of enforcement guidelines published by the Equal Employment Opportunity Commission (EEOC) strongly encourages employers to consider flexible work arrangements for their workers in order to achieve greater work-family balance, particularly for individuals having caregiving and family responsibilities.[5] Thus, a number of factors including strategies designed to attract and retain valued employees, programs intended to meet the varied needs of a diverse workforce, a changing economic base, and regulatory pressures, demand consideration of alternative working arrangements. Not surprisingly, numerous practices that provide the flexibility needed by today’s workers and organizations have gained popularity in recent years.[6] One such activity involves telework or telecommuting and is the topic addressed in this paper.
Telework
Telecommuting is not new, but it has never been more popular. Today’s technology makes it easier to implement than in previous years, while today’s economic and social realities make it more attractive. With portable computers, high speed telecommunications links, and ever-present pocket communications devices, many employees today can work almost anywhere at least some of the time and no longer have to meet at their “official duty station” to conduct business. Instead, they can work in cyberspace just as effectively as if they were sitting next to their co-workers and, with advances in videoconferencing, teleworkers can feel particularly connected.[7]
Telework is the practice of using computer-based communications technology so as to enable work to be performed outside the conventional workplace from remote locations, such as the home, a ship, a hotel room, or anywhere an Internet connection can be made.[8]
To be considered telework, it must generally occur at least one day per week on a regular and recurring basis and does not include (1) situational telework (unscheduled, project-oriented, non- recurring, and/or irregular telework and/or any teleworking that occurs less frequently than once a week on a recurring basis) or (2) full-time mobile work arrangements.[9]
Growth of Telework
Years ago, telecommuting was used mostly by sales representatives and consultants, but today it is used regularly by many employees, such as researchers, attorneys, university professors, and people in a variety of creative positions (e.g., artists, photographers, and writers). The typical telecommuter is a middle-aged, college-educated, white male who owns a home computer and earns at least $40,000 per year[10] and while some individuals telecommute on a full time basis, most work at home for one or two days a week.[11] In recent years, telework has grown in popularity from an interesting, out-of-the ordinary possibility for some people to a mainstream reality for many. Research suggests that the federal government has been more receptive to telework than has the private sector.[12]
Recent data available from the U.S. Government (calendar year 2005) found that there were 119, 248 employees teleworking in the Federal Government and that over 70,000 or 60 percent of these employees teleworked with a high frequency of at least one or more days per week.[13] The Society for Human Resource Management’s 2007 benefits survey indicated that 56% of the 590 U.S. companies surveyed are offering some form of telecommuting in 2007, up from the 51% that did so in 2006.[14] According to the survey, 21% of companies let at least some workers telecommute full time, up from 19% in 2006; 33% let some employees work from home on a part-time basis, up from 26%; and 48% say they allow telecommuting on an ad hoc basis, up from 45%. Other data indicate that more than 12 million Americans now telecommute full-time, according to the Dieringer Research Group, which recently surveyed the trend for the International Telework Association & Council. Another 10 million telecommute at least one day a week. Combined, the ranks of these telecommuters have risen 10 percent since 2004.[15] Similarly, 22.2 million Americans worked from home or another out-of-office location at least one day per week in 2005.[16]
Telework Locations
A 2005 survey found that some 45.1 million Americans use broadband connections from various places to do work that they otherwise would have done in an office.[17] As shown in Figure 1, there are a wide variety of locations in popular use. Many people rely on more than just one, an average of 3.4 locations, in fact.[18] For many, their local Starbucks represents “the third space” beyond office and home, wherever a notebook computer, a wireless network, and a latte may be found. But, with a 60 percent increase in the availability of broadband connections in people’s homes, the home is the fastest-growing location.[19]
Figure 1. From where do people telecommute?[20]
[pic]
Benefits and Limitations of Telework
Both employees and employers enjoy the benefits of telework. For example, telework makes it possible for employees to avoid the hassle and expenses of daily commuting, which, in an era of congested roads and expensive fuel costs, can be dramatic. Employees working at home also enjoy saving money that they would have spent purchasing work clothing and buying meals in restaurants and from vending machines. In fact, it has been estimated that in 2005 each teleworker was able to save approximately $20,000 per year, taking into account all expenses.[21] Saving money is not the only reason why most telecommuters like the arrangement. They also enjoy the flexibility it gives them to balance work and family matters.[22] For example, over 83 percent of the 4,000 employees at IBM’s Midwest Division indicated that they are not interested in returning to the traditional office environment. Other findings showed that employees choose telecommuting to decrease work-related stress, to work longer hours but in more comfortable environments, and to provide uninterrupted time to focus on their work.[23]
Telecommuting also makes it possible for companies to save millions of dollars in expenses for office facilities.[24] At Hewlett-Packard, for example, about $230 million is being saved in annual office expenses. This occurs because companies are able to get more work done in the same space. Cisco Systems, for example, has so many teleworkers that it now takes only the physical space of 88 workers to do the work of 140 employees.[25] IBM also has been able to slash its office space by as much as 55 percent in some locations. As one might imagine, the savings are particularly important to small, start-up companies, which can hire workforces without having to make large investments in office space. Other data indicate that organizations adopt telecommuting, not only to save real estate costs but also as an attempt to improve employee morale and productivity, reduce absenteeism, and attract workers who might not otherwise be available.[26]
Importantly, telework allows companies to comply with governmental regulations (e.g., the Federal Clean Air Act of 1990[27]) requiring them to reduce the number of trips made by their employees. In fact, the federal government is a major proponent of telework.[28] For example, in October 2000, Congress passed the Department of Transportation appropriation bill,[29] which included a provision requiring every federal agency to allow eligible employees to telework to the maximum extent possible without diminished performance. The Office of Personnel Management and the General Services Administration have summarized a number of other telework laws for federal agencies.[30]
A particularly interesting and all-too-real reason to use telecommuting is to help businesses organize after a disaster strikes. After all, if an organization’s assets are spread out—as is the case if they are in the hands of employees who are geographically dispersed—they are less vulnerable to attacks by human threats (e.g., terrorist strikes, arsonists) and natural disasters (e.g., floods, hurricanes, and tornadoes).[31]
Despite these benefits, telecommuting is not for everyone; it also has its limitations.[32] Many people simply do not have the kind of self-discipline needed to get work done without direct supervision.[33] Critics argue that telecommuting arrangements are fraught with pitfalls, including employee isolation, lower productivity, and reduced teamwork and camaraderie.[34] It works best on jobs that require concentration, have well-defined beginning and end points, are easily portable, call for minimal amounts of special equipment, and can be done with little supervision.[35] According to a U.S. Department of Labor study telecommuting works best for jobs that demand a high degree of privacy and concentration, are predictable, and information-based.[36] In summary, telecommuting is an increasingly popular work alternative that can take place in a number of locations and has a number of benefits for workers and organizations. Telework also has some limitations and to make it more effective it requires careful adjustments in the way work is structured, especially as these relate to important policy and legal considerations as discussed in the following section.
Key Policy and Legal Considerations
With the advancement of technological innovations and a changing workforce, the practice of telecommuting will continue to grow and flourish. While telecommuting programs offer attractive alternatives to traditional work locations, they present legal challenges to employers because telework challenges traditional ideas of how work is structured. Not surprisingly, this phenomenon creates a host of problems for both courts and employers, who must reconcile the new telecommuting paradigm with employment laws that date back to the days of industrial factories. Foremost among these legal considerations are worker health and safety concerns, employment and labor issues, and implications for state and federal taxes. These were selected because of the broad impact such factors have on organizational performance and liability.
Worker Safety and Health Issues
The purpose of the Occupational Safety and Health Act of 1970 (OSH Act) is to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions”….[37] It requires these employers to provide employment and a place of employment that are free from recognized, serious hazards, and to comply with OSHA standards and regulations. [38] In order to fulfill their OSHA obligations, CSC Credit Services in August 1997 advised OSHA that it was about to require its sales executives to begin telecommuting from home. The sales executives were expected to work from a single room in their homes, using a desk, chair, file cabinet, telephone, computer, printer and facsimile machine. CSC asked OSHA to provide advice as to the nature and extent of the company’s responsibilities under the OSH Act with respect to these home-based sales executives. Two years after having received CSC’s inquiry, OSHA’s Directorate of Compliance Programs issued a letter of interpretation letter.[39] In that opinion, OSHA affirmed its position that the OSH Act applied to home-based workers and that employers ultimately were responsible for ensuring safe and healthful home offices.
An uproar followed regarding invasion of privacy and compliance issues that led the agency to rescind the letter just two months later. After the public outrage, OSHA issued a directive that set out the following major points on employers’ responsibilities regarding work performed at home:[40]
Policies for Home Offices[41]
1) OSHA will not conduct inspections of employees’ home offices;
2) OSHA will not hold employers liable for employees’ home offices, and does not
expect employers to inspect the home offices of their employees;
3) If OSHA receives a complaint about a home office, the complainant will be advised of
OSHA’s policy. If an employee makes a specific request, OSHA may informally let
employers know of complaints about home office conditions, but will not follow-up
with the employer or employee.
Policies for Other Home-Based Worksites[42]
4) OSHA will only conduct inspections of other home-based worksites, such as home
manufacturing operations, when OSHA receives a complaint or referral that indicates
that a violation of a safety or health standard exists that threatens physical harm, or
that an imminent danger exists, including reports of a work-related fatality;
5) The scope of the inspection in an employee’s home will be limited to the employee’s
work activities. The OSH Act does not apply to an employee’s house or furnishings;
6) Employers are responsible in home worksites for hazards caused by materials,
equipment, or work processes which the employer provides or requires to be used in an
employee’s home;
7) If a complaint or referral is received about hazards at an employee's home-based
worksite, the policies and procedures for conducting inspections and responding to
complaints as stated in OSHA Instruction CPL 2.103 and OSHA Instruction CPL
2.115, will be followed.
Other Requirements[43]
8) Employers who are required by the OSH Act to keep records of work-related injuries
and illnesses will continue to be responsible for keeping such records as long as they
are work-related, however telecommuter’s homes are not considered “business
establishments” for which separate injury/illness records must be kept. Rather,
employees “who telecommute must be linked to one of” the business’s
“establishments” for which records are maintained.[44]
In summary OSHA indicated that employers are not responsible for white-collar telecommuters, but they may be for home-based blue-collar employees engaged in manufacturing or other hazardous home-based work. However, the regulations implementing the act provide that not every accident that occurs at a home work site is necessarily considered work-related. Specifically, the regulations say that injuries “and illnesses that occur while an employee is working at home…will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.”[45] Hence, if “an employee drops a box of work documents and injures his or her foot, the case is considered work-related. [However, if] an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, [or if he or she] is electrocuted because of faulty home wiring, the injury is not considered work-related.[46]
Finally, employers should remain concerned about telecommuter safety because of state “OSHA plans.” These are federally approved plans for the development and enforcement of occupational safety and health standards. States may include in these plans more stringent standards than federal law imposes.[47] Although “[m]ost states adopt standards identical to federal ones,”[48] and although some have excluded private residences from safety inspection requirements,[49] other states could choose to require employers to oversee the safety of home work sites.[50]
Workers’ compensation
Another reason employers should remain concerned about telecommuter safety and health stems from workers’ compensation concerns and while working at home can create ambiguities in this issue, the application of existing doctrines can resolve such claims satisfactorily. Telecommuting is analogous to existing case law involving traditional employees in that the nature of the work is the same in both situations. In addition, an agency relationship continues to exist between the employer and employee. The major difference afforded by telecommuting is the location at which the work is being performed and that the hours being worked are not necessarily fixed to a “traditional” time schedule. Three key areas to be examined here involve workers’ compensation involving injuries at home, injuries while traveling to or from home, and injuries occurring while out of state.[51]
OSHA’s regulation of safety conditions in the home seems firm. The balancing of an employee’s right to privacy with the employer’s duty of ensuring compliance may be somewhat difficult. In addition, OSHA places an affirmative duty upon the employer to correct those hazards the employer “is or should be aware of.” Replacing faulty computers is easy; replacing faulty wiring or unsafe stairs leading to the employee’s office is not.
OSHA’s warning of liability and workers’ compensation concerns should, at the very least, require employers to take pause before implementing any type of telecommuting arrangement.
Telecommuting presents unique challenges to safety and health—most of which have been anticipated for years. In 1984, in The Office Environment: Automation's Impact on Tomorrow's Workplace, Wilbert Galitz, estimated that 50 percent of the office workers of the future could be telecommuters. The chapter, "Toward the Year 2000," describes ergonomics/ human factors, fatigue, social isolation and stress as critical concerns. This was an early hint of the challenges to come. Recent studies related to occupational safety and health indicate that although telecommuters report higher levels of job satisfaction, they have a lower level of awareness and knowledge concerning ergonomic and safety issues (Healy, 2000).
Wilbert O. Galitz (1984). The Office Environment: Automation's Impact on Tomorrow’s Workplace. New York: American Management Society Foundation.
Merrie L. Healy. (2000). Telecommuting: Occupational Health Considerations for Employee Health and Safety. 48 American Association of Occupational Health Nurses Journal, 305-314.
Michelle M. Robertson, Wayne S Maynard, Jamie R McDevitt. (2003). Telecommuting: Managing the safety of workers in home office environments. 48 Professional Safety, 30-36.
The telecommuter arrangement presents unique legal complications under state worker's compensation laws, including (1) whether any injury at home arose out of and in the course of employment; (2) the extent of the employer's duty and opportunity to insure workplace safety; and (3) the opportunity for employee fraud.
A. Injuries Arising Out Of And In The Course Of Employment
A majority of states provide for employer liability under workers' compensation wherever the injury occurs, provided that the injury arose out of or is related to employment and that the injury occurred in the course of employment. See, e.g., Pennsylvania Workers' Compensation Act, 77 Pa. C.S.A. § 411. Under Georgia's worker's compensation laws, "in the course of employment" refers to the time, place, and circumstances under which an accident occurred. O.C.G.A. § 34-9-1(4). An accident "arises in the course of employment" within the meaning of this law when it occurs (1) within the period of employment; (2) at a place where the employee reasonably would be in the performance of the employee duties; (3) while the employee was fulfilling employee duties, or is engaged in an activity incidental to fulfilling employee's duties. See, e.g., Sands v. Union Camp Corp., 559 F.2d 1345 (5th Cir. 1977). Because Georgia follows the "positional risk" doctrine, the employee need only prove that the employer brought the employee within the range of danger by requiring his or her presence in a location where the injury occurred. See, e.g., National Fire Ins. Co. v. Edwards, 152 Ga. App. 566, 263 S.E.2d 455 (1979). When an employee deviates from the course of his or her employment and is engaged in solely personal activity at the same of the accident, the injury is not one arising out of and in the course of his or her employment. See, e.g., General Accident Fire & Life Assur. Corp. v. Prescott, 80 Ga. App. 421, 56 S.E.2d 137 (1949).
Telecommuting employees working out of their homes do not benefit from the same presumption that an injury occurring in the office, factory, or facility occurred in the course of employment, rather than on a personal frolic. The test for whether or not an employee breaks the continuity of employment for personal purposes is as follows: (1) If the injury occurred before the employee returned to the line of employment, the injury is not one arising out of the course of employment; but (2) where the personal mission has been accomplished and the employee has reengaged in the duties of his or her employment, the injury arose out of or in the course of employment and is therefore compensable under Georgia law. See, e.g., Fulton County Civ. Ct. v. Elzey, 101 Ga. App. 520, 114 S.E.2d 314 (1960).
B. Employer's Duty To Provide A Safe Workplace
The Georgia rules requiring an employer to provide a safe workplace for its employees derives from O.C.G.A. § 51-3-1, which codifies the general law that an owner or occupier of land has a duty to invitees. See, e.g., Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 159, 342 S.E.2d 468 (1968). Georgia courts have applied § 51-3-1 in negligence actions brought by employees against their employers. E.g., Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972). Since § 51-3-1 is derived from ancient law on duty to invitees, it is not surprising that this laws usually applied to permanent places such as factories, stores, and offices. Thus, it is unclear whether and to what extent § 51-3-1 applies to telecommuters working from their homes.
Another Georgia safe workplace statute, O.C.G.A. § 34-7-20, provides: "If there are latent defects in machinery or danger incident to an employment, which defects or dangers the employer knows or ought to know but which are unknown to the employee, then the employer shall give the employee warning with respect thereto." The statute is qualified by O.C.G.A. § 34-7-23, which provides as follows:
An employee assumes the ordinary risks of his employment and is bound to exercise his own skill and diligence to protect himself. In actions for injuries arising from the negligence of the employer in failing to comply with the duties imposed by Code Section § 34-7-20, in order that the employee may recover it must appear that the employer knew or ought to have known of . . . the defects or danger in the machinery supplied; and it must also appear that the employee injured did not know and had no equal means of knowing such fact and by the exercise of ordinary care could not have known thereof.
The employer's duty to furnish and maintain a reasonably safe place to work is that of ordinary care, and the employer is not required to be an "absolute guarantor of a physical or emotionally safe workplace" or to insure an employee's safety. See, e.g., Dugger v. Miller Brewing Co., 199 Ga. App. 850, 406 S.E.2d 484 (1991); Cline v. McLeod, 180 Ga. App. 286, 293, 349 S.E.2d 232 (1986). Georgia courts have found that where an employer could discover a dangerous condition, that employer is thereby under a duty to inspect the workplace and warn its employee as to such dangers. See, e.g., Clark, supra, 178 Ga. App. at 159, 342 S.E.2d at 468. Where there is nothing in the workplace to indicate the presence of a dangerous condition, the law refuses to require inspection by the employer. See, e.g., Williamson v. Kidd, 65 Ga. App. 285, 155 S.E.2d 801 (1941). If the employee could discover the dangerous condition through ordinary care, the employee is generally unable to recover from the employer under the safe workplace rules. See, e.g., Holman v. American Auto. Ins. Co., 201 Ga. 454, 461, 39 S.E.2d 850 (1946); Clark, supra, 178 Ga. App. at 158-59, 342 S.E.2d at 468. The duty on the employee is not a duty to inspect, but rather to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care. See, e.g., Owensby v. Jones, 109 Ga. App. 398, 399, 136 S.E.2d 451 (1964). The rules concerning a safe workplace continue throughout the duration of the employee's work day and apply within the employer's entire premises. Therefore, an employee working out of a home office in a telecommuting situation may be covered by the safe workplace laws to the same extent as an employee injured while using an employer provided cafeteria on the premises, a satellite office, or a mobile trailer.
Finally, an employee may not recover additional damages under safe workplace rules over and above those contained in the Georgia Worker's Compensation Act. See, e.g., Dugger, supra, 199 Ga. App. at 850, 406 S.E.2d at 484.
C. OSHA Liability
The Occupational Safety and Health Act of 1970 ("OSHA") may preempt some claims under the safe workplace rules. See, e.g., 29 U.S.C. § 667(a)(preempting states from "asserting jurisdiction under state law over any occupational safety or health issue with respect to which [an OSHA] standard is in effect under Section 655").
In addition to Georgia's workplace safety rules, OSHA requires a covered employer to provide a workplace free from hazards that are likely to cause serious harm or injury. E.g., 29 U.S.C. § 654. Again, although telecommuting is not expressly included in the statutory definition of "place of employment," this definition is broadly interpreted and will likely include at least the home office portion of the telecommuting employee's residence. In order to avoid OSHA liability, an employer should work with the employee in designing and maintaining a safe, hazard-free home office. The telecommuting agreement should allow for the employer to conduct periodic inspections of the telecommuting work space.
D. Employee Fraud
In the majority of accidents involving telecommuters, there will be no witness to the accident other than a pet or infant child. The employer must rely solely on the employee's story as to whether the injury arose out of and occurred in the course of employment. Notwithstanding this disadvantage, employers should still require telecommuting employees to follow the same procedures in recording an injury within a certain number of hours, inspecting the premises, and investigating the cause of the injury. These procedures should be set forth in the telecommuting agreement.
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Nicole Belson Goluboff
The purpose of the Occupational Safety and Health Act of 1970 (OSH Act) is to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions...”[52] The OSH Act applies to a private employer who has any employees doing work in a workplace in the United States. It requires these employers to provide employment and a place of employment that are free from recognized, serious hazards, and to comply with OSHA standards and regulations.[53]
On February 25, 2000, OSHA issued directives stating its position on home-based work which essentially said that employers are not responsible for white-collar telecommuters, but they may be for home-based blue-collar employees engaged in manufacturing or other hazardous work.[54]
Specifically, the directive defined "home-based work sites" as the areas of an employee’s home where he or she "performs work of the employer," such as filing, keyboarding, computer research; reading, and writing. According to OSHA, these "activities may include the use of office equipment (for example, telephone, facsimile machine, computer, scanner, copy machine, desk, file cabinet)."[55]
The directive set forth OSHA’s policy for home offices and for "other home-based work sites." With respect to "home offices," the agency’s policy is:
• It will not conduct inspections.
• It "will not hold employers liable for employees' home offices, and does not expect employers to inspect" them.
• "If OSHA receives a complaint about a home office," the agency will advise the person complaining "of OSHAs policy." If an employee "makes a specific request, OSHA may informally let employers know of complaints about home office conditions," but it will not follow up with either the employer or the employee.
As for "other home-based work sites," OSHAs policy is:
• It will inspect other home-based work sites, "such as home manufacturing operations," but only when it "receives a complaint or referral that indicates that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, including reports of a work-related fatality."
• It will inspect only the employee's home-based "work activities. The OSH act does not apply to an employee's house or furnishings."
• "Employers are responsible in home work sites for hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee's home.[56]
The directive also states that employers "who are required, because of their size or industry classification, by the OSH act to keep records of work-related injuries and illnesses" must include in their records injuries that occur in home offices.[57]
However, regulations implementing the act provide that not every accident that occurs at a home work site is necessarily considered "work-related." Specifically, the regulations say that injuries "and illnesses that occur while an employee is working at home ... will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.[58]
Therefore, if "an employee drops a box of work documents and injures his or her foot, the case is considered work-related. [However, if] an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, [or if he or she] is electrocuted because of faulty home wiring, the injury is not considered work-related."[59]
The regulations also provide that telecommuters' homes are not considered "business establishments" for which separate injury/illness records must be kept. Rather, employees "who telecommute must be linked to one of" the business's "establishments" for which records are maintained.[60]
Despite OSHAs seeming relaxation of its policy on employer liability for white-collar telecommuters, employers must consider the safety of these workers for this reason: Employers can be held liable under state workers' compensation laws for injuries telecommuters sustain at home.
A current OSHA directive states that employers are not liable for the safety of an employee’s home office. Nonetheless, some employers with telecommuting employees are addressing concerns about potential liability by offering those workers guidance about home office safety and design or providing ergonomic furniture.
Employers have also expressed concern over the potential for increased workers’ compensation costs resulting from injuries incurred by telecommuting employees. Work-related injuries, regardless of location, are usually covered by workers’ compensation. The law is still unsettled in this area, so employers should verify the requirements of their state workers’ comp standards and otherwise follow the guidance of legal counsel when it comes to the corporate telecommuting program.
Work-related injury at home or if a visitor or customer at the telecommuter’s home office suffers an injury.
Worker’s compensation
Although state workers’ compensation laws vary from state to state, typically they provide that a worker may be compensated for injuries if they “arise out of” and “in the course of” employment. Do injuries a telecommuter sustains at home “arise out of” and “in the course of” employment?
They can. While some jurisdictions may, by statute, exclude some or all home workers from coverage,[61] administrative and judicial decisions indicate that such workers may sometimes be compensated for injuries occurring at home.
Some decisions suggest that, for injuries sustained at home to be compensable, the employer must have required the employee to perform work at home. Indeed, some have denied compensation at least partly on the ground that performing work at home was, while authorized by the employer, not required. [62] However, judges may disagree on whether an employer did, in fact, require the employee to work at home.
For example, in Augustine v. Kenosha Visiting Nurse, the Wisconsin Labor and Industry Review Commission upheld a finding that a visiting nurse should be compensated for an injury she sustained while doing paperwork at home.[63] On the day before the injury, she had advised her supervisor that she could not work the next day because she had to take care of her daughter, who was sick. The supervisor told her she had to work. She agreed to visit certain clients, and her supervisor said she could do her paperwork at home. The next day, she followed the plan. However, while going back to her car to bring in more paperwork, she slipped going downstairs and was injured.
The commission concluded that the nurse “did not have a choice to go to the office and perform her work and leave her ill minor child at home alone. . . . The employer requested that the [nurse] perform work that day and gave [her] specific permission to perform paperwork at home. ... [She] was not injured engaging in a personal activity but when acting in her capacity as a nurse for the employer.” Therefore, the commission held, the nurse was entitled to compensation.[64]
The dissent, however, disagreed specifically with the finding that the nurse’s work at home was required. According to the dissent, the “employee was working at home rather than at work for her own convenience to be able to take care of her daughter who was ill.”[65]
Some decisions suggest that compensation may be awarded even if the employee was not required to work at home. For example, in Schwindt v. Red Roof Delivery, Inc., compensation was granted where a restaurant manager fell down a stairway in her home at 4:30 a.m. after dozing off while scheduling employees’ shifts. She had been authorized, but not required at home.[66]
Another question concerns whether an injury is compensable if it occurs as a result of an activity that has both business and personal attributes. A number of courts have indicated that salespeople who operate out of their homes and are injured while engaged in activities to facilitate work may be compensated, even if they might have had to perform those activities regardless of their jobs.
For example, in Ae Clevite, Inc v. Labor Commission, a district sales manager for an automotive supply company who operated out of his home was preparing for a sales trip and waiting for a package related to the trip.[67] His driveway was icy due to a snowfall the night before. When he saw the mail carrier approaching, he decided to salt the driveway so that the postal worker would not slip. While salting, the salesman slipped, suffering a neck injury that left him a quadriplegic.
The Utah Court of Appeals stated:
We recognize that [the salesman] may have decided to salt the
driveway at some other time for his own non-job-related purposes,
yet. when he did, it was in an attempt to remove a hurdle that
could have prevented the delivery of the expected business package.
[The] act of salting the driveway was motivated in part by a purpose
to benefit [the employer] and thus was reasonably incidental ... to
his employment. As such, the commission correctly concluded
that [his] injuries arose ‘in the course of’ his employment.[68]
The law in Connecticut is similar.[69]
Telecommuters may seek compensation for a wide range of potential injuries, including slips and falls, back strains, and heart attacks. Compensable injuries also include illnesses resulting from air quality problems caused by asbestos, radon, or carbon monoxide contamination.
At least in some states, telecommuters may also seek compensation for excessive stress. Telecommuters who work full-time from home may be especially susceptible to stress if they never fully escape the workplace or do not remain sufficiently connected to the employer’s office.[70] And while some states preclude benefits for injuries resulting from violence having nothing to do with the victim’s employment—such as domestic violence[71]—in other states, employers could be held liable for such injuries.[72]
Injuries occurring while traveling to or from home
Ordinarily, employees are not eligible for workers’ compensation when they sustain injuries commuting between work and home. This is known as “the going-and-coming rule.” However, a number of exceptions to this rule may apply in certain jurisdictions. One is that, if the worker was traveling for a dual purpose—for example, traveling home for both personal and work-related reasons—when the injury occurred, compensation may be awarded.[73]
Workers also may be compensated for injuries sustained when traveling between work locations. If a worker’s home qualifies as a second work location, injuries sustained while traveling between work and home may be compensable.[74] Telecommuters may also be entitled to compensation for injuries sustained while traveling between home and a work site other than the regular one.[75]
Some decisions concerning injuries sustained while traveling home suggest that they are compensable only if the employee was required to work at home. For example, in Bramall v. Workers’ Compensation Appeals Board, a legal secretary was driving home at the end of the business day when she was injured in a car accident.[76] As was her common practice, she was carrying some depositions she planned to translate into English at home that night. Her employer approved of her practice of bringing work home, allowing her to take “compensating time off and longer lunch breaks to make up for it.”
The court found that bringing the depositions home on the date of the accident was “an implied requirement of [the secretary’s] duties.”[77] It found that, because of interruptions and distractions at the office after 5 p.m., the translation work could not be properly performed in the office. Thus, the court concluded that the secretary's injuries were compensable.[78]
As noted above, courts may disagree on when an employer has actually required an employee to work at home. In Santa Rosa Junior College v. Workers’ Compensation Appeals Board, an instructor who regularly worked at home in the evenings was killed in a car accident on his way home from the campus.[79] He was carrying student papers he intended to grade that night.
Despite evidence that working at home was common for many instructors and necessary because student interruptions prevented completing the work on campus, the court concluded that the instructor worked at home for his own convenience and was not required to do so. The court said, “We conclude that—unless the employer requires the employee to labor at home as a condition of the employment—the fact that an employee regularly works there does not transform the home into a second job site for purposes of the going-and-coming rule.”[80]
Thus, while in Bramall the court decided that the secretary was required to work at home in part because interruptions at her office prevented her from completing her work there, in Santa Rosa office interruptions did not amount to a requirement to work at home.
Like some cases concerning injuries sustained at home, certain travel cases indicate that some courts will award compensation even if the employer did not require the employee to work at home. For example, in Florida Hospital v. Garabedian, a home health aide whose average workday included paid work time at home was injured in a car accident while traveling home from a hospital staff meeting.[81] A judge awarded compensation, concluding that the accident “occurred before her workday was completed” and was “not covered by the going-and-coming rule.”
A Florida appellate court affirmed, stating that the accident occurred while the aide was “on a trip from one location where work is regularly performed to another.” The court specifically noted that, in this case, it was “irrelevant... that the job duties performed by [the aide] at home could have been performed at another location.”[82]
Injuries occurring while out of state
When a telecommuter is located outside the employer’s state and is injured at home, which state’s workers’ compensation law applies—the employer’s or the telecommuter’s? Employers must consider the laws of both states in order to answer the question.
