PORT: Telecommuting As A Civil Right

The Proof Of Required Travel Act (PORT) is a supplement to Title VII (Employment Discrimination Laws) of the Civil Rights Act, with aims to protect and promote the right to telecommute. The Act declares:

An employer may not require any employee to travel into a work site, nor may it make an employment decision due to an employee’s refusal to travel into a work site, unless the employer can prove requirement of travel due to one of the following conditions:

  1. Telecommuting would render the employee unable to perform essential functions of the position
  2. Telecommuting would impose undue burden on employer operations
  3. Telecommuting has resulted in the employee demonstrating diminished performance

The underlying justification for PORT is that telecommuting — sometimes referred to as remote working, teleworking, working virtually, or working from home — is shown to be the most-desired employment freedom not being granted today, as well as being among the most impactful and immediate positive changes the U.S. can effect on climate, transportation, and economic issues.

What prevents millions of Americans from undertaking systemic telecommuting is unwarranted discrimination and unfair treatment of employees who operate in a virtual workspace (or request to do so), often treated as an identity rather than a location, and manifested as open discriminatory treatment or disparate impact under neutral policy:

    • Increased expectation levels around availability and activity verification, beyond what is asked of commuting employees
    • The commonly accepted refrain of remote work as a “perk” rather than an equally legitimate working arrangement
    • Compensation penalties and caps imposed on telecommuting employees, justified by the stigma of the “perk” as a negotiation tool
    • Hindrances to career development due to implicit or explicit bias in considering telecommuting employees for promotions, raises and retention
    • Refusal to acknowledge telework as such when it is performed at a work site, despite the overwhelming frequency with which it occurs
    • Refusal to grant an employee’s request to telecommute, without evidence to support such refusal

As such, being discriminatory in nature and generally unproductive to the interests of all parties involved, Title VII should apply.

This legislation is currently being pursued in the Commonwealth of Pennsylvania, but is 50-state viable. Contact Mitch Turck with any questions about implementing PORT in your state.

Read the Q&A below, sign the petition at Change.org, and get involved on Twitter at #PORT.


Q&A


How many people Would this immediately affect?

Precise figures are difficult to pin down given the increasing adoption of digital productivity tools and changes in job structure, but a fairly common projection estimates 10% of the U.S. workforce (~15 million commuting employees) as “ready to telecommute today.” In most regions, this would triple or quadruple the number of remote workers immediately. Again, this number is projected to increase steadily as labor becomes digitized, and many more employees today are just a few simple steps away from being remote-ready — in total it is estimated 50% of the workforce holds a job that could be performed at least partially remotely, while nearly 90% express a desire to have telecommuting flexibility.

Worth noting in the meantime is the impact an immediate 10% change in labor behavior can have on society: for example, many of the nation’s most ambitious transportation policies and infrastructure projects aim for a ~10% reduction in traffic congestion — PORT achieves this faster, more effectively, and at virtually no cost. If PORT were only a transportation bill, it would be among the most important bills of such nature currently on the table. ↑ Back to top

Telecommuting seems like a fine idea, but should it really be a civil right?

A bill promoting remote work could hypothetically succeed under a climate, transportation, or economic stimulus initiative — however, after a half-century of its maturation and proof of elementary benefit, what prevents telecommuting today is overwhelmingly its lack of protection. Protection is what Title VII laws against employment discrimination provide.

Many people hear “civil rights” and imagine the earliest and most prominently-defined protections such as race and gender — immutable, inherited traits. Consequently, they assume telecommuting cannot possibly qualify as a civil right on the grounds that it is neither immutable nor inherited, or simply on the grounds that it has no relevance to other realms of life such as healthcare and financial programs. However, this is an incorrect interpretation of the Civil Rights Act Title VII. Many protections are specifically designed to address employment discrimination, including:

  • The Age Discrimination In Employment Act of 1968
  • The Vietnam Era Veterans’ Readjustment Assistance Act of 1974
  • The Pregnancy Discrimination Act of 1978
  • The Bankruptcy Reform Act of 1978
  • The Immigration Reform And Control Act of 1986
  • The Genetic Information Nondiscrimination Act of 2008
  • Numerous state statutes tied to Title VII or other labor codes protecting political affiliation, sexual orientation, marital status, familial status, public assistance status, military discharge, medical condition, matriculation, personal appearance, and participation in emergency evacuation

From a legislative perspective, such background is important to note. If we assume the list of protected classes to be ever-increasing, it would be helpful to afford all parties a more practical approach to coverage, rather than drafting new amendments ad infinitum. Telecommuting as a right provides a fair degree of coverage in this respect, as it creates a path to protecting individuals without having to constantly alter physical facilities.

