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Telework Trend Offers HR Quandaries
Home-based work is growing, both for those who work at home all the time as well as those who just do it occasionally. What isn't growing or changing, however, is the set of rules and guidelines that are used to determine how those workers should be supervised, compensated and evaluated for benefits or even, OSHA-related accommodations.
Whatever stats or studies you're following these days, the consensus seems to be the same: The telework trend is growing ... rapidly. The latest available U.S. Census Bureau figures show the number of people who worked at home went from 9.5 million in 1999 to about 11.3 million in 2005. That report, Home-Based Workers in the United States: 1999-2005, also finds nearly half of these home workers have college degrees and nearly half earned $75,000 a year or more. More recent figures, from Scottsdale, Ariz.-based WorldatWork, underscore the speed with which this trend has grown since then. Their report, Telework Trendlines 2009, shows the number of Americans working from home increased from about 12.4 million in 2006 to about 17.2 million in 2008. Most of those home-based workers, it finds, are male, about 40 years of age, college graduates and living in a household earning $75,000 or more per year. The WorldatWork study also finds that, as the total number of telecommuters has risen, the percentage of those who work remotely "almost every day" has dropped, as has the percentage of telecommuters who indicate they work remotely at least one day per week. "This suggests that 'ad hoc' or occasional telecommuting has risen in the two years since the previous survey," the report states, "possibly reflecting the added work-locations flexibility inherent in the spread of high-speed Internet access and proliferation of hand-held technologies." Lawrence Z. Lorber, a Washington-based partner in the law firm Proskauer Rose, notes the growth of telework means "the workplace model is clearly changing. There's even a fast-growing subset of teleworking -- 'hoteling' -- which takes in the consultant types, people who don't really have offices, those in the 'have laptop will travel' mode." What isn't growing or changing, however, is the new template of rules and guidelines for how that kind of work should be supervised, compensated, monitored for time or evaluated for benefits, overtime and even, safety-and-health accommodations. "There are so many issues tied to this for which there are no answers," says Lorber. "Some are coming through the courts and some are just unanswered questions and problems," the main one being that the Fair Labor Standards Act, which sets out workplace regulations and employment law, "is predicated on a static work week." "The premise of all these issues relates to the fact that employment laws still reflect the notion that the boss is down the hall, the workers are in cubicles and most everyone is vying for the corner office," says Lorber. Instead, employers who now try to accommodate employees wishing to work from home or the road are wading through a quagmire of the unknown, he says, including -- but not confined to -- such questions as: * Is the home-based worker doing production work and, therefore, classified as nonexempt and entitled to overtime pay? Or is he or she a supervisor who is not entitled to such compensation? * How should time worked be measured? If a home computer has a time clock in it and the worker leaves the computer for a long lunch or uses the computer to play Solitaire, should he or she be paid, just as many people are paid for time spent in an office away from their computers? And how is that break tracked? Video camera? * How should the company establish that the home-based employee works a 30-hour week and, therefore, may be entitled to vacation, health benefits and leave under the Family and Medical Leave Act? * What if a contracted worker or employee trips going into his or her home office? Who's responsible for that fall? Is that an Occupational Safety and Health Act violation? Is workers' compensation involved if that person is injured and cannot work? * Should employers inspect home offices for potential OSHA violations? What about demands for ergonomically fit work spaces? * What if a home worker comes into the office one day a month to pick up work or for training? Is that considered work time, since it's not the primary place of business? If he or she is nonexempt, when does the clock start and stop? And the questions -- for which there are no clear-cut answers -- go on, says Lorber. There is a camp, he adds, that believes time worked should not be measured anymore; work results and productivity should. "But that's not the answer either," he says. "It's not that simple. The FLSA serves a real and necessary purpose, establishing guidelines for what employers can expect of employees and vice versa. And the key to it all is how you're measuring time." Jack Heacock, senior vice president and co-founder of The Telework Coalition, based in Washington, thinks the solution to this corporate confusion goes far beyond measuring time. He sees environmental, energy and even national-security issues involved as well. His organization created a formula for "Successful Work Today and Tomorrow," he says: IT + P3 = E3, or information technology plus policies, processes and procedures brings economic, energy and environmental improvements to the entire nation. "What we're really saying is, if we dig even deeper into the environmental and energy issues, why are we still trying to solve things by automobile?" Heacock asks. "Think what the telework solution would do to greenhouse gases!" Think about weather disasters, says Heacock: "Roads go out, but phones don't; computers don't; cable doesn't. Why do we keep on trying to rely on transportation solutions when our workers have all their stuff on their desktops to begin with?" Even terrorist attacks, he says, become less of a threat with more people working remotely and fewer folks heading into city centers where attacks could result in far more casualties. "We're hemorrhaging tons of money into protecting against terrorist attacks," says Heacock, "but we can no longer ignore the fact that a spread-out [yet technologically connected] workforce is much safer against terrorism." The solutions, he says, are simple, but hesitancy on the part of corporate leaders -- particularly HR leaders, he says -- are constricting forward momentum. "The most dynamic thing in the whole world of HR is telework, but there's no advocacy or pushing for legislation to change it. ... There are too many vested interests in keeping with the status quo," he says. What's needed to set this change in motion, says Lorber, "is some constructive national dialogue with people who know work and work design, experts and academicians -- and perhaps a few employment attorneys -- who can look at all our labor laws and make them all relevant to a changing workplace model. "There needs to be a greater understanding that telecommuting, or teleworking, is no longer an aberration," Lorber says. "It's becoming a viable part of work in the United States. We have a whole new [mobile and virtual] workforce now, and we need to fit that new workforce into the FLSA." February 10, 2010 Copyright 2010© LRP Publications |
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