State laws may differ concerning whether they cover workers who are injured outside the state. In Vermont, the law provides that a worker hired there who is injured in an accident arising out of and in the course of employment is entitled to compensation under Vermont law “even though such injury was received outside [the] state.”[83]
Similarly, in Oklahoma, “when the contract of employment was entered into within ... Oklahoma, and the ... employee was acting in the course of such employment and performing work outside [Oklahoma] under direction of” his or her employer, the state’s workers’ compensation-law applies, “irrespective of where accident resulting in injury may occur?”[84]
In states with similar laws, nonresident telecommuters injured at home may be able to recover under the workers’ compensation laws of their employer’s states. Oklahoma does “not preclude the injured employee from recovering any benefits ... provided under any law of the state where injury occurred.” However, if the employee prosecutes an action under the law of the other state “to final determination,” he or she is then precluded from his or her right of action under Oklahoma’s Workers’ Compensation Act.[85]
Other states may define more narrowly the circumstances under which they will permit compensation for injuries sustained outside their borders. For example, in Wisconsin, for a nonresident to receive compensation for an injury sustained in the home state, he or she might have to satisfy one of a number of conditions. Compensation might be awarded if the worker’s employment is “principally localized” in Wisconsin. Or, it might be awarded if the employee is working under a contract that was made in Wisconsin at a job that is “principally localized” in a state “whose workers’ compensation law is not applicable to that person’s employer.”[86]
The laws of the telecommuter’s home state may also protect him or her when injured there. In Colorado, for example, the “jurisdictional prerequisites to recovering benefits under the [workers’ compensation] act are that a substantial portion of the employee’s work must be performed in Colorado, combined with either an injury in Colorado or an employment contract entered into in Colorado.”[87] In Monolith Portland Cement v. Burak, an employee who lived in Colorado was killed in a car accident in Colorado on his way to his Wyoming office. The employee regularly worked at home in the evening.
In litigation concerning death benefits awarded to the worker’s wife under Colorado law, the employer and insurance company argued that Colorado’s Workmen’s Compensation Act did not apply. The court held that it did: “The record supports the finding that Burak performed a substantial portion of his work for Monolith at his home in Colorado.... And, since it is undisputed that the accident occurred in Colorado, we conclude that” the state’s compensation act does apply.[88]
Employers should take precautions to ensure that their telecommuters’ home offices are safe. Although OSHA has indicated that it will not assert jurisdiction over home offices or require employers to inspect them, employers may be liable under workers’ compensation laws (and perhaps under state OSHA plans) for injuries that telecommuters sustain at home.
Employers also may be liable under workers’ compensation laws for injuries that telecommuters sustain while traveling between the home office and another work site. When a telecommuter lives, works, and is injured outside the company’s state, the employer must consider which workers’ compensation law applies, that of the telecommuter’s state or the business’s state.
Steps employers can take to minimize liability include training telecommuters to set up and maintain safe offices, providing ongoing safety guidance, and maintaining adequate workers’ compensation insurance.
---------------------------------------------------
From:
Dawn R Swink. (2001). Telecommuter law: A new frontier in legal liability. 38 American Business Law Journal, 857-900.
OSHA requires employers to use "reasonable diligence" to identify in advance possible hazards that may be associated with particular home-based work assignments.31 In addition, once those hazards have been potentially identified, the employer has a duty to provide the necessary training, personal protective equipment or other appropriate controls for their employees' protection. This duty includes ensuring that such equipment is ergonomic when appropriate. "In some circumstances the exercise of reasonable diligence may necessitate an on-site examination of the working environment by the employer."32
Obviously, any employer-provided equipment or work materials to be used in the employees' home must be safe. It was, however, emphasized that an employer should only be held responsible for the safety of the actual workplace, not for an entire "safe and healthful home."33 OSHA provided the following example: "Mf work is performed in the basement space of a residence and the stairs leading to the space are unsafe, the employer could be liable if the employer knows or reasonably should have known of the dangerous condition."34 This seems to indicate that employers should be looking at areas leading to the entrance of the actual office area for safety purposes. An employer certainly is not obligated to conduct regular, periodic compliance inspections unless the employer is aware or has reason to be aware of safety or health hazards. Certain equipment or work operations may require closer attention and more frequent safety checks."
While OSHA itself does not generally inspect home-based workplaces,37 it would investigate work-related fatalities occurring in home-based workplaces, in compliance with Fourth Amendment procedures.38
For OSHA record-keeping compliance purposes, employers are required to record injuries and illnesses occurring to employees working at a home location if such injuries or illnesses are workrelated and meet the established criteria under 29 CFR Part 1904.2 and the Recordkeeping Guidelines for Occupational Injuries and Illnesses.39 "These [record-keeping] criteria must be applied to employees who work at their homes."40
Since OSHA's primary focus is on employee health and safety, most of the answers seemed remarkably common sense. For example, although most building/fire codes require two entrances/exits, OSHA will not require a work-at-home employee to install a second entrance/exit in his or her office "unless the nature of the work and the surroundings create a heightened risk of fire."4" On the other hand, OSHA at times created more questions from its answers than it may have anticipated.42 It certainly suggested that employers would be liable for such issues as unsafe stairs, improper lighting, and inadequate ventilation in home offices.
After the public outrage
Further, Mr. Charles N. Jeffress, the Assistant Secretary of Labor for OSHA set out the following seven major points on employers' responsibilities regarding work performed at home:64
1) OSHA believes the OSH Act "does not apply to an employee's house or furnishings";
2) OSHA does not, and will not, inspect home offices;
3) Employers who are required to keep records of work-related injuries still need to include those that occur in a home office;
4) OSHA will not hold employers "liable for work activities in employees' home offices";
5) OSHA will only conduct inspections of hazardous home workplaces, such as home manufacturing, when OSHA receives a complaint or referral indicating that a safety or health violation exists or when a work-related fatality has occurred;
6) OSHA will enforce workplace health and safety rules at home-based manufacturing facilities where hazardous materials, equipment or work processesa5 are provided or required to be used in the employee's home; and
7) Employers are not expected to inspect home offices.
Related to OHSA concerns regarding safety considerations
Several workers' compensation concerns have appropriately arisen for telecommuters or home-based employees. First, workers' compensation may focus on the appropriateness of the workspace itself. Most people do not have ergonomically correct workstations at home which, for example, could lead to carpal tunnel syndrome (repetitive motion trauma). Second, an aggravation or acceleration of a pre-existing infirmity constitutes a personal injury under workmen's compensation laws.83 Third, trips and falls or other injuries sustained in a home office environment while actively engaged in the employers' activities could create liability. Fourth, the potential for liability exists when employees leave their homes to either pick up or drop off work from the office worksite. And finally, employers' liability for work-at-home employees could be raised when such employees are injured while taking meal or rest breaks or performing "incidental" or preparatory activities. When the opportunity arises, courts will look at analogous case law to determine the parameters of telecommuters' rights under workers' compensation for such injuries.84 These analogies will include cases interpreting: the "going and coming" rule, the "traveling employee" exception, the "dual purpose doctrine," the rule allowing travel between two parts of an employer's premises, "second worksites" and the "personal comfort doctrine."
Three factors may be examined in determining whether a home is a place of employment: 1) the quantity and regularity of work performed at home; 2) the continuing presence of work equipment at home; and 3) special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home. In Rogers v. Pacesetter Corp.,' 12 the claimant was injured as he drove home from a meeting at a bar with his employer. Testimony revealed that the claimant regularly did work at home and that the employer knew of the practice and approved of it. The Court held, therefore, that the travel was between two employment locations and the injury was compensable. Moreover, the placing of employment equipment in the home by the employer is clear evidence that the home is a part of the work premises."3 Typical examples of home equipment have included the furnishing of a typewriter"' and the reimbursement for phone calls"'5 at the employer's expense.
the "going and coming" rule,
The going and coming rule holds that accidents occurring during transit from an employee's home to the employer's workplace are not considered as arising out of or in the course of employment and, thus, workers' compensation benefits are not available.85 The going and coming rule is generally applied to those employees with one established work site and fixed hours. The rationale behind this rule is that the employee is not actually on the premises (within the place requirements) while traveling to and from the employer's premises.86 An exception is made for reasonable ingress or egress from the employer's premises." Generally, parking lots owned or maintained by the employer for the use of its employees are considered to be part of the premises." The premises requirement also has been expanded to off-site areas where the employer knew a particular area was "openly and notoriously" used by its employees and had in fact sponsored noon hour events in that area."
the "traveling employee" exception,
A traveling employee exception to this rule has been applied to those situations when an employer requires an employee to a) travel to a location other than the employer's business work site or b) the nature of the job requires such performance outside of the employer's business premises.9" The two key factors used to determine whether an employee's injuries arose out of or were in the course of employment are 1) the reasonableness of the conduct in which the employee was engaged at the time of the injury and 2) whether it might normally be anticipated or foreseen by the employer. Thus, employees running special errands on behalf of an employer, driving to pick up supplies for a job,9" picking up other employees en route to the work site or being driven to another work site routinely have been covered.
Under this exception, telecommuters needing to pick up or drop off work packets, information or assignments could be covered under workers' compensation while driving to or from their employer's worksite. This is particularly true if the employer directs an employee to travel or if the employment contract implies that the employee needs to drop off and pick up materials. This would meet the reasonable conduct factor and the employer could reasonably foresee any injuries that might occur. If on the other hand, a telecommuters work or assignments are normally transmitted electronically (e-mailed or faxed), an employee's spontaneous decision to take a trip to the office might be viewed differently.?
Commercial drivers, traveling salespeople or those regularly engaged in traveling in furtherance of their employer's business are covered by workers' compensation while engaging in such travel. Traveling employees are considered to carry their "employers' premises with them while engaged in furtherance of their employer's business."94
the "dual purpose doctrine,"
A number of states have adopted a dual-purpose doctrine" for cases in which a trip serves both personal and business purposes. The dual-purpose rule may be summarized as follows: If the necessity for the trip is business related, and the trip would have continued even though the private errand is dropped, the injury is compensable. Conversely, if the trip would have continued without the business errand, and would have been canceled only if the private purpose could not have been accomplished, the trip is not compensable.99 If the service to be performed for the employer would have caused the journey to be made by someone even had it not coincided with the employee's personal journey, it is considered to be a business trip. "It is inaccurate and misleading to call this test ... the `dominant purpose' test, or paraphrase it by saying that the trip is a business trip if the 'primary' purpose is business."" The business motive need only be a concurrent cause. Certainly however, the relative smallness of the business item may sometimes be a strong indication that it would not in itself have caused the trip to be taken."'
In Rau v. Crest Fiberglass Industries,"'2 the employee took a sales contract, which was security for a loan, to the bank on behalf of her employer. The employee also took care of several personal errands on the way, and after leaving the bank to return home was injured in a car accident. The Court held that the business motive was at least a concurrent cause of the trip, and the injury was compensable. Conversely, in Brennan,'03 a dermatologist suffered a rear-end collision in a parking ramp after attending the state high school hockey tournament. Dr. Brennan had testified that his insurance agent had invited him to watch the game and discuss insurance issues. It was determined that attendance at the hockey tournament was primarily for personal recreation and any connection to the employment as a practicing dermatologist was extremely remote."4 Implicit in this finding was that the "employee's testimony as to the purpose of the trip lacked credibility."05
Under the dual purpose doctrine, if a telecommuter were to pick up his or her information packet, then became injured en route to the grocery store before going home, he or she would be covered under workers' compensation. The telecommuter should not be treated any differently than the employee in Rau,'6 provided that a genuine business motive for the trip existed. It may be noted that adherence to the "true" rule may eliminate employees asserting compensation coverage by virtue of some morsel of work carried around in their pockets.
the rule allowing travel between two parts of an employer's premises,
"second worksites" and the
Telecommuters injured on their way to their employer's worksite to pick up or drop off work and then return home should fare well in that they would be exempted from the going and coming rule under the second worksite rules. Clearly, a regular pattern of performing work at home, the presence and usage of work equipment in the home as well as the special circumstances that place them in the home to begin with fall squarely under the second worksite provisions.
In State Comp. Ins. Fund v. Workers' Comp. Appeals Board,'33 a college professor was injured in his home when he slipped on some papers while preparing a syllabus for his class and fell. While the university had made office space available on campus for his use, he claimed it was impractical to work there because of frequent student interruptions. Testimony revealed that faculty members frequently took work home and the university authorities did not object to that practice. The professor described the accident as follows: "and I shut the TV off, and I just went to my regular rocking chair, where I was preparing a syllabus for my Abnormal Psychology class... I got up to do something-what I don't know-and just went flying... I slipped on the papers."' The Court of Appeals affirmed compensation
because they found his home had become a second worksite and his employer benefited from the work being performed at home. The fact that the injury had occurred at home during the performance of his work, even though the claimant was working non-traditional hours in a non-office setting, could provide guidance to telecommuting issues.
In Tovish v. Gerber Electronics,tss a salesman who maintained a home office did not observe strict working hours and was expected to visit account holders regularly. He suffered a fatal heart attack while shoveling snow. The trial court determined that he had suffered the heart attack because of shoveling snow and the only reason he was shoveling snow was to call on customers and was, therefore, entitled to workers' compensation benefits.
Dismissing the employer's appeal, the appellate court determined that no convenient legal distinction existed between mere preparatory work and activities that were in the course of employment and suggested that the legislature should develop guidelines to establish fine distinctions.
In Ae Clevite, Inc. v. Labor Commission, '36 a work-at-home district sales manager suffered injuries after falling on his icy driveway while salting it in anticipation of the delivery of work-related materials. The court, in its first instance of applying workers' compensation statutes to work at home employees, found that the claimant's injuries arose in the course of his employment because his efforts to make his driveway safe for the delivery of work-related materials was reasonably incidental to his work. The injury arose from a risk associated with his work for the employer due to the parties' "workat-home" arrangement.
“personal comfort doctrine
The discussion of activities that aid in the efficient performance of the employee brings us to a discussion of the personal comfort doctrine. It is well settled that acts of the employee necessary to his life, comfort or convenience performed at work, though technically personal and not of service to the employer, are considered incidental to service and, therefore, compensable. "' Items thought to improve efficiency and aid in personal comfort have included swimming to cool off during a paid break,"28 seeking warmth"9, coolness,"' toilet facilities,"' getting a drink of water, sleeping, or pausing for a smoke.'32 If these acts are compensable as aiding in the efficiency of a regular employee, telecommuters should be afforded the same consideration.
Good stuff
The foregoing discussion leads to a summary of workers' compensation law to be applied by analogy to telecommuters. The current status of the law is as follows. If telecommuters are en route to pick up or drop off materials to their employers' worksite, the traveling employee exception will apply and injuries suffered either going to or coming home will be covered. If they are conducting personal errands during the same time frame as dropping off or picking up materials, under the dual purpose doctrine, (meeting the business purpose requirements) any injuries suffered while on personal business will be covered. Clearly, if telecommuters are injured on the premises (at home) while they eat/rest/take breaks, any injury suffered during that time period will be covered just as if the employee were performing such acts off the premises if such acts are reasonable, aid in the efficient performance or personal necessity or comfort of the employee, and are in some way, meaningfully limited, controlled, or foreseeable by the employer. Such activities taken in "preparation of ' or "incidental to" work activities are compensable as are injuries occurring during the actual performance of the employer's work.
Although such liability seems tremendous, it is important to keep in mind that each state has its own rules governing exactly how much an employee can collect in workers' compensation. In Minnesota, for example, the payments have been reduced so dramatically that most employees get very little for their injuries. Workers' compensation is an exclusive administrative remedy. Realistically, most employees would be better off financially suing the other car that hit them rather than claiming workers' compensation benefits. In addition, be mindful that some may conclude that most telecommuters are highly dedicated, serious individuals who most often are borderline workaholics-not exactly the prototype of an eggshell claimant eager to sue over papercuts.
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It is "during the performance of ' or acts that are "preparatory" or "incidental to" the employer's work at home that appears to be problematic. Telecommuters, during work at home, are most
analogous to traveling employees, yet interesting questions about certain at-home injuries arise. Accidental injuries occurring while actually working at their computer during working hours should obviously be covered under workers' compensation. If one could realistically fall over a file at work and be compensated for it, the same compensation should be available for telecommuters who do the same act. After all, this seems to be based on simple fairness as both employees are similarly situated. On the other hand, accidental injuries occurring in non-work areas of the house during working hours or in work areas during non-work hours will prove to be more difficult. At issue here, is the scope of the reasonableness and foreseeability of the employee's activities at the time of the accident and whether the employee was engaging in activities in "preparation of" or "incidental" to or even "during the performance" of the employer's activities.
The course of employment, for employees having a fixed time and place of work, embraces a reasonable interval before and after official working hours while the employees are on the premises engaged in preparatory or incidental acts. The rule is not confined to activities that are necessary; it is sufficient if they can be said to be reasonably incidental to the work. Awards have been made when the employee was injured during a trip to the toilet 15 minutes before starting time,"' arriving 30 minutes early,"' placing a lunch on a table prior to clocking in, I 18 changing clothes,"9 washing one's hands before going to lunch,"2' and during a trip to the time clock."2'
Traveling employees, when engaged in reasonable and foreseeable conduct that could be anticipated by their employer, will be considered to be in the course of employment and workmen's compensation benefits will be available.' Arguably, an employer should be able to reasonably foresee the same acts performed by regular employees in "preparation" of or "incidental to" the performance of the employer's activities. Certainly, no one would want to argue that telecommuters do not need to change clothes, wash their hands or take trips to the toilet before work.
Another difficulty involves situations when telecommuters take breaks from their work and leave their computer workstation to use the bathroom, have a meal, stretch their legs, get a cup of coffee or attend to domestic concerns and are accidentally injured. Such cases break down into several categories: accidents occurring on premises during rest/meal breaks, accidents occurring off premises during rest/meal breaks, and accidents occurring during non-fixed work hours when telecommuters are not required to observe fixed work hours. In addition, the "personal comfort" doctrine comes into play.
Despite the time element of the "in the course of" requirement, when an employee is injured on an unpaid, unsupervised lunch period in a cafeteria operated by the employer on its own premises exclusively for the convenience of its employees, the injury is compensable. 23 Under this rule, telecommuters, since the in-home location of the work renders in-home rest/meal breaks away from their computer workstation foreseeable and reasonable to their employer, certainly would be covered when engaging in such breaks
when the break activities take place within the home. If traditional employees are covered while dining in their employer's on-premises cafeteria, telecommuters should be covered while dining in their kitchens or living rooms.
In Jordan v. Western Electric Co.,114 the Court of Appeals of Oregon examined the question of whether an employee injured off the employer's premises during a paid coffee break suffered an injury "arising out of and in the course of employment." The claimant was injured when accompanying his superior to a restaurant for a coffee break, two and one-half blocks away, customarily used by night-shift personnel. The court refused to establish an all-purpose "coffee break rule" but instead required a case-by-case consideration of all variables which included duration, shortness of the off-premises distance, and limitations on off-premises activity during the interval, and the amount of authority retained by the employer during the interval.' The court stated that "the course of employment is not considered broken by certain acts relating to the personal comfort of the employee, as such acts are helpful to the employer in that they aid in efficient performance by the employee.""26 Thus, even telecommuters' off-premises rest/meal breaks will be covered by workers' compensation if they aid in the efficient performance by the employee and are, in some way, meaningfully limited, controlled, or foreseeable by the employer.
Key Policy and Legal Considerations—Outline
I. Labor Law/Human Resource Issues
a. Telework written agreement
i. Authority for employer to periodically inspect telecommuting workspace
ii. Disclaimer that telecommuting arrangement is temporary
iii. Employment at will disclaimer
iv. Conversion Of Property By The Terminated Telecommuter
v. Telework employee’s potential liability
vi. Resigned regularly, preferably at least once a year
vii. Telework is not an employee right and telework requests may be denied and telework agreements may be terminated (generally for business [change in the nature of the work or performance reasons [employee’s poor performance])
viii. Example: U.S. Department of Agriculture Policy Statement and telework agreement
b. FLSA Issues/Wage and hour laws
i. Ascertaining and recording hours worked
ii. Monitoring and controlling overtime
iii. Enforcing break and meal periods (e.g., California labor laws require employees eat lunch)
iv. Determining if employees should be paid for time spent on-call or traveling to a company facility
v. Exempt vs. non-exempt status
c. Protected communications under the LMRA
d. Unemployment and severance benefits
e. Americans with Disabilities Act (ADA)
f. Discrimination claims (selecting who are teleworkers; promoting individuals
g. Telework and the union
h. Telecommuting and attendance issues
i. Supervisory challenges
i. Fostering synergy
ii. Replicating informal learning
iii. Creating opportunities for interpersonal networking
iv. Professionally developing out-of-sight teleworkers
II. Intellectual Property Issues
III. Security, Privacy and confidentiality considerations
a. Security
b. Electronic privacy
c. Sensitive and classified material rules
IV. Worker Health and Safety Issues
a. Work-related injury at home AND others (e.g., customers visiting teleworker, teleworker’s child getting hurt in home office)
b. Injuries occurring while traveling to or from home
c. Injuries occurring while out of state
d. OSHA considerations and employer liability
e. Provide workers ergonomically designed equipment to avoid possible injury lawsuits
f. Workers’ compensation
V. Tax Issues
a. Income tax paid to which state
b. IRS on home office tax deductions; Section 280A of the Internal Revenue Code
c. Employee versus independent contractor status
d. “New Freedom Initiative”—proposed legislation that would make employer-provided computers and Internet access for home use by employees with disabilities a tax-free benefit.
e. Treatment of fringe benefits
f. Telecommuter Tax Fairness Act of 2007—still in Congress but has been renamed; been around since 2004
VI. Local considerations
a. State and local tax implications—interstate telecommuting will create jurisdictional issues such as the application of different state laws covering taxes, workers compensation and workplace safety.
i. Business has a nexus (some definite link or connection) with a state
ii. Personal income tax withholding requirements
iii. Sales and use tax
iv. Income and franchise taxes
v. Unemployment insurance
vi. New York’s “convenience of the employer” test, which provides that when a nonresident is employed by a New York employer, income derived from work in another state is taxable by New York unless performed out of state for the necessity of the employer; similar laws in other states but pursued as aggressively as New York; Matter of Huckaby v New York State Div. of Tax Appeals, Tax Appeals Trib., 2005 NYSlipOp 02413, decided March 29, 2005; available at
b. Local land use (zoning) regulations
c. Safety considerations at state and city levels
d. Telecommuters working in states outside of their employers’ headquarters—it’s unclear which state’s law will apply to an employee
e. Professional practice laws; e.g., an attorney living in one state while telecommuting to the firm’s offices in another; a radiologist reading x-rays from another state other than where the patient is located
VII. Equipment and related expenses
a. Space, facilities, furniture or equipment which the telecommuting employee will provide
b. Return of employer provided property upon termination (with penalty for conversion)
c. Telecommuter’s responsibility for equipment, maintenance, and repairs
d. Limitations on personal use of employer provided equipment
e. Limitations on access to employer provided equipment and employee workplace by others
VIII. Other considerations
a. Laws that take effect having a minimum number of employees; e.g., CRA of 1964 as amended applies to organizations having 15 or more employees; are teleworkers part of this number or is it only a single work site
b. Software licenses
c. Insurance implications (who pays? And how much?)
i. Equipment
ii. Work area
d. Alternative work arrangements in the federal government
Key Issues with Any Telecommuting Policy
Telework has resulted in an expanded definition of the workplace in today’s society. Not surprisingly, this phenomenon creates a host of problems for both courts and employers, who must reconcile the new telecommuting paradigm with employment laws that date back to the days of industrial factories. Before jumping aboard the telecommuting bandwagon, employers must first consider the legal implications of this new working arrangement under federal and state employment and tort law.
Any telecommuting policy must address several issues: the job functions that can be performed at home; the employees who are eligible; the factors to be considered in deciding an employee’s request; the length of time the employee may telecommute; how often the employee must report to the employer’s work site; responsibility for the employer’s computer and other property; allocation of expenses for phone bills, power bills, and computer access; how to track and report work hours and availability; and how the employee is evaluated and held accountable. Keep in mind that determinations on these issues may have unintended implications. For example, an employer who allows a job function to be indefinitely and permanently performed at home is effectively conceding that on-site attendance is not an essential requirement for that job. An employer will have a hard time later asserting that it is necessary for the job to be performed on-site as a reason for declining a disabled employee’s accommodation request to telecommute.
Labor Law Issues
Telework agreement
From
GENERIC TELECOMMUTER'S AGREEMENT
[NOTE: This is a generic telecommuter's agreement, for the mythical ABC
department of the mythical "Company XYZ." As such, it includes items that
are normally covered in agreements of this kind. However, it MUST be
customized for each organization because of differences in each employer's
policies and practices. Many of the items in this agreement can and should
vary - or perhaps be omitted - depending on the nature of a telecommuting
program.
This agreement has been written for use as part of a telecommuting pilot
program. As such, there are references to the length and nature of a pilot
program. These references might have to be changed for use with ongoing
telecommuting.
This agreement has been prepared by Gil Gordon, Gil Gordon Associates. It
is provided at no cost for general use by employers, with the understanding
that it is not meant to act as specific legal advice or professional
service. If this agreement is reprinted and distributed, please use the
following citation:
"This agreement developed by Gil Gordon Associates. For more information
on telecommuting, visit ."
You are encouraged to consult with a qualified professional to adapt this
generic agreement for your own use.]
******
The purpose of this agreement is to clarify some of the issues involved in
a telecommuting program sponsored by Company XYZ for some of its employees.
Because telecommuting is a relatively new way of working, some of the
standard policies and procedures we have in place to cover work in the
office may not apply, or have to be changed. Also, there are new
conditions that arise that were never intended to be covered by Company XYZ
policies.
Please read this carefully and discuss it with your manager or your Human
Resources representative if you have questions, and also, perhaps, with
your spouse if applicable. You may want to consult an attorney. Von added last sentence.
1. The telecommuting program at Company XYZ is an experiment to see how
well the work-at-home concept works for the ABC department and its
employees. We expect to continue with telecommuting as long as we believe
the results are satisfactory, and there is no definite ending date set at
this time. However, we expect the pilot program to last approximately six
months.
2. As a telecommuter you are volunteering for this program based on having
been given thorough information about the program and the pros and cons of
telecommuting. You, like Company XYZ, have every reason to believe it will
work out. However, if you find that telecommuting is not to your liking
and want to return to your office work location you can do so by notifying
your manager.
Those who are selected as telecommuters are being asked to commit to a
minimum trial period of three months. We believe this is the least amount
of time needed for everyone to learn how well telecommuting works. If,
however, you or your manager find that there are serious personal or work
problems arising before three months are up, you certainly will be able to
return to your job full-time in the office sooner.
3. While we expect this program to continue, it is possible that it may be
terminated at the discretion of Company XYZ management. If it is
terminated, you will be asked to return to your job at your office
location. Also, if your work performance suffers and your manager decides
it will be in your best long-term interest to return to the office
full-time, you will be expected to return to the office. If you choose not
to return on the expected date, this will be considered to be a voluntary
resignation and will be treated as such under our standard policies.
4. Telecommuting is not an employee benefit intended to be available to the
entire ABC department or to other departments at this time. As such, no
Company XYZ employee is entitled to, or guaranteed the opportunity to,
telecommute.
5. Your salary, job responsibilities, and benefits will not change because
of your involvement in the program, except as they might have changed had
you stayed in the office full-time, e.g., regular salary reviews will occur
as scheduled, and you will be entitled to any company-wide benefits changes
that may be implemented. You agree to comply with all existing job
requirements as now are in effect in the office.
6. Your total number of work hours are not expected to change during the
program, and you will be responsible for providing information for the
weekly time sheet according to standard Company XYZ policy. In the event
that you expect to work more than the standard number of hours, this must
be discussed and approved in advance by your manager, just as any overtime
scheduling would normally have to be approved.
7. Your daily work schedule for the days when you are working at home is
subject to negotiation with and approval by your manager. If your job
duties allow it and your manager feels a change would not impair your
ability to be in contact with co-workers, you are free to vary your hours
to suit your preference. Your manager may require that you work certain
"core hours" and to be accessible by telephone during those hours.
8. We are planning to work towards a goal of three days per week at home
for all telecommuters. We will begin with one day a week for the first
month and will then increase it depending on your willingness and your
manager's assessment of the quality of your work and the type of
supervision you need.
9. There may be times when you will be requested to come into the office on
a day that you might have planned to spend at home. Company XYZ and your
manager will try to minimize these unplanned office visits, but we ask that
you recognize the need for them and agree to come in when requested.
Similarly, there may be weeks when you have to spend more time than planned
(up to the full five days) in the office when the nature of the workload
requires it. It will be your responsibility to come into the office as
requested during these times.
10. Company XYZ will provide the necessary computer, modem, software, and
other equipment needed for you to do your job. All of these items remain
the property of Company XYZ and must be returned to Company XYZ upon
request, in case of an extended illness, upon your resignation or
termination, or if the program ends. When they are to be returned, you
agree to return them yourself or to allow Company XYZ to arrange to pick
them up from your home.
11. Company XYZ will reimburse you for the cost of installation and monthly
service on a telephone line to be installed for your use during the
program. This is considered to be for Company XYZ purposes only and not
for personal use. Company XYZ will reimburse you for all Company
XYZ-related business use of this telephone line when you submit a
reimbursement request. It will be your responsibility to insure that no
one else has access to the phone.
12. Office supplies as needed will be provided by Company XYZ; your
out-of-pocket expenses for other supplies will not be reimbursed unless by
prior approval of your manager. Also, Company XYZ will not reimburse you
for travel expenses to and from the office on days when you come into the
office, nor for any home-related expenses such as construction,
renovations, heating/air conditioning, lighting, or electricity.
13. The computer, modem, software, and any other equipment or supplies
provided by Company XYZ are provided primarily for use on Company XYZ
assignments. However, you can use these items for reasonable personal
purposes as long as these do not create any conflict of interest with your
job. The equipment and software should not be used by other household
members or anyone else. Company XYZ-owned software may not be duplicated
except as formally authorized.
14. The security of company property in your home is as important as it is
in the office. You are expected to take reasonable precautions to protect
the equipment from theft, damage, or misuse. You are required to contact
your homeowner's insurance carrier to determine to what extent this
property is covered under your homeowner's policy. If the Company XYZ
property is NOT covered, you agree to notify your manager and, if
requested, take out additional coverage at Company XYZ's expense to cover
the property.
15. Any Company XYZ materials taken home should be kept in your designated
work area at home and not be made accessible to others. In no case will
you take proprietary or confidential materials home except with the
approval of your manager.
16. Company XYZ is interested in your health and safety while working at
home just as it is while you work in the office. For this reason, you are
required to maintain a separate, designated work area at home. Company XYZ
has the right to visit your home work area to see if it meets company
safety standards; such visits will be scheduled with at least 24 hours'
advance notice.
Any equipment provided should be placed where it is adequately supported
and there is no danger of it falling. It should be connected to a
properly-grounded electrical outlet and all wires kept out of walkways. If
you have any questions about the adequacy/safety of your home work area,
Company XYZ will help you in this regard.
17. Company XYZ will be responsible for any work-related injuries under our
state's Workers Compensation laws, but this liability is limited to
injuries resulting directly from your work and only if the injury occurs in
your designated work area. Any claims will be handled according to the
normal procedure for Worker's Compensation claims.