For instance, in considering potential future protections around transportation limitations (a logical extension of the Americans with Disabilities Act) or physiological differences (a logical extension of the Genetic Information Nondiscrimination Act), the most likely employer accommodation to these extended protections would be telecommuting, as it can protect employees from being subjected to the physical state of an office which may otherwise cause an employer undue burden to alter. In today’s legislative environment, both of these protections could feasibly be passed as Title VII amendments, but with PORT in place, it is unlikely either amendment would be necessary.

As this accommodation of a virtual workplace becomes a more prominent option for employer compliance, the need to ensure virtual workers are not discriminated against becomes all the more important, lest telecommuting accommodations become a tool for employment redlining: bundling protected classes into a new, unprotected class in order to escape the consequences of discriminatory behavior.

The first section on this page covers some of the more frequent manifestations of employer discrimination against telecommuters — for those uninitiated, these scenarios illustrate textbook discrimination practices. Other sections of this Q&A illustrate how this discriminatory perspective leads to the stereotyping of telecommuting as an identity, rather than a location. Thus, being treated as an identity, and being discriminated against as such, telecommuters should qualify for protection under Title VII. ↑ Back to top

What does this mean for employers, or for people who want to commute?

Precedent set by the Americans with Disabilities Act (ADA) provides a familiar framework for employers: that act stipulates telecommuting is an acceptable work environment accommodation for people with disabilities, provided it does not place undue burden on the employer, and provided it does not prevent the employee from performing core job functions. For the most part, PORT simply takes this precedent and extends it to employees who are not a protected class under ADA. The exception conditions are explained in further detail below:

The first condition states the obvious: if an employee must be on-site to perform essential functions of a job, telecommuting protections under PORT would not apply. For instance: a customer service employee whose job involves physically handling customers’ returned products in-store would likely meet this exception condition, and would not be protected under PORT if they requested to telecommute.

The second condition states that telecommuting protections under PORT would not apply in a situation where the employer would incur undue burden to support telecommuting. For instance: the aforementioned customer service employee, seeking to telecommute, might ask the company to change its business model so that customers report to a kiosk in-store where a remote employee could view and approve the returned product via live video feed. This would likely meet the exception of undue burden on the employer, and would not be protected under PORT.

PORT’s third condition — the concession that an employer may revoke or deny telecommuting rights of an employee who exhibits diminished performance when working remotely — references the Telework Enhancement Act, and does not attempt to further regulate what constitutes “diminished performance.” It is not an affirmative action bill requiring the employee to maintain any defined number or ratio of telecommuting employees.

Companies with fewer than 15 employees are not subject to PORT, per the umbrella provisions of Title VII.

Regarding employees who prefer not to work remotely, PORT does not make any requirement of an employee to telecommute. It is a protection for employees, not an obligation. ↑ Back to top

We’re talking about an employment agreement. Why shouldn’t it be left up to the free market?

Without examining the broader claim that jobs exist in a free market (for instance, the counterpoint that a functioning free market of jobs should not have a surplus of both supply and demand, nor any significant discrepancies between employment benefits desired and offered), we can identify specifically how telecommuting is unfairly hindered by the lack of a free market, and how PORT in fact mitigates some of those flaws to more closely resemble a true free market:

A company’s requirement of physical presence implies a captive market, not a free one: laborers’ choices of available jobs are limited by transportation factors despite the inherent need to occupy a job of some sort, while employers’ choices of available laborers are limited for the same reason. This artificial limitation on choice hinders both parties in the relationship, which is not only inefficient, but theoretically unsustainable in a free market. Telecommuting removes this artificial limitation, enabling both employees and employers to explore the broader market and maximize value. In this respect, it must be asked how both parties in a relationship could possibly be held captive by an artificial limitation if a viable solution exists… and while one of the answers is that employers and employees both behave irrationally, the answer with which any free market advocate should sympathize is: subsidies.

Governments lean heavily on subsidies as a tool to attract businesses, with an expected return of job creation. In order for this formula to work, the region gifting the subsidy needs to deliver an attributable influx of jobs and economic prosperity to the area from which a subsidy’s taxpayer revenue was sourced: the tax dollars are exchanged for the promise of a substantial hiring event.

