Separate but equal?

In some ways the federal government is one enormous telework lab overseen by the Office of Personnel Management. OPM is charged with ensuring that 100% of eligible federal workers be allowed to telework by the end of 2004 (as stated in Public Law No. 106-346). And since OPM’s efforts and policies are public knowledge, each time it hits a snag, we learn something new.

At issue is whether teleworkers should be required to work on snow days – or days in which in-office employees are prevented from going to the office.

OPM recently released a new memo that states: “In recognition of the growing importance of teleworkers in the continuity of government operations, agencies may wish to modify their current policies concerning teleworkers and emergency closures. [They] may wish to require that all or some of its teleworkers continue to work…on their telework day during emergency situations when the agency is closed….any requirement that a telework employee continue to work…should be included in the employee’s formal or informal telework agreement.”

OPM has changed its stance a number of times on this. In the past, teleworkers were expected to work during emergency closures; then the policy was reversed due to concerns that workers’ school-age children would be home, too, so everyone got the day off. But when agencies complained the policy hampered emergency and continuity of service planning, the policy was changed again. Now OPM says it’s leaving the decision up to individual agencies, but the wording implies OPM expects agencies to reinstate the original policy.

OPM did not respond to requests for comments.

“This policy is a disincentive to the adoption and spread of federal telework. Instead, OPM should take a positive approach such as paying time-and-a-half to teleworkers who would otherwise have a paid day off. There would be an added incentive for employees to telework, bringing government closer to compliance with the law,” says Chuck Wilsker, president of the Washington, D.C.-based Telework Coalition.

“If we value the continuity objective, which the government certainly does, then what do we want to do for these people?” asks telework consultant Gil Gordon. “If they’re working more, should there be a quid pro quo? If not, in very short order, teleworkers will get smart to this and say, ‘I’m not going to play this game.’ ”

“If any one group of people is treated differently from a comparable group, that’s a potential for discrimination claims,” says Nicole Belson Goluboff, attorney and author of “The Law of Telecommuting.” “Along with the increase in telework has come an increase in discrimination suits. Some are brought against teleworkers by in-office workers, some against in-office workers against teleworkers. Some against one teleworker by another.”

To protect themselves, Belson Goluboff says organizations need to create detailed telework and contingency policies, each referring to the other. The telework selection process must be based on the criteria of the job, not the individual. And there needs to be parity between teleworkers and non-teleworkers under all conditions of work – not just what happens to in-house employees during an emergency, but what happens to teleworkers when an emergency precludes remote access to the office network.

“Creating these policies won’t prevent lawsuits from being brought, but it will probably prevent them from being sustained,” she adds.

Although Belson Goluboff agrees snow day compensation for teleworkers should be considered, she adds that “the flexibility of being able to work from anywhere should include some responsibility to help sustain operations in an emergency.”

That’s the attitude of private sector firms such as Eli Lilly – which has tens of thousands of teleworkers.

“By the nature of their work, most every teleworker works their own hours,” a company spokesperson says. “We measure results, not hours put in. If the job is set up to allow teleworking, then we assume the worker is smart enough to figure out how to get the job done.”