18. Telecommuting is not to be viewed as a substitute for dependent care.
Company XYZ expects that you will make arrangements for someone to care for
your children or other dependents (if applicable) if needed. The company
recognizes that one advantage of working at home is the opportunity to have
more time with dependents, but it is your responsibility to insure that you
are fully able to complete your work assignments on time.
19. It will be your responsibility to determine any income tax implications
of maintaining a home office area. Company XYZ will not provide tax
guidance nor will the company assume any additional tax liabilities. You
are encouraged to consult with a qualified tax professional to discuss
income tax implications.
I have read and understand this agreement and accept its conditions.
EMPLOYEE SIGNATURE _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ DATE _ _ _ _
COMPANY XYZ REPRESENTATIVE SIGNATURE _ _ _ _ _ _ _ _ DATE _ _ _ _
----------------
U.S. DEPARTMENT OF AGRICULTURE
WASHINGTON, D.C. 20250
| | |
|DEPARTMENTAL REGULATION |Number: |
| |4080-811-002 |
| | |
|SUBJECT: |DATE: |
|Teleworking Program |June 2, 2005 |
| | |
| |OPI: |
| |Office of Human Capital Management |
| | | |
1 PURPOSE
This regulation sets forth the authority, policy, and responsibilities for managing
Teleworking Programs within the Department of Agriculture (USDA).
2. 2 POLICY
a USDA supports programs that benefit management in the recruitment of potential applicants and retention of current employees; that reduce the cost of office space, sick leave usage, and workers compensation; that assist
employees in managing their work and family responsibilities and that improve air quality and reduce traffic congestion. Teleworking can have a positive impact in all these areas.
b Employees, inclusive of managers and supervisors, who perform duties that are suitable for teleworking and meet other established eligibility requirements must be afforded the opportunity to telework.
c Employees who are approved to telework are to be provided with the necessary government equipment to adequately perform their tasks at an alternative worksite. The exception is when a waiver has been requested and approved in accordance with DM-3525-003, Chapter 5, and Part 3.
d Teleworking on a regular and recurring basis means that the employee teleworks at least one day a week. Teleworking for more than one day a week may be appropriate for attracting potential applicants, retaining current employees, and providing reasonable accommodations for disabled employees, as well as for employees housed in Federal buildings undergoing renovation projects, emergency situations, and for addressing other agency or employee needs.
e Teleworking will be considered for emergency situations that involve national security, extended emergencies or other unique situations. As a result, employees teleworking on the day of an emergency agency closure can be required to continue working from their alternative worksite if the closure occurs on his or her telework day. In addition, teleworkers may be designated as either “emergency” or “mission critical” employees. These designations should be an integral part of an organization’s (mission area/agency/staff office) Continuity of Operations Planning (COOP) and emergency evacuation plans.
f Teleworking, especially hoteling, will be considered as an alternative when planning for any building renovation in the Washington Metropolitan Area or any other agency location.
g Excess personal property (computers, laptops, printers, fax machines) will be earmarked for telework programs prior to being reported as excess.
3. 3 CANCELLATION
Departmental Regulation 4080-811-02 - Teleworking Programs dated
August 26, 2002.
4. 4 DEFINITIONS
a Emergency Teleworker. A teleworker who is required to continue to work at his or her alternative worksite during all emergency situations when the agency is closed.
b Emergency Situation. A national security situation, extended emergencies or other unique situations when the agency is closed.
c Hoteling. Shared office space in an agency location designed for use on a drop-in basis by teleworkers. Equipped with standard office technology – phones, PCs, faxes, printers, copiers, e-mail, internet access, etc., employees either reserve space in advance or drop in to use a cubicle on an as needed basis.
d Mission Critical Teleworker. A teleworker who is expected to remain in contact with his or her agency at all times during any closure situation and who may be called on to work at his or her alternative worksite during emergencies dealing with national security, extended emergencies or other unique situations.
e Official Duty Station. Consistent with current law, regulations, and Office of Personnel Management (OPM) guidance, the official duty station is the city or town, county, and state in which the employee normally works. For most employees, this will be the location of the employee’s worksite, i.e., the place where the employee normally works, or at which the employee’s activities are based, as determined by the supervisor.
For example, an employee’s official duty station would continue to be the agency office from which he or she teleworks as long as the employee regularly commutes into the agency office at least once a week. However, if the employee does not regularly commute into the agency office, his or her official duty station will be changed to the alternative worksite from which the employee performs his or her duties.
There are exceptions for short-term situations. There may be unusual situations in which an agency should not change an employee’s official duty station even though the employee rarely commutes to the agency office (e.g., in the case of an employee who works temporarily from home while recovering from an injury or employees who are required to work temporarily at alternative worksites in emergency situations).
f Telecenter. A General Services Administration (GSA), USDA, or other approved facility established by state, local, or county governments or private sector organizations for use by teleworkers. Payment for use of GSA
telecenters is made annually using GSA’s “Telecommuting Facility Reimbursement Information Sheet.”
g Teleworker. An employee (i.e., permanent, part-time, temporary) who works at an alternative work location (i.e., home, telecenter, or other satellite work location) either on a regular and reoccurring schedule for a minimum of one day a pay week or on a temporary basis in those situations identified under 2d and e with a written agreement.
h Teleworking. (Also known as flexiplace, flexible workplace, and telecommuting.) Performance of official duties at an alternative work site (i.e., home, telecenter, or other satellite work location).
i Telework Agreement. A written agreement, completed and signed by an employee and appropriate official(s) in his or her mission area/agency/staff office that outlines the terms and conditions of the telework arrangement (Refer to Appendix A).
5 AUTHORITIES
a Memorandum for the Heads of Executive Department and Agencies; subject: Expanding Family-Friendly Work Arrangements in the Executive Branch dated July 11, 1994.
b Public Law Number 104-52, Treasury, Postal Service, and General Government Appropriations Act of 1996.
c Public Law Number 106-346, Section 359, Department of Transportation Appropriations Act of 2001.
d OPM Guide to Processing Personnel Actions, Chapter 23.
e OPM Memorandum to Executive Heads of Agencies, subject: Establishing Telecommuting Policy dated February 9, 2001.
f OPM Memorandum to Executive Heads of Agencies, subject: Washington, D.C., Area Dismissal or Closure Procedures dated December 4, 2003.
g DR 3440-002, Control and Protection of “Sensitive Security Information” dated January 30, 2003.
h DM 3525-003, Chapter 5, Part 3 - Telework and Remote Access Security dated February 17, 2005.
i DM 3550-002, Chapter 10, Part 2 - Sensitive But Unclassified Information Protection dated February 17, 2005.
j Federal Preparedness Circular (FPC) 65 dated July 26, 1999 and FPC 67 dated April 30, 2001.
6 RESPONSIBILITIES
a The Assistant Secretary for Administration (ASA) will advise the Secretary of Agriculture, mission areas/agency heads, and staff office directors in the development and implementation of policies, programs, and oversight of
the Teleworking Program.
b The Director, Office of Human Capital Management (OHCM) will:
(1) Advise the ASA in planning, developing, and implementing policies, programs, and systems to manage teleworking programs.
(2) Provide and interpret USDA policies and standards for teleworking programs.
c The Quality of Work Life Division Director will:
1) (1) Provide oversight of teleworking programs.
(2) Provide agency officials with technical assistance and consultative
services for complex teleworking issues.
d The Director, Office of Operations will:
1) (1) Whenever appropriate, incorporate teleworking and/or hoteling into headquarters complex renovations project plans as alternatives to reducing the cost of securing additional space through leasing and/or renting during the temporary renovation and the cost of moving employees to other locations.
2) (2) Encourage the use of teleworking and/or hoteling in the assignment of office space to mission areas, agencies, and staff offices.
e The Director, Office of Procurement and Property Management will:
1) (1) Incorporate teleworking into the headquarters Continuity of Operations Plan (COOP) and Occupant Emergency Plan (OEP) as another alternative for relocating employees to continue providing customer service and carrying out the mission during an emergency situation.
2) (2) Ensure mission areas/agencies/staff offices address teleworking in their internal COOP and OEP.
3) (3) Ensure mission areas/agencies/staff offices earmark surplus computers,
laptops, printers, and fax equipment for telework arrangements prior to
being identified as surplus.
f The Mission Areas/Agency Heads/Staff Office Directors will:
(1) Designate a Teleworking Program Coordinator to manage the program
with both external sources and internal USDA offices.
(2) Administer a teleworking program in accordance with applicable public
law, guidelines, and this regulation. The program shall establish:
a) (a) Supervisory and employee responsibilities and require written agreements documenting teleworking arrangements (refer to 7a (2)).
b) (b) Telework Agreements, at a minimum, must include ALL of those items outlined in Appendix A - Telework Agreement.
c) (c) Security controls that must be addressed through the completion of a Telework Security/IT Checklist identified under 5h above.
d) (d) Identify teleworkers who are designated “emergency employees” and/or “mission critical” emergency employees and ensure this is identified in the teleworking agreement.
(e) Policy that permits a telework employee to be excused from duty during an emergency if the emergency adversely affects the telework site (e.g., disruption of electricity, loss of heat, etc.), and to the extent that the teleworker cannot continue due to loss of contact with the regular work site.
(f) Alternative ways to notify eligible employees that they are eligible to telework on an ongoing basis throughout the fiscal year, as well as an annual notification.
3) (3) Whenever appropriate, incorporate teleworking and/or hoteling into renovation project plans as alternatives to reducing the cost of securing additional space through leasing and/or renting during the temporary renovation and the cost of moving employees to other locations.
4) (4) Ensure teleworking is identified in COOP and OEP as an alternative to relocating employees to continue providing customer service and mission responsibilities.
5) (5) Ensure eligible teleworkers and managers are provided Computer Security Awareness Training prior to implementing a telework agreement.
6) (6) Provide government-furnished equipment to eligible teleworkers who work at an alternative work site, unless a waiver has been obtained under 5h above.
7) (7) Earmark excess computers, laptops, printers, and fax equipment for telework programs prior to reporting the personal property as excess.
8) (8) Report the following information annually, on a fiscal year basis to
the Director, OHCM by October 31 of each year:
a) (a) Total number of employees in mission area/agency/staff office.
b) (b) Total number of employees identified as eligible to telework.
c) (c) Total number of eligible employees who applied, and total number
who were approved and disapproved (based on teleworker definition).
d) (d) Total number of agreements terminated and the reason for termination.
e) (e) Summary of statistical data pertaining to eligible employees
approved and disapproved with respect to race, sex, national origin, and disability status.
(f) Analysis of the statistical data in (e) to determine if eligible employees are being treated fairly and equitably in authorizing telework arrangements and to identify solutions for correcting any issues.
(g) Percentage of increases or decreases in teleworkers since the last report.
(h) Plans for increasing the number of identified eligible teleworkers.
9) (9) Maintain documentation for all teleworking program participants. In accordance with General Record Schedule l, Section 42a, an employee’s telework agreement must be kept for 1 year after the end of the employee’s participation in the program.
10) (10) Notify labor organizations, and bargain with bargaining units as appropriate, the establishment of and any changes to telework programs affecting conditions of employment for bargaining unit employees.
7. 7 PROGRAM ADMINISTRATION
a Telework Arrangements
(1) Participation in a telework arrangement is not an employee entitlement.
An employee may participate in the program only if the responsible
supervisor or designee decides that the employee’s job duties are suitable
for alternative work sites (e.g., telecenters, home-based, other satellite offices), and the employee meets other eligibility requirements such as length of service, performance rating, etc.
(2) The telework arrangement under which an employee will perform work must be clearly set forth in a written agreement and signed by the respective supervisor and employee. The agreement must at a minimum contain all the items listed in Appendix A.
(3) A Telework Security/IT Checklist (refer to 5h above) must be used by agency Information Technology staff to establish a secure working environment regardless of the type of telework arrangement.
(4) A telework arrangement does not alter the terms and conditions of the
appointment as specified on the employee’s Notification of Personnel Action, SF-50. However, an employee’s official duty station may change if he or she does not regularly commute into the agency office. See definition of official duty station in 4d above. All pay, leave, and travel entitlements must be based on the employee’s official duty station. The telework arrangement must not affect other conditions of employment (e.g., hours of work) unless otherwise specified in the telework agreement. Employees may be approved both to telework and to work an alternative work schedule.
(5) The telework arrangement may be terminated by either management or by the employee with a minimum of two weeks advance written notification of termination of the teleworking relationship, except in emergency situations. Reasons for termination of an arrangement may be a decline in performance or productivity, or if the arrangement no longer benefits the organization’s needs. Mission areas/agencies/staff offices may establish specific termination provisions, as they deem necessary, for their operations.
(6) The telework arrangement shall be for the performance of official duties and shall not be treated as an opportunity to conduct personal business.
(7) Telework may not be used to replace appropriate arrangements for dependent care. However, this does not preclude a teleworker from having a caregiver working in the home providing care to the dependent(s)
while he/she teleworks. Management may request documentation from the teleworker to substantiate a caregiver is providing on-site or off-site care during the teleworker’s scheduled work.
(8) Management reserves the right, normally with one day notice, to require employees to return to the official duty location on scheduled telework days, based on operational requirements. Exceptions for a lesser notification may be appropriate in certain unforeseen situations.
b Determining Eligibility:
(1) Positions eligible for telework are those involving tasks (may be one or more) and work activities that are portable, do not depend on the employee being at the official duty location worksite, and are conducive to supervisory oversight at the alternative worksite.
(2) Tasks and work activities generally suited for telework include, but are not limited to: writing, policy development; research; analysis (e.g., investigating, program analysis, policy analysis, and financial analysis); report writing; telephone-intensive tasks (excluding receptionist duties); computer-oriented tasks (e.g., programming, data entry, word processing, web page design); or data processing.
(3) Positions not generally eligible for telework are those positions involving tasks that are not suitable to be performed away from traditional worksite, including tasks that:
(a) Require the employee to have daily face-to-face contact with the supervisor, colleagues, clients, or the general public in order to perform his or her job effectively, which cannot otherwise be achieved via e-mail, telephone, fax or similar electronic means.
(b) Require routine access to classified information.
(c) Are part of trainee or entry-level positions.
(4) An employee suitable for telework is that employee who has demonstrated personal characteristics that are well suited to telework, as determined by the supervisor, including as a minimum:
a) (a) Demonstrated dependability and the ability to handle responsibility.
(b) A proven record of high personal motivation.
(c) The ability to prioritize work effectively and utilize good time management skills.
(d) A proven or expected minimum performance rating of “fully successful” or equivalent. Management officials may make exceptions to the minimum on a case-by-case basis as appropriate.
5) (5) Mission areas/agencies/staff offices may establish their own internal policies on probationary status employees being allowed to telework. Typically, probationary status employees, excluding supervisors, would not be eligible for telework because probationary status periods are established to allow supervisors an opportunity to personally observe and evaluate employee performance.
8. 8 INQUIRIES
Direct all inquiries to the Office of Human Capital Management, the Quality of Work Life Division Director, Room 3021 South Building, Washington, D.C. 20250, telephone number (202) 720-8248.
-END-
APPENDIX A
TELEWORKING AGREEMENT
The following constitutes the terms and conditions of the Telework Agreement between:
Employee:
Last Name First Name Middle Initial
Title Pay Plan/Series/Grade
MISSION AREA/AGENCY/STAFF OFFICE: ________________________________________________________________________
TYPE OF TELEWORK: ___ CORE (Must complete Telework schedule below)
___ SITUATIONAL
DESIGNATION UNDER ___ Emergency ___ Mission Critical
TEMPORARY OR
EMERGENCY SITUATION
The employee is approved to work at the approved alternative worksite specified below
in accordance with the following schedule:
|DAY |PER |PER PAY |WORK |WORK |DUTY |
| |WEEK |PERIOD |SCHEDULE |SCHEDULE |HOURS |
| | | | | |(specify hours of |
| | | |Fixed or |FWS or |work and lunch break)|
| | | |Alternative |CWS | |
|MON | | | | | |
| | | | | |Lunch: |
| | | | | | |
|TUES | | | | | |
| | | | | |Lunch: |
| | | | | | |
|WED | | | | | |
| | | | | |Lunch: |
| | | | | | |
|THURS | | | | | |
| | | | | |Lunch: |
| | | | | | |
|FRI | | | | | |
| | | | | |Lunch: |
| | | | | | |
Alternative worksite
The employee’s alternative worksite is:
___Home
Address: _______________________________________________________________
Location of home office work area: ___________________________________________
Phone: ______________________________
Fax: ______________________________
E-mail: ______________________________
___GSA Telecenter
Address: _______________________________________________________________
Phone: ______________________________
Fax: ______________________________
E-mail: ______________________________
___Other approved alternative worksite
Address: _______________________________________________________________
Phone: ______________________________
Fax: ______________________________
E-mail: ______________________________
TRIAL PERIOD (Optional)
Employee and agency agree to try out the teleworking arrangement for at least (specify number) months unless unforeseeable difficulties require earlier cancellation.
Changes to Telework Arrangement
An employee who teleworks must be available to work at the traditional worksite on their telework day(s), normally with a one-day notice, when management makes a determination their presence is required. The teleworker may request to telework on an alternate day when they are required to report to the traditional worksite on a regular scheduled telework day.
While teleworking, and then required to return to the official duty station, the teleworker must report within a reasonable amount of time. Items to take into consideration are traveling distance, mode of transportation, etc. Teleworkers and management must discuss these items as in some cases there may not be sufficient time for the teleworker to report to the traditional worksite.
Requests by the employee to change his or her scheduled telework day in a particular week or biweekly pay period must be submitted in advance and approved by management.
A permanent change in the telework arrangement requires a new Telework Agreement.
Work-at-Home Telework
It is the responsibility of the employee to ensure that all the requirements to do official work are met in an environment that allows the tasks to be performed safely. The employee agrees to permit access to the home worksite by agency representatives as required, normally with a 24-hour notification and during normal working hours, to repair or maintain government-furnished equipment, and to ensure compliance with the terms of this telework agreement.
For work-at-home arrangements, the employee is required to designate one area in the home as the official work or office area that is suitable for the performance of official government business. The government’s potential exposure to liability is restricted to this official work office area.
The employee acknowledges that telework is not a substitute for dependent care. However, a caregiver may be present at the alternative worksite to take care of a dependent (newborn to non-school age and/or elderly person) while the teleworker is officially working. Also, school-age children, who require no supervision, may be present at the alternative worksite.
The employee should check with their community associations, if one exists, to ensure there is not a restriction on official working at home.
The government is not responsible for any operating costs that are associated with the employee's use of his or her personal residence as an alternative worksite. This includes home maintenance, insurance, or utilities.
Official Duty Station
The employee’s official duty station for such purposes as special salary rates, locality pay adjustments, and travel is the city or town, county, and state in which the employee normally works. For most employees, this will be the location of the employee’s worksite, i.e., the place where the employee normally works, or at which the employee’s activities are based, as determined by the supervisor. For example, an employee’s official duty station would continue to be the agency office as long as the employee regularly commutes into the agency office at least once a week. However, if the employee does not regularly commute into the agency office, his or her official duty station will be changed to the alternative worksite from which the employee performs his or her duties.
There are exceptions for short-term situations. There may be unusual situations in which an agency should not change an employee’s official duty station even though the employee rarely commutes to the agency office (e.g., in the case of an employee who works temporarily from home while recovering from an injury or employees who are required to work temporarily at alternative worksites in emergency situations).
Time and Attendance, Work Performance and Overtime
Time spent in a teleworking status must be accounted for and reported in the same manner as if the employee reported for duty at the official duty station.
The employee is required to satisfactorily complete all assigned work, consistent with the approach adopted for all other employees in the work group, and according to standards and guidelines in the employee’s performance plan.
The employee agrees to follow their normal mission area/agency/staff office’s procedures regarding the requesting and approval of both overtime and credit hours that are worked while in a telework status.
Security and Equipment
No classified documents (hard copy or electronic) or equipment may be taken to an employee’s alternative worksite. For regular and recurring telework, Sensitive But Unclassified Information, including Sensitive Security Information, Privacy Act and For Official Use Only data may be accessed using employee-owned equipment but may only be stored on government-furnished equipment. The employee is responsible for the security of all official data, and protection of any government-furnished equipment and property, in carrying out the mission of USDA at the alternative worksite. Government furnished equipment must only be used for official duties. Teleworkers may not authorize any other person to use any government-furnished equipment.
When a waiver has been obtained in accordance with DM-3525-003, Chapter 5,
Part 3 – Telework and Remote Access Security, the employee may use his/her personal computer and equipment for Telework on non-sensitive unclassified data. An approved
remote access solution must be used such as a terminal services solution or Web-based e-mail. No sensitive unclassified data will be stored on Employee Owned Equipment (EOE). The employee is responsible for the installation, repair and maintenance of all personal equipment.
The agency shall be responsible for obtaining software licenses that are used on EOE for official business. When EOE is no longer used it is the responsibility of the teleworker to remove and return all government owned software to the agency software manager. The responsibilities for configuration management, patch and antivirus management and other administrative requirements must be defined in this agreement to include the expectations of the teleworker in these matters.
The agency is responsible for the maintenance of all government-furnished equipment. The employee may be required to bring such equipment into the office for maintenance. The employee must return all government furnished equipment and material to the agency at the conclusion of teleworking arrangements or the agency’s request.
Safekeeping of Government Materials/Documents/Equipment
Sensitive But Unclassified Information, including Sensitive Security Information (SSI), Privacy Act and For Official Use Only data, and non-sensitive unclassified data must be transported from the traditional worksite to the alternative worksite in a secure container (e.g., briefcase with lock).
Sensitive But Unclassified Information, including Sensitive Security Information, Privacy Act and For Official Use Only data, and non-sensitive unclassified data must be stored in a secure file cabinet at the alternative worksite (work-at-home, Telework Center, Satellite location, etc.). When such information is displayed on a computer screen it must not be visible to others. Computer privacy screens which block PC screen visibility to others must be used when SSI is displayed on a computer monitor at an alternative worksite.
Neither family members nor other individuals are authorized to handle and/or view any government Sensitive but unclassified information, including sensitive security information, Privacy Act and For Official Use Only data.
Workers’ Compensation and Other Liabilities
While teleworking at an alternative work site, an employee who is directly engaged in performing the duties of their jobs are covered by the Federal Employees Compensation Act.
The employee must notify the supervisor immediately of any accident or injury at the alternative work site, provide details of the accident or injury, and complete Department of Labor Form CA-1, Federal Employee’s Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation.
For work-at-home arrangements, the employee is required to designate one area in the home as the official workstation. The government’s potential exposure to liability is restricted to this official workstation for the purposes of telework.
The government is not liable for damages to the employee’s personal or real property while the employee is working at the approved alternative worksite, except to the extent
the government is held liable by the Federal Tort Claims Act or the Military and Civilian Employees Claims Act.
An injured employee, medically able to return to work, may use telework arrangements to return to work as soon as possible. It is a management decision, however, as to whether tasks could be developed in a position; so, that an employee could perform the work at an alternative work site.
Standards of Conduct
The employee acknowledges that he/she continues to be bound by the Standards of Ethical Conduct for Employees of the Executive Branch while working at the alternative worksite and using government-furnished equipment.
Temporary and/or Emergency Closure
Employees who are teleworking on the day of an emergency agency closure can be required to continue working from their alternative worksite if the closure occurs on his or her telework day. In addition, teleworkers may be designated as either “emergency” or “mission critical” employees. As “emergency” teleworking employees, teleworkers would be required to continue to work at their alternative worksites during all emergency situations when the agency is closed. As “mission critical” teleworking employees, they are expected to remain in contact with their agencies at all times during any closure situation and may be called to work at their alternative worksite during emergencies dealing with national security, extended emergencies or other unique situations. These designations can be an integral part of an agency’s Continuity of Operations Planning effort.
The employee agrees to follow the agency’s policy regarding excused absences for emergency situations affecting the telework site.
The employee will follow their mission area/agency/staff office policy for a telework employee to be excused from duty during an emergency if the emergency adversely affects the telework site (e.g., disruption of electricity, loss of heat, etc.), if the teleworker faces a personal hardship that prevents him or her from working successfully at the
telework site, or if the teleworker’s duties are such that he or she cannot continue due to loss of contact with the regular worksite.
Mileage Savings
The employee estimates that the telework arrangement will result in a reduction of approximately ______ miles traveled each week from the employee’s residence to the official main office via his/her one or more modes of transportation (i.e., car, mass public transportation, vanpool, bus, train, etc.).
Computer Security Training
Prior to begin teleworking, ALL teleworkers must complete the appropriate Computer Security Training outlined in DM-3525-003, Chapter 5, Part 3 dated February 17, 2005. Refresher training must be completed annually.
Travel and Telework
The travel provisions that apply to employees working at an official duty station also apply to employees who telework. A teleworker who is directed to travel to another worksite (e.g., official duty station) during his or her regularly scheduled basic tour of duty would have the travel hours credited as hours of work. Similarly, as for all employees, teleworkers who are required to travel back to the official duty location after their regularly scheduled basic tour of duty to perform irregular or occasional overtime work, are entitled to at least 2 hours of overtime pay or compensatory time off (5 CFR 550.112(h) and 551.401(e)).
Where an employee teleworks full-time from a location outside of the local commuting official duty station, and his or her alternative worksite has been determined as his or her official duty station, entitlements to travel allowances and official time for travel will be based on that designated official duty station (refer to the guidance provided at 3 above).
Tax Benefits
Generally, an employee who uses a portion of his or her home for work does not qualify for any Federal tax deductions. However, employees should consult their tax advisors or the Internal Revenue Service for information on tax laws and interpretations that address their specific circumstances.
Termination of the Telework Agreement
Either the employee or the supervisor can terminate this telework agreement by giving a two-week advance written notice. Management shall terminate the telework agreement should the employee’s performance not meet the prescribed standard, or the teleworking arrangement fails to meet organizational needs.
Date of Commencement
The telework arrangement covered by this Agreement will commence on ________(beginning date) and terminate on __________(ending date).
I have reviewed and understand the terms and conditions of this telework agreement.
Signature:
Employee: ____________________________Date: _____________________
I have reviewed and discussed the terms and conditions of this Agreement with the employee.
Signature:
Supervisor: ___________________________Date: _____________________
Copy of approved and signed agreement must be provided to the designated Telework Coordinator.
FLSA Issues/Wage and hour laws
Employers have expressed concern that telecommuting could increase overtime and recordkeeping costs. And it would seem that for now, at least, many companies are simply avoiding the overtime issue by allowing only exempt employees to work from their homes. Ac-cording to the report, most telecommuters tend to be executive, professional, or administrative employees exempt from the overtime requirements of the Fair Labor Standards Act. In those instances where telecommuters are nonexempt, employers should establish new procedures to preauthorize and record overtime.
The Fair Labor Standards Act and similar state laws require employers to pay “non-exempt” employees a minimum wage and overtime for hours worked over 40 in a workweek. These requirements apply just as much to employees who work at home as to those who work on-site. Unsupervised and distracted at home, employees who work at home may find it difficult to maintain accurate time records. And, because the employee may be the only one who knows when he is working, the employer will be forced practically and legally to take his employee’s word on the amount of hours worked.
Under California’s fair-labor laws, which are among the most protective in the U.S., employees must eat lunch. Telecommuter employers may have to install cameras, send inspectors or use more secretive methods of observation to ensure their employees leave nothing on their plates
From
Telecommuters Are Reaching Out to Sue Their Employers
Sheri Qualters
The National Law Journal
December 15, 2006
For non-exempt employees, It morphed into a wage-and-hour case when the firm learned that employees were not reimbursed for travel time during the workday and were not paid when the computer system was down, despite the expectation that they would stand by during computer outages.
The case alleges that Cigna Healthcare violated the Fair Labor Standards Act as well as California wage and hour laws. Davidson believes many more overtime cases related to telecommuting are on the horizon. Swagerty v. Cigna Healthcare of California Inc., No. 06-01598 (E.D. Calif.).
James Finberg of Lieff Cabraser Heimann & Bernstein in San Francisco, who was part of the plaintiffs' trial team in the most recent Farmer's Insurance Exchange case with Rubin, also has seen telecommuter overtime claims crop up in the information technology sector.
Two of Finberg's other cases involve a mix of telecommuter and call-center plaintiffs. He settled a case for $24 million against Computer Sciences Corp. in El Segundo, Calif., in April 2005. A case filed against Armonk, N.Y.-based International Business Machines Corp. in January was settled recently for $65 million, according to IBM. Fred Giannetto v. Computer Sciences Corp., No. 03-08201 (C.D. Calif.); Thomas Rosenburg v. International Business Machines Corp., No. 06-00430 (N.D. Calif.).
"The law doesn't differentiate at where you do the job [for overtime]," Finberg said. "The relevant consideration is what are your job duties."
IBM's lawyers, from Jones Day offices around the country, either could not be reached for comment or said the company would not talk about the case. Computer Sciences' lawyers said the company would not comment beyond a press release last year, which stated that "about 30,000 current and former employees would be entitled to make claims from the settlement."
Cases involving autonomous workers who rarely report to an office are also spreading to the pharmaceutical industry.
Pharmaceutical sales representatives shouldn't be exempt because they don't have much discretion or control over their work, said plaintiffs lawyer David Sanford of Sanford, Wittels & Heisler in Washington, whose firm is handling two cases against Novartis Corp. of New York that were consolidated into multidistrict litigation in a federal court in New York. In re Novartis Wage and Hour Litigation, No. 06-MD-01794 (S.D.N.Y.).
Sanford argued that the employees are essentially "marketing representatives" who don't actually sell product to doctors and who are required to follow a strict schedule and script.
Richard Schnadig of Chicago's Vedder, Price, Kaufman & Kammholz, the defense counsel in the Novartis case, countered that the representatives "do everything short of selling," with a great deal of individual judgment and discretion.
Schnadig also said employee plaintiffs lawyers are searching for new arenas since discrimination cases aren't as "vibrant" as they once were.
"There's a great big bar of plaintiffs lawyers out there looking to get rich," Schnadig said. "If you strike it rich in [Fair Labor Standards Act] cases, the liability is usually very large."
