Congressional Testimony on Telecommuting and the Family and Medical Leave Act

Telecommuting and the FMLA
Prepared Statement of John S. Niles, Senior Fellow
Discovery Institute, Seattle
For the Congressional Roundtable on the Tenth Anniversary of the Family and Medical Leave Act
February 5, 2003

Good morning, my name is John Niles and I am a Senior Fellow at Discovery Institute, a nonprofit, nonpartisan think tank headquartered in Seattle, Washington. Discovery Institute furthers research on national and international issues, including the improvement of America’s productivity and quality of life. I appreciate the participation by Chairman Gregg and Congresswoman Biggert in this discussion of policy options for expanding workplace flexibility, and I thank the Society for Human Resource Management and Verizon for sponsoring this event.

I’m here to discuss telecommuting at today’s tenth anniversary celebration of the Family and Medical Leave Act, FMLA. Telecommuting (or teleworking) is an optional work practice that applies to office work. It was first conceived about 30 years ago as telecommunications and computers began to blend together. I remember taking a semiportable
suitcase-sized computer terminal to my apartment in 1969 to connect to a
university mainframe via telephone line. Since I no longer had to travel each day to the University Computer Center to do computer work, I was telecommuting.

Telecommuting is part of mobile, anywhere, anytime work. It is increasingly common. For average office workers who would normally commute to an office, telecommuting means working someplace else besides the usual office — most commonly at home, or sometimes a different satellite office closer to home. Telecommuting is of course
facilitated by the ongoing growth in the capabilities of America?s telecommunications infrastructure and services, and even more importantly, the growing know-how to use these capabilities.

Telecommuting is a voluntary practice agreed to by employers and their employees, and its success in meeting needs of organizations and workers is demonstrated by continuous growth over the past few decades. The Bureau of Labor Statistics reports about 14 million non-self-employed Americans work at home at least once a week, about 10 percent of the total U.S. work force. Telecommuting now increases year by year, especially part-time telecommuting and partial-day telecommuting. See attached chart.

Telecommuting can be initiated by either workers or their bosses, but to do it requires mutual agreement and planning between worker and employer, much like a successful application of the FMLA. Because telecommuting means flexibility in the location of work, it can be called flex-place in the same way that organizations allowing workers flexibility in their hours of work is called flex-time. Flex-place and flex-time go well

When flex-place and flex-time are combined, there are additional opportunities for timepressed working people to arrange their busy lives for more productivity and satisfaction, both professionally while on the job and personally, while off work.

Thus telecommuting — like the FMLA — enables workers to meet the often competing demands of their jobs and their off-work personal life.

FMLA mandates America’s larger employers to provide opportunities for a worker to stay home in certain specially defined circumstances when a family member needs care. Because FMLA establishes unpaid leave, some workers and their organizations try if possible to blend in paid leave with unpaid FMLA leave in order to lessen the financial impact. I also understand that some employers feel burdened by the cost of temporary
replacement workers to cover for employees who are out on FMLA.

Telecommuting offers new opportunities for meeting these challenges and enhancing the benefits of the FMLA, in two ways:

First of all, there may be some circumstances where an employee working at home could stay fully employed, require no FMLA leave, and be able to meet some critical care needs of a family member, including care of herself or himself. While full-time childcare or eldercare and focused attention to a job are incompatible, there are many successful cases of sporadic care requirements being intermixed with working at home. Meeting the required balance between work demands and personal non-work demands is a critical issue that requires comprehensive communication and planning between telecommuting employees and their remote supervisors. But with recognition and response to the
dynamics of managing time, attention, and focus, telecommuting and care of others can be successfully blended.

Second, there are an unlimited number of creative possibilities for blending FMLA leave with paid, part-time telecommuting for temporary periods that are compatible with FMLA requirements. For example, a person in a critical organizational position may remain quite productive to his or her organization by working just two hours per day on a scheduled, uninterrupted basis, while a child or relative in those two hours is under the temporary care of another person. The majority of the day, the employee can be fully focused on non-work family activities while on unpaid leave. Two hours paid per day, ten hours per week, could make all the difference for both the employing organization and for the worker in maintaining continuity of performance and partial wages.

In conclusion, I have five recommendations for achieving better use of telecommuting in the tool kit of flexible work practices that are needed to support the Family and Medical Leave Act and the productivity of America at the same time.

1. Ongoing measurement of telecommuting: First, the Federal Government should insure that standardized, ongoing, unobtrusive monitoring and measurement of telecommuting is carried out in the various ongoing surveys of the U.S. Census Bureau. Measurement has been improving in recent years, but to continue progress, the new American Community Survey proposed by the Census Bureau needs to be funded and carried out.

2. Explore FMLA enhancement via telecommuting: Second, the full potential of telecommuting under FMLA needs to be fully explored by employers for lessons to be learned and for innovative techniques and workable practices to be described and disseminated. Department of Labor should support this research and educational effort. Integration with FMLA could be worked by OPM and GSA into the Federal Government’s own telework programs now underway.

3. Remove Roadblocks to Telecommuting: Third, the potential for telecommuting to make the FMLA easier to implement for each unique case of personal need, and thus more attractive to both workers and employers, may be occasionally blocked by legal technicalities. These will reveal themselves as well-meaning people and organizations try to keep America both productive and humanely caring in the face of life’s personal
challenges on the one hand, and the need for healthy, productive organizations that serve people as customers and clients on the other. If legal roadblocks are revealed to exist, then the state governments and the U.S. Congress should strive to remove them so that telecommuting and FMLA can be beneficially blended as needed.

4. Avoid Government Financial Incentives: If telecommuting has sufficient benefit to organizations and employees, they will implement it. Many businesses already do encourage telecommuting since they find that it brings benefits. The primary motivation for telecommuting is the cost savings, productivity, and flexibility benefits that both employees and their employers attain, all without any incentive side payments from government. Today?s scattered examples of state government tax credits and other financial incentives are characterized by a lack of serious evaluation as to whether the incentives have actually caused an elevated level of telecommuting.
Furthermore, because some organizations and employees really should not telecommute for good reasons that should not be challenged, incentive payments are distracting and distorting.

5. Avoid New Regulation of Telecommuting: Finally, it is also important that government agencies resolve to avoid making new regulations for telecommuting. As a voluntary practice established by mutual agreement between employers and their employees, the details of telecommuting are best worked out case by case with assistance from professional associations, employee organizations, and a growing industry of advisors. Government agencies should implement telecommuting for their own willing employees as appropriate, thus providing leadership by example. However, governments should not tell private organizations how to do telecommuting. An evolving approach to telecommuting with a minimal burden of regulations is best.

Taken as a whole, these recommendations say to government: understand, measure, and appreciate what telecommuting can do for flexible, family-friendly work practice, but don?t love telecommuting to death with unnecessary tax credits and regulatory standardsetting.

Thank you very much. I look forward to answering your questions and participating in the discussion.

John S. Niles
Technology and Transportation Fellow of Discovery Institute
Seattle, Washington
voice: 1-206-781-4475
private fax: 1-206-374-2705