Legal Issues Abound in World of Telecommuting Including: Workers’ Compensation, Tax Issues, And Compliance with ADA and OSHA Regulations Prepared by Ken Winter, September 2007 VDOT Research Library 530 Edgemont Road Charlottesville, VA 22903 Ph: (434) 293-1959 Fax: (434) 293-1990 [email protected] KEY SEARCH TERMS: Telecommuting Telecommute Telecommuters Home Office Workers Laws Research Synthesis Bibliography No. 12 Research Synthesis Bibliographies (RSBs) are distillations of relevant transportation research on current topics of interest to researchers, engineers, and policy/decision makers. Sources cited are available for loan (or available through Interlibrary Loan) to VDOT employees through the VDOT Research Library. While Telecommuting Gains Momentum, It Remains Fraught with Practical and Legal Considerations: Caution is Advised in Assessing Benefits and Liabilities Telecommuting is defined as using telecommunications technology to allow employees to work from remote locations (including the field, while traveling, or most typically from their homes) instead of commuting to a conventional workplace at a conventional time. By definition, telecommuting decentralizes, defying conventional notions of how work, workers and the “workplace” are structured. Technological advancements in the form of better network connectivity, faster handheld devices, and improved and less expensive portable computing are creating more opportunity for many workers to work outside the office. In addition, state and federal governments are beginning to emulate private industry by revising and updating their policies to add telecommuting as a means of attracting and retaining skilled white-collar workers, and to remain flexible and competitive in today’s tight labor market. Proponents argue that telecommuting can improve productivity, while helping employees balance life demands. Opponents argue that there are many pitfalls in telecommuting, including isolation, lessened productivity, and reduced teamwork, synergy and camaraderie. A literature search reveals that telecommuting cases are gaining momentum in the workplace and in the courtroom. Both employers and the courts are reconciling this new paradigm with employment laws that predate modern technology. The most common legal liability seems to stem from workers’ compensation concerns and the fact that it is often unclear precisely when telecommuters are working, when are they preparing to work, and when they have temporarily stopped working. In addition, there have been some cases where employees requested telework arrangements as a “reasonable accommodation” under the Americans with Disabilities Act. In 2000 a trial balloon on regulating home offices caused an uproar in the popular press and OSHA issued a formal directive to soothe concerns about possible intrusions into workers' homes, stating that it will not inspect home offices for violations of federal safety and health rules, and it does not expect employers to do so either. Still, many employers remain wary of telecommuting. These are just a few of the issues that have sprung up around telecommuting. The following literature search presents a wide variety of articles covering the topic from many different angles. Many emphasize the need for (and some give examples of) telecommuting agreements and an understanding of how teleworkers will be managed. Some also clarify alternative work arrangements that take advantage of telecommuting technology and opportunities as alternatives to full-time telecommuting. Those options include but are not limited to: job sharing, flex time, partial telecommuting, working as an independent contractor, and working as a leased or contract employee. --- Ken Winter, MLIS Databases Searched for this RSB InfoTrac J-STOR LegalTrac Legal Periodicals Full Text TRIS Online TRANSPORT WorldCat OVERVIEW Research Synthesis Bibliographies (RSBs) are selected lists of resources on current topics of interest to VDOT employees or divisions. When available, links to online documents are provided. In some cases the library has printed copies of these documents and that is indicated. RSBs are “selective listings,” organized and distilled from the larger universe of materials to save the researcher’s time. Selection criteria used by library staff include authority, relevance, and timeliness. GETTING RESOURCES LISTED HERE Full text copies of all resources listed in this document are available in the VDOT Research Library’s collections, via online links, or through Interlibrary loan. In many cases, the VDOT Research Library owns both virtual and hard copies of documents, as well as formats such as CD-ROM. Library staff is available Monday-Friday 8:00-5:00. Don’t hesitate to contact us if you have a reference question, a question about our lending policies, or need any other kind of help. Library Checkout and Interlibrary Loans Requests: Misty Boos, Circulation Assistant [email protected] 434-293-1902 