Under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., "employ" is defined as "suffer or permit to work." A covered employer is generally required to pay its employees for all hours it allows its employees to work, regardless of whether the employer has issued rules prohibiting such additional work. "The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so." 29 C.F.R. § 785.13. The mere fact that employees do not work on the premises of the employer has never been a defense in the Eleventh Circuit against claims that the employees have not been paid for all hours worked. Reich v. Department of Conservation Natural Resources, 28 F.3d 1076 (11th Cir. 1994); Brennan v. General Motors Acceptance Corp., 482 F.2d 825 (5th Cir. 1973). Employees who work out of their homes are no exception. See 29 C.F.R. § 785.12 (stating that rule requiring compensation of work not requested but nonetheless permitted "is also applicable to work performed away from the premises or the job site, or even at home"). Non-exempt employees are covered by the minimum wage and overtime restrictions of the FLSA regardless of where they perform their jobs. 29 U.S.C. §§ 206, 207. Although the FLSA's "homeworker" exception would appear at first blush to cover telecommuters, the definition of "homeworker" requires the production of goods, not services, at home. 29 C.F.R. § 530.1(b)(c).
Thus an employer who allows telecommuting is faced with a number of thorny legal issues under the FLSA. First, the employer bears the burden of monitoring the telecommuter's hours and enforcing its rules limiting such hours. Employers should therefore provide the telecommuting employee with a telecommuting agreement requiring daily reporting of hours worked and advising the employee not to work more than a certain number of hours per week without prior approval by a supervisor. The employer must remember to maintain records of the telecommuting employee's payment schedule and time reports. Employers could devise a system to receive daily time reports through an on-line computer generated reporting mechanism.
An employer must also be mindful of an employee's exempt status when formulating a system for measuring the exempt employee's productivity in a telecommuting situation. An exempt employee must meet the "salary basis" test, which requires that the employee's salary should not be "subject to reduction because of the variation in the quality or the quantity of the work performed." 29 C.F.R. § 541.118(a). Furthermore, for most exempt classifications, the employee must maintain a certain degree of independence and decision-making authority. See, e.g., 29 C.F.R. § 785.12(b). In order to avoid FLSA overtime liability, the telecommuting agreement should not transform an exempt employee's position into a non-exempt clerical or ministerial position.
Protected Communications under the LMRA
Not surprisingly, the industrial origins of the Labor Management Relations Act of 1947 ("LMRA") did not adequately prepare the Act for the expanded workplace created by the explosion of technology in today's society. By allowing an employee to work at home, an employer must be careful not to restrict the employee's communications and other protected activities under the LMRA.
Generally, employees have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and an employer must not interfere with the rights of any covered employee under Section 7 of the LMRA. The United States Supreme Court has held that employees may engage in protected concerted activity on company property during non-work time, absent proof by the employer that restrictions are necessary to maintain production or discipline.[89]
The question remains how much and what portions of an employer's property must be made accessible for such protected expression under the LMRA. Generally, distribution of written materials may be limited to non-work areas such as parking lots and cafeterias "because it carries the potential of littering the employer's premises [which] raises a hazard to production whether it occurs on working time or non-working time." Beth Israel Hosp. v. N.L.R.B., 437 U.S. 483, 491-93 & n.10 (1978); Stoddard-Quirk Mfg. Co., 138 NLRB 615, 619 (1962). The concerns that solicitation may be accidentally overheard or that distribution of materials prevents a safety hazard and a danger of discovery by patrons are no longer relevant in the paperless communications of the telecommuter.
Moreover, where an employer allows its employees to use its property for both work and non-work purposes, it may not prevent employees from using the property to the same extent for concerted activities under Section 7 of the LMRA. May Dept. Stores Co., 59 NLRB 976 (1944)(holding LMRA violated where no-solicitation rule enforced against union but employer allowed another organization to solicit during working hours). Therefore, an employer allowing its employees to telecommute must decide whether and to what extent its property (computer, fax machine, and phone lines at the employee's home office) may be used for Section 7 solicitation and other communications involving the telecommuting employee, either during or after work hours.
In E.I. du Pont de Nemours & Co., 311 NLRB 893 (1993), the National Labor Relations Board (NLRB) held that the employer discriminated against bargaining unit employees in violation of their Section 7 rights by prohibiting them from using e-mail to distribute union communications while allowing employees to send frivolous and non-union messages over the employer's e-mail system. The Board's decision required only that union access be equal to the access granted to other employees, leaving open the possibility that the employer may forbid all non-work uses of its e-mail system without violating the LMRA. While this prohibition may be appropriate for employees who can meet in person, such an outright ban on all non-work use of e-mail would prevent telecommuting employees from exercising their Section 7 rights to concerted action and would therefore violate the LMRA.(9)
Complicating the employer’s predicament is the NLRB’s recent ruling in Timekeeping Systems, Inc. v. Lawrence Leinweber[90] in which an employee’s e-mail messages to coworkers complaining about the employer's newly instituted vacation policy was found to constitute protected activity. The NLRB, recognizing that the e-mail had "arrogant overtones," nonetheless concluded that the employee was attempting to clear up any confusion over the vacation proposal and enlisted the aid of his coworkers in order to preserve the existing vacation policy. Accordingly, the Board order him reinstated with back pay after he was terminated for sending the vitriolic e-mail.
Covenants Not to Compete
Georgia courts will not "blue-pencil" covenants not to compete which contain even one unreasonable provision in order to render such covenants enforceable. Although the topic of covenants not to compete is beyond the scope of this paper, generally these agreements must contain a reasonably precise restriction on (1) the scope of conduct, (2) the duration of the restraint, and (3) the geographic limitation on the restraint in order to be enforceable under Georgia law. The reasonableness of the geographical limitation depends not so much on the size of the territory as on the reasonableness of the territorial restriction in view of the facts and circumstances surrounding the case. Rollins Protective Servs. Co. v. Palermo, 249 Ga. 138, 287 S.E.2d 546 (1982). Generally, a covenant not to compete will only be enforced if limited to the geographic areas in which the employee worked for or represented the employer. Wiley v. Royal Cup, Inc., 258 Ga. 357, 370 S.E.2d 744 (1988); see Darugar v. Hodges, 221 Ga. App. 227, 471 S.E.2d 33 (1996)(holding that "a restriction against doing business with any of an employer's potential customers located in a specific geographical area, without regard to whether the employee ever made contacts with those prospects, is overbroad and unreasonable").
These geographical limitations lose their presumption of reasonableness when a telecommuting employee conducts business in national and worldwide markets. This is particularly the case for employees who exclusively telecommute, both from home and on the road. These telecommuters are not tied to an office or even a specific geographic locale; thus, the normal county-wide or "mile radius" geographic limitations are not appropriate. Employers with nationwide or worldwide markets have attempted to protect themselves by circumventing the reasonable geographic requirement in non-compete agreements. Georgia courts have refused to enforce non-compete or non-solicitation provisions with a nationwide limitation unless the agreement is limited to contact with those customers whom the employee actually contacted during his or her employment. See, e.g., American Software USA, Inc. v. Moore, 264 Ga. 480, 448 S.E.2d 206 (1994)(refusing to enforce non-compete limited to "anywhere in the [United States]" because not limited to employee's former contacts); W.R. Grace & Co. v. Mauyal, 262 Ga. 464, 422 S.E.2d 529 (1992)(enforcing non-solicitation clause without geographic limitation because limited to clients that employee actually contacted during employment). The Georgia Supreme Court stated:
Requiring an express geographical territorial description in all cases is not in keeping with the reality of the modern business world in which an employee's "territory" knows no geographic bounds, as the technology of today permits an employee to service clients located throughout the country and the world.
W.R. Grace & Co., supra, 262 Ga. at 467, 422 S.E.2d at 533.
In the case of a highly specialized telecommuting employee who, due to the very nature of his or her specialty, has equally direct contact with all major industry clients as all other companies offering the same specialty, a worldwide geographic limitation would unduly burden the employee.(10) A customer-specific or activity-specific limit would also effectively bar the employee from working in his or her specialty. See Firearms Training Sys., Inc. v. Sharp, 213 Ga. App. 566, 568, 445 S.E.2d 538 (1994)(refusing to enforce as unreasonable a covenant not to compete containing a worldwide restriction on all activity of the employee within the industry because it substantially limited his ability to earn a living).
Unemployment and Severance Benefits
In a case with national significance, the New York Court of Appeals recently held that telecommuting employees should apply for unemployment benefits in the state in which they live, not where the employer is located. The highest court in New York is blazing the trail in the world of the virtual workplace. On July 2, 2003, the New York Court of Appeals issued a ruling in what they labeled as the first case in the country to decide telecommuting-employee eligibility for unemployment benefits.
A woman who used a laptop computer and a phone line to work in Florida for a financial information company on Long Island is ineligible for New York's unemployment benefits, the state's highest court ruled today.
In issuing a 6-to-0 decision, the Court of Appeals weighed in on the new legal front of telecommuting. The judges delivered what they called the nation's first interpretation of where employees in the virtual workplace should turn when they lose their jobs. The court ruled that people should seek unemployment benefits from the state where they work, not from the state where their employer is.
The opinion could have wide implications in a world where employees increasingly use the tools of the Internet to perform work for employers based far away from them. But it left the plaintiff, Maxine E. Allen, a former technical specialist with Reuters America Inc., deeply disappointed.
''I had fought so long and honestly believed I was right,'' Ms. Allen, 38, said in a telephone interview today. ''But we will abide by our country's rules and laws; that is what makes us great.''
Ms. Allen, who served as her own lawyer, said she would not appeal the decision to the United States Supreme Court, saying she simply did not know how to do so. Though she lost, she said she was impressed by the way the court system worked. She lives with her husband and children in Maitland, Fla., just outside Orlando.
For now, the ruling caps a long legal struggle for Ms. Allen, one with many twists. She lived in North Babylon, N.Y., and she worked for the company at its Hauppauge offices from October 1996 until she moved to Orlando, Fla., in July 1997, when her husband changed jobs, according to a court summary of the case.
Once there, she set up an office in her new home. Reuters paid for a phone line and gave her a laptop computer, software and the security clearance needed to log on to the company's mainframe computer in New York. But the company ended that arrangement in March 1999 and offered her a job back in New York, which she turned down, resigning.
On April 5, she filed for unemployment insurance coverage in Florida, where her claim was processed, and where payments were $275 a week. Reuters objected to the Florida authorities, contending that she had voluntarily quit her job without good cause, the court papers said. Employers bear some of the costs of unemployment insurance, which is drawn from payroll taxes.
Florida labor officials told Ms. Allen that she might qualify for New York's benefits, at a weekly rate of $365, and Ms. Allen filled out an interstate claim form with New York in May while her claim was still being reviewed in Florida. In June, Florida found that she was not eligible for unemployment benefits there.
In October, the labor commissioner in New York determined that Ms. Allen was not eligible for benefits because she had performed her work in Florida, and directed her to pay back $8,395 she had received in benefits from April to October of 1999.
Ms. Allen won an appeal before an administrative law judge in New York who decided she was eligible for state benefits because her work had been directed and controlled from New York. Reuters supervised her schedule as if she were based in New York. That decision was overturned by the State Unemployment Insurance Appeal Board, a ruling affirmed by the State Appellate Division, Third Department.
The Court of Appeals heard the argument on June 4. In ruling that Ms. Allen was ineligible for New York State benefits, it shut the door on her claim in New York. It left open the question of whether she would appeal the denial of her Florida benefits, something she said she did not foresee doing. The court sustained the outcome of the administrative proceeding, requiring Ms. Allen to repay most of the New York benefits she had received.
''Because claimant was regularly physically present in Florida when she worked for her employer in New York, her work was localized in one state -- Florida,'' Judge Susan Phillips Read wrote in the nine-page decision. Chief Judge Judith S. Kaye and four other judges concurred.
ADA Issues
The Americans with Disabilities Act of 1990[91] (ADA) requires employers to engage in an interactive process with its employees in order to determine appropriate reasonable accommodations for their disability. See, e.g., 24 C.F.R. App. § 1630 ("the ADA establishes a process in which the employer must assess a disabled individual's ability to perform"); 24 C.F.R. App. § 1630.2(o) (finding an appropriate accommodation "involves a process in which the employer and employee identify the precise limitations imposed by the disability and explore potential accommodations"); and 24 C.F.R. at § 1630.9(a) (describing the process for employers to follow when an employee requests an accommodation). An employer is not, however, required to offer an accommodation that eliminates the essential functions of the position, or one that does not enable the employee to adequately perform these essential functions. 29 C.F.R. App. § 1630.2(o). Among the reasonable accommodations noted in the non-exhaustive list contained in 42 U.S.C. § 12111(9) are (i) making facilities accessible, (ii) restructuring work schedules and responsibilities, or (iii) providing additional tools to perform the essential job functions. An employer is not required to accommodate a disabled employee or applicant if the employer demonstrates that the proposed accommodation would impose an undue hardship on its business operations.[92]
Although the ADA does not address telecommuting directly as a reasonable accommodation, the Equal Employment Opportunity Commission in 1999 issued Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (revised 10/17/02) which said that allowing an individual with a disability to work at home may be a form of reasonable accommodation[93] and in 2003 it published a fact sheet describing situations where allowing workers with disabilities to work from home could be considered reasonable accommodation.[94] The courts, however, differ regarding whether work-at-home is reasonable. Although no court has held that telecommuting can never be a reasonable accommodation, many courts have ruled that, in specific cases under consideration, telecommuting was not a reasonable option.[95] Noteworthy is the Vande Zande v. State of Wis. Dept. of Admin in which the Seventh Circuit crafted a presumption against requiring telecommuting as a reasonable accommodation. In Vande Zande, the plaintiff, a paraplegic, requested that she be provided with a desktop computer and be allowed to perform her job on a full-time basis from her home. Her employer refused and required instead that she take paid sick leave for any hours she was unable to work. The Seventh Circuit held that by allowing her to work the majority of her hours from home and providing her paid sick leave for the remainder, her employer had reasonably accommodated her disability without requiring the additional accommodation of telecommuting: “[N]o jury. . . could in our view be permitted to stretch the concept of reasonable accommodations so far.”[96]
In creating a presumption against telecommuting as an accommodation, the court noted that employees in most jobs are required to work as a team under supervision, stating that “teamwork under supervision generally cannot be performed at home without substantial reduction in the quality of employee’s performance.”[97] The court then stated in dicta that “it would take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home.”[98]
It appears that an employer's determination of telecommuting as a reasonable accommodation will turn on whether the employer has an existing telecommuting program available to all employees, or plans to initiate such a program, at the time of the accommodation request. In such a case, the employer cannot reasonably argue that allowing the disabled employee to telecommute would constitute an “undue burden.” To the contrary, if a telecommuting position is available, the employer may be required to offer that telecommuting position to the employee just as they must consider transferring the employee to a vacant position within the company. On the other hand, if the essential job functions preclude telecommuting for any of its employees, the employer can reject this proposed accommodation not only on “undue burden” grounds, but also because an employer need not create a new position or reassign or restructure essential job functions as a reasonable accommodation for a disabled employee.
Regardless of whether the employer currently offers telecommuting to its employees, a prudent employer should carefully evaluate the essential functions of the disabled employee's job in order to determine whether working from home would be reasonable for that employee. Again, an employer who offers telecommuting as a reasonable accommodation to a disabled employee should list the essential functions of the position in the telecommuting agreement.
In 1986, Diane Mason witnessed a fellow postal employee gun down 14 of her co-workers in Edmond, Okla. Diagnosed with post-traumatic stress disorder (PTSD), she was unable to return to her job and later joined Avaya Communications. She suffered a relapse of PTSD in 2(XX) when a co-worker pulled a knife on another employee and threatened to “go postal.” Unable to return to work, Mason claimed she was disabled under the Americans with Disabilities Act and demanded she he able to work from home. When Avaya refused, Mason filed a discrimination suit.[99] The trial and appeals courts rejected her claim. The court ruled that working at home is not a reasonable accommodation if the employee cannot perform all of the essential functions of her position. The court found that Avaya could not adequately supervise Mason if she was at home. Even though technology would allow Avaya to tell if Mason was logged into her computer, Avaya's supervisors would not be able to ascertain what she was doing (i.e., work-related versus non-work-related activities) while logged in. The court also found credible Avaya’s argument that teamwork is an essential function of the position because service coordinators typically assist and cover for one another. Finally, the court stated that it was “in no position to second guess Avaya’s desire to directly supervise its lower level employees” at “a time when employers are justifiably concerned with productivity at the workplace.” Because (i) the court found that physical attendance at the workplace was an essential function of Mason’s position, and (ii) under the ADA, Avaya is not required to eliminate or change the essential functions of Mason’s position in order to accommodate her disability, Mason’s request for an at-home accommodation was, as a matter of law, unreasonable and Avaya did not have to accommodate her condition.
On the other hand, a California case produced the opposite result.[100] There, medical transcriptionist, Carolyn Humphries, claimed that her obsessive-compulsive disorder left her unable to get to work: on time reliably. if at all. To accommodate her condition, Humphries asked her employer. Memorial Hospitals Association (MHA) to permit her to work from home. Her request was rejected as she was already on probation for tardiness and absenteeism. MHA claimed that showing up to work was an essential duty. After she had been terminated for continued attendance problems, Humphries sued for discrimination. Unlike the Avaya suit, the court found the transcriptionist’s physical presence at the office was not an essential duty of her position. This finding was influenced by the court’s recognition that the employer had permitted some transcriptionists to work from home. Because the job could be performed from home, the court ruled that the employer was obligated to accept Humphries' request.
Keep in mind that determinations on these issues may have unintended implications. For example, an employer who allows a job function to be indefinitely and permanently performed at home is effectively conceding that on-site attendance is not an essential requirement for that job. An employer will have a hard time later asserting that it is necessary for the job to be performed on-site as a reason for declining a disabled employee’s accommodation request to telecommute.
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1. Does the ADA require employers to have telework programs?
No. The ADA does not require an employer to offer a telework program to all employees. However, if an employer does offer telework, it must allow employees with disabilities an equal opportunity to participate in such a program.
In addition, the ADA's reasonable accommodation obligation, which includes modifying workplace policies, might require an employer to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home. For example, an employer may generally require that employees work at least one year before they are eligible to participate in a telework program. If a new employee needs to work at home because of a disability, and the job can be performed at home, then an employer may have to waive its one-year rule for this individual.
1. How should an employer determine whether someone may need to work at home as a reasonable accommodation?
This determination should be made through a flexible "interactive process" between the employer and the individual. The process begins with a request. An individual must first inform the employer that s/he has a medical condition that requires some change in the way a job is performed. The individual does not need to use special words, such as "ADA" or "reasonable accommodation" to make this request, but must let the employer know that a medical condition interferes with his/her ability to do the job.
Then, the employer and the individual need to discuss the person's request so that the employer understands why the disability might necessitate the individual working at home. The individual must explain what limitations from the disability make it difficult to do the job in the workplace, and how the job could still be performed from the employee's home. The employer may request information about the individual's medical condition (including reasonable documentation) if it is unclear whether it is a "disability" as defined by the ADA. The employer and employee may wish to discuss other types of accommodations that would allow the person to remain full-time in the workplace. However, in some situations, working at home may be the only effective option for an employee with a disability.
1. How should an employer determine whether a particular job can be performed at home?
An employer and employee first need to identify and review all of the essential job functions. The essential functions or duties are those tasks that are fundamental to performing a specific job. An employer does not have to remove any essential job duties to permit an employee to work at home. However, it may need to reassign some minor job duties or marginal functions (i.e., those that are not essential to the successful performance of a job) if they cannot be performed outside the workplace and they are the only obstacle to permitting an employee to work at home. If a marginal function needs to be reassigned, an employer may substitute another minor task that the employee with a disability could perform at home in order to keep employee workloads evenly distributed.
After determining what functions are essential, the employer and the individual with a disability should determine whether some or all of the functions can be performed at home. For some jobs, the essential duties can only be performed in the workplace. For example, food servers, cashiers, and truck drivers cannot perform their essential duties from home. But, in many other jobs some or all of the duties can be performed at home.
Several factors should be considered in determining the feasibility of working at home, including the employer's ability to supervise the employee adequately and whether any duties require use of certain equipment or tools that cannot be replicated at home. Other critical considerations include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients, or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace. An employer should not, however, deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees. Frequently, meetings can be conducted effectively by telephone and information can be exchanged quickly through e-mail.
If the employer determines that some job duties must be performed in the workplace, then the employer and employee need to decide whether working part-time at home and part-time in the workplace will meet both of their needs. For example, an employee may need to meet face-to-face with clients as part of a job, but other tasks may involve reviewing documents and writing reports. Clearly, the meetings must be done in the workplace, but the employee may be able to review documents and write reports from home.
Discrimination Claims. managers who deny telecommuting requests to employees from a protected legal class—such as minorities and women—while granting it to others could set off discrimination claims.
Liability For Discrimination In Offering Telecommuting Opportunities
In order to avoid discrimination charges arising out of "favoritism" in offering telecommuting opportunities, employers should develop selection guidelines for telecommuting positions just as they would for any other available positions posted within the company. Employees should be able to demonstrate the qualities and abilities listed in a telecommuting "job description," including but not limited to self-confidence, self-motivation, self-management, organizational skills, and a volunteer spirit. Managers responsible for making telecommuting selection decisions should make the decisions on the basis of definable, legitimate non-discriminatory factors.
Most employees view the opportunity to work out of their home as a benefit or perk; thus, an employee who has requested and been denied a telecommuting arrangement may allege that the employer discriminated in refusing to offer such an opportunity and/or refused the opportunity to the employee in retaliation for filing a discrimination complaint.
In Tarin v. County of Los Angeles, 123 F.3d 1259 (9th Cir. 1997), plaintiff sued her employer for retaliation alleging among other things that the employer refused to allow her to telecommute in the same manner as her coworkers because she had filed administrative claims under Title VII and other laws. The Ninth Circuit affirmed the award of summary judgment to the employer, holding that plaintiff failed to show a causal connection in support of her retaliation claim because the employer treated the plaintiff the same as her coworkers in providing its telecommuting arrangement. Id. at 1264-65. By recognizing that the record supported the employer's claim that plaintiff was allowed to telecommute in the same manner as her coworkers and that the employer had legitimate reasons for limiting telecommuting privileges among all of its workers, the Ninth Circuit implicitly held that denial of a request for telecommuting privileges may constitute an adverse employment action much like denial of a promotion. Id.(4)
Telecommuting and Attendance Problems
Requirement that employee record and submit time regularly to employer
Agreement to any limitations on employee's work hours and overtime, if non-Exempt
Employers may be able to impose some control. They can set standard hours when an employee should and should not be working. Employees should be required to keep and submit daily or weekly computer-generated or handwritten time records. For employees who use computers, employers can match work hour submissions with log-in and log-off times. Employers can counsel and even discipline employees who submit hours outside their prescribed schedule. However, employers are required by law to pay employees for all time and overtime hours claimed to be worked, even if it is not authorized, unless the employer can show that the hours were not worked.
Another significant issue affects exempt employees. Employers need not pay exempt employees by the hour or for overtime. The general rule is that the compensation of exempt employees cannot be docked based on the quantity or quality of their work. As exceptions to this rule, exempt employees need not be paid if they take off a full day for personal reasons, or if they have exhausted all paid sick days. However, they must be paid their full salary if they perform any services during the course of a day. Thus, an exempt employee who logs in to his e-mail for 15 minutes during the day may be entitled to be paid for the entire day.
Other legal issues arise when determining whether to pay at-home non-exempt employees for “on-call” and travel time. Generally, employers are not required to pay employees who are on-call unless their activities are substantially restricted due to the conditions of their on-call status. Thus an employer may have to compensate employees who are restricted to their house, or who must be able to get to work within a relatively short time if called. There are special rules for non-exempt employees who travel from home to customers or other work sites depending on their normal practice, if the trip is out of town and overnight and other facts.
The creative but habitually tardy or absent employee may see telecommuting as the answer to his or her employment problems. Employers should avoid considering an employee with chronic attendance or tardiness problems for a telecommuting arrangement. Employers may look to cases involving tardy employees and "flex-time" working schedules in support of their refusal to offer telecommuting as an option for employees with attendance problems. In Bryant v. Nat'l. Science Foundation, 105 F.3d 1414 (Fed. Cir. 1997), the court ruled that a public employer's flex-time schedule could not be stretched to cover the habitual tardiness of a dismissed worker, denying the government employee's appeal from an order of the Merit Systems Protection Board. Similarly, employers should not be required to offer a telecommuting arrangement to a habitually tardy or absent employee where adherence to normal business hours is necessary for the employer's business operations.
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Proponents of telecommuting estimate that the practice has grown by about 20 percent a year over a 10-year period, with more than 16.5 million employees telecommuting at least once a month and 9.3 million doing so at least once a week. However, a new report from the U.S. General Accounting Office (GAO) suggests that there are a number of potential trouble spots for employers that want to establish a telecommuting program for their employees [GAO-01-926].
To identify potential barriers to telecommuting, the GAO interviewed representatives from organizations that promote telecommuting and industry trade organizations with members who have telecommuting pro-grams. The GAO also spoke to IRS officials about aspects of the tax code that are often cited as barriers to telecommuting.
The GAO report notes that while the definition of telecommuting varies, it is generally defined as work at a remote location or home office, rather than working at a fixed employer-provided site or office.
The report points out that not all jobs are suited to telecommuting. Telecommuting jobs typically involve information handling and professional or knowledge-related tasks, which may limit the potential telecommuting opportunities for some companies.
In addition to identifying the types of jobs and employees suitable for telecommuting, employers also expressed concern about security and privacy. Most especially, employers must deal with the questions of how to protect proprietary and sensitive data at re-mote locations and how to monitor employee use and access to company data—without invading employee privacy.
Employee Relations Challenges
i. Fostering synergy
Manager control and employee isolation in telecommuting environments. By: Kurland, Nancy B., Kurland, Nancy B., Cooper, Cecily D., Cooper, Cecily D., Journal of High Technology Management Research, 10478310, Spring2002, Vol. 13,
Shared values and trust contribute to team synergy which itself rests on communication and cohesion. Communication and cohesion within work groups depend on informal face-to-face interaction which is fostered by shared gathering areas and proximal work stations (Sundstrom, de Meuse, & Futrell, 1990). These cohesion-fostering conditions are often lacking in telecommuting environments.
Sundstrom, E., de Meuse, K. P., & Futrell, D. (1990). Work teams: applications and effectiveness. American Psychologist, 45, 120-133.
In the present study, managers noted that face-to-face contact was critical to creating mutuality within teams and that reduced face-to-face interaction impeded trust. Fractured trust and shared values negatively affected group synergy and, ultimately, productivity. As one manager observed,
Productivity gains are measured when you put people into an office environment and a lot of synergy's created…When you telecommute…there's a lack of energy that I notice in the office…
Although this manager supported his employee's choice to telecommute, he still had difficulty creating the desired cohesion among his employees. This lack of ability to create synergy in the work group is further evident when telecommuters complained that their non-telecommuting colleagues do not believe they are working while at home.
ii. Replicating informal learning
Manager control and employee isolation in telecommuting environments. By: Kurland, Nancy B., Kurland, Nancy B., Cooper, Cecily D., Cooper, Cecily D., Journal of High Technology Management Research, 10478310, Spring2002, Vol. 13,
In addition to the challenge of creating team synergy, managers complained that telecommuters missed out on informal, interactive learning--learning that takes place by the water cooler, over lunch, or in the hallways (Kugelmass, 1995; Piskurich, 1996). The following comment from a manager is telling and representative.
It's much more difficult to communicate with [the telecommuter]. [M]ost communication here tends to be informal communication, not meetings, not memos, or things like that. We find that he is probably the least in touch with the general things that are going on in the division in terms of product ideas, concepts. I mean he can make it for a formal presentation, but those don't happen very often compared to work getting done as people just run into folks…
Similarly, the telecommuter who reported to this manager stated that a disadvantage of telecommuting for him was "being out of touch. … Not being up to date on things that are happening…[and not regarding] personal things, but things that are actually business related."
When employees work off-site, they miss the learning that occurs, informally, spontaneously--learning that cannot be scheduled. Such "in place career development" (Hall & Richter, 1990; see also, e.g., Becker, 1986) enhances productivity (Argote, 1993; Kraut, Fish, Root, & Chalfonte, 1990). Yet, telecommuters, especially, miss these implicit, informal learning opportunities, most of which occur within the work group (e.g., Piskurich, 1996), by being in close proximity to and observing other coworkers (Brown & Duguid, 1991; Zahn, 1991), and are context-dependent (Raelin, 1997). Obviously, work performed alone and at home rarely will provide such implicit learning opportunities. As a result, telecommuters' opportunities for informal learning, and consequently, for professional development, may be greatly diminished.
iii. Creating opportunities for interpersonal networking
A third area of concern, which employees noted especially, related to interpersonal networking internal to the organization. Intraorganizational, interpersonal networking exists in various forms, including office gossip and work-related, spontaneous discussions (Davis, 1953; Kurland & Pelled, 2000; Sutton & Porter, 1968), and is akin to informal, interactive learning.
In general, interpersonal networks in organizations benefit employees because they allow people to establish relationships and gain access to information that can advance their professional careers. When Luthans and his associates studied more than 450 managers, they found that managers who advanced up the corporate ladder most quickly networked the most (Luthans, 1988; Luthans, Hodgetts, & Rosenkrantz, 1988). Repeated face-to-face interactions build trust, build relationships (e.g., Calton & Kurland, 1996; Zucker, 1986), and can build careers--and the lack of which may not. As employees telecommute more frequently, their opportunities to develop intraorganizational networks decline, while their managers' role as their lifeline to the organization strengthens.
iv. Professionally developing out-of-sight teleworkers
In general telecommuting training appears sparse and dependent on the individual supervisor. Many employees believed their company and supervisor took a “sink or swim” attitude towards telecommuting. While companies supplied technology for use in employees’ home offices, they stopped short of training both telecommuting and non-telecommuting employees adequately about expectations, responsibilities, and common challenges each might encounter.[101]
A fourth area of concern was mentoring. Managers wondered, "How do we develop and mentor our employees virtually?" Whereas informal interaction and interpersonal networking enable employees to negotiate an organization's political infrastructure and informal learning further develops the employee's expertise, mentoring does both. A mentor is an experienced, productive manager who relates well to a less experienced employee and facilitates his or her personal development for the benefit of the individual as well as that of the organization (Kram, 1985). Mentors provide feedback, access (to official and unofficial organization networks, departments, and external networks), and emotional support (Altmeyer, Prather, & Thombs, 1994). They advance the protégé's career mobility (Scandura, 1992), career satisfaction (Fagenson, 1990), and positional power (Ragins, 1997) through sponsorship, exposure and visibility, coaching, protection, and delegating challenging work assignments. They act as role models, encourage new behaviors, provide feedback, counsel, and facilitate informal exchanges of information about work and nonwork experiences (Kram, 1983, 1985).
Mentoring from a distance is more challenging because mentors are unable to observe telecommuting employees in action. Consequently, they are less able to coach and to counsel telecommuters, and to develop them for longer-term organizational success. Hence, the absence of or reduction in mentoring activities may inhibit telecommuters' professional development and advancement.