One of the flaws in such an approach is that the promise becomes the commodity, not the jobs. A group of five hundred employers could each hire one telecommuting employee from City X, and deliver more economic benefit than one subsidized employer hiring five hundred employees locally in that same city. But, the former is not newsworthy; it cannot be attributed to the wisdom of a few civil and industrial leaders or proudly shouted from the rooftops. The irony is that while the former delivers proof of actual economic impact, the latter often fails to uphold its promise, and frequently escapes penalization for doing so. Of course, if a large employer does make good on its promise to hire droves of local workers, it stands to reap even more incentives thanks to its stranglehold over the community, lest it pack up and leave town with all those jobs in tow.

Corporations embrace the purchase of real estate and the placing of employees within it in large part because governments make it easy to do so. Recent notable examples include Wisconsin’s incentives to attract a new Foxconn plant (racking up $230,000 per job in taxpayer costs), or Newark’s Amazon HQ2 bid which offered $2 billion more in subsidies than the $5 billion Amazon had planned to spend on the project itself. All of this is inefficient spending in the name of tying jobs to specific locations — the Amazon headquarters must have gone somewhere, and the only reason it was slated to receive 7 billion dollars rather than zero was to ensure that somewhere would be Newark, NJ (it did not come to Newark after all).

This is an additional flaw in the market approach: governments competing against one another to attract corporations generate zero-sum benefit once viewed outside their own boundaries: in the Kansas City region for example, Kansas and Missouri taxpayers have collectively spent $321 million over the past decade to siphon jobs from each other. The result to date: 6,000 jobs moved from Missouri to Kansas, and 5,500 moved from Kansas to Missouri.

It should also be noted that governments directly incentivize commuting, in large part to ensure local residents can get to the commercial buildings they’ve subsidized. Billions in parking subsidies allow residents to drive their cars on subsidized roads using subsidized fuel. PORT approaches telecommuting from civil principles, but the easiest way by far to advance the adoption of telecommuting would be to simply revoke all transportation incentives.

Many of these behaviors are relics of a factory-based labor environment, and none of them resemble a free market. If anything, a standard of telecommuting would only improve the situation by marginalizing the inefficient bureaucracy of location-based employment, and motivating governments to reinvest tax dollars back into the citizens who paid them, delivering the resources and well-being that attracts people, and in turn makes them attractive to employers. ↑ Back to top

As a manager, how can I possibly measure telecommuters’ performance when I can’t observe them?

Try the following exercise from an office employee’s perspective, assuming a typical work day:

  • Estimate the % of your workday spent on email or digital communications (one prominent estimate claims that email occupies 28% of an office employee’s day, not counting the time spent mentally transitioning between tasks). This service offers a rough calculation.
  • Estimate the % of your workday spent using digital tools on your computer or phone, for instance: Microsoft Office (Word, Excel, Powerpoint), other desktop programs, and programs accessed via company intranet, or the internet.
  • Estimate the % of your workday spent researching information and materials on your computer or phone, on the internet, or on the company intranet.
  • Estimate the % of your workday spent on the phone or on videoconferences.
  • Estimate the % of your workday spent on anything other than the above, that takes place away from the office and co-workers (such as work performed at home after hours, during business trips, or during your commute).

Add those percentages up, and you’ve now estimated how much of your day in the office is spent teleworking. Effective managers do indeed measure telework already, as it encompasses the vast majority of office work regardless of an employee’s location. If managers are not measuring the outputs of this work, what could they possibly be measuring? In many cases, the remaining work available to be assessed is so minuscule that it comes down to the “intangibles” of presence over performance, where workplace discrimination often permeates.

One of the advantageous side effects of PORT is that it improves business operations by highlighting irresponsible management. Organizations who measure performance objectively and reliably find that their assessment practices are virtually indistinguishable between on-site employees and remote employees; organizations who measure performance subjectively and unreliably often struggle to compare on-site and remote employees, due to an over-reliance on discriminatory factors not disclosed in any contractual agreement or documented in any business process.

On an important and related note, PORT also improves business operations by drastically decreasing the opportunity for physical harassment, and by increasing the likelihood of verbal harassment being documented. Mass telecommuting is a boon to corporate risk mitigation in this way. ↑ Back to top

Hasn’t it been well established that remote workers are less productive?

First and foremost, absolutely not — most studies have in fact observed the opposite:

  • An extended experiment at a Chinese travel company placed hundreds of telemarketers at home to measure performance and facility savings in comparison to their office-bound peers. The telecommuting group completed 13% more calls per day than the control group (amounting to nearly one full additional day’s work each week), and reported significantly higher job satisfaction. When given the option to switch permanently after the experiment’s conclusion, telecommuting employee performance increased even further to +22%.
  • In 2006, Best Buy implemented a fully-flexible teleworking program on the heels of a successful pilot. The company soon reported a 35% increase in productivity among participating employees.
  • A recent trial across four Utah state agencies granted 136 employees telecommuting freedoms and measured their performance against office counterparts. The agencies found its remote trial group to be 23% more productive.