Reference Questions: Ken Winter, Director Library/Info. Services [email protected] 434-293-1959 Cataloging & Technical Services Questions: Pat DeSalvo, Associate Librarian [email protected] 434-293-1965 INITIAL READING The following books, reports and articles provide a good overview of the issues involved with telecommuting contracts and practice, including some information published by federal, state, or local government agencies. There are a few reports affiliated with Departments of Transportation. Many of these reports and articles focus on legal aspects of telecommuting and several offer practical guidance on key points to consider when creating a telecommuting program or in creating employee telecommuting agreements. City Of Seattle Employee Telecommuting Policy Project PUB. DATE: 1990s SOURCE: Urban Consortium Energy Task Force, Public Technology, Energy Program, et al. , [i], 11, [6] : ill. ; 27 cm.; Geographic: Seattle (Wash.) -- Officials and employees -- Transportation.; Note(s): "A Project of the Public Technology, Inc. Energy Program."/ Funding: Performed by the Seattle Engineering Department and funded through the Urban Consortium and the U.S. Department of Energy.; General Info: Phase I final project report./ January 1992-June 1, 1993.; Responsibility: Urban Consortium Energy Task Force.; Entry: 19991222; Update: 19991222. ABSTRACT: unavailable DATABASE: WorldCat ACCESS: Available through Interlibrary Loan. The Costs And Benefits of Telecommuting : A Review And Evaluation Of Micro- Scale Studies and Promotional Literature PUB. DATE: 2000 SOURCE: Kevan R. Shafizadeh, Partners for Adanced Transit and Highways (Calif.), California, et al. , v; ill. ; 28 cm.; Note(s): "Performed ... in cooperation with the State of California Business, Transportation, and Housing Agency, Department of Transportation; and the United States Department of Transportation, Federal Highway Administration."/ "August 2000."/ Includes bibliographical references (p. 46-49)./ Also available on the Internet. Adobe Acrobat Reader required.; Responsibility: Kevan R. Shafizadeh ... [et al.] (University of California, Davis).; Date of Entry: 20001004; Update: 20070111. ABSTRACT: In this report, four small-scale telecommuting pilot project studies that take into account costs and benefits are reviewed for their methodology and assumptions. The report identifies common inputs, critical assumptions, and limitations of the studies. In addition, the major findings of each study are presented and compared to claims found in promotional literature. It is found that few pilot evaluations contained cost-benefit results. DATABASE: WorldCat ACCESS: http://www.path.berkeley.edu/PATH/Publications/PDF/PRR/2000/PRR-2000- 13.pdf Conference Proceedings, Minnesota Telecommuting Conference, May 15-16, 1991, Bloomington, Minnesota PUB. DATE: 1991 SOURCE: Mary E. Brauer, Minnesota and Dept. of Transportation. , 79 p. ; 28 cm.; Note(s): Includes bibliographical references (p. 64).; Responsibility: sponsoring organizations, Minnesota Department of Transportation ... [et al.] ; edited by Mary Brauer. ABSTRACT: Unavailable. DATABASE: WorldCat ACCESS: Available through Interlibrary Loan 1 The Expanding Workplace: Telecommuting and Legal Liability Under OSHA, ADA, and Workers' Compensation PUB. DATE: 1999 SOURCE: David R. Wade. Labor Law Journal, Vol. 50, No. 4, p. 252. ABSTRACT: The trend toward telecommuting work arrangements poses challenges to established employment law doctrines. Although precise estimates of the number of telecommuters is difficult to establish, it is frequently reported that there were 11.1 million telecommuters in the U.S. in 1997, compared with 8.5 million in 1995. Moreover, telecommuting, and other flexible work place arrangements, will become increasingly common in the coming years. As a result, concerns and difficult questions with regard to employment law will also become more prevalent, and legislative guidelines or administrative rules will be needed in order to assist the decision-making bodies that are called on to adjudicate in such cases. ABSTRACT: Unavailable. DATABASE: Legal Periodicals Full Text ACCESS: Available through Interlibrary loan Final Evaluation Report On Year One of The Hawaii Telework Center Demonstration Project PUB. DATE: 1991 SOURCE: Anonymous, SMS Research, Hawaii and Dept. of Transportation. , 59, [2] leaves : map ; 28 cm.; Note(s): Cover title./ "January 8, 1991."; Responsibility: SMS Research ; prepared for Department of Transportation, State of Hawaii. ABSTRACT: Unavailable. DATABASE: WorldCat ACCESS: Available through Interlibrary loan Final Report On Telecommunication Shared Resources Legal And Institutional Issues PUB. DATE: 1997 SOURCE: United States and Dept. of Transportation. , Named Corp: United States. Dept. of Transportation -- Management. ABSTRACT: Unavailable. DATABASE: WorldCat ACCESS: Available through Interlibrary loan Homework PUB. DATE: 2000 SOURCE: William J. Kilberg. Employee