In short, these findings suggest that managers and employees observed that the absence of team synergy, informal learning, intraorganizational, interpersonal networking, and effective remote mentoring could impede telecommuters' professional development and, ultimately, organizational productivity. Revealing these clan-related challenges to telecommuting makes salient telecommuters' concerns about professional isolation and emphasizes the need to relegate a focus on output controls from the position of a panacea.
Altmeyer, A. S., Prather, F., & Thombs, D. L. (1994). Mentoring-in-public-administration scales: construct validation and relationship to level of management. Public Productivity and Management Review, XVII (4), 387-397.
Argote, L. (1993). Group and organizational learning curves: individual, system, and environmental components. British Journal of Social Psychology, 32, 31-51.
Bailyn, L. (1988). Freeing work from the constraints of location and time. New Technology, Work, and Employment, 3 (2), 143-152.
Baruch, Y., & Nicholson, N. (1997). Home, sweet work: requirements for effective home working. Journal of General Management, 23 (2), 15-30.
Becker, F. D. (1986). Loosely-coupled settings: a strategy for computer-aided work decentralization. Research in Organizational Behavior 8, 199-231.
Brown, J. S., & Duguid, P. (1991). Organizational learning and communities-of-practice: toward a unified view of working, learning, and innovating. Organization Science, 2 (1), 40-57.
Calton, J. C., & Kurland, N. B. (1996). A theory of stakeholder enabling: giving voice to an emerging postmodern praxis of organizational discourse. In: D. Boje, R. Gephart Jr., & T. Joseph (Eds.), Postmodern management and organizational theory (pp. 154-177). Thousand Oaks: Sage Publications.
Campagna, F. W. (1996, December). Managing Telecommuters. Training and Development, 50, 9.
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Davis, K. (1953). A method of studying communication patterns in organizations. Personnel Psychology, VI, 301-312.
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Fagenson, E. A. (1990). At the heart of women in management research: theoretical and methodological approaches and their biases. Journal of Business Ethics, 9, 267-274.
Glaser, B. G., & Strauss, A. L. (1967). Discovery of grounded theory: strategies for qualitative research. Chicago: Aldine.
Hall, D. T., & Richter, J. (1990). Career gridlock: Baby Boomers hit the wall. Academy of Management Executive, 4 (3), 7-22.
Hamblin, H. (1995). Employees' perspectives on one dimension of labour flexibility: working at a distance. Work, Employment and Society, 9 (3), 473-498.
International Telework Association (2000). Available at: .
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Kram, K. E. (1985). Mentoring at work. Glenview, IL: Scott, Foreman.
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Kugelmass, J. (1995). Telecommuting: a manager's guide to flexible work arrangements. New York: Lexington Books.
Kurland, N. B., & Bailey, D. E. (1999, Autumn). When workers are here, there, and everywhere: a discussion of the advantages and challenges of telework. Organizational Dynamics, 53-68.
Kurland, N. B., & Egan, T. E. (1999). Telecommuting: justice and control in the virtual organization. Organization Science, 10 (4), 500-513.
Kurland, N. B., & Pelled, L. H. (2000). Passing the word: toward a model of gossip and power in the workplace. Academy of Management Review, 25 (2), 428-439.
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Luthans, F., Hodgetts, R. M., & Rosenkrantz, S. A. (1988). Real managers. Cambridge, MA: Ballinger Publishing.
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Intellectual Property Issues
Although computer use at work may not be much different from computer use at home, the absence of supervision at home does present greater risk to employers that confidential information and trade secrets may be lost or misappropriated. Confidentiality agreements are critical to the protection of such information, but lax restrictions and protections erode the enforceability of such agreements. Employers should work with their IT staff to develop creative and proactive measures to protect and monitor the confidentiality of off-site information.
Security, Privacy and Confidentiality Considerations
In U.S. Government. NIST (National Institute of Standards and Technology) Special Publication 800-46 (August 2002). Security for Telecommuting and Broadband Communications.
See executive summary rather than the 113 page document.
Telecommuters by necessity have access to their employer's computer systems from their homes, in addition to storing hard copy files and other sensitive materials in their home offices. Employers can no longer control access to these systems and materials by simply locking the office door. In order to insure confidentiality and protection of trade secrets, employers should consider having commuting employees (i) sign a confidentiality agreement, (ii) use a lock or some other device to prevent unauthorized access to the home office and/or the telecommuter's computer terminal, and (iii) use passwords and additional security measures when accessing the employer's computer system from home.
Electronic privacy
Sensitive & classified material rules what happens to the company when confidential information destined for a telecommuter winds up in outside hands? Will the company’s disclosure policy hold if it hasn't put necessary tech safeguards in place?
Work
Trojan Horse, Meet The Home Office
Arik Hesseldahl, 07.15.03, 12:00 PM ET
NEW YORK - Could having telecommuters put your office systems at risk?
It's not so farfetched a question. In October 2000, a hacker attacked Microsoft (nasdaq: MSFT - news - people ) using an employee's home computer as a springboard to computers at its Redmond, Wash., headquarters, where the attacker found access to secret software code.
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|Trojan Horse, Meet The Home Office |
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|Organizing Telecommuters |
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|Telecommuting's Legal Black Hole |
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|Home Office Remodeling |
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|The Dark Side Of Telecommuting |
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|Poll: How Much Do You Telecommute |
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More than 30 million U.S. workers telecommute at least some of the time, and their numbers are growing, spurred in part by the proliferation of broadband Internet connections like cable modems and digital subscriber lines (DSL). But telecommuters represent a potential chink in the corporate-IT security armor that many companies fail to consider adequately before they hand them a laptop and a password to access the corporate network from home.
"If you're not prepared to spend $500 on a firewall for your telecommuter's security, don't bother spending $100,000 on your corporate firewall," says Nir Zuk, chief technology officer at NetScreen Technologies (nasdaq: NSCN - news - people ), a maker of network security appliances that did $138 million in sales in 2002.
Many companies think that by simply equipping their users with a virtual private network (VPN) connection, which encrypts network traffic between the employee's home PC and the company network, they've put sufficient security in place. But if the home PC is connected to an always-on broadband Internet connection, the VPN may be useless, says Ollie Whitehouse, a London-based security consultant with @Stake, a computer security firm based in Boston.
In fact, the great fear among corporate IT managers with many telecommuters is a phenomenon called the "U-Turn" attack. In such an attack, a hacker first targets an unsecured home computer. He then gets control of that computer's user name and password for its VPN access to the internal company network. The hacker can masquerade as that employee and has the same level of network access that he or she does, including whatever confidential information would typically be within the employee's reach.
"There have been a number of documented cases where an e-mailed Trojan [horse] has provided a means of allowing someone on the open Internet to access corporate networks," Whitehouse says.
Fast Internet connections provide an inviting target. "For a determined hacker, the easiest broadband network to hack is through the cable modem because it's shared with other users," says Jeff Wilson, an analyst with San Jose, Calif.-based Infonetics Research. "And DSL lines are only a little more difficult."
Rapid adoption of broadband connections by consumers has fueled security fears and sales of low-end firewalls, Wilson says. That's where vendors like NetScreen and its rivals like SonicWall (nasdaq: SNWL - news - people ) and WatchGuard Technologies (nasdaq: WGRD - news - people ) have found a niche selling products that protect telecommuters, and through them their employers, from malicious attacks. Wilson says companies snapped up more than half a million units of low-end firewall products aimed at securing computers used by home workers. Revenue on the products amounted to $223 million in 2002.
But installing and managing firewalls in employees' homes can be a logistical and organizational hassle as the company's number of home workers increases. The next step in securing home users' machines comes from a new class of product that requires a lot less work and tends to cost less than conventional firewalls.
Wilson calls them application layer VPNs, and they streamline home workers' access to corporate networks. Using nothing more complicated than a Web browser, home workers can get access to all the same applications they would have on their office PC. Vendors like Neoteris, Aventail, Permeo Technologies and others are pushing this approach. Others such as Nokia (nyse: NOK - news - people ), Check Point Software Technologies (nasdaq: CHKP - news - people ), Cisco Systems (nasdaq: CSCO - news - people ) and Nortel Networks (nyse: NT - news - people ) are either working on or have already released application layer VPN products, Wilson says.
"The cost is dollars or tens of dollars per user, versus hundreds of dollars per user," he says.
To say nothing of the cost of saving the network
Worker Health and Safety Issues
The telecommuter arrangement presents unique legal complications under state worker's compensation laws, including (1) whether any injury at home arose out of and in the course of employment; (2) the extent of the employer's duty and opportunity to insure workplace safety; and (3) the opportunity for employee fraud.
A. Injuries Arising Out Of And In The Course Of Employment
A majority of states provide for employer liability under workers' compensation wherever the injury occurs, provided that the injury arose out of or is related to employment and that the injury occurred in the course of employment. See, e.g., Pennsylvania Workers' Compensation Act, 77 Pa. C.S.A. § 411. Under Georgia's worker's compensation laws, "in the course of employment" refers to the time, place, and circumstances under which an accident occurred. O.C.G.A. § 34-9-1(4). An accident "arises in the course of employment" within the meaning of this law when it occurs (1) within the period of employment; (2) at a place where the employee reasonably would be in the performance of the employee duties; (3) while the employee was fulfilling employee duties, or is engaged in an activity incidental to fulfilling employee's duties. See, e.g., Sands v. Union Camp Corp., 559 F.2d 1345 (5th Cir. 1977). Because Georgia follows the "positional risk" doctrine, the employee need only prove that the employer brought the employee within the range of danger by requiring his or her presence in a location where the injury occurred. See, e.g., National Fire Ins. Co. v. Edwards, 152 Ga. App. 566, 263 S.E.2d 455 (1979). When an employee deviates from the course of his or her employment and is engaged in solely personal activity at the same of the accident, the injury is not one arising out of and in the course of his or her employment. See, e.g., General Accident Fire & Life Assur. Corp. v. Prescott, 80 Ga. App. 421, 56 S.E.2d 137 (1949).
Telecommuting employees working out of their homes do not benefit from the same presumption that an injury occurring in the office, factory, or facility occurred in the course of employment, rather than on a personal frolic. The test for whether or not an employee breaks the continuity of employment for personal purposes is as follows: (1) If the injury occurred before the employee returned to the line of employment, the injury is not one arising out of the course of employment; but (2) where the personal mission has been accomplished and the employee has reengaged in the duties of his or her employment, the injury arose out of or in the course of employment and is therefore compensable under Georgia law. See, e.g., Fulton County Civ. Ct. v. Elzey, 101 Ga. App. 520, 114 S.E.2d 314 (1960).
B. Employer's Duty To Provide A Safe Workplace
The Georgia rules requiring an employer to provide a safe workplace for its employees derives from O.C.G.A. § 51-3-1, which codifies the general law that an owner or occupier of land has a duty to invitees. See, e.g., Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 159, 342 S.E.2d 468 (1968). Georgia courts have applied § 51-3-1 in negligence actions brought by employees against their employers. E.g., Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972). Since § 51-3-1 is derived from ancient law on duty to invitees, it is not surprising that this laws usually applied to permanent places such as factories, stores, and offices. Thus, it is unclear whether and to what extent § 51-3-1 applies to telecommuters working from their homes.
Another Georgia safe workplace statute, O.C.G.A. § 34-7-20, provides: "If there are latent defects in machinery or danger incident to an employment, which defects or dangers the employer knows or ought to know but which are unknown to the employee, then the employer shall give the employee warning with respect thereto." The statute is qualified by O.C.G.A. § 34-7-23, which provides as follows:
An employee assumes the ordinary risks of his employment and is bound to exercise his own skill and diligence to protect himself. In actions for injuries arising from the negligence of the employer in failing to comply with the duties imposed by Code Section § 34-7-20, in order that the employee may recover it must appear that the employer knew or ought to have known of . . . the defects or danger in the machinery supplied; and it must also appear that the employee injured did not know and had no equal means of knowing such fact and by the exercise of ordinary care could not have known thereof.
The employer's duty to furnish and maintain a reasonably safe place to work is that of ordinary care, and the employer is not required to be an "absolute guarantor of a physical or emotionally safe workplace" or to insure an employee's safety. See, e.g., Dugger v. Miller Brewing Co., 199 Ga. App. 850, 406 S.E.2d 484 (1991); Cline v. McLeod, 180 Ga. App. 286, 293, 349 S.E.2d 232 (1986). Georgia courts have found that where an employer could discover a dangerous condition, that employer is thereby under a duty to inspect the workplace and warn its employee as to such dangers. See, e.g., Clark, supra, 178 Ga. App. at 159, 342 S.E.2d at 468. Where there is nothing in the workplace to indicate the presence of a dangerous condition, the law refuses to require inspection by the employer. See, e.g., Williamson v. Kidd, 65 Ga. App. 285, 155 S.E.2d 801 (1941). If the employee could discover the dangerous condition through ordinary care, the employee is generally unable to recover from the employer under the safe workplace rules. See, e.g., Holman v. American Auto. Ins. Co., 201 Ga. 454, 461, 39 S.E.2d 850 (1946); Clark, supra, 178 Ga. App. at 158-59, 342 S.E.2d at 468. The duty on the employee is not a duty to inspect, but rather to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care. See, e.g., Owensby v. Jones, 109 Ga. App. 398, 399, 136 S.E.2d 451 (1964). The rules concerning a safe workplace continue throughout the duration of the employee's work day and apply within the employer's entire premises. Therefore, an employee working out of a home office in a telecommuting situation may be covered by the safe workplace laws to the same extent as an employee injured while using an employer provided cafeteria on the premises, a satellite office, or a mobile trailer.
Finally, an employee may not recover additional damages under safe workplace rules over and above those contained in the Georgia Worker's Compensation Act. See, e.g., Dugger, supra, 199 Ga. App. at 850, 406 S.E.2d at 484.
C. OSHA Liability
The Occupational Safety and Health Act of 1970 ("OSHA") may preempt some claims under the safe workplace rules. See, e.g., 29 U.S.C. § 667(a)(preempting states from "asserting jurisdiction under state law over any occupational safety or health issue with respect to which [an OSHA] standard is in effect under Section 655").
In addition to Georgia's workplace safety rules, OSHA requires a covered employer to provide a workplace free from hazards that are likely to cause serious harm or injury. E.g., 29 U.S.C. § 654. Again, although telecommuting is not expressly included in the statutory definition of "place of employment," this definition is broadly interpreted and will likely include at least the home office portion of the telecommuting employee's residence. In order to avoid OSHA liability, an employer should work with the employee in designing and maintaining a safe, hazard-free home office. The telecommuting agreement should allow for the employer to conduct periodic inspections of the telecommuting work space.
D. Employee Fraud
In the majority of accidents involving telecommuters, there will be no witness to the accident other than a pet or infant child. The employer must rely solely on the employee's story as to whether the injury arose out of and occurred in the course of employment. Notwithstanding this disadvantage, employers should still require telecommuting employees to follow the same procedures in recording an injury within a certain number of hours, inspecting the premises, and investigating the cause of the injury. These procedures should be set forth in the telecommuting agreement.
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Nicole Belson Goluboff
The purpose of the Occupational Safety and Health Act of 1970 (OSH Act) is to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions...”[102] The OSH Act applies to a private employer who has any employees doing work in a workplace in the United States. It requires these employers to provide employment and a place of employment that are free from recognized, serious hazards, and to comply with OSHA standards and regulations.[103]
On February 25, 2000, OSHA issued directives stating its position on home-based work which essentially said that employers are not responsible for white-collar telecommuters, but they may be for home-based blue-collar employees engaged in manufacturing or other hazardous work.[104]
Specifically, the directive defined "home-based work sites" as the areas of an employee’s home where he or she "performs work of the employer," such as filing, keyboarding, computer research; reading, and writing. According to OSHA, these "activities may include the use of office equipment (for example, telephone, facsimile machine, computer, scanner, copy machine, desk, file cabinet)."[105]
The directive set forth OSHA’s policy for home offices and for "other home-based work sites." With respect to "home offices," the agency’s policy is:
• It will not conduct inspections.
• It "will not hold employers liable for employees' home offices, and does not expect employers to inspect" them.
• "If OSHA receives a complaint about a home office," the agency will advise the person complaining "of OSHAs policy." If an employee "makes a specific request, OSHA may informally let employers know of complaints about home office conditions," but it will not follow up with either the employer or the employee.
As for "other home-based work sites," OSHAs policy is:
• It will inspect other home-based work sites, "such as home manufacturing operations," but only when it "receives a complaint or referral that indicates that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, including reports of a work-related fatality."
• It will inspect only the employee's home-based "work activities. The OSH act does not apply to an employee's house or furnishings."
• "Employers are responsible in home work sites for hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee's home.[106]
The directive also states that employers "who are required, because of their size or industry classification, by the OSH act to keep records of work-related injuries and illnesses" must include in their records injuries that occur in home offices.[107]
However, regulations implementing the act provide that not every accident that occurs at a home work site is necessarily considered "work-related." Specifically, the regulations say that injuries "and illnesses that occur while an employee is working at home ... will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.[108]
Therefore, if "an employee drops a box of work documents and injures his or her foot, the case is considered work-related. [However, if] an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, [or if he or she] is electrocuted because of faulty home wiring, the injury is not considered work-related."[109]
The regulations also provide that telecommuters' homes are not considered "business establishments" for which separate injury/illness records must be kept. Rather, employees "who telecommute must be linked to one of" the business's "establishments" for which records are maintained.[110]
Despite OSHAs seeming relaxation of its policy on employer liability for white-collar telecommuters, employers must consider the safety of these workers for this reason: Employers can be held liable under state workers' compensation laws for injuries telecommuters sustain at home.
Another reason employers should remain concerned about telecommuter safety is that some states, including California, have "OSHA plans." These are federally approved plans for the development and enforcement of occupational safety and health standards. States may include in these plans more stringent standards than federal law imposes.[111] Although "[m]ost states adopt standards identical to federal ones,"[112] and although some have excluded private residences from safety inspection requirements,[113] other states could choose to require employers to oversee the safety of home work sites.[114]
A current OSHA directive states that employers are not liable for the safety of an employee’s home office. Nonetheless, some employers with telecommuting employees are addressing concerns about potential liability by offering those workers guidance about home office safety and design or providing ergonomic furniture.
Employers have also expressed concern over the potential for increased workers’ compensation costs resulting from injuries incurred by telecommuting employees. Work-related injuries, regardless of location, are usually covered by workers’ compensation. The law is still unsettled in this area, so employers should verify the requirements of their state workers’ comp standards and otherwise follow the guidance of legal counsel when it comes to the corporate telecommuting program.
Work-related injury at home or if a visitor or customer at the telecommuter’s home office suffers an injury.
Worker’s compensation
Although state workers’ compensation laws vary from state to state, typically they provide that a worker may be compensated for injuries if they “arise out of” and “in the course of” employment. Do injuries a telecommuter sustains at home “arise out of” and “in the course of” employment?
They can. While some jurisdictions may, by statute, exclude some or all home workers from coverage,[115] administrative and judicial decisions indicate that such workers may sometimes be compensated for injuries occurring at home.
Some decisions suggest that, for injuries sustained at home to be compensable, the employer must have required the employee to perform work at home. Indeed, some have denied compensation at least partly on the ground that performing work at home was, while authorized by the employer, not required. [116] However, judges may disagree on whether an employer did, in fact, require the employee to work at home.
For example, in Augustine v. Kenosha Visiting Nurse, the Wisconsin Labor and Industry Review Commission upheld a finding that a visiting nurse should be compensated for an injury she sustained while doing paperwork at home.[117] On the day before the injury, she had advised her supervisor that she could not work the next day because she had to take care of her daughter, who was sick. The supervisor told her she had to work. She agreed to visit certain clients, and her supervisor said she could do her paperwork at home. The next day, she followed the plan. However, while going back to her car to bring in more paperwork, she slipped going downstairs and was injured.
The commission concluded that the nurse “did not have a choice to go to the office and perform her work and leave her ill minor child at home alone. . . . The employer requested that the [nurse] perform work that day and gave [her] specific permission to perform paperwork at home. ... [She] was not injured engaging in a personal activity but when acting in her capacity as a nurse for the employer.” Therefore, the commission held, the nurse was entitled to compensation.[118]
The dissent, however, disagreed specifically with the finding that the nurse’s work at home was required. According to the dissent, the “employee was working at home rather than at work for her own convenience to be able to take care of her daughter who was ill.”[119]
Some decisions suggest that compensation may be awarded even if the employee was not required to work at home. For example, in Schwindt v. Red Roof Delivery, Inc., compensation was granted where a restaurant manager fell down a stairway in her home at 4:30 a.m. after dozing off while scheduling employees’ shifts. She had been authorized, but not required at home.[120]
Another question concerns whether an injury is compensable if it occurs as a result of an activity that has both business and personal attributes. A number of courts have indicated that salespeople who operate out of their homes and are injured while engaged in activities to facilitate work may be compensated, even if they might have had to perform those activities regardless of their jobs.
For example, in Ae Clevite, Inc v. Labor Commission, a district sales manager for an automotive supply company who operated out of his home was preparing for a sales trip and waiting for a package related to the trip.[121] His driveway was icy due to a snowfall the night before. When he saw the mail carrier approaching, he decided to salt the driveway so that the postal worker would not slip. While salting, the salesman slipped, suffering a neck injury that left him a quadriplegic.
The Utah Court of Appeals stated:
We recognize that [the salesman] may have decided to salt the
driveway at some other time for his own non-job-related purposes,
yet. when he did, it was in an attempt to remove a hurdle that
could have prevented the delivery of the expected business package.
[The] act of salting the driveway was motivated in part by a purpose
to benefit [the employer] and thus was reasonably incidental ... to
his employment. As such, the commission correctly concluded
that [his] injuries arose ‘in the course of’ his employment.[122]
The law in Connecticut is similar.[123]
Telecommuters may seek compensation for a wide range of potential injuries, including slips and falls, back strains, and heart attacks. Compensable injuries also include illnesses resulting from air quality problems caused by asbestos, radon, or carbon monoxide contamination.
At least in some states, telecommuters may also seek compensation for excessive stress. Telecommuters who work full-time from home may be especially susceptible to stress if they never fully escape the workplace or do not remain sufficiently connected to the employer’s office.[124] And while some states preclude benefits for injuries resulting from violence having nothing to do with the victim’s employment—such as domestic violence[125]—in other states, employers could be held liable for such injuries.[126]
Injuries occurring while traveling to or from home
Ordinarily, employees are not eligible for workers’ compensation when they sustain injuries commuting between work and home. This is known as “the going-and-coming rule.” However, a number of exceptions to this rule may apply in certain jurisdictions. One is that, if the worker was traveling for a dual purpose—for example, traveling home for both personal and work-related reasons—when the injury occurred, compensation may be awarded.[127]
Workers also may be compensated for injuries sustained when traveling between work locations. If a worker’s home qualifies as a second work location, injuries sustained while traveling between work and home may be compensable.[128] Telecommuters may also be entitled to compensation for injuries sustained while traveling between home and a work site other than the regular one.[129]
Some decisions concerning injuries sustained while traveling home suggest that they are compensable only if the employee was required to work at home. For example, in Bramall v. Workers’ Compensation Appeals Board, a legal secretary was driving home at the end of the business day when she was injured in a car accident.[130] As was her common practice, she was carrying some depositions she planned to translate into English at home that night. Her employer approved of her practice of bringing work home, allowing her to take “compensating time off and longer lunch breaks to make up for it.”
The court found that bringing the depositions home on the date of the accident was “an implied requirement of [the secretary’s] duties.”[131] It found that, because of interruptions and distractions at the office after 5 p.m., the translation work could not be properly performed in the office. Thus, the court concluded that the secretary's injuries were compensable.[132]
As noted above, courts may disagree on when an employer has actually required an employee to work at home. In Santa Rosa Junior College v. Workers’ Compensation Appeals Board, an instructor who regularly worked at home in the evenings was killed in a car accident on his way home from the campus.[133] He was carrying student papers he intended to grade that night.
Despite evidence that working at home was common for many instructors and necessary because student interruptions prevented completing the work on campus, the court concluded that the instructor worked at home for his own convenience and was not required to do so. The court said, “We conclude that—unless the employer requires the employee to labor at home as a condition of the employment—the fact that an employee regularly works there does not transform the home into a second job site for purposes of the going-and-coming rule.”[134]
Thus, while in Bramall the court decided that the secretary was required to work at home in part because interruptions at her office prevented her from completing her work there, in Santa Rosa office interruptions did not amount to a requirement to work at home.
Like some cases concerning injuries sustained at home, certain travel cases indicate that some courts will award compensation even if the employer did not require the employee to work at home. For example, in Florida Hospital v. Garabedian, a home health aide whose average workday included paid work time at home was injured in a car accident while traveling home from a hospital staff meeting.[135] A judge awarded compensation, concluding that the accident “occurred before her workday was completed” and was “not covered by the going-and-coming rule.”
A Florida appellate court affirmed, stating that the accident occurred while the aide was “on a trip from one location where work is regularly performed to another.” The court specifically noted that, in this case, it was “irrelevant... that the job duties performed by [the aide] at home could have been performed at another location.”[136]
Injuries occurring while out of state
When a telecommuter is located outside the employer’s state and is injured at home, which state’s workers’ compensation law applies—the employer’s or the telecommuter’s? Employers must consider the laws of both states in order to answer the question.
State laws may differ concerning whether they cover workers who are injured outside the state. In Vermont, the law provides that a worker hired there who is injured in an accident arising out of and in the course of employment is entitled to compensation under Vermont law “even though such injury was received outside [the] state.”[137]
Similarly, in Oklahoma, “when the contract of employment was entered into within ... Oklahoma, and the ... employee was acting in the course of such employment and performing work outside [Oklahoma] under direction of” his or her employer, the state’s workers’ compensation-law applies, “irrespective of where accident resulting in injury may occur?”[138]
In states with similar laws, nonresident telecommuters injured at home may be able to recover under the workers’ compensation laws of their employer’s states. Oklahoma does “not preclude the injured employee from recovering any benefits ... provided under any law of the state where injury occurred.” However, if the employee prosecutes an action under the law of the other state “to final determination,” he or she is then precluded from his or her right of action under Oklahoma’s Workers’ Compensation Act.[139]
Other states may define more narrowly the circumstances under which they will permit compensation for injuries sustained outside their borders. For example, in Wisconsin, for a nonresident to receive compensation for an injury sustained in the home state, he or she might have to satisfy one of a number of conditions. Compensation might be awarded if the worker’s employment is “principally localized” in Wisconsin. Or, it might be awarded if the employee is working under a contract that was made in Wisconsin at a job that is “principally localized” in a state “whose workers’ compensation law is not applicable to that person’s employer.”[140]
The laws of the telecommuter’s home state may also protect him or her when injured there. In Colorado, for example, the “jurisdictional prerequisites to recovering benefits under the [workers’ compensation] act are that a substantial portion of the employee’s work must be performed in Colorado, combined with either an injury in Colorado or an employment contract entered into in Colorado.”[141] In Monolith Portland Cement v. Burak, an employee who lived in Colorado was killed in a car accident in Colorado on his way to his Wyoming office. The employee regularly worked at home in the evening.
In litigation concerning death benefits awarded to the worker’s wife under Colorado law, the employer and insurance company argued that Colorado’s Workmen’s Compensation Act did not apply. The court held that it did: “The record supports the finding that Burak performed a substantial portion of his work for Monolith at his home in Colorado.... And, since it is undisputed that the accident occurred in Colorado, we conclude that” the state’s compensation act does apply.[142]
Employers should take precautions to ensure that their telecommuters’ home offices are safe. Although OSHA has indicated that it will not assert jurisdiction over home offices or require employers to inspect them, employers may be liable under workers’ compensation laws (and perhaps under state OSHA plans) for injuries that telecommuters sustain at home.
Employers also may be liable under workers’ compensation laws for injuries that telecommuters sustain while traveling between the home office and another work site. When a telecommuter lives, works, and is injured outside the company’s state, the employer must consider which workers’ compensation law applies, that of the telecommuter’s state or the business’s state.
Steps employers can take to minimize liability include training telecommuters to set up and maintain safe offices, providing ongoing safety guidance, and maintaining adequate workers’ compensation insurance.
Tax Issues
The Telecommuter Tax Fairness Act (the Act), first introduced last September by Sen. Christopher Dodd (D-CT) and Rep. Christopher Shays (R-CT), would eliminate a state tax rule known as the "convenience of the employer" rule. New York is among the states to apply the convenience rule. Pennsylvania and Nebraska have maintained similar rules.
Under the rule in New York, a nonresident who elects to telecommute part-time to a New York employer may owe taxes to New York on 100% of his or her income, including the income earned at home. Because the telecommuter's home state may also tax the income earned at home, the telecommuter risks taxation by both states on the same income.
Consider, for example, a Connecticut resident who works for a firm in Manhattan and telecommutes 2 days a week. In addition to taxing the income the employee earns while physically in New York, New York may tax the telecommuter on the income he or she earned at home in Connecticut: New York may consider the income the telecommuter earned in Connecticut as New York source income. Connecticut, however, may take a different view. It may regard the income earned in Connecticut as Connecticut source income. Thus, Connecticut may tax its resident on the income earned there and may not grant a credit for taxes paid to New York on that income. As a result, the nonresident employee may be taxed twice on the income earned at home. By making telework costly for nonresidents, the convenience rule discourages this kind of interstate employment.
New York's Harsh Approach
The Empire State is aggressive in applying the convenience rule. For example, although New York may not tax income earned outside New York if the telework arrangement was an employer necessity rather than a personal convenience for the employee, the state rarely regards telework as necessary. Even in cases where the employer requires the employee to work offsite and prohibits the employee from using space at the New York office, the state may find that telework is merely a personal convenience for the employee. According to New York, telework is necessary only if the nature of the work is such that it cannot possibly be conducted in a New York office. This situation will seldom arise, however, because work that is sufficiently portable to be performed at home can probably also be performed at the office.
While New York takes a narrow view of when telework is necessary, it takes a broad view of who qualifies as a "part-time" telecommuter subject to the convenience rule. Even if a nonresident telecommuter spends only a few days a year working in New York, the state may apply the rule and tax the employee on his or her total income for the year. In a case pending before the New York Court of Appeals called Huckaby v. New York State Division of Tax Appeals, New York taxed 100% of the income of a Tennessee resident who telecommuted to a New York employer, despite the fact that the nonresident spent only 25% of his work time in New York.