Additional studies of various types are widely available on the web, including here, here, here, and here.

It is vital to qualify such results in context: these employers found success in an exploratory environment, despite comparing their efforts to a baseline of conventional office operations which had been optimized over years or decades. Given the same runway to establish best practices, telecommuting would likely find even greater success.

Second, recall that PORT holds a provision adapted from the Telework Enhancement Act (the bill that made the U.S. government America’s largest employer of remote workers) which empowers an employer to deny or recall telecommuting freedoms if the employee demonstrates diminished performance.

This is an immense concession offered to status quo employers considering the positive impact PORT would have on climate and community outside of the workplace; nevertheless, it has been offered in confidence given the aforementioned wealth of evidence pointing to consistently better productivity achieved by telecommuters. In short, PORT is structured so that employers cannot suffer productivity losses; if telecommuting doesn’t work, then the bill will simply have no long-term impact on employer operations. There is no foreseeable reason to oppose PORT on the basis of workforce productivity. ↑ Back to top

What about all these big companies who have revoked remote work? Doesn’t that prove it’s a failure?

The need to pursue PORT as a Title VII bill — despite its potential as an economic stimulus, transportation or climate action bill — stems from precisely such business practices which scapegoat telecommuters and perpetuate unsubstantiated stereotypes.

Reviewing some of the past decade’s high-profile remote worker recalls (Yahoo, Aetna, Best Buy, IBM), it would stand to reason that large, publicly-traded corporations would communicate to shareholders a measurable business case for revoking telecommuting positions, just as many of them happily published the quantifiable impact of adopting remote work. At the very least, it can be assumed that employers would eventually publish the positive outcomes generated by a decision to recall remote workers, as investors fully expect to see the results of management’s strategic initiatives. And yet, none of these companies have released any such figures.

Instead, the sound bite justifying a telecommuter recall typically reads along the lines of, “to improve collaboration and innovation.” These claims perpetuate the idea that physical presence — not smart management and corporate culture — is what fuels valuable workforces. For several reasons, this argument has been proven false both theoretically and practically:

  1. If physical presence was a vital component of collaboration and innovation, it would be more impactful for these companies to shutter satellite offices and minimize the number of floors they occupy in a building, for the purpose of gathering as many employees as possible within one physically interactive space. Yet, it is almost unheard of for a company to decrease its office footprint for the sake of collaboration. Further, it has been observed that many companies who do attempt to increase employee density inside their current footprint rather than expand real estate witness significant drops in performance — not only in productivity, but in the very component they had aimed to promote: collaboration.
  2. The argument for increased collaboration as an excuse for recalling remote workers grossly ignores the inescapable obverse of physical presence: distraction. Office distraction is prevalent enough that one study estimated it to occupy 40% of an employee’s workday. Further consideration of distraction at the office reveals the greatest culprit may be idle chatter (a difficult problem to solve when one is advocating for in-person collaboration), and that employees compensate for the lost time by working at a more hectic pace, creating stress and a greater chance of committing errors. Bear in mind also that by default, the gathering of multiple employees is the most expensive part of the workday. Whether it’s collaboration or distraction, having two employees interact with each other creates a productivity deficit that we typically have no other recourse than to blindly assume the value of the interaction will yield worthwhile outcomes.
  3. We are slowly learning more about the limitations of shared office space, and as we do, it becomes increasingly apparent that what some of us believe to be an appealing work environment is not a view shared by others. Collaboration and innovation do not bloom, for instance, in employees who need privacy to think, or who are physiologically uncomfortable in the space.
  4. Executives who sensationalize their archaic, hard-nosed decisions to bring telecommuters back to the office are often exhibiting more bark than bite, as the very corporations listed here had realistically recalled very few employees, and often continued to hire prominently for telecommuting roles after their infamous announcements. In such circumstances, these telecommuter recall decrees capitalize on the stereotype of the remote worker (much like the stereotype of the “welfare queen”) as a tool to communicate across the company that a new executive or a new policy is going to demand more from its workforce — often done to justify unfavorable business decisions such as layoffs, hiring freezes, paycuts, etc. But again — we do not see reported correlations between decreasing remote employment and improving business outcomes, which certainly ought to be widely available given the zeal with which these executives of publicly-held companies announce their decisions.