Relations Law Journal, Vol. 26, No. 1, p. 1. ABSTRACT: The Labor Department has been reluctant to recognize that many of its policies and interpretations are out of step with a changing workplace. On November 15, 1999, the Occupational Safety & Health Administration (OSHA) of the Department of Labor responded to a two-year-old query from CSC Credit Services in Houston asking what its obligations would be if it permitted some of its sales executives to work at home. Although the Safety and Health Act applies to "workplaces" without defining them, OSHA's letter disregards any duty the agency might have to provide a rational definition of the Act's language and assumes that the Act must apply. Although ordering the letter withdrawn in the wake of protest from Congress, business groups, and others, neither the Secretary of Labor nor the Assistant Secretary for OSHA exhibited any appreciation for the silliness of 2 their policy, and, instead, both reasserted that home work sites are subject to government regulation, irrespective of the nature of the activity involved. Jobs today are more flexible and adaptable to the U.S. worker, and telecommuting has offered employees new freedom, but instead of welcoming these trends, the Department is extending its authority to oppose them. DATABASE: LegalTrac ACCESS: Available through Interlibrary loan House Will Scrutinize DOL Letters; OSHA Advisory On Telecommuter Safety Prompts a Hearing PUB. DATE: 2000 SOURCE: Anonymous , National Law Journal, 02/07, Section 22, Issue 24, p. B1. ABSTRACT: Unavailable. DATABASE: LegalTrac ACCESS: Available through Interlibrary loan Implementing Telecommuting PUB. DATE: 1994 SOURCE: Wendell H. Joice, United States, Dept. of Transportation, et al. , 38 p. ; 28 cm.; Note(s): Cover title./ In cooperation with the Technology Sharing Program./ "Interagency Telecommuting Program."/ "DOT-T-94-10."/ Report: DOT-T-94-26. ABSTRACT: Unavailable. DATABASE: WorldCat ACCESS: Available at the VDOT Research Library, Call Number: HD 2336 .U5 J64 1994 International Workshop on Planning Regional Telecommuting Programs Workshop Proceedings PUB. DATE: 1997 SOURCE: Katherine F. Turnbull, United States, Dept. of Transportation, et al. , ix; ; 28 cm.; Note(s): Workshop held Nov. 3-5, 1997 at the Arnold and Mable Beckman Center, Irvine, Calif./ "May 1997."/ Funding: "Presented by U.S. Department of Transportation and the Travel Demand Management Committee, Telecommunications and Travel Behavior Committee, Transportation Research Board, National Research Council." ABSTRACT: Unavailable. DATABASE: WorldCat ACCESS: Available through Interlibrary loan The Law of Telecommuting PUB. DATE: 2001 SOURCE: Nicole Belson Goluboff and American Law Institute-American Bar Association Committee on Continuing Professional Education. , xxvii; ; 24 cm.; Note(s): Includes bibliographical references and index.; Responsibility: Nicole Belson Goluboff. ABSTRACT: Unavailable. DATABASE: WorldCat ACCESS: Available through Interlibrary loan Long Arm: Does OSHA's Reach Extend To Employees Working At Home on Company-Provided Computers? PUB. DATE: 2000 3 SOURCE: Linda S. Peterson. Tennessee Bar Journal, Vol. 36, No. 11, p. 14. ABSTRACT: Unavailable. DATABASE: LegalTrac ACCESS: Available through Interlibrary loan A Look At What Some States Are Doing. Florida's Telecommuting Pilot Program SOURCE: Anonymous , AASHTO Quarterly Magazine, Vol. 71, No. 4, p. 10-11. ABSTRACT: A 2-year state employee telecommuting pilot program was enacted by a law in Florida in 1991. The Florida Department of Transportation was afforded the opportunity to participate in the program. The law defines telecommutng as a work arrangement whereby selected state employees are allowed to peform the normal duties and responsibilities of their positions, through the use of computers or telecommunications, at home or another place of work. This article briefly describes how designated employees routinely work at home two to four days a week, and report to the central office to attend meetings, collect assignments and other materials. Experience across the country shows energy savings, pollution reduction and higher job satisfaction. DATABASE: TRIS Online ACCESS: Available at the VDOT Research Library. Minnesota Department of Transportation 1998 Employee Telecommuting Survey Results : A Report Generated By Minnesota Department of Transportation's Sustainable Transportation Initiatives Group, Office of Advanced Transportation Systems PUB. DATE: 1999 SOURCE: Mary E. Jackson, Minnesota, Dept. of Transportation, et al. , ii, 28, [2] leaves : ill. ; 28 cm.; Named Corp: Minnesota. Dept. of Transportation -- Officials and employees - - Attitudes.; Note(s): "March 1999."