Working at Home at Your Own Risk: Employer Liability for Teleworkers Under the Occupational Safety and Health Act of 1970
Kelli Dutrow
"O, how full of briers is this working-day world!"
William Shakespeare, As You Like It, act 1, sc. 3
Introduction
Teleworking is a recent phenomenon that portends fundamental change in the landscape of American business.[1] Teleworkers function within an entirely new occupational paradigm; instead of going to work, the work comes to them.[2] The number of teleworking Americans increased by seventeen percent in 2001.[3] Currently, one in five American employees regularly teleworks.[4] An entirely new vocabulary has simultaneously developed alongside this alternative approach to work. Telework, telecommute, and telecenter—all are examples of the new terms that have now become part of the American workplace vernacular.[5] The telework alternative is being hailed by many as a veritable panacea to a host of modern workplace problems.[6] The most cited advantages are that teleworking will solve environmental problems,[7] provide an effective compromise for working parents (particularly mothers),[8] increase employee productivity and retention,[9] and provide new opportunities for disabled Americans to enter the workforce.[10] Following the tragic events of September 11, 2001 ("9-11"), teleworking became a necessity for many workers displaced by terrorism.[11] Not surprisingly, interest in teleworking has increased exponentially following 9-11 as traumatized workers retreat to the safe haven of home.[12]
At first blush, teleworking appears to be a winning combination for employees, employers and society as a whole—promising comfort for workers in times of crisis, a cleaner environment, reduced business costs, decreased absenteeism, improved productivity, retention, and job satisfaction.[13] Recently however, that rosy picture began to fade when the Occupational Safety and Health Administration (OSHA) suggested that employers could be liable for unsafe conditions within the home worksite.[14]
OSHA rendered that suggestion through an advisory letter sent via the Internet to a Texas corporation seeking guidance regarding its work-at-home programs.[15] The suggestion triggered a storm of controversy culminating in OSHA's decision to rescind the letter.[16] The debate continues, however, apparently fueled by a growing frustration with OSHA's rulemaking procedures which was gathering force long before the November 1999 letter surfaced.[17]
The focus of this Note is to explore whether employers are, or should be, liable to teleworkers under the Occupational Safety and Health Act of 1970[18] (OSH Act). Part I reviews the history and purpose of the OSH Act to ascertain how it is to be interpreted and who gets to decide whether its drafters intended for the Act's protections to extend into the home environment. Part II outlines the social impact of teleworking. Part III addresses the various arguments as to whether the OSH Act should be interpreted as applicable to home offices. Additionally, Part III reviews several recent developments, including Congress' first exercise of its power under the Congressional Review Act[19] to overturn OSHA's sweeping ergonomics regulations, which suggest OSHA will not soon succeed in any effort to extend the OSH Act to home offices. Part IV explores OSHA's rulemaking efforts and the growing sentiment that, through advisory letters like the one at issue, OSHA improperly and perhaps unconstitutionally engages in "rulemaking through the back door."[20] Finally, Part V suggests a workable solution to the problem of OSHA in the home based upon a theory of bargaining, which, as illustrated by several model teleworking programs, may offer the type of quid pro quo arrangement necessary to satisfy advocates on both sides of the debate.
