Telecommuting Died 15 Years Ago

by Colin Berkshire

About a decade and a half ago I worked with a number of large clients who were implementing telecommuting solutions in their companies. On those projects I watched the demise of telecommuting. It was disturbing.

We had finally solved many of the technical problems. We could get data into people’s homes with the internet, we could install a second phone line (and even a third) and we figured out how to provide safe remote access through VPN and other methods. It looked like the age of telecommuting had finally arrived.

One of our first shining examples was how we could employ perfectly capable persons who couldn’t come into the office. A pregnant mom, or somebody who was severely handicapped. Through advanced scheduling we could work around their personal needs to see doctors, shuttle the kids, etc. It was an exciting time.
Then, one day a bombshell hit: One of the employees asked us to install a ramp into their home, and they submitted to us a bill for the remodeling of the bathroom in their personal home. To be honest, at the time we were a bit stunned by this. It seemed to be rather “forward.”

We passed the matter along to HR who passed it to legal. Within about a week the company decided to pay the bills. They then informed me that the ADA defined working at home as a workplace and it was, indeed, the employer’s responsible to make all reasonable accommodations to ensure ADA compliance in the workplace. The employee was not an independent contractor, and so their home accessibility was our responsibility.

Well, we figured that this was one isolated, rare exception. It was not. Next came somebody who was in an auto-accident. They first demanded to be able to work at home because of the injury and then they, too, demanded upgrades to their home.

As we struggled with how to handle this, another client I was working with faced a different problem: A bill for overtime pay going back multiple years. The employee claimed that they had done emails from home for several years, handling them at all hours of the day. Yes, it was true that in those days we let people access their work email from home and we didn’t think much of they flexed their time a bit. The problem was, they claimed that they worked an extra hour at home every day for several years and now they wanted almost $30,000. We declined, and were contacted by the employee’s lawyer. He now wanted triple damages plus his own fees paid. The total now came to almost $100,000.

We couldn’t prove when the employee had flexed their time, and so we couldn’t prove they had not worked more than 40 hours in a week.

Our only defense was that the employee was in management and was salaried. That seemed like a good defense. It was not.

The employee worked in Washington State. The unions had successfully lobbied for a law which stated that unless the employee was paid at least $57,500 a year, and was required to have a college degree, and they supervised people they were entitled to overtime pay. Yes, even though they were “salaried” and in management, they had the right to time-and-a-half. The company settled for an undisclosed amount.

It was these two events, plus a few smaller ones which effectively shut-down telecommuting for the clients I was working with. They could now foresee claims for sexual harassment in the homes, liability from slips and falls stemming from the employee’s own negligence, and the impossibility of managing the employee directly in their home.

Those laws still stand in Washington State and in many others. They essentially mean that telecommuting is dead for any company which is being held in strict compliance with the laws.

For a while the work-around was to offer to let the employee become an independent contractor. We worked carefully to comply with federal regulations to define jobs and duties to meet the regs. Then, Washington State’s unions saw the trend and they passed legislation which makes it almost impossible for an employee to be reclassified as an independent contractor. (You cannot manage them, you cannot instruct them on how to do their job, you cannot provide them with equipment, etc.)

A few years later, Boeing moves its headquarters out of Washington State and my other telcom clients discontinued all pretense of flex-time and telecommuting.

Now, in a small company where everybody is friends and where trust supersedes the need for strict compliance with regulations, telecommuting is still done.  But it isn’t legal.

I have always felt sad about the demise of telecommuting. it held the promise of allowing people to work only when mutually convenient, to allow single moms to earn money during school hours, and for the disabled to be fully-productive members of society.