/ Includes bibliographical references. ABSTRACT: Unavailable. DATABASE: WorldCat ACCESS: Available at the VDOT Research Library. NOTE: Telecommuting and the Americans With Disabilities Act: Is Working at Home a Reasonable Accommodation? PUB. DATE: 1997 SOURCE: Anonymous. Minnesota Law Review, 05/01. ABSTRACT: Unavailable. DATABASE: LexisNexis Academic Universe ACCESS: Available through Interlibrary loan Off-Premises Policy; While California Law On Workplace Safety For Telecommuters Is Still Unclear, Employers Can Minimize The Potential For CAL- OSHA Liability By Taking A Few Proactive Steps (California Law Business) PUB. DATE: 1999 SOURCE: Manik K. Rath and Kimberly Ann Gates. Los Angeles Daily Journal, Section 112, Issue 211, p. S18. ABSTRACT: Unavailable. DATABASE: LegalTrac ACCESS: Available through Interlibrary loan 4 Old Law Vs. The New Economy: How New Deal-Era Regulations Stifle Flexible Work Arrangements PUB. DATE: 2002 SOURCE: James V. DeLong. Government Union Review, Vol. 20, No. 1, p. 1. ABSTRACT: Unavailable. DATABASE: LegalTrac ACCESS: Available through Interlibrary loan Orientation To Telecommuting : Trainers' Guide and Participant Workbooks PUB. DATE: 1994 SOURCE: United States, Dept. of Transportation, United States, et al. , ill. ; 28 cm.; Note(s): Cover title./ "Intragency Telecommuting Program."/ "DOT-T-94-27"--P. 4 of cover./ Report: DOT-T-94-27; Responsibility: U.S. Department of Transportation [and] U.S. General Services Administration. ABSTRACT: Unavailable. DATABASE: WorldCat ACCESS: Available through Interlibrary loan OSHA Instruction: Subject: Home Based Worksites ABSTRACT: This instruction provides guidance to OSHA's compliance personnel about inspection policies and procedures concerning worksites in an employee's home. This instruction supersedes all previous statements and guidance on the subject. ACCESS: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id= 2254 OSHA Still Eyes Rules On Home Offices; Study Is Requested On Bosses' Duty To Make Telecommuting Safe PUB. DATE: 2000 SOURCE: Emily Heller. National Law Journal, Section 22, Issue 22, p. B1. ABSTRACT: Unavailable. DATABASE: LegalTrac ACCESS: Available through Interlibrary loan Report Of The Virginia Employment Commission on The Potential Benefits of Telecommuting To The Governor and The General Assembly Of Virginia PUB. DATE: 1994 SOURCE: Virginia Employment Commission, House Document No. 13. ABSTRACT: Unavailable. DATABASE: WorldCat ACCESS: Available though the VDOT Research Library, Call Number: J 87 .V9 1991c no.13 Report to The Minnesota Legislature on Telecommuting In The Twin Cities Metropolitan Area PUB. DATE: 1994 SOURCE: Minnesota and Dept. of Transportation. , 1 v. (various pagings) : ill. ; 28 cm.; Note(s): Title from cover./ "April 20, 1994."/ Includes bibliographical references.; Responsibility: by the Minnesota Department of Transportation. ABSTRACT: Unavailable. 5 DATABASE: WorldCat ACCESS: Available through Interlibrary Loan. Sample Telecommuter's Agreement PUB. DATE: 2000 SOURCE: Thomas J. Griffith. Corporate Counsel's Quarterly, Vol. 16, No. 2, p. 123. ABSTRACT: Unavailable. DATABASE: LegalTrac ACCESS: Available through Interlibrary loan Sample Telecommuting Policy PUB. DATE: 2000 SOURCE: Anonymous. Corporate Counsel's Quarterly, Vol. 16, No. 4, p. 96. ABSTRACT: Unavailable. DATABASE: LegalTrac ACCESS: Available through Interlibrary loan State Tax Implications of Employing Telecommuters PUB. DATE: 2005 SOURCE: Deborah Rood and Karen Nakamura. The Tax Advisor, Vol. 36, No. 6, p. 360. ABSTRACT: As the trend to hire telecommuters becomes increasingly prominent and telecommuting options continue to grow, in-house tax directors and business advisers must ask more detailed questions about the kinds of activities that management and employees conduct in the various states. From a state tax perspective, the key consequences include personal income-tax withholding obligations; sales and use tax collection and remittance obligations; corporate franchise and income-tax obligations; and other miscellaneous tax and filing obligations, including local taxes and unemployment insurance filing obligations. DATABASE: Legal Periodicals Full Text ACCESS: Available through Interlibrary loan Statewide Operating Instructions for Employee Telecommuting PUB. DATE: 1999 SOURCE: California, Dept. of Transportation and Building Operations Center. , 1 v. ; 28 cm.; Named Corp: California. Dept. of Transportation -- Officials and employees -- Telecommuting.; Note(s): "September 1999."; Responsibility: prepared by State of California, Department of Transportation, Building Operations Center. ABSTRACT: Unavailable. DATABASE: WorldCat ACCESS: Available through Interlibrary loan The Status Of Telework In the Federal Government PUB. DATE: 2005 SOURCE: United States, Office of Personnel Management, United States, et al. , 69; ; 28 cm.; Note(s): Electronic version includes 4 appendices: Appendix A: Section 359 of Public Law 106-346 -- Appendix B: 2004 Telework Survey -- Appendix C: House Report 107-575 -- Appendix D: Section 630(a) of the Treasury and General Government Appropriations Act./ Also available on the Internet on the OPM/GSA telework website: http://www.telework.gov.; 6