Income tax considerations
In a recent decision that might have wide ranging implications for the growing number of people who work by telecommuting from home, the New York Appeals Court ruled that a Nashville man who works remotely via a PC for a New York-based union -- but 25 percent of the time performs his employment within New York borders -- must pay New York income tax [pic]for his entire salary.
Thomas Huckaby, a Tennessee computer programmer, worked 75 percent of the time from his home and would travel to New York to work only about a quarter of the time during the period in question. He initially paid New York State income tax on just 25 percent of his earnings.
Significant Time in State
However, relying on a New York law that states that a worker's income is taxable if he or she chooses to live outside the state, as opposed to if she/he is transferred to another location, the New York Appeals Court decided that New York has the right to tax 100 percent of a non-resident employee's income derived from New York sources.
Huckaby argued that since he only worked at the company's New York headquarters 25 percent of the time, he should only have to pay the state income tax on 25 percent of his income.
However, the appeals court responded by saying that Huckaby "is the one who chose to accept employment from a New York employer (with advantages of a New York salary and fringe benefits) while maintaining his residence in Tennessee, some 900 miles and two-hour plane trip distant from his New York employer's office."
The appeals court also noted that the amount of time that Huckaby spent working in New York (25 percent) is significant enough to satisfy any legal argument against taxation based on constitutional grounds.
Specifically, the court justified its decision and New York's tax policies by noting that by taxing only income sourced from New York, constitutional considerations are satisfied because "New York has the right to tax 100 percent of a nonresident employee's income derived from New York services. When a nonresident employee must perform work out of state for the employer's necessity, a nexus is created between the employer and the foreign state. New York does not tax the nonresident employee's income derived from these activities."
Another Case
However, the appeals court did acknowledge that its decision could have the effect of discouraging telecommuting and that there might be some point at which the tax is so disproportionate -- for instance, where the taxpayer works only one day a year in New York -- that its application would violate the U.S. Constitution.
In his dissent, Justice Robert Smith stated, "I am aware of no case in which it has been held, or even argued, that an in-state source of payment for services done outside the state is a constitutionally valid basis for taxing the recipient of the payment."
Most states have resolved the issue by apportioning income. In 2004, the Telecommuter Tax Fairness Act of 2004 was introduced by U.S. Senators Christopher Dodd and Christopher Shays, both of Connecticut, that would abolish the current double taxation on income that results from New York laws on this matter.
On a related matter, the Huckaby decision appears to be at odds with another New York Appeals Court's decision (In the Matter of Maxine Allen v. Commissioner of Labor), where the court held that physical, not virtual presence governs eligibility for unemployment insurance benefits.
In that case, the appellant, Maxine E. Allen, argued that during the period in question, she worked from home via electronic access to Reuters' mainframe computer located at their head office in New York. Following termination of her employment, Allen filed a claim for unemployment benefits, which was subsequently denied on the basis that she was not eligible since all of her work was performed in Florida.
Unfair Approach
In holding that physical presence determines eligibility for unemployment benefits, the court rejected Allen's claim that physical presence was not required for the purposes of such benefits because her entire services were realized and consequently localized at Reuters' mainframe in New York.
Relying on an earlier decision, the court explained that the law sets out four tests to determine eligibility, namely, "localization, location of base of operations, source of direction or control, and employee's residence." In this case, the court stated that "physical presence is the most practical indicium of localization for the interstate telecommuter who inhabits today's virtual workplace linked by Internet connections and data exchanges."
When the above two cases are considered together, it appears that New York courts are telling telecommuters that New York will force them to pay taxes in the form of income tax but will not provide them with any employment-rated assistance such as unemployment benefits.
Apart from not being justifiable on legal grounds, such approach is simply unfair
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|N.Y. telecommuter tax upheld |
|Teresa M. McAleavy. Knight Ridder Tribune Business News. Washington: Nov 1, 2005. pg. 1 |
Abstract (Summary)
The High Court declined to hear the appeal of a Tennessee computer programmer who claimed that New York's tax law is unconstitutional. Thomas Huckaby was ordered to pay income tax to New York on 100 percent of his salary, even though he spent only about 25 percent of his entire work year there. he worked most often from home in Nashville.
"The nation has faced recurring disasters -- with 9/11, SARS, the anthrax scare, a horrific hurricane season, and now the threat of a bird flu pandemic," said Nicole Belson Goluboff, the author of "The Law of Telecommuting" who practices law in New York. "They all compel the need to sustain a workforce during disasters. This is no time to impede telecommuting."
Goluboff, a board member of the Washington-based Telework Coalition, hopes the high court's inaction will lead to the prompt passage of the Telecommuter Tax Fairness Act, a bill introduced last spring in Congress by legislators from Connecticut, which also is home to a significant telecommuting population subject to New York taxes.
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Nov. 1--Thousands of New Jerseyans who mostly work from their homes for New York companies will remain subject to New York State income taxes.
The U.S. Supreme Court declined Monday to touch New York's way of taxing the income of telecommuters who occasionally work in New York, even if they attend just one company meeting a month in the state.
The High Court declined to hear the appeal of a Tennessee computer programmer who claimed that New York's tax law is unconstitutional. Thomas Huckaby was ordered to pay income tax to New York on 100 percent of his salary, even though he spent only about 25 percent of his entire work year there. he worked most often from home in Nashville.
"This could certainly drive up the prices of telecommuting," said John Sarno, president of the Employers Association of New Jersey. "If both states have jurisdiction over work activity, employees might try to negotiate higher wages."
Because many more New Jerseyans work in New York, the case is likely to have a significant impact in the Garden State. At a time when technology, family considerations and gas prices lead more and more employees to work from home, the case was closely watched. Also, some say that recent crises point to the need for encouraging workplace flexibility.
"The nation has faced recurring disasters -- with 9/11, SARS, the anthrax scare, a horrific hurricane season, and now the threat of a bird flu pandemic," said Nicole Belson Goluboff, the author of "The Law of Telecommuting" who practices law in New York. "They all compel the need to sustain a workforce during disasters. This is no time to impede telecommuting."
Goluboff, a board member of the Washington-based Telework Coalition, hopes the high court's inaction will lead to the prompt passage of the Telecommuter Tax Fairness Act, a bill introduced last spring in Congress by legislators from Connecticut, which also is home to a significant telecommuting population subject to New York taxes.
"This decision should be an important impetus to drive that bill to the president's desk," Goluboff said.
New Jersey, like many other states, treats telecommuters from elsewhere like other part-time commuters, requiring residents to pay income tax only on the portion of their income earned in the state.
Also, New Jerseyans who pay income taxes to New York generally get a credit that helps reduce their New Jersey income tax burden.
"New Jersey is not as aggressive as New York on this," said Tom Vincz, a spokesman for the state Treasury Department, noting that New Jersey doesn't track the number of residents who telecommute.
Huckaby's attorney, Peter Faber, said in court filings that more than 40 million people perform at least some work from their home, and that one in five telecommuters work for an out-of-state company.
Lawyers for New York argued that the state was entitled to tax Huckaby's earnings because he chose to live in another state "solely for his own convenience." His income would have been exempt from New York State taxes if he were required to work out of state.
Huckaby paid New York income taxes based on time he actually spent in New York, but the state said that wasn't enough. The issue was split in the lower court.
"New York has the right to tax 100 percent of a non-resident employee's income derived from New York sources," said the 4-3 decision by the Court of Appeals of New York in March
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Employers may soon reap certain tax benefits by creating telecommuting arrangements. The proposed Home Telecommuter Tax Policy Act, introduced this year as H.R. 1892, will amend the Internal Revenue Code to treat as a non-taxable fringe benefit certain employer payments (up to $60.00 per month) for installation of an additional telephone line in the employee's residence, if any use of such line is in performance of work-at-home services for the employer (exclusive of separate charges for personal calls).(2)
In addition to the proposed Home Telecommuter Tax Policy Act, telecommuting raises thorny questions of tax law regarding applicability of the "home office" deduction to telecommuters. Although the intricacies of this and all other tax laws are beyond the scope of this paper, it is unclear whether telecommuters may claim the "home office" deduction under Section 280A of the Internal Revenue Code. The "principal place of business" of Section 280A(c)(1)(A) may be interpreted under an "exclusivity" analysis to require that the home office be (1) the principal place of business because there is no other office available to that employee, and (2) the place of that employee's interaction with clients.(3)
The report pointed out that both federal and state law may subject telecommuters and their employers to additional taxes. One key unresolved issue is the application of state law. If an employee lives in another state, the telecommuting setup may establish a physical business presence in the employee’s home state, thus exposing the employer to additional corporate taxes and the obligation to collect sales tax in that state.
Telecommuting also raises a potential federal in-come tax issue. Typically, employer-provided equipment used in an employee’s home must be treated as a taxable working condition fringe benefit, unless the employer requires the employee to work at home, retains title to the equipment, and receives adequate substantiation of the business use.
President Bush has proposed a “New Freedom Initiative” to expand work opportunities for persons with disabilities through telecommuting. The plan includes proposed legislation that would make employer-provided computers and Internet access for home use by employees with disabilities a tax-free benefit.
Employers and telecommuting groups have also suggested that expanded tax breaks, including faster tax write-offs for high-technology investment (such as high-speed Internet access and tax credits for home office equipment and services) would increase telecom-muting. However, the GAO notes that earlier reports have raised questions about the effectiveness of such tax credits.
IRS on home office tax deductions
Employee versus independent contractor status
Local Considerations
State and local tax law implications
According to a 2001 General Accounting Office report, state taxes are a significant barrier to telecommuting.[143] The report notes that uncertainties about the application of state laws and what constitutes interstate business are obstacles. It also suggests that telecommuting may establish a physical business presence in a state where none previously existed and (1 ) expose employers to additional corporate tax filing obligations, (2) expose employees to additional personal income taxes, (3) create an obligation to collect and remit taxes in states where telecommuters reside and (4) increase potential litigation over tax issues.
The uncertainties involve businesses and employees alike-businesses need to know how telecommuting affects their state tax filing requirements, and employees need to know whether they have to file individual income tax returns in multiple states and whether they are subject to “double taxation” when states differ in how they source wage income.[144] To complicate matters, each state has its own filing thresholds and one state’s laws may be in direct contrast to another’s. As a result, each situation requires a separate analysis.
There are a number of issues that must be addressed.[145] A state cannot tax a business unless the business has nexus with the state. Nexus is generally defined as "some definite link, some minimum connection, between a state and the person, property, or transaction it seeks to tax."5
The concept of "minimum connection" usually arises in the context of the Due Process Clause, which emphasizes fundamental fairness and notice, and does not require physical presence as a prerequisite to taxation.6 In general, a minimum connection will be achieved under a due process standard when a nondomiciliary company regularly and systematically exploits a state's marketplace or purposefully directs its activities toward the state, even though it maintains no business location or property there. In contrast, the Commerce Clause requires "substantial nexus," which is generally defined in terms of physical presence with a state, thereby limiting the state burden on interstate commerce.
"Substantial nexus" is generally understood to be "more than the slightest presence," but not necessarily a "substantial presence." State courts differ in their interpretation of "substantial nexus."7 Physical presence in a state can occur via property (e.g., inventory or assets) or people (e.g., employees or sales representatives).
The presence of an employee or agent in the state may be sufficient to create withholding, sales and use, franchise (i.e., nonincome), and, in some cases, income tax nexus. However, under P.L. 86-272, a state is prohibited from imposing income taxes when a company's only activity in the state is soliciting orders for sales of tangible personal property sent outside the state for acceptance and filled from an out-of-state supply of goods. "Solicitation" generally includes ancillary activities that serve no independent business function apart from requesting an order for the sale of tangible personal property.
P.L. 86-272's protections of solicitation will not be lost when a taxpayer performs activities that exceed the scope of the solicitation, if such activities are de minimis.8 This involves determining whether an activity creates a "nontrivial additional connection with the taxing state."9 Some states have adopted a de minimk exception in their nexus rules or specifically exclude certain activities, such as participation in trade shows for a limited number of days,10 meetings with business service providers (e.g., accountants, attorneys and advertising agencies) or in-state purchasing activities.11
Personal Income Tax Withholding Requirements
In general, a state can tax the income that a nonresident individual earns in the state or that is attributable to in-state sources. All income earned by a resident individual is taxable in his or her state of residence; resident states generally allow an income tax credit for income subject to tax in another jurisdiction, if certain criteria are met. In general, states look to an individual s physical location in determining whether income is earned in the state;12 however, other criteria may apply, such as New York's "convenience of the employer" test.13 This test generally provides that when a nonresident individual works for a New York employer, the nonresident's wage income will be attributed to New York unless the performance of services (out of necessity, not convenience) obligates the employee to out-of-state duties in the services of the employer.14
In general, states require nonresident individuals to file income tax returns when they exceed a threshold level of activity or income in the state.15 Accordingly, nonresidents may find that they are not subject to an income tax return filing requirement in certain nonresident states where they work, despite the fact that their employer withholds wages on income earned in that state as a result of its nexus with the taxing state. Consequently, individuals may need to file nonresident returns to claim a refund of income taxes withheld and remitted to the state in excess of any amount ultimately owed.
Different standards: States may assert that an employer is subject to a withholding requirement merely by establishing a minimum connection in the taxing state under a Due Process Clause standard. However, states may apply a higher standard before requiring withholding.16 Under a due process standard, an employer will be required to withhold income tax on wages paid to an employee working in the state to the extent such efforts further the employers market presence in the state (such as through the in-state solicitation of sales). Some states do not require an employer to withhold tax until the wages paid exceed a threshold17 or the employees' in-state presence exceeds a minimum number of days.18 States may be limited in their ability to impose an income tax withholding requirement on an employer when the employee s activities do not further the employer's ability to exploit the in-state marketplace.
In general, employers must detail state-specific income tax withholding information on Forms W-2 issued to employees. Accordingly, when a resident employee works in his or her home state for a portion of the week and the remaining days at his or her employer's corporate headquarters in another state, the employer must issue state-specific W-2s that detail the proper allocation of income among the states.
Proper withholding becomes more challenging when an employee travels extensively. Accordingly, employers need to have systems in place to allow them to determine the level of taxable wages earned in a specific state by each employee. Such systems may include an electronic time-reporting system that requires ail employee to disclose the location where he or she works each day.
Employers subject to a withholding requirement must register with the respective state taxing agency and timely remit taxes withheld. Such registration may generate nexus questionnaires for other types of taxes (e.g., sales and use, income and franchise). Accordingly, employers should be aware of their obligations for all types of taxes when they register with any state agency.
Sales and Use Tax
A telecommuters presence in a state may create the requisite physical presence necessary for his or her employer to be subject to sales and use tax collection and remittance obligations, regardless of whether the telecommuter is performing a sales solicitation activity.
Illinois: According to the Illinois Department of Revenue (DOR), an out-of-state business is subject to a use tax collection obligation when it hires a webmaster/software developer who resides in the state.19 The taxpayer argued that because its employee's activities could be conducted anywhere and it did not require the employee to live in Illinois, the state could not impose a use tax collection obligation. The taxpayer also argued that court cases that created a physical presence requirement did not anticipate telecommuting; as a result, the physical presence standard should not apply to telecommuting. The DOR rejected these arguments.
California: The California State Board of Equalization took a different view of a similar business operation in a ruling.20 It stated that it would not regard an out-of-state web-based retailer as doing business in the state when the retailer does not engage in business in California and hires a website designer who telecommutes from his home there. Under the ruling's facts, the designer would be responsible for improving the quality of communication on the company's websites, as well as for graphics, information and interface design, usability testing and evaluation, documentation, special projects, teaching, consultation and quality assurance. The designer would not have any contact or involvement with the retailer's customers and would not actually be involved with orders they placed.
The ruling held that when the only business activities conducted at the designer's home were telecommuting activities included in his job description and no portion of the home is held out as a business location of the out-of-state company (i.e., placing a sign out front or holding classes at the home), the out-of-state retailer would not be regarded as engaged in business in California for sales and use tax purposes.
Tennessee: A similar view was taken by the Tennessee DOR when it found that a corporate officer working from his home in the state did not create a taxable presence for his employer when the corporation did not provide an office and the corporate officer did not direct business activities in the state.21 The DOR held that imposing Tennessee franchise and excise tax on the corporation would violate both the Due Process and Commerce Clauses, because the corporation did not purposefully direct its business activities at Tennessee's economic market and did not avail itself of the state's benefits or protections.
Other concerns: Although the economic burden of sales and use taxes generally falls on the ultimate user, collecting and remitting sales and use tax is a time-consuming process for the vendor. In addition, failure to comply with sales and use tax laws can lead to unintended (but significant) liabilities when a state agency holds the vendor responsible for unremitted taxes, penalties and interest. As a result, businesses should be very cautious in complying with all applicable sales and use tax laws.
In general, tangible personal property is taxed based on where the product is delivered and/or put into use. In contrast, service transactions are taxed using a variety of criteria. Given the potential for increased sales and use tax nexus as a result of telecommuters in the state, a business needs to ensure that it clearly understands not only the nexus rules in the states in which it employs telecommuters, but also the application of sales and use taxes to services performed in the state or sold to in-state customers.
Income and Franchise Taxes
In general, a telecommuter's in-state activities will determine whether an employer is subject to corporate income taxes there. If the employee's activities are limited to the protected "solicitation" under P.L. 86-272, an employer should not be required to file net income tax returns.
As noted above, however, activities protected by P.L. 86-272 are quite limited. The Multistate Tax Commission has issued a policy statement22 identifying protected (no nexus) and unprotected (nexus) activities performed by sales representatives. Several states have adopted the policy statement as their nexus standard, and certain other states follow it in practice.
Some of the activities that telecommuters selling tangible personal property may perform which create nexus, according to the policy statement, include:
* Making repairs or installations;
* Providing technical assistance;
* Training customers;
* Maintaining an office other than a home office; and
* Publicly attributing a home office as a place of business by listing it in advertising materials or on a website.
Unfortunately, many businesses employ telecommuters to sell or provide services in conjunction with the sale of tangible personal property. As a result, they are not protected by P.L. 86-272 and should file income tax returns.
Compliance costs aside, in a "perfect world" (one in which all states tie to Federal taxable income and adopt the same allocation and apportionment methods), a business's net income tax burden may not increase by having to file in another state. However, given the (1) increased disallowance of deductions for intercompany expenses, (2) conflict between state consolidated return and combined reporting rules, (3) reality that state apportionment rules may not conform to the standard three-factor method, (4) conflicting application of throwback and throwout rules and (5) move toward single-factor formulas, taxpayers may see a significant increase in their income tax burden when a telecommuter creates corporate income tax nexus in a state.
Further, failure to understand the nexus rules clearly may create unwelcome surprises when a business discovers its filing obligation after the fact (i.e., when, in addition to owing taxes, penalties and interest that can be assessed on nonfilers for many years absent a statute of limitations (SOL), a taxpayer is barred from claiming a refund as a result of the tolling of the SOL in its home state).
Unemployment Insurance
States have adopted the following uniform order of priority in determining when an individual engaged in interstate employment is "employed" for purposes of remitting state unemployment insurance payments.23
Services localized in a single state: "Employment" includes an individual's entire service, performed in or both in and out of the state if die service is localized in the state. A service is localized in a state if (1) it is performed entirely in such state or (2) performed in and out of such state, but the service performed out of such state is incidental to the individual's service in the state. For example, it is temporary or transitory in nature or consists of isolated transactions.
Services not localized in a single state: "Employment" includes an individual's entire service performed in or both in and out of the state if the service is not localized in any state but some of the service is performed in such state, and (1) the individual s base of operations is in such state; or (2) if there is no base of operations, then the place from which such service is directed or controlled is in such state; or (3) the individual's base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in such state.
The above definition covers the entire services of a multistate worker in one state only-the state in which he or she would most likely look for a job when becoming unemployed. Under this definition of the localization of employment, a traveling salesperson living in Wisconsin and working for a firm headquartered in Illinois, for example, would be covered in Wisconsin (with Wisconsin as the site of the localization of services) if the work (or most of it) was done there and if any work done outside the state was incidental and temporary. If no state could be deemed the site for the localization of services, the entire service could still be covered in one state-Illinois, where the services were directed, if some of the work was done there, or in Wisconsin as the salesperson's place of residence, if some work was done in that state and some of it was done in neighboring states while the salesperson was traveling.
Most of the states subscribe to the Interstate Reciprocal Coverage Arrangement, under which services performed by employees in more than one state for an employer are deemed to be performed entirely in one of the states where the employee performs services.
If an employee files for unemployment benefits, he or she would do so at the local ofHce, which would work with the state that collected the unemployment taxes.
Telecommuter Tax Fairness Act
Primarily in response to the perceived unfairness of the New York convenience/necessity test, separate versions of The Telecommuter Tax Fairness Act of 2004 were introduced in both the House and Senate during the 108th Congress.24 The bills would have prevented the double taxation of telecommuters and others who work at home, and allowed a state to treat a nonresident as working in that state only to the extent the employee is physically present in the state. In addition, the bills would have prevented states from treating a nonresident as physically present in a state based on the fact that the employee was working from home for his or her own convenience. The bill's sponsors and co-sponsors, all from Connecticut, stated that the bills would have:
* Provided employers with consistent guidelines on how to withhold income tax from employee wages;
* Enabled employers to compete in the international arena without being required to use foreign operations;
* Provided more employment opportunities for the handicapped and elderly;
* Supported the expansion of business development in rural communities; and
* Reduced dependence on foreign oil required for commuting.
|5 Miller Bros. Ca. v. Maryland, 347 US 340,344-345 (1954). |
|6 See Quill Corp. v. North Dakota, 504 US 298 (1992). |
|7 See In the Matter of Otvis Co., Inc. v. NYS Tax Appeals Tribunal, 86 NY2d 165 (1995), cert. den. (while a vendors physical presence is |
|required, it need not be substantial; rather, it must be more than a slightest presence and may be manifested by the presence in the taxing|
|state of a vendors property or the conduct of economic activities in the taxing state by the vendors personnel or on its behalf). |
|8 See Wisconsin Dep't of Rev. v. William Wrigltyjr., Co., 505 US 214 (1992). |
|9 See id. |
|10 See,e.g.,20 NYCRR §1-3.4(b)(9)(iv). |
|11 See, e.g., CA Rev. &Tax Code §23101.5; NYS Dep't of Tax. and Fin., Op. of Counsel,No.96-27937 (10/3/96);andMI Dep't of Treas.,Rev. |
|Admin.Bull. 1998-1 (2/24/98) (setting forth guidelines as to when nexus will be established for Single BusinessTax purposes under the Oue |
|Process and Commerce Clauses, one! providing examples of protected activities (e.g., meeting with in-state suppliers for less titan 10 days|
|a year)), |
|12 See, e.g., CT Gen. Stat. §120 -704(a) and CT Agencies Regs. sec. 12-705(a)-2(a). |
|13 20 NYCRR §132.18.Three other states employ a convenience/necessity test; see NE Admin. R. & Regs. 22-003.01 C(1), NJ Letter to CCH |
|(March 2004), and PA Code §109.8. |
|14 See Matter of Tlmmas L. Huckaby u NYS Div. of laxApps., NY Ct. of Apps.,3/29/05. |
|15 See, e.g., NYTax Law §651(a)(3) (income from New York sources is more than the standard deduction). |
|16 See, e.g., NJ Rev. Stat. §54A:7-l(a) (employers maintaining an office or transacting business in the state and making a wage payment |
|subject to New Jersey personal income tax to a resident or nonresident individual must withhold taxes). |
|17 For example, South Carolina defines an employer subject to withholding as one that pays $800 or more per tax year; see SC Code Ann. §120|
|-80 -520. |
|18 For example, NYS Oep't of Tax. and Fin., Income/Franchise Tax-District Office Audit Manual,Withholding Tax Field Audit Guidelines |
|(7/1/04), provide a 14-day de minimis rule, under which withholding is not required on wages paid to certain employees assigned to work |
|primarily outside the state who perform in-state services for no more than 14 days during the calendar year.The 14-day rule does not apply |
|to nonresident athletes or entertainers or to payments of deferred compensation or nonstatutory stock options. Individuals should note that|
|the limits on withholding do not limit liability for New York taxes owed on wages earned in the state. |
|19 IL DOR, Gen'1 Info. Ltr. ST 99-0184-GIL (5/25/99). |
|20 CA State Bd. of Equalization, Sales Tax Counsel Ruling No. 220.0256 (6/21/99). |
|21 Tennessee DOR, Letter Ruling 97-04 (2/19/97). |
|22 National Nexus Program Bulletin 95-1 (12/20/95). |
|23 see Manual ofSicitc Employment security Legislation, compiled by the U.S. Department of Labor, Manpower Administration Unemployment |
|Insurance Service (revised 1950 and reissued August 1970),section 2(k)(2) and (3). |
|24 H 5067, introduced by Rep. Christopher Shays (R-CT) (9/13/04); S 2785, introduced by Sen. Christopher Oodd (D-CT) and co-sponsored by |
|Sen.Joseph lieberman (D-CT) (9/9/04). |
Telecommuter Tax Fairness Act Re-Introduced
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in House and Senate
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On March 6, 2007, Representative Christopher Shays (R-CT)
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re-introduced The Telecommuter Tax Fairness Act(H.R. 1360).
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The Telecommuter Tax Fairness Act of 2007, as it is now known,
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has also been re-introduced in the Senate (S. 785) by Senator
[pic]
Chris Dodd (D-CT) . It is substantially the same as the measure
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that was introduced in the last session, with a few additional
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provisions. These new provisions are designed to take account
[pic]
of the changes New York claimed to have made to its telework tax
[pic]
policy in May 2006. New York's purported changes actually
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offered no protection for interstate telecommuters, leaving
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thousands of such workers across the country still subject
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to the risk that they will be double taxed on the income they
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earn while working from home.
Local land use (zoning) regulations
Safety considerations
Telecommuters working in states outside of their employers’ headquarters, it’s
unclear which state’s law will apply to an employee,
Professional practice laws. Given the choice, many attorneys would probably prefer to telecommute from a beach house on the coast of Florida; in fact, many attorneys confess to having practiced law from a variety of locales while on vacation. Before considering a telecommuting arrangement that allows an attorney to live in one state while telecommuting to the firm's offices in another, the attorney must carefully review the regulations pertaining to the practice of law in the state of their intended residence. Many states define the act of practicing law so broadly that any advice being rendered to a client from the state of residence (in which the attorney is not a member of the bar) may violate the law, even though the client may be located in the state in which the firm’s office is located and may never visit the attorney's home office. Therefore, attorneys should check with the bar in the state of their residence to determine if telecommuting from that state would constitute the unauthorized practice of law.
Equipment and related expenses
Equipment expenses, technical support, training, and courier or express mail services which the employer will provide
Space, facilities, furniture or equipment which the telecommuting employee will provide
Return of employer provided property upon termination (with penalty for conversion)
Telecommuter's responsibility for equipment, maintenance and repairs
Limitations on personal use of employer provided equipment
Limitations on access to employer provided equipment and employee workplace by others
Other Considerations
Software licenses
Insurance implications. A prudent employer should first confirm that its insurance policies are adequate to cover the employee's home office before entering into such a telecommuting arrangement. The employer's equipment and files will necessarily be kept in the employee's home, and homeowners' policies generally do not cover employer-provided home office equipment. Although the employer's telecommuter agreement should impose some duty on the employer to act with reasonable care while working at home, the employee should not be expected to assume the risk of any loss or damage merely because they work at home rather than at the office.
Responsibility for insurance on equipment and work area
Authority for employer to periodically inspect telecommuting workspace
Disclaimer that telecommuting arrangement is temporary
Conversion Of Property By The Terminated Telecommuter
Conversion Of Property By The Terminated Telecommuter
When the employer terminates the telecommuting employee, the employer must repossess its equipment and files from the employee's home office. Unlike the office situation where the employee leaves and the files and equipment remain with the employer, the telecommuting employee stays and the contents of the home office must be retrieved.
In Diamond v. T. Rowe Price Associates, Inc., 852 F. Supp. 372 (D. Md. 1994), the employer brought a counterclaim for conversion, breach of fiduciary duty, and violations of the Maryland Uniform Trade Secrets Act arising out of the telecommuting employee's temporary refusal to return files after her termination. The court denied the employer's motion for summary judgment on the counterclaim because there was no showing that plaintiff ever misused the files or the information contained therein, that the firm suffered any damage from their temporary absence, or that any of the files contained trade secrets. Diamond, supra, 852 F. Supp. at 409. The court reached this determination, however, by noting that the vast majority of these files had been maintained by plaintiff in her home office with the full knowledge and approval of her employer over the years. Id. As to the employer's breach of fiduciary duty claim, the court noted that plaintiff's employer approved of her telecommuting arrangement, installing a computer in her house and messengering documents to her; therefore, no fair-minded jury could conclude that her possession of the documents in her home office was wrongful or a breach of her fiduciary duty to the company. Id. at 409-10.
Employment at will disclaimer.
Telework employee’s potential liability
Employers are not the only ones who should be concerned about liability arising out of a telecommuting arrangement. Employees who transform part of their homes into what is essentially commercial property must be aware of the unlikely but entirely possible situation in which they will face greater liability to invitees as a result of their work at home. In Wasserman v. W.R. Grace & Co., 656 A.2d 453 (N.J. Super. Ct. App. Div. 1995), a pedestrian filed a personal injury action against the homeowners and one homeowner's employer seeking recovery for a slip and fall on a sidewalk abutting the house. Recognizing that residential property owners are immune from sidewalk liability, but that owners and tenants of commercial property may be liable for injuries on the abutting sidewalk, this creative plaintiff argued for an expanded definition of commercial premises to include the residence of a telecommuter. Id. at 454. The employee, a salesperson, owned and lived in a four-bedroom house and telecommuted from one bedroom of the home via a desk, bookcase, fax machine, computer equipment, file cabinets, and telephone Id. at 454-55. His business card displayed the company's information and listed his residential address as the business address of the company. Id. at 455. Although the employer neither owned nor held a possessory interest in the premises, and did not reimburse the employee for rent of the office space, it did reimburse him for certain business expenses including the telephone used in his office. Id.
Recognizing that it is now common for employers to allow telecommuting, the court in Wasserman held that the employee's home was a residential rather than commercial building, thereby denying plaintiff's claim. Id. at 455. The court noted that if it is assumed that the people to whom the employee provided business cards have therefore been invited to the address on the cards for business purposes, that would not convert the property into a commercial premises. Id. at 456. The court noted, however, that the telecommuter's business card invitation would change the status of those individuals visiting the property from social guests to business invitees. Id.
1. Stephen C. Fehr, "Moving the Job Closer to the Commuter; GSX Experimenting With Computer-Equipped Satellite Offices," Washington Post, Sept. 26, 1993, at B1, B3.
