Telecommuting is a relatively new idea made possible by technology and flexible companies, but while the practice continues to catch on it also faces growing pains. Just last week, Yahoo’s CEO Marissa Mayer informed employees that telecommuting would no longer be allowed, forcing workers to return to the office when the policy takes effect in June. The news created headlines, but as LXBN members have noted, telecommuting is not without risks, and its use is still evolving in the courts as well as in the workplace.
Not surprisingly, Mayer’s decision to call employees back to the office was met with a mixed response. Susan Mangiero, author of Pension Risk Matters, was the first to report on the story on LXBN after reading an article by Kara Swisher on All Things Digital. Mangiero’s cursory examination of the comment section of that article showed that many readers believed Yahoo was taking an unnecessary risk at a time when no employer can lose a valuable employee. As she wrote in her post, there’s more than just one reason why Yahoo may have lost some of those workers:
“Besides the fact that certain employees may have been promised a work-at-home arrangement and are not happy about a reverse decision, others may simply find it prohibitively expensive to live closer to Yahoo headquarters or too time-consuming to commute several hours each way from places where real estate is more affordable. At a certain point, individuals could be better off making less money in exchange for a shorter commute.”
Arguments like these ones echo the rationale behind the rise of telecommuting in the first place. Workers support the idea of telecommuting in overwhelming numbers, and in some cases, studies show the arrangement can improve morale and productivity (PDF). However, just there is disagreement with Yahoo’s new policy, not everyone agrees with those findings. The mayor of New York, Michael Bloomberg, supported Mayer’s new policy, saying on his weekly radio show that, “I’ve always said, telecommuting is one of the dumber ideas I’ve ever heard.”
Mayor Bloomberg is obviously entitled to his well-earned opinion, but not all on LXBN agree with him. In an article on Fobes.com, Victoria Pynchon, who publishes the Negotiation Law Blog, questioned whether or not the work/home paradigm was relevant in today’s office, where employees routinely e-mail benign questions to co-workers just steps away:
“Back in the “old days,” law firm associates hung out in the library, working and sharing ideas. It was a creative place where differing viewpoints naturally arose interspersed with small talk that made the associate classes cohesive. Access to legal treatises and case law on one’s desktop computer changed all that and we did lose something in the process. After we had “the books” in our computers, we started emailing each other questions even though our colleagues were just a few steps away.
It didn’t matter that we were in the office, sitting at our desks. We were talking to our clients and our colleagues on the telephone.
There was no need to be there.”
Pynchon goes on to say that the office has its place, but so does the home. We need not make such a big fuss about the distinction between the two:
“What I’m suggesting here, the idea I’m flying up the flagpole, is simply to expand the frame of the workplace to include the home and the home to include the workplace. Stubborn historic constructs aside, this should be incredibly easy to do because it is in fact true, at least for the white collar classes.”
However, it’s not as simple as that for employers. Not only are there questions of productivity and company culture, but as telecommuting becomes more common so will the litigation involving such practices. Just last September, a Michigan federal court held in EEOC v. Ford Motor Co. that telecommuting was not a “reasonable accommodation” under the American With Disabilities Act. Tara Ascherbrand provided the details of the case on Squire Sanders’s Employment Law Worldview:
“In EEOC v. Ford Motor Co. [pdf], the court found that the employee, Jane Harris, was not qualified for her position as a resale buyer. Ms. Harris suffered from irritable bowel syndrome and requested to participate in the telecommuting program or another accommodation. As one of seven resale buyers, Ms. Harris’s position required that she ensure that her assigned specific Ford suppliers have a steady supply of steel. Thus, she was required to regularly interact with her coworkers and contacts. Ford produced evidence that interaction with suppliers is most effective in face to face meetings and requires that the resale buyers often visit the supplier sites. Consequently, Ford denied her request to telecommute for up to four days per week due to her required regular interaction and the fact that her work schedule would be unpredictable. “
In this case, while Ford had made telecommuting available for other buyers, Harris’s needs far outstripped what they were willing to provide. As Ascherbrand says in her post, companies that allow for telecommuting have to pay special attention to how and why they make those options available:
“As previously noted here, many employers have instituted telecommuting policies. Although such policies can be a factor in assessing whether telecommuting is a reasonable accommodation, this case highlights that not every position is a candidate for telecommuting. Employers should analyze each position carefully. “
Obviously, not all companies want to open themselves up to problems like the ones presented in Ford Motors Co., and as a result many employers completely avoid it in the first place. Legal concerns like workplace safety and workers’ compensation can give employers headaches before they even start. As Baker & McKenzie attorney Lisa Stam pointed out on Employment & Human Rights Law in Canada, the best policy, like most things in employment law, is to get out ahead of the problems:
“As with most areas of the employment law universe, the legal backdrop should be a policy that sets out employer expectations around issues such as hours of work per day or week, preserving confidential information, home office insurance and liability issues, ownership of equipment and content, reporting structures, how to monitor work product and deadlines, any obligations to attend on-site meetings, and reserving a general right to pull the employee back into the office if necessary.”
Unfortunately or otherwise, all the proactive policies in the world won’t help Yahoo’s telecommuting employees as they head back to the office. While they do so, the interesting question that has yet to play out is how employees will react in the long term. As Mangiero points out in another post, some may be upset enough to fight back:
“My prediction is that we will see a lawsuit or two for any workers who were contractually allowed some latitude with respect to how, when and where they work. If that occurs, the cost of a lawsuit(s) will not be welcome news to the 71% of institutional and mutual fund owners of Yahoo (ticker is YHOO) stock.”
In her first post on Yahoo’s shift in its telecommuting policy, Mangiero noted she’s aware of several companies that are increasing their telecommuting efforts, and almost entirely replacing the traditional office-based workforce with remote employees. So it would appear that the idea telecommuting is slowly disappearing or losing support is largely unfounded. If anything, its prevalence is rising as the technology to allow it becomes more ubiquitous, and employers become more accepting of the practice. How successful Mayer’s decision is will depend on how successful the company is over the long run, but unless a major legal challenge arises as a result, it seems unlikely that this will be a sweeping referendum on telecommuting.
To read more about all things telecommuting, check out LXBN’s page on the subject here.
Photo Credit: NA.dir