I. History and Purpose of the OSH Act
The Occupational Safety and Health Act of 1970 (OSH Act)[21] is "the primary federal law regulating workplace safety and health."[22] The Occupational Safety and Health Administration (OSHA) administers the OSH Act, which mandates that an employer must "keep its place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm to its employees."[23] To establish a violation of the OSH Act, OSHA must demonstrate: 1) the existence of a hazardous condition at the workplace, 2) the employer either knew or should have known about it, and 3) the employer failed to correct the hazardous condition according to the appropriate OSHA standards.[24] To facilitate these regulations, OSHA compliance officers are "empowered . . . to inspect any workplace covered by the Act."[25]
Throughout its thirty-year history, the OSH Act has been both praised and criticized.[26] At the eye of the storm of criticism swirling around the teleworking debate is the assertion that extending the OSH Act to home offices vitiates its original purpose, thereby tarnishing OSHA's credibility and weakening the overall integrity of the OSH Act.[27]
A. Purpose of the OSH Act
The OSH Act was designed to reduce work-related injuries by establishing and responding to national safety and health standards.[28] A review of the OSH Act's legislative history reflects that the statute was primarily designed to prevent industrial accidents.[29] The types of hazards originally at issue were those which arose during the industrial revolution,[30] and continued to plague "workers in the dusty trades."[31] Manufacturing and construction workers were specifically listed for consideration.[32] "Industrial plants" are mentioned throughout the language of the OSH Act.[33] Proponents of the Act relied upon compelling statistics which, at the time, illustrated a national industrial crisis in need of immediate resolution.[34] Agency authority under the OSH Act has been broadly interpreted as "coterminous with congressional power to regulate commerce."[35] Congress deemed the Commerce Clause[36] was implicated in this context because of the impact work related injuries have on interstate commerce via lost wages, reduced productivity, and medical and disability expenses.[37] Whether a nexus exists between occupational safety, health, and commerce is beyond the scope of this Note. However, the fact that the OSH Act was founded on such an expansive premise, and functioned accordingly for almost thirty years, may help explain the reform movement which began in the mid-1990s.[38]
B. 1995 Amendments: The "New OSHA"
OSHA received a great deal of criticism during the 104th Congress.[39] Legislators proposed extensive changes to the OSH Act that were designed to limit its regulatory power and reduce its impact on the private sector.[40] In May 1995, President Clinton announced "the new OSHA"[41] along with a general Regulatory Reinvention Initiative[42] which included a fresh perspective on the OSH Act, and was designed to meet four primary goals: to "cut obsolete regulations," within government agencies; to "reward results, not red tape"; to "create grassroots partnerships" between regulating agencies and the people being regulated; and to "negotiate" rather than "dictate."[43] The President also directed government agencies to increase communication with the private sector, with an ultimate goal of changing their traditional adversarial relationship to one based upon compromise and negotiated rulemaking.[44]
In particular, President Clinton directed agencies to consider how to achieve their goals less intrusively and to consider when "private sector alternatives . . . [might] better achieve the public good envisioned by the regulation."[45] The President's suggestions were well-received[46] and OSHA did make some attempts at reform.[47] However, not long after this directive to reduce bureaucracy and enhance negotiation with the private sector, OSHA took a decidedly controversial turn.[48]
C. From Common Sense to Chaos: Taking the Lid Off Pandora's Box[49]
In an advisory letter to a Texas credit services company on November 15, 1999, OSHA declared that employers are responsible for the health and safety of home workers.[50] Considering the potential liability for an estimated twenty million Americans who were working out of their homes at that time,[51] the business community responded with an overwhelming attack on the OSHA position.[52] Shortly after OSHA published the letter on its Web site, then Labor Secretary Alexis Herman rescinded the letter, but maintained his position that "employers still must work to ensure ‘safe and healthful' work conditions for [home-based] employees."[53]
In an attempt to quell the raging debate, OSHA Administrator Charles Jeffress announced that OSHA will not inspect home offices, nor are employers expected to do so, out of respect for the privacy of the home.[54] However, Jeffress also stated that the agency "will . . . follow-up on complaints involving potentially hazardous factory work being performed in the home."[55] On the same day, OSHA issued a directive instructing compliance personnel on the scope of OSHA involvement in home-based worksites, and reiterating Jeffress' position statement, but leaving many questions unanswered.[56] In particular, issues that went unaddressed included how to distinguish between a home office and work performed in the home; which whistle-blowers deserve a response by OSHA; and whether this compromise position would alleviate concerns prompted by the threat of liability.[57]
II. Social Impact of Teleworking
Improving air quality and reducing traffic congestion are two of the most frequently cited reasons to telecommute.[58] The National Environmental Policy Institute (NEPI) estimates that allowing just ten percent of the nation's workforce to telecommute a mere one day a week would eliminate 12,963 tons of air pollution and save more than 1.2 million gallons of fuel each week.[59] Other employer incentives include reducing...