2. H.R. 1982, introduced on June 12, 1997, has been referred to the House Ways and Means Committee. 143 Cong. Rec. E1201, H3797 (daily ed. June 12, 1997).
3. See Ann Margaret Bittinger, "The Home Office Deduction: The Times Are Changing But The Tax Code Is Not," University of Kansas Law Review (May 1997), 45 U. Kan. L. Rev. 921 (arguing for revisions to Section 280A to limit the home office deduction to those telecommuters who meet with clients in their homes and do not use the home office for any non-business purposes).
4. Cf. Addy v. Bliss & Glennon, 51 Cal. Rptr. 2d 642 (Cal. Ct. App. 1996) (affirming summary judgment for employer on employee's retaliation claim that her flex-time was eliminated in retaliation for filing an EEOC charge).
5. Cf. Young v. Sprint Corp., 173 F.R.D. 309, 310 (D. Kan. 1997)(allowing employee to amend complaint to include allegation that employer failed to offer existing telecommuting arrangement as accommodation because claim is not futile as a matter of law).
6. E.g., Kristen M. Ludgate, "Telecommuting And The Americans With Disabilities Act: Is Working At Home A Reasonable Accommodation?," Minnesota Law Review (May 1997), 81 Minn. L. Rev. 1309, 1331-34.
7. See, e.g., Emrick v. Libbey Owens Ford Co., 4 A.D. Cas. (BNA) 1, 4-5 (E.D. Tex. 1995)(holding ADA requires employer to offer disabled employee transfer to another facility only if it regularly transfers employees; disabled employees not entitled to opportunities greater than those available to employees without disabilities).
8. See 56 Fed. Reg. 35744 (1991)(employer is not required to restructure position by reallocating essential functions of position as accommodation).
9. See Elena N. Broder, "(Net)workers' Rights: NLRA And Employee Electronic Communications," Yale Law Journal (April 1996), 105 Yale L.J. 1639 (arguing for a relaxed application of the time and place restrictions on an employee exercise of Section 7 rights to accommodate the use of e-mail).
10. See generally, Emily Jay Kuo, "The Enforceability Gap Of Covenants Not To Compete In Telecommuting Employment Relationships," University of Chicago Legal Forum (1996), 1996 U. Chi. Legal F. 565.
Employers are not the only ones who should be concerned about liability arising out of a telecommuting arrangement. Employees who transform part of their homes into what is essentially commercial property must be aware of the unlikely but entirely possible situation in which they will face greater liability to invitees as a result of their work at home. In Wasserman v. W.R. Grace & Co., 656 A.2d 453 (N.J. Super. Ct. App. Div. 1995), a pedestrian filed a personal injury action against the homeowners and one homeowner's employer seeking recovery for a slip and fall on a sidewalk abutting the house. Recognizing that residential property owners are immune from sidewalk liability, but that owners and tenants of commercial property may be liable for injuries on the abutting sidewalk, this creative plaintiff argued for an expanded definition of commercial premises to include the residence of a telecommuter. Id. at 454. The employee, a salesperson, owned and lived in a four-bedroom house and telecommuted from one bedroom of the home via a desk, bookcase, fax machine, computer equipment, file cabinets, and telephone Id. at 454-55. His business card displayed the company's information and listed his residential address as the business address of the company. Id. at 455. Although the employer neither owned nor held a possessory interest in the premises, and did not reimburse the employee for rent of the office space, it did reimburse him for certain business expenses including the telephone used in his office. Id.
Recognizing that it is now common for employers to allow telecommuting, the court in Wasserman held that the employee's home was a residential rather than commercial building, thereby denying plaintiff's claim. Id. at 455. The court noted that if it is assumed that the people to whom the employee provided business cards have therefore been invited to the address on the cards for business purposes, that would not convert the property into a commercial premises. Id. at 456. The court noted, however, that the telecommuter's business card invitation would change the status of those individuals visiting the property from social guests to business invitees. Id.
Guidelines for Alternative Workplace Arrangements in the federal government
General Services Administration
[FMR Bulletin 2006–B3] Real Property
TO: Heads of Federal Agencies SUBJECT: Guidelines for Alternative Workplace Arrangements
1. What is the purpose of this bulletin? This bulletin establishes guidelines for implementing and operating alternative workplace arrangements (AWA). These policies are designed to assist agencies in the design and operation of AWA programs as well as to resolve AWA issues commonly faced by agencies.
2. What is the effective date of this bulletin? This bulletin is effective March17, 2006.
3. When does this bulletin expire? This bulletin will remain in effect indefinitely until specifically cancelled.
4. What are the terms and definitions? Following are terms and definitions used in and for the purposes of this bulletin:
a. Telework and telecommuting are used interchangeably and are defined as the act of performing all or a portion of work functions at an alternative worksite, such as working from home or
a. telework center, under circumstances that reduce or eliminate the employee’s commute. To be considered telework, it must occur at least one day per week on a regular and recurring basis and does not include (1) situational telework
(unscheduled, project-oriented, non- recurring, and/or irregular telework and/or any teleworking that occurs less frequently than once a week on a recurring basis) or (2) full-time mobile work arrangements.
b. AWA includes telecommuting, hoteling, virtual offices, telework centers, hot desking, and other distributed workplace arrangements.
c. Telework center: A facility that (1) provides workstations and other office facilities/services that are utilized
(typically on a fee for use/service basis) by employees from several organizations and (2) is used as a geographically convenient alternative worksite for its users.
d. Excess personal property/ equipment: Excess personal property is any personal property that is no longer required by the holding agency for the discharge of its responsibilities.
e. Virtual office or virtual workplace: A work environment in which employees work cooperatively from different locations using a computer network (in lieu of a single building or other single physical location). As opposed to a single location site
(facility) where workers are housed, the virtual office is typically a collaborative communications medium, such as a computer network, where workers gather electronically to collaborate and/ or carry out other work activities. The actual physical locations of the employees working in a virtual office can be temporary or permanent and can be nearly anywhere, such as their homes, satellite offices, hotel rooms, corporate offices (shared work space), airports, airplanes, or automobiles.
f. Hoteling: An AWA in which (1) employees work in one facility (facility A) part of the time and at one or more alternative worksites the rest of the time and (2) when working in facility A, these employees use non-dedicated,
non-permanent workspaces assigned for use by reservation on an as-needed basis.
g. Hot desking (also known as free address or touchdown workstations): An AWA in which (1) employees work in one facility (facility A) part of the time and at one or more alternative worksites the rest of the time and (2) when working in facility A, these employees use non-dedicated, non-permanent workspaces assigned on a first come, first served basis.
5. What is the background?
a. 40 U.S.C. § 587(c)(3), (Pub. L. 104–
208, div. A, title I, § 101(f), title IV,
§ 407(a), (September 30, 1996)), as revised, restated and recodified without substantive change by Pub. L. 107–217, August 21, 2002, authorizes GSA to provide guidance, assistance, and oversight, as needed, regarding planning, establishment and operation of AWA.
b. In accordance with 40 U.S.C.§ 587(c)(2), (Pub. L. 104–208, div. A, title I, § 101(f), title IV, § 407(a),
(September 30, 1996)), as revised, restated, and recodified without substantive change, by Pub. L. 107–217
(August 21, 2002), when considering whether to acquire any space, quarters, buildings, or other facilities for use by employees of any Executive agency, the head of that agency shall consider whether the need for the facilities can be met using AWA.
c. In accordance with section 359 of Public Law 106–346, effective October
23, 2000, each Executive agency must establish a policy under which eligible employees of the agency may participate in telecommuting to the maximum extent possible without diminished employee performance.
d. Guidance and policy from the Office of Personnel Management (February 9, 2001), http:// twlaws.asp, as reflected in 41 CFR. § 102–74.590, instructs Federal agencies as follows: Many of you already have
telecommuting policies, but this does not necessarily mean you are in compliance with the new law. The purpose of the law is to require that each agency take a fresh look at the barriers that currently inhibit the use of this flexibility, act to remove them and increase actual participation. The law recognizes that not all positions are appropriate for telecommuting; therefore, each agency must identify positions that are appropriate in a manner that focuses on broad objective criteria. Once an agency has established eligibility criteria, subject to any applicable agency policies or bargaining obligations, employees who meet them
and want to participate must be allowed that opportunity if they are satisfactory performers.
e. 40 U.S.C. § 587(d)(2), Public Law
105–277, div. A, § 101(h), title VI, § 630, October 21, 1998, as revised, restated and recodified without substantive change by Public Law 107–217, August
21, 2002, requires that each of the following departments and agencies, in each fiscal year, must make at least
$50,000 available from amounts provided for salaries and expenses to pay telework center program user fees:
13846 Federal Register / Vol. 71, No. 52 / Friday, March 17, 2006 / Notices
(1) Department of Agriculture,
(2) Department of Commerce,
(3) Department of Defense,
(4) Department of Education,
(5) Department of Energy,
(6) Department of Health and Human Services,
(7) Department of Housing and Urban Development,
(8) Department of the Interior,
(9) Department of Justice,
(10) Department of Labor,
(11) Department of State,
(12) Department of Transportation,
(13) Department of the Treasury,
(14) Department of Veterans Affairs,
(15) Environmental Protection Agency,
(16) General Services Administration,
(17) Office of Personnel Management,
(18) Small Business Administration,
(19) Social Security Administration, and
(20) United States Postal Service.
6. Who should we contact for further information regarding locating Federal facilities in rural areas?
General Services Administration, Office of Governmentwide Policy, Regulations Management Division, Attn: Stanley C. Langfeld,
1800 F Street, NW., Washington, DC 20405.
Telephone Number: (202) 501–1737. E-mail Address:stanley.langfeld@.
Guidelines for Alternative Workplace
Arrangements (AWA)
I. Can agencies provide workplace equipment for use at alternative worksites such as employee residences or telework centers?
Yes. Agencies may provide/procure either new or excess equipment for alternative worksites as long as it is clear that the equipment continues to belong to the Government and there is an audit trail indicating the location of the equipment. Regarding telecommunications equipment and services that agencies provide to and/or purchase for employees working in home-based or other alternative workplace arrangements (AWA), the following apply:
a. In accordance with Public Law
104–52, section 620; 31 U.S.C. § 1348 note, agencies may use appropriated funds to install telephone lines and necessary equipment, and to pay monthly charges, in any private residence of an employee who has been authorized to work at home in accordance with guidelines issued by the Office of Personnel Management. The head of the department, division, bureau, or office must certify that
adequate safeguards against private misuse exist, and that the service is necessary for direct support of the agency’s mission.
b. This authority includes facsimile machines, internet services, broadband access, e-mail services, voice over IP equipment and services, desktop videoconference equipment and services, and, in general, any other telecommunications equipment and services the agency deems needed by individuals working in home-based AWA.
c. Based on the same authority used for installing telecommunications equipment for a government employee in a government contractor’s office, agencies also are authorized to provide/ procure the telecommunications equipment/services described in paragraph b, above, for employees in non-home-based AWA (such as telework centers).
II. Can agencies provide teleworkers with underutilized equipment (for use in their alternative worksites) before it is declared excess?
Yes. Agencies may provide underutilized computers or other equipment for use by teleworkers or for use in other AWA situations. In accordance with 41 CFR §§ 102–36.30 and 102–36.35, even though equipment may no longer be used for its original purpose, employee, or location, the agency must determine if the equipment can serve other agency uses, such as in alternative worksites. The equipment does not officially become excess until the agency determines that it cannot be used in main or alternative worksites. III. Once declared excess by one
agency, can computer and/or other equipment be acquired for use by another agency for its telework or other alternative worksite program?
Yes. When items are no longer needed by an agency, they are reported to GSA as excess in accordance with 41 CFR part 102–36, Disposition of Excess Personal Property, for possible transfer to other Federal agencies. To learn more about the transfer of excess personal property between Federal agencies, visit About Excess Transfers, on GSA’s Property Disposal website.
IV. What help desk and/or other technical support services, if any, can agencies provide to and/or purchase for employees working in home-based telework or other alternative work arrangements?
Agencies may provide or purchase help desk and/or other technical support to employees working in any
approved AWA, provided the agency deems the support necessary for successful accomplishment of officially assigned work. Such support services may be provided on-site at the employee’s alternative worksite, via telecommunication services such as remote control, at a service site conveniently located to the alternative worksite, at the employing organization’s local facility, or using other reasonable means/locations that minimize disruption of the workflow. V. Can agencies provide/procure office furnishing (e.g., desks, chairs) for alternative worksites?
Yes. As with computers and equipment, agencies may provide their own new or used furniture or excess furniture from another agency for alternative worksites, as long as it is clear that the furniture continues to belong to the Government and there is an audit trail indicating the location of the furniture.
VI. Can agencies pay the utility costs for alternative worksites?
The answer depends on the type of alternative worksite. For residential
(home-based) alternative worksites, the answer is no. A GAO decision concluded that, absent specific legislative authority, an agency may not use appropriated funds for the reimbursement of employees for incremental utility costs for heating, air
conditioning, lighting, and the operation of government-furnished data
processing equipment associated with the residential AWA (B–225159, June
19, 1989). For alternative worksites contractually procured by the agency
(e.g., telework centers), the agency may pay utility costs associated with employee usage of the site, as long as such expenses are provided for in the contract between the agency and the provider of the site. Regarding alternative worksite arrangements not covered by the latter, the agency may not pay utility costs.
VII. Can agencies require employees to sign a safety checklist to participate in an alternative workplace arrangement? What impact does such a checklist have regarding the Federal Employees’ Compensation Act?
The answer depends upon the intended use of the checklist. If the checklist is used solely for program purposes, such as acquainting the teleworker with workplace safety, then the agency may require employees to sign such a checklist to participate in the program.
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13847
On the other hand, if the checklist is intended to have legal standing for
safety and/or liability purposes, then the answer is no. In accordance with
Federal Employees’ Compensation Act
(FECA) Bulletin 98–9 (1998), in providing guidance for determining whether employees injured while working at alternative worksites meet the ‘‘performance of duty’’ criterion for coverage under FECA, employees who are directly engaged in performing the duties of their jobs are covered by FECA, regardless of whether the work is performed on the agency’s premises or at an alternative worksite. There is no statement (such as a safety checklist) that can be signed by the employee to negate this coverage.
VIII. Can agencies allow employees to pay for their own alternative workspace? Can agencies establish cost sharing arrangements in which the agency and the employee share the costs for alternative worksite equipment, facilities, and/or services used by the employee?
In cases in which the agency requires an employee to telework or otherwise utilize an alternative worksite, allowing or requiring an employee to pay for or share the costs for the alternative workspace would be an illegal augmentation of the agency’s appropriation.
If the agency is not ordering the employee to telework or otherwise utilize an alternative worksite but is, instead, merely allowing the employee to do so, the agency may allow or require the employee to pay for or share the costs for using the alternative space.
Augmentation is a concept of appropriations law that is derived from statute, specifically 31 U.S.C. § 3302(b)
(miscellaneous receipts rule) and 31
U.S.C. § 1301(a) (restricting the use of appropriated funds to their intended purposes). The Government Accountability Office has held that an agency may not augment its appropriations from outside sources without specific statutory authority. The concept is related to the separation of powers doctrine. When Congress makes an appropriation, it is also establishing an authorized program level. It is, in effect, telling the agency that it cannot operate beyond the level that it can finance under its appropriation. The objective of the rule against augmentation of appropriations is to prevent a government agency from undercutting the Congressional power
of the purse by exceeding the amount Congress has appropriated for that activity.
IX. Can agencies pay taxes charged for residential telephone lines and/or related equipment that is used for officially sanctioned telework purposes?
No. The providers of residential telephone lines, services, and/or related telecommunications equipment/services typically charge Federal and State taxes for the acquisition/use of these items. Federal agencies are exempt from Federal taxes and, depending on State tax law, from State taxes as well. Accordingly, agencies are not
authorized to pay Federal or, in some cases, State taxes for equipment or services used by their teleworkers.
X. Can agencies authorize teleworkers to make personal use of the alternative worksite equipment provided by the agency?
Yes. The head of each agency has the authority to set personal use policies. In accordance with GSA guidance set forth in ‘‘Recommended Executive Branch Model Policy/Guidance On Limited Personal Use Of Government Office Equipment Including Information Technology,’’ documents/ peruselmodellmayl1999.pdf, agencies can authorize teleworkers limited personal use of alternative worksite equipment. Limited personal use of the government office equipment by employees during non-work time is considered to be an ‘‘authorized use’’ of Government property. Authority for this policy is found at 5 U.S.C. § 301, which provides that the head of an executive department or military department may prescribe regulations for the use of its property, and Executive Order 13011 of July 16, 1996, Federal Information Technology, section 3(1), which
requires the Chief Information Officers Council to develop recommendations for Federal information technology management policy, procedures, and standards.
For more info on this topic, visit the following Web site: http:// documents/43.pdf. XI. Who is responsible for the relocation and re-setup of alternative worksite workstations and equipment when an employee relocates?
If the relocation of an employee is required by the agency, then the agency is fully responsible for the relocation and re-setup of any associated alternative worksite workstation and/or equipment. If the employee relocates on her/his own accord, then the determination of responsibility for the relocation and re-setup of alternative
worksite workstations and equipment
(especially agency-owned workstations and equipment) is within the discretion of the agency. When establishing AWA programs, it is the agency’s responsibility to establish adequate and equitable policies to cover this issue. XII. Must the head of an Executive agency consider whether needs can be met using alternative workplace arrangements in considering whether to acquire space, quarters, buildings, or other facilities for use by employees?
Yes. In considering whether to acquire space, quarters, buildings, or other facilities for use by employees, 40
U.S.C. § 587(c)(2) requires the head of an Executive agency to consider whether needs can be met using AWA. XIII. What factors should an Executive agency head consider in considering whether the agency’s needs can be met using alternative workplace arrangements?
Executive agency heads should consider as many of the following factors as are relevant to the agency’s circumstances:
a. Facility performance and space utilization efficiency/effectiveness;
b. Allocation/utilization/flexibility of space to meet diverse/changing organizational needs;
c. Workspace quality factors, quality of worklife;
d. Individual/organizational performance;
e. Technology utilization and return on investment;
f. Reduced/saved facility costs per person;
g. Reduced/avoided other expenses;
h. Increased/earned revenue;
i. Workplace/space flexibility to accommodate/meet diverse/changing uses, configurations, staff, and/or other organizational needs; and
j. Environmental impact, sustainability.
XIV. Should the head of the Executive agency document the result of the agency’s consideration of whether to acquire space, quarters, buildings, or other facilities for use by employees?
Yes. Documenting the relevant considerations will help the agency make more informed decisions about its immediate space needs and will provide a reference for future agency space considerations. Through early planning, the agency may be able to shorten and simplify the space acquisition process and acquire the necessary space at the most reasonable cost to the Government.
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XV. Do space per person standards apply in an alternative worksite environment?
No. The Government no longer maintains space per person requirements. Under current GSA space planning guidance, space allocation should be based on organizational needs. When feasible, AWA can accommodate those needs as well as reduce overall agency space requirements. This is the essence of the requirement in 40 U.S.C. § 587(c)(2): use AWA in lieu of new space acquisition to meet agency space needs in a more cost effective and/or otherwise beneficial manner.
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[Federal Register: March 2, 2007 (Volume 72, Number 41)]
[Notices]
[Page 9532-9535]
From the Federal Register Online via GPO Access [wais.access.]
[DOCID:fr02mr07-46]
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GENERAL SERVICES ADMINISTRATION
[FMR Bulletin 2007-B1]
Information Technology and Telecommunications Guidelines for
Federal Telework and Other Alternative Workplace Arrangement Programs
AGENCY: General Services Administration.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This bulletin establishes guidelines for implementing and
operating telework and other alternative workplace arrangement programs
through the efficient and effective use of information technology and
telecommunications. These policies are designed to assist agencies in
the implementation and expansion of Federal alternative workplace
arrangement programs.
EFFECTIVE DATE: March 2, 2007.
FOR FURTHER INFORMATION CONTACT: For further clarification of content,
contact Stanley C. Langfeld, Director, Regulations Management Division
(MPR), General Services Administration, Washington, DC 20405; or
stanley.langfeld@.
Dated: February 21, 2007.
Kevin Messner,
Acting Associate Administrator, Office of Governmentwide Policy.
General Services Administration
[FMR Bulletin 2007-B1]
Real Property
TO: Heads of Federal Agencies
SUBJECT: Information Technology and Telecommunications Guidelines
for Federal Telework and Other Alternative Workplace Arrangement
Programs
1. Purpose: This bulletin establishes guidelines for
implementing and operating telework and other alternative workplace
arrangement (AWA) programs through the efficient and effective use
of information technology and telecommunications.
2. Expiration Date: This bulletin will remain in effect
indefinitely until specifically cancelled.
3. Definitions: Following are terms and definitions used in and
for the purpose of this bulletin:
a. Agency Worksite--An agency worksite is the post of duty to
which an employee would report if not teleworking.
b. Alternative Worksite--An alternative work location used by
teleworkers while teleworking.
c. Broadband--Broadband is a term that commonly and loosely
refers to high speed data transmission service. When such service is
used for connections to the internet, the Federal Communications
Commission (FCC) defines two types of connections: (1) high-speed
lines that deliver services at speeds exceeding 200 kilobits per
second (kbps) in at least one direction, and (2) advanced services
lines that deliver services at speeds exceeding 200 kbps in both
directions (see FCC News Release entitled ``Federal Communications
Commission Releases Data On High-Speed Services for Internet Access,
High-Speed Connections to the Internet Increased by 33% in 2005,''
dated July 26, 2006,
).
d. Dial-up--Dial-up refers to the use of an analog telephone
line for accessing the internet and remotely connecting to and from
an alternative worksite to an agency Information Technology (IT)
system. Dial-up access uses normal telephone lines for data
transmission and generally has a lower data transfer rate as
compared to other internet services.
e. Docking Station--A docking station is a piece of equipment
that is used with a laptop computer to allow for the convenient and
quick connection of peripheral and/or telecommunications (internet
access, for example) equipment by providing the laptop with
additional ports, expansion slots, and bays for various types of
peripherals and other connections. Typically, the docking station is
continuously located in a given workstation and continuously
connected to peripherals and telecommunications access; the laptop
is slipped in and out of the docking station, as needed. A docking
station also enables use of the laptop to resemble the use and
convenience of a desktop computer by enabling the user to operate
the laptop with a full size external keyboard, monitor, and/or
mouse. Thus, a docking station maintains the flexibility of a laptop
while giving it the functionality of a desktop computer.
f. External Information Systems--Information systems or
components of information systems that are outside of the
accreditation boundary established by the organization and for which
the organization typically has no direct control over the
application of required security controls or the assessment of
security control effectiveness. External information systems
include, but are not limited to, personally owned information
systems (e.g., computers, cellular telephones, or personal digital
assistants); privately-owned computing and communications devices
resident in commercial or public facilities (e.g., hotels,
convention centers or airports); information systems owned or
controlled by non-federal governmental organizations; and federal
information systems that are not owned by, operated by, or under the
direct control of the organization.
g. One Computer Model--Teleworker use of a single computer,
usually a laptop, that is transported to all worksites (typically
back and forth between an alternative worksite and the agency
worksite). The One Computer Model contrasts with multi-computer
situations in which the teleworker has a separate computer for use
at each worksite and, typically, each of these computers remains at
the worksite and is not transported around.
h. Remote Access Servers (RAS)--Remote access servers provide
internet and dialup access to the office local area network (LAN).
The RAS authenticates the user through a password or stronger
mechanism; it then allows the user to access files, printers, or
other resources on the LAN. The chief benefit of a RAS is in
providing a conveniently packaged comprehensive solution to offsite
access needs. Typically, the servers include support for internet-
based voice communications, virtual private networks (defined
below), and authentication in a package designed to make it easier
for administrators to establish and maintain user privileges.
i. Telework--Telework is work performed by an employee at an
alternative worksite, which reduces or eliminates the employee's
commute or travel to the agency worksite. Alternative worksites may
include the employee's home, telework center, satellite office,
field installation, or other location.
j. Virtual Private Network (VPN)--The National Institute of
Standards and Technology (NIST) defines VPN as ``a logical network
that is established, at the application layer of the Open Systems
Interconnection (OSI) model, over an existing physical network and
typically does not include every node present on the physical
network.'' Further, NIST describes how VPN technology uses the
internet as the transport medium
[[Page 9533]]
and employs security measures to ensure that the communications are
private. Although VPN traffic crosses the internet, VPN protection
prevents most unauthorized users from reading and/or modifying the
traffic (see NIST Special Publication 800-46, Security for
Telecommuting and Broadband Communications,
publications/nistpubs/800-46/sp800-46.pdf).
4. Background:
a. 40 U.S.C. Sec. 587(c)(3) [Public Law 104-208, div. A, title
I, Sec. 101(f) [title IV, Sec. 407(a)] (September 30, 1996)), as
revised, restated and recodified without substantive change by
Public Law 107-217 (August 21, 2002)] authorizes GSA to provide
guidance, assistance, and oversight, as needed, regarding planning,
establishment and operation of AWA programs.
b. In accordance with Section 359 of Public Law 106-346,
effective October 23, 2000, each Executive agency must establish a
policy under which eligible employees of the agency may participate
in telecommuting to the maximum extent possible without diminished
employee performance.
c. Public Law 104-52, Treasury, Postal Service, and General
Government Appropriations Act, 1996, title VI, Sec. 620 (November
19, 1995), 31 U.S.C. Sec. 1348 note, provides as follows:
``Notwithstanding any provisions of this or any other Act,
during the fiscal year ending September 30, 1996, and hereafter, any
department, division, bureau, or office may use funds appropriated
by this or any other Act to install telephone lines, and necessary
equipment, and to pay monthly charges, in any private residence or
private apartment of any employee who has been authorized to work at
home in accordance with guidelines issued by the Office of Personnel
Management: Provided, That the head of the department, division,
bureau, or office certifies that adequate safeguards against private
misuse exist, and that the service is necessary for direct support
of the agency's mission.''
d. Public Law 107-347, The E-Government Act of 2002 (December
17, 2002), recognized the importance of information security to the
economic and national security interests of the United States. Title
III of the E-Government Act, referred to therein as the Federal
Information Security Management Act of 2002 (FISMA), emphasizes the
need for organizations to develop, document, and implement an
organization-wide program to provide security for the information
systems that support its operations and assets.
e. GSA Federal Management Regulation (FMR) Bulletin 2006-B3--
Guidelines for Alternative Workplace Arrangements, effective March
17, 2006, sets forth the parameters for establishing agency AWA
programs.
5. Further Information: For further information, contact Stanley
C. Langfeld, Director, Regulations Management Division, Office of
Real Property Management (MP), at (202) 501-1737; or
stanley.langfeld@.
Guidelines for IT and Telecommunications for Federal Telework and Other
AWA Programs
I. Basic Equipment Recommendations
a. An agency may provide employees with computer equipment,
associated peripheral equipment (e.g., printer, copier, scanner,
facsimile), telecommunications, and associated technical support for
the implementation and expansion of telework in the Federal
Government. The agency may provide the level and configuration of
these resources that it deems necessary for mission accomplishment.
To make this determination, an agency may consider factors such as
the teleworker's job requirements, frequency of telework, and other
work-related parameters. In addition, the agency is advised to
review the 2006 Telework Technology Cost Study, which concluded that
the One Computer Model is advantageous from both a value added cost
perspective and from a multi-purpose perspective. The 2006 Telework
Technology Cost Study is located in the GSA Telework Library at
.
b. An agency may establish a policy that provides that
teleworkers utilize their respective alternative worksite equipment
and associated technical support for continuity of operations (COOP)
purposes. In addition to facilitating COOP responsiveness, this
dual-purpose use of telework resources can (1) increase the agency's
return on investment for the cost of those resources, as well as (2)
reduce agency COOP costs. The NIST Special Publication 800-34,
Contingency Planing Guide for Information Technology Systems,
provides instructions, recommendations, and considerations for
government IT contingency planning (see
), and NIST Special
Publication 800-84, Guide to Test, Training, and Exercise Programs
for IT Plans and Capabilities, provides additional recommendations
and related information (see .
)
c. An agency may provide teleworkers with equipment that is no
longer needed for its original purposes, such as when equipment is
replaced during a refresh cycle. This strategy can maximize the
value of federal IT investments through the 're-use' or 're-
purposing' of equipment to help implement or expand an agency
telework program. In accordance with 41 CFR 102-36.30 and 102-36.35,
even though equipment may no longer be used for its original
purpose, employee, or location, the agency must determine if the
equipment can serve other agency uses, such as in alternative
worksites. The equipment officially does not become excess until the
agency determines that the agency has no further use for the
equipment, including use in main or alternative worksites.
II. Telecommunications and Internet Services
a. Public Law 104-52, section 620, 31 U.S.C. 1348 note,
authorizes agencies to use appropriated funds to install telephone
lines and necessary equipment, and to pay monthly charges, in any
private residence of an employee who has been authorized to work at
home in accordance with the guidelines issued by the Office of
Personnel Management. The head of the department, division, bureau,
or office must certify that adequate safeguards against private
misuse exist, and that the service is necessary for direct support
of the agency's mission. This authority includes facsimile machines,
internet services, broadband access, e-mail services. Voice over
Internet Protocol equipment and services, desktop videoconference
equipment and services, and, in general, any other
telecommunications equipment and services the agency deems needed by
individuals working in any authorized alternative worksite.
b. As describe above, agencies are authorized to provide and/or
pay for installation and operation of a dedicated voice line for
teleworker use at an alternative worksite. Regardless of whether or
not, or the extent to which, an agency provides resources for such a
line, a dedicated voice line is recommended so that (1) managers,
co-workers, clients, and/or other work-related personnel are not
prevented from reaching a teleworkers due to the tying up of a
teleworker's phone line by online or other data use activity and (2)
teleworker do not put themselves at risk by tying up their personal
voice line with business activity. Agencies may carry out this
recommendation through the use of landlines and/or cell phones.
c. The authorities described above also authorize agencies to
pay equipment costs, usage fees, and service charges for all
authorized methods of connectivity (e.g., dial-up, high-speed,
wireless, satellite) utilized for official business at alternative
worksites.
d. Factors such as teleworker job requirements,
telecommunications service availability, and quality and cost of
service at the alternative worksite should be used to determine
teleworker connectivity. Various types of high-speed
telecommunication services are available in many areas and not in
others. Speed, performance, reliability, and cost are factors to
consider when determining how to meet connectivity requirements. In
some instances, for example, in which an analog telephone line is
the only available connectivity solution, the resulting dial-up
access may be sufficient, depending on the teleworker's job
requirements. Agency policies should address the equitable
provisioning of these resources. It is recommended that agencies
implement more than one type of connectivity because of variations
in service availability, teleworker job requirements and modes of
operation, and other factors that impact the type of connectivity
required.
e. Security and connectivity requirements vary according to
whether or not a teleworker's job requires interacting with an
agency's centralized IT systems. Teleworkers who do not require
interaction with an agency's centralized IT systems may be able to
telework successfully using only e-mail and telephone contact with
the office, without logging into the agency system. For example, a
user who teleworks one or two days per week, and whose job consists
[[Page 9534]]
largely of writing and document preparation, may never need to log
in to agency systems from an alternative worksite. Provided that
they are not sensitive or do not contain personally identifiable
information, documents can be e-mailed back and forth between the
agency system and the user's e-mail account. In this scenario, e-
mailing a document from an alternative worksite to the agency system
does not require the teleworker to interact with the system. In
general, there are may firewall implementations that use an
electronic mail proxy to allow access to the files on a protected
system without having to directly access that system. Alternatively,
the teleworker may physically transport the documents on portable
storage media.
When teleworkers need to access the agency's centralized IT
systems, it is necessary, at a minimum, to allow for remote logins
from the alternative worksite computer. In this case, strong
authentication (at least ``two factor authentication'') is required
to minimize the vulnerabilities in providing external access. This
solution is sufficient for teleworkers requiring minimal access to
internal resources, such as some types of intranet access. NIST
provides detailed guidance on this issue in Special Publication 800-
63, its document on electronic authentication, and agencies are
advised to review and comply with this guidance (see
).
Some teleworkers, however, may require more involved access to
internal resources. In this case, a more secure solution, such as a
VPN, should be used. A VPN can provide a high level of security and
convenience for the teleworker. Encryption protects all interaction
between the offsite computer and the main office, so that in many
ways the user's offsite computer is as secure as one on the main
office local network. This approach makes it possible to allow
offsite users to operate applications such as scheduling, budget
analysis, or other complex systems from the alternative worksite.
The tradeoff for a VPN is in cost and complexity of administration.
Note also that operating a VPN does not guarantee protection from
viruses and e-mail worms. The agency Chief Information Officer
(CIO), in conjunction with other agency officials (such as telework
and/or human resources management policy providers), should examine
job requirements and provide policy, guidance, and appropriate
secure system access.
f. Agencies should be aware and take advantage of the potential
utility and other benefits of audio teleconference and web
conference capabilities for their respective telework programs.
These capabilities can be excellent tools to facilitate
productivity, agency cost savings (from reduced travel expenses, for
example), and other benefits for all employees, in general, and for
teleworkers, in particular. Agency telework program planners and
implementers should be aware of and utilize the relevant
telecommunications products, tools, information, and services that
are available in their existing contracts and/or from service
providers, such as the GSA Global Account Manager (
), or equivalent sources and providers.
III. Security
a. According to an Office of Management and Budget (OMB)
memorandum entitled ``Protection of Sensitive Agency Information,''
dated June 23, 2006, which addresses the lack of physical security
controls when information is removed from or accessed from outside
the agency location, agencies should implement the NIST checklist
for protection of remote information (see
), and:
(1) Encrypt all data on mobile computers and devices that carry
agency data, unless the agency determines that the data are non-
sensitive;
(2) Allow remote access only with two-factor authentication
where one of the factors is provided by a device separate from the
computer gaining access;
(3) Use a ``time-out'' function requiring user re-authentication
after thirty (30) minutes of inactivity for remote access and mobile
devices; and
(4) Log all computer-readable data extracts from databases
holding sensitive information and verify that each such extract has
been erased within ninety (90) days or that its use is still
required.
b. FISMA delegates to NIST the responsibility to develop
detailed information security standards and guidance for federal
information systems, with the exception of national security
systems. Agency personnel involved in planning, implementing, and/or
operating telework programs should consult the Web site of NIST's
Computer Security Resource Center (see ) for up-
to-date information and guidance on secure computing. Listed below
are key documents that can assist in the implementation of secure
telework operations.
(1) Security for Telecommuting and Broadband Communications
(NIST Special Publication 800-46 (2002)), assists organizations in
addressing telework security issues by providing recommendations on
securing a variety of applications, protocols, and network
architectures (see
).
(2) Recommended Security Controls for Federal Information
Systems (NIST Special Publication 800-53, Rev. 1 (2006)), provides
important guidance on security controls selection and specification,
including information on Media Protection, Certification,
Accreditation, Security Assessments, Identification and
Authentication families, updating security controls, and the use of
external information systems (see
).
(3) Information Security Handbook: A Guide for Managers (see
). (4) Security Management and guidance (see
c. Agencies should review and comply with applicable controls
and guidance, especially sections on portable devices, remote
access, and external IT systems set forth in NIST Special
Publication 800-53, Rev. 1, when developing telework program
implementation guidelines. Listed below are selected controls and
guidance from NIST Special Publication 800-53, Rev. 1:
(1) Access Control for Portable and Mobile Devices (e.g.,
notebook computers, personal digital assistants, cellular
telephones, and other computing and communications devices with
network connectivity and the capability of periodically operating in
different physical locations):
i. Establish usage restrictions and implementation guidance for
organization-controlled portable and mobile devices;
ii. Authorize, monitor, and control device access to
organizational information systems;
iii. Require that portable and mobile device access to
organizational information systems be in accordance with
organizational security policies and procedures. Security policies
and procedures include device identification and authentication,
implementation of mandatory protective software (e.g., malicious
code detection, firewall), configuration management, scanning
devices for malicious code, updating virus protection software,
scanning for critical software updates and patches, conducting
primary operating system (and possibly other resident software)
integrity checks, and disabling unnecessary hardware (e.g.,
wireless, infrared).
(2) Remote Access:
i. Authorize, montior, and control all methods of remote access
to the information system. Remote access controls should be applied
to all information systems other than public web servers or systems
specifically designed for public access;
ii. Restrict access achieved through dial-up connections (e.g.,
limit dial-up access based upon source of request) or protect
against unauthorized connections or subversion of authorized
connections (e.g., using VPN technology). NIST Special Publication
800-63 provides guidance on remote electronic authentication;
iii. Employ automated mechanisms to facilitate the monitoring
and control of remote access methods;
iv. Use cryptography to protect the confidentiality and
integrity of remote access sessions;
v. Control all remote accesses through a limited number of
managed access control points; and
vi. Permit remote access for privileged functions only for
compelling operational needs and document the rationale for such
access in the security plan for the information system.
(3) Use of External Information Systems Control:
i. Establish terms and conditions for authorized individuals to:
(A) access the information system from an external information
system; and (B) process, store, and/or transmit organization-
controlled information using an external information system.
Authorized individuals include organizational personnel,
contractors, or any other individuals with authorized access to the
organizational information system. This control does not apply to
the use of external
[[Page 9535]]
information systems to access organizational information systems and
information that are intended for public access (e.g., individuals
accessing federal information through public interfaces to
organizational information systems).
ii. Establish terms and conditions for the use of external
information systems in accordance with organizational security
policies and procedures. The terms and conditions should address, at
a minmum: (A) the types of applications that can be accessed on the
organizational information system from the external information
system; and (B) the maximum Federal Information Processing Standard
199 security category of information that can be processed, stored,
and transmitted on the external information system.
iii. Prohibit authorized individuals from using an external
information system to access the information system or to process,
store, or transmit organization-controlled information except in
situations where the organization: (A) Can verify the employment of
required security controls on the external system as specified in
the organization's information security policy and system security
plan; or (B) has approved information system connection or
processing agreements with the organizational entity hosting the
external information system.
IV. Privacy
Agencies should review the OMB memorandum entitled
``Safeguarding Personally Identifiable Information,'' dated May 22,
2006, and ensure that their respective telework technology
infrastructures, practices and procedures are in compliance with
that memorandum and the Privacy Act. The OMB memorandum reemphasizes
the many responsibilities under law and policy to safeguard
sensitive personally identifiable information appropriately. Among
other things, the Privacy Act requires each agency to establish:
``Rules of conduct for persons involved in the design, development,
operation, or maintenance of any system of records, or in
maintaining any record, and instruct each such person with respect
to such rules and the requirements of [the Privacy Act], including
any other rules and procedures adopted pursuant to [the Privacy Act]
and the penalties for noncompliance;'' [and]
``appropriate administrative, technical, and physical safeguards to
insure the security and confidentiality of records and to protect
against any anticipated threats or hazards to their security or
integrity which could result in substantial harm, embarrassment,
inconvenience, or unfairness to any individual on whom information
is maintained.'' (5 U.S.C. 552a(e)(9)-(10))
V. Training
Teleworkers should receive adequate training on the use of IT
systems and applications needed for effective job performance. This
should include any specialized training associated with (1)
effective use of remote access and other resources needed for
working remotely, and (2) security awareness and responsibility. In
addition, agencies are encouraged to provide opportunities for
teleworkers to practice in a telework situation.
VI. Technical Support
a. Agencies should (1) provide adequate and effective Help Desk
support for teleworkers, and (2) require Help Desk personnel to
possess the skills, procedures, and resources needed for resolving
teleworker issues, such as remote access hardware and software
issues.
b. Where feasible and applicable, agencies should provide
routine systems maintenance via remote transmission procedures such
as transmitting (``pushing'') software and system upgrades out to
the teleworker's alternative worksite as opposed to requiring the
teleworker to bring a computer to the agency worksite for
maintenance.
VII. Additional References and Resources
a. Office of Management and Budget (see
).
b. Government Accountability Office (see ).
VIII. Commonly Asked Questions
a. May an employee use his or her own personal computer
equipment to conduct official business from an alternative worksite?
If so, who is responsible for maintaining an employee's personally-
owned equipment that is used for official business?
Yes, provided certain conditions are met, agencies may permit
employees to use personally-owned equipment to conduct official
business. If an agency permits the use of personally owned
equipment, the employee must agree to allow the agency to (1)
configure that equipment with the proper hardware and software
necessary for secure and effective job performance, and (2) access
the equipment, as needed, to verify compliance with agency policy
and procedures. Additional conditions that must be met are set forth
in NIST Special Publication 800-53, Rev. 1, on page 64, as follows:
``The organization prohibits authorized individuals from using
an external information system to access the information system or
to process, store, or transmit organization-controlled information
except in situations where the organization: (i) Can verify the
employment of required security controls on the external system as
specified in the organization's information security policy and
system security plan; or (ii) has approved information system
connection or processing agreements with the organizational entity
hosting the external information system.''
If the agency allows the use of personally-owned equipment for
official business, then the telework agreement should clearly
identify the employee's and agency's obligations for appropriate
operation, repair, and maintenance of the equipment. While agencies
are responsible for Government-owned equipment regardless of
location, they are not required to be responsible for employee-owned
equipment. At their sole discretion, however, agencies may assume
responsibility for employee-owned equipment that is used to conduct
official business. For example, agencies may authorize Help Desks or
other agency personnel or resources to (1) fix a problem with the
employee's personally-owned equipment, (2) help the employee fix the
problem, or (3) provide, install, and/or upgrade Government-owned
software on employee-owned equipment. If an agency permits the use
of personally-owned equipment, the employee must agree to allow the
agency to configure that equipment with the proper hardware and
software including security, communications and applications.
b. Are there policies for ``limited personal use'' of Government
e-mail and internet systems?
Yes. The Office of Management and Budget expects all agencies to
establish personal use policies consistent with the recommended
guidance developed by the CIO Council in 1999 (see ``Personal Use
Policies and `File Sharing' Technology'' memorandum at:
). In addition,
NIST Special Publication 800-53, Rev. 1, under the section titled
Supervision and Review--Access Control, recommends that agencies
supervise and review the activities of users with respect to the
enforcement and usage of information system access controls.
According to this guidance, agencies should review audit records
(e.g., user activity logs) for inappropriate activities in
accordance with organizational procedures and investigate unusual
information system-related activities.
c. Are there any other Guidelines for Alternative Workplace
Arrangements?
Yes. For additional guidance, see FMR Bulletin, 2006-B3,
Guidelines for Alternative Workplace Arrangements, Sections I
through XV, dated March 17, 2006.
[FR Doc. 07-951 Filed 3-1-07; 8:45 am]
BILLING CODE 6820-RH-M
Telework Policies
Perhaps the best defense to address telework legal issues is to have a comprehensive telework policy in place. Ideally, employers will work with their initial telecommuting volunteers to develop a clear policy governing work requirements, performance, and productivity measurements, reporting and timekeeping responsibilities and supervisory relationships. The agreement should begin with a precise definition of when an employee is deemed to be working for the employer in a telecommuting capacity, i.e. what activities, circumstances and locations are necessarily involved in telecommuting work for the employer. In addition to these general policy statements, the telecommuting agreement should provide clear guidance on the following checklist of issues:
1. Whether the telecommuter is an independent contractor or employee
2. Job description and functions within that description which are appropriate for telecommuting; focus on essential job functions that may require employee to be on premises
3. Legitimate non-discriminatory selection guidelines for granting telecommuting privileges
4. Equipment expenses, technical support, training, and courier or express mail services which the employer will provide
5. Space, facilities, furniture or equipment which the telecommuting employee will provide
6. Responsibility for insurance on equipment and work area
7. Return of employer provided property upon termination (with penalty for conversion)
8. Telecommuter's responsibility for equipment, maintenance and repairs
9. Telecommuter's responsibility for workplace safety of home office
10. Authority for employer to periodically inspect telecommuting workspace
11. Requirement that employee record and submit time regularly to employer
12. Agreement to any limitations on employee's work hours and overtime, if non-Exempt; it may be helpful to specify hours of work to avoid suits for overtime work
13. Confidentiality of computer data and other company records
14. Limitations on personal use of employer provided equipment
15. Limitations on access to employer provided equipment and employee Workplace by others
16. Disclaimer that telecommuting arrangement is temporary
17. As always, an employment at will disclaimer.
Example of a policy addressing telework??????
Conclusion
The law has not caught up to modern-day practices.
Figure 1. From where do people telecommute?[146]
[pic]
-----------------------
[1] Deborah S. Crumbley (2001). Work Structures of the 21st Century: Implications for the Employment Law Practitioner. Labor Law Journal, 245-257.
[2] Society of Human Resource Management (2007). Work/Life Balance: Challenges and Solutions. Washington, D.C.
[3] Josh Bivens (2004, April 8). Shifting Blame for Manufacturing Job Loss: Effect of Rising Trade Deficit Shouldn’t Be Ignored. Available at
[4] Stephan Fox (2004, March 5-11). Court rulings defining work at home arrangements. Fort Worth Business Press, p. 34.
[5] Equal Employment Opportunity Commission. (2007, May 23). EEOC Issues New Guidance on Work/Family Balance and Promotes Employer Best Practices. Available at
[6] Examples of other programs designed to give workers increased flexibility include compressed work weeks, job sharing, flexible work hours where employees can, with certain limits, determine when the come to work and leave, and voluntary reduced work time.
[7] Andrew D. Smith (2007, September 12). Just Like You’re There in the Room. Dallas Morning News, 1D, 5D.
[8] Jerald Greenberg and Robert A. Baron (2008). Behavior in Organizations (9th ed.). Upper Saddle Ridge, NJ: Pearson/Prentice Hall.
[9] General Services Administration. (March 17, 2006). FMR Bulletin 2006-B3: Guidelines for Alternative Workplace Arrangements, Available at
[10] Ellen E. Kossek (2003, May 12). Telecommuting. Sloan Work and Family Research Network. Available at
[11] Supra U.S. Department of Labor, 2000. Telework and the New Workplace of the 21st Century. Washington, DC: Government Printing Office. Available at
[12] Jana Cranmer (2007, April 2). Feds Faster to Adopt Telework. Federal Computer Week, 21, 40-41.
[13] United States Office of Personnel Management. (June 2007). Status of Telework in the Federal Government: Report to the Congress. Available at
[14] Society of Human Resources Management. (2007, July). 2007 Benefits Survey Report. Available at
[15] Les Christie (2006, May 22). Earn well, live cheap: More Americans are abandoning the commuting rat race for working at home. Available at
[16] Suite Commute (n. d.). Telework Statistics, Available at
[17] IATC Press Release. (2005, October 4). Annual survey shows Americans are working from many different locations outside their employer’s office. Silver Spring, MD: IATC. From:
[18] Jerald Greenberg and Robert A. Baron (2008). Behavior in Organizations (9th ed.). Upper Saddle Ridge, NJ: Pearson/Prentice Hall.
[19] Id.
[20] IATC Press Release. (2005, October 4). Annual survey shows Americans are working from many different locations outside their employer's office. Silver Spring, MD: IATC. From: pr100405.htm
[21] Telework Statistics for 2005. (2006). The Information Society, London. From: index_files/2004_telework_statistics.htm
[22] Kugelmass, J. (1995). Telecommuting: A manager’s guide to flexible work arrangements. New York: Lexington Books.
[23] Nancy B. Kurland and Diane E. Bailey (1999, Autumn). When workers are here, there, and everywhere: a discussion of the advantages and challenges of telework. Organizational Dynamics, 53-68.
[24] Id.
[25] Telework Statistics for 2005. (2006). The Information Society, London. From:
[26] American Management Association. (2002, May). “Time to Take Another Look at Telecommuting.” HRFocus, 79, 6-9.
[27] Federal Clean Air Act of 1990 get ref for this ???
[28] James R. Shanks (2007). Federal Telework: A Model for the Private Sector. Public Manager, 36, 59-63.
[29] Public Law 106-346, § 359 of Oct. 23, 2000 which says in part that each executive agency shall establish a policy under which eligible employees of the agency may participate in telecommuting to the maximum extent possible without diminished employee performance. Not later than 6 months after the date of the enactment of this Act, the Director of the Office of Personnel Management shall provide that the requirements of this section are applied to 25 percent of the Federal workforce, and to an additional 25 percent of such workforce each year thereafter.
[30] U.S. Office of Personnel Management and the General Services Administration (n. d.). Telework Laws. Available at . For example, Public Law 108-447, Division B, § 622 of December 8, 2004; Public Law 108-199, Division B, § 627 of January 23, 2004; Public Law 105-277, Omnibus Appropriation Act, Title IV, § 630, of Oct. 21, 1998.
[31] Susan M. Bosco and Diane Harvey (2003). Effects of terror attacks on employment plans and anxiety levels of college students, College Student Journal, 37, 438-446.
[32] Andrew J. DuBrin (1994). Contemporary applied management: Skills for managers (4th ed.). Burr Ridge, IL: Irwin.
[33] Richard I. Hartman, Charles R. Stoner, and Raj Arora. (1992). Developing successful organizational telecommuting arrangements: Worker perceptions and managerial prescriptions. SAM Advanced Management Journal, 57, 35-42.
[34] Nancy B. Kurland and Cecily D. Cooper (2002). Manager control and employee isolation in telecommuting environments. The Journal of High Technology Management Research, 13, 107-126; Diane E. Bailey and Nancy B. Kurland (2002). A review of telework research: Findings, new directions, and lessons for the study of modern work. Journal of Organizational Behavior, 23, 383-400.
[35] Matthew Mariani. (2000). Telecommuters. Occupational Outlook Quarterly, 44, 10-17.
[36] U.S. Department of Labor, 2000. Telework and the New Workplace of the 21st Century. Washington, DC: Government Printing Office.
[37] 29 U.S.C. §654(a)(1) (1999); 29 C.F.R. § 1903.1 (1999), at Section 2(b)
[38] Id., Sections 4 and 5 of the OSH Act.
[39] Letter from OSHA to Mr. T. Trahan, CSC Credit Services (Nov. 15, 1999)., available at . Withdrawn January 5, 2000.
[40] U.S. Department of Labor, Occupational Safety & Health Administration (February 25, 2000), Home-Based Worksites, Directive Number CPL 02-00-125, Available at
[41] Id., Section IX.
[42] Id., Section X.
[43] Id., Section XI.
[44] 29 C.F.R. §§1904.30, 1904.46.
[45] 29 C.F.R. §1904.5 (2002).
[46] Id.
[47] 29 U.S.C. §667 (2002); see also Linda S. Peterson, Does OSHA’s Reach Extend to Employees Using Company-Provided Computers at Home? CORP. COUNS., Dec. 1, 2000, at 4.
[48] OSHAl (n.d.), Frequently Asked Questions about State Occupational Safety and Health Plans, Available at
[49] E.g., MONT. CODE ANN. §50-70-115 (2001); WY. STAT. ANN. §27-11-108 (2001).
[50] Supra, Linda S. Peterson, Does OSHA’s Reach Extend to Employees Using Company-Provided Computers at Home? CORP. COUNS., Dec. 1, 2000, at 4.
[51] Nicole B. Goluboff (2001). Workplace Safety and the Telecommuter. June Trial, 36-43.
[52] OSHA of 1970 reference, § 2(b).
[53] §§ 4 and 5 of the OSH Act.
[54] OSHA, Directive CPL 02-00-125, Home-Based Worksites, Available at
[55] Id.
[56] Id.
[57] Id.
[58] 29 C.F.R. §1904.5 (2002).
[59] Id.
[60] 29 C.F.R. §1904.30, 1904.46.
[61] See, e.g., 77 PA. CONS. STAT. ANN. §22 (2002).
[62] See Biggs v. Cains & Jays Snacks, No. 92-0232, 1993 WL730594 (Mich. Work. Comp. App. Corn. Mar. 29, 1993); see also Rowan v. Univ. of Neb., 299 N.W.2d 774 (Neb. 1980).
[63] No. 1998-064631, 2000 WL 1498228 (Wis. Labor & Indus. Rev. Comm’n Sept. 13, 2000).
[64] Id. at *1.
[65] Id at *2; see also Rowan 299 N.W.2d 774.
[66] No. 4-009-534, 1992 WL 310079 (Colo. Indus. Claim Appeals Office Sept. 14, 1992); see also Abramson v. CUNA Mut. Ins. Soc'y, No. 91040700, 1993 WL 51567 (Wis. Labor & Indus. Rev. Comm’n, Jan. 15, 1993).
[67] 996 P.2d 1072 (Utah Ct. App.), cert. denied, 4 P.3d 1289 (Utah 2000).
[68] Id. at 1075.
[69] See Tovish v. Gerber Elecs., 630 A.2d 136 (Conn. App. Ct. 1993), appeal dismissed, 642 A.2d 721 (Conn. 1994). Cf. CONN. GEN. STAT. ANN. §31275 (1997); CONN. AGENCIES RECS. §31-275-1 (1996). See also McRae v. Eagan Real Estate, 567 N.Y.S.2d 183 (App. Div. 1991).
[70] Mike Tonsing, Welcome to the Digital Danger Zone: Say Hello to the Virtual Workforce of the Next Millennium, FED. LAW, July 1999, at 22.
[71] See TEL LAB. CODE ANN. §406.032 (1996); MINN. STAT. §176.011 (1993); ALA. CODE §25-5-1 (1992).
[72] Mike Tonsing, New Wage-and-Hour Issues, Safety Issues, and Workplace Violence Considerations Are Raised by Telecommuting Employees of Your Finn, FED. LAW, July 1998, at 22.
[73] 82 AM. JUR. 2d Workers' Compensation §300 (1992).
[74] See, e.g., 9 COUCH ON INSURANCE § 135:12 (1997); see also 110 N.Y. JUR. 2d Workers' Compensation §§377, 431 (1993).
[75] Schoenfelder v. Winn & Jorgensen, PA, 704 So. 2d 136 (Fla. Dist. Ct. App. 1997).
[76] 144 Cal. Rptr. 105 (Ct. App. 1978).
[77] Id. at 109.
[78] See also Rogers v. Pacesetter Corp., 972 S.W.2d 540 (Mo. Ct. App. 1998).
[79] 708 P.2d 673 (Cal. 1985).
[80] Id. at 674.
[81] 765 So. 2d 987 (Fla. Dist. Ct. App. 2000).
[82] Id. at 990; see also Fine v. S.M.C. Microsystems Corp., 553 N.E.2d 1337 (N.Y. 1990); Martin v. Hasbrouck Heights Bldg. Loan & Savs. Assoc., 41 A.2d 898 (N.J. 1945).
[83] VT. STAT. ANN. tit. 21, §619 (2001).
[84] OKLA. STAT. tit. 85, §4 (1992).
[85] Id.
[86] WIS. STAT. §102.03 (1997).
[87] Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo. Ct App. 1989).
[88] Id. at 689.
[89] Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 803-04 & n.10.
[90] 323 NLRB 30 (1997),
[91]
[92] 42 U.S.C. § 12112(b)(5)(A).
[93] U.S. Equal Employment Opportunity Commission. (2002, October 17). Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act. Available from
[94] U.S. Equal Employment Opportunity Commission. (2005, October 27). Work at Home/Telework as a Reasonable Accommodation. Available from
[95] Langon v. Department of Health and Human Services, 959 F.2d 1053, 1060, 2 AD Cas. (BNA) 152, 159 (D.C. Cir. 1992); Anzalone v. Allstate Insurance Co., 5 AD Cas. (BNA) 455, 458 (E.D.La. 1995); Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 545, 3 AD CAS. (BNA) 1636, 1640 (7th Cir. 1995).
[96] Vande Zande, supra, 44 F.3d at 554.
[97] Id.
[98] Id. at 545.
[99] Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1121 n.3 (10th Cir. 2004).
[100] Humphrey v. Memorial Hospitals Association, No. 98-15404, 2001 U.S. App. LEXIS 2099 (9th Cir. Feb. 13, 2001).
[101] Kurland and Cooper, Supra,
[102] OSHA of 1970 reference, § 2(b).
[103] §§ 4 and 5 of the OSH Act.
[104] OSHA, Directive CPL 02-00-125, Home-Based Worksites, Available at
[105] Id.
[106] Id.
[107] Id.
[108] 29 C.F.R. §1904.5 (2002).
[109] Id.
[110] 29 C.F.R. §1904.30, 1904.46.
[111] 29 U.S.C. §667 (2002); see also Linda S. Peterson, Does OSHA’s Reach Extend to Employees Using Company-Provided Computers at Home? CORP. COUNS., Dec. 1, 2000, at 4.
[112] OSHAl (n.d.), Frequently Asked Questions about State Occupational Safety and Health Plans, Available at
[113] E.g., MONT. CODE ANN. §50-70-115 (2001); WY. STAT. ANN. §27-11-108 (2001).
[114] Supra, Linda S. Peterson, Does OSHA’s Reach Extend to Employees Using Company-Provided Computers at Home? CORP. COUNS., Dec. 1, 2000, at 4.
[115] See, e.g., 77 PA. CONS. STAT. ANN. §22 (2002).
[116] See Biggs v. Cains & Jays Snacks, No. 92-0232, 1993 WL730594 (Mich. Work. Comp. App. Corn. Mar. 29, 1993); see also Rowan v. Univ. of Neb., 299 N.W.2d 774 (Neb. 1980).
[117] No. 1998-064631, 2000 WL 1498228 (Wis. Labor & Indus. Rev. Comm’n Sept. 13, 2000).
[118] Id. at *1.
[119] Id at *2; see also Rowan 299 N.W.2d 774.
[120] No. 4-009-534, 1992 WL 310079 (Colo. Indus. Claim Appeals Office Sept. 14, 1992); see also Abramson v. CUNA Mut. Ins. Soc'y, No. 91040700, 1993 WL 51567 (Wis. Labor & Indus. Rev. Comm’n, Jan. 15, 1993).
[121] 996 P.2d 1072 (Utah Ct. App.), cert. denied, 4 P.3d 1289 (Utah 2000).
[122] Id. at 1075.
[123] See Tovish v. Gerber Elecs., 630 A.2d 136 (Conn. App. Ct. 1993), appeal dismissed, 642 A.2d 721 (Conn. 1994). Cf. CONN. GEN. STAT. ANN. §31275 (1997); CONN. AGENCIES RECS. §31-275-1 (1996). See also McRae v. Eagan Real Estate, 567 N.Y.S.2d 183 (App. Div. 1991).
[124] Mike Tonsing, Welcome to the Digital Danger Zone: Say Hello to the Virtual Workforce of the Next Millennium, FED. LAW, July 1999, at 22.
[125] See TEL LAB. CODE ANN. §406.032 (1996); MINN. STAT. §176.011 (1993); ALA. CODE §25-5-1 (1992).
[126] Mike Tonsing, New Wage-and-Hour Issues, Safety Issues, and Workplace Violence Considerations Are Raised by Telecommuting Employees of Your Finn, FED. LAW, July 1998, at 22.
[127] 82 AM. JUR. 2d Workers' Compensation §300 (1992).
[128] See, e.g., 9 COUCH ON INSURANCE § 135:12 (1997); see also 110 N.Y. JUR. 2d Workers' Compensation §§377, 431 (1993).
[129] Schoenfelder v. Winn & Jorgensen, PA, 704 So. 2d 136 (Fla. Dist. Ct. App. 1997).
[130] 144 Cal. Rptr. 105 (Ct. App. 1978).
[131] Id. at 109.
[132] See also Rogers v. Pacesetter Corp., 972 S.W.2d 540 (Mo. Ct. App. 1998).
[133] 708 P.2d 673 (Cal. 1985).
[134] Id. at 674.
[135] 765 So. 2d 987 (Fla. Dist. Ct. App. 2000).
[136] Id. at 990; see also Fine v. S.M.C. Microsystems Corp., 553 N.E.2d 1337 (N.Y. 1990); Martin v. Hasbrouck Heights Bldg. Loan & Savs. Assoc., 41 A.2d 898 (N.J. 1945).
[137] VT. STAT. ANN. tit. 21, §619 (2001).
[138] OKLA. STAT. tit. 85, §4 (1992).
[139] Id.
[140] WIS. STAT. §102.03 (1997).
[141] Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo. Ct App. 1989).
[142] Id. at 689.
[143] See General Accounting Office Report, Telecommuting: Overvieiv of Potential Barriers Facing Employers (GAO-01-926, July 2001).
[144] See Edward Zclinsky v. Tax Appeals Tribunal of NY, 1 NY3d 85 (2003), cert, den., Brief of Richard Blumenthal, Attorney General of the State of Connecticut, as Amiens Curiae in Support of Petitioner (filed 3/16/04) (thousands of Connecticut residents are burdened with double taxation as the result of New York’s “unconstitutional (i.e., convenience-of-employer] method” of apportionment of their income).
[145] Deborah Rood, & Karen Nakamura. (2005). State Tax Implications of Employing Telecommuters. The Tax Adviser, 36, 360-364.
[146] IATC Press Release. (2005, October 4). Annual survey shows Americans are working from many different locations outside their employer's office. Silver Spring, MD: IATC. From: pr100405.htm
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