All this is not to say that office collaboration is unjustified and without merit — only to say that the stigma of telecommuters as less valuable employees is unjustified and without merit. It is for the above reasons (among many others) that broad adoption of telecommuting cannot be left to the free market’s pursuit. ↑ Back to top

Is there any way to make this legislation easier on employers?

Dubious as the request may be to further assist employers in satisfying legislation that is a) intent on helping them succeed in spite of their own inefficient business practices, and b) written so that virtually nothing about their business practices have to change unless they see benefit, there is indeed an additional provision being considered in PORT:

A sunset clause is a pre-determined date at which a bill shall cease to be in effect. PORT is considering a sunset of 10 years from the date it goes into effect, arguing that because the bill provides an exception condition regarding diminished performance, its success would demonstrate the dismantling of telecommuting as a discriminatory identity. In providing a sunset clause, PORT would be planning its own obsolescence by which time a permanent cultural transition should have occurred. ↑ Back to top

Won’t it be expensive for employers to support telecommuting environments on such a large scale?

Few organizations are better equipped to answer such a question than the U.S. government, who is America’s largest employer of remote workers. And fortunately, it has an answer: the Congressional Budget Office estimates that the total cost of its five-year program to implement telework across all government agencies ($30 million) is less than a third of the estimated productivity losses incurred from a single snow day’s shutdown of federal offices in Washington, DC ($100 million).

Short-term transitional costs obviously vary across employers and industries, but are nominal or non-existent in many scenarios and, more importantly, are quickly offset thereafter by recurring savings on both the employer and employee’s side. It’s estimated that an employer who strategically embraces telecommuting saves up to $11,000 per worker per year, while an employee transitioning to telecommuting will save anywhere from $2,000 to $7,000 annually.

Large companies such as AT&T, IBM, American Express and Dell have historically reported real estate and facilities savings in the millions, while entities who report on productivity profits communicate even greater results. In 2009, for example, Cisco claimed an annual productivity savings of $277 million owing to work location flexibility.

If PORT were only an economic stimulus bill, it would be among the most logical and non-partisan bills of such nature currently on the table. ↑ Back to top

Isn’t telecommuting A relatively new idea? Why rush to legislate it?

Like misconceptions around the creation of the eight-hour workday, people often think of telecommuting as somewhat of an “overnight story.” The reality is that telecommuting as a holistic strategy dates back at least half a century to Dame Stephanie “Steve” Shirley, followed by NASA engineer Jack Nilles — the former pursued it to solve for discrimination, and the latter to solve for pollution. Such needs and benefits have been known for quite some time. ↑ Back to top

How is it possible that “everybody wins”? Surely somebody loses?

The investments we make in office commutes are primarily those of wasteful consumption. Knowing that some people profit from this consumption, it can be assumed those people will lose — from a short-term financial standpoint, at least. Parking garage operators, car manufacturers, oil companies, etc. (if 50% of the U.S. workforce telecommuted half-time, our reliance on oil from the Middle East would be reduced by 37%).

What’s equally important to consider is the impact telecommuting has on transportation and community planning initiatives. In a future of mass telecommuting, the viability of many projects aimed at optimizing traffic efficiency and land use comes into question, because projections rely on a faulty assumption of commuting as a necessity: examples include transit development, congestion pricing, new road construction, and urban sprawl development. For instance, America’s only operational high-speed rail service (Amtrak Acela) relies primarily on public funding and business travelers for revenue — 73% of Acela passenger trips are for occasional business purposes. If business ridership and revenues were to decrease significantly due to telecommuting adoption, Acela would become more reliant on public subsidies, which in turn would be more difficult to justify given the decrease in ridership. ↑ Back to top

This sounds like a bill for rich people. How does this affect working class communities?

The average salary of a telecommuter in the U.S. is $41,705, and 20% of this population claims a high school diploma as their highest level of education. In addition, consider that the costs of commuting are regressive: given the chance to work virtually when applicable, a low-wage employee’s personal finances would be positively impacted far beyond those of a six-figure managerial employee — in some cases, the inability to afford a car prevents low-wage residents from landing a job, or getting promoted to a new location.

While this information may change how you picture remote workers, it doesn’t change the fact that many blue-collar jobs have to be performed on premises, and would therefore not qualify under PORT. Fortunately, there are beneficial side effects of strategic telecommuting which are highly relevant to working class and low-access communities.

First, telecommuting can help reverse the rural brain drain (the ongoing outmigration of labor talent from areas with decreasing economic opportunity) which has plagued America’s heartland for decades. Numerous initiatives have been developed to bring rural ex-pats back to their hometowns through the flexibility of telecommuting jobs. In doing so, this modern workforce also brings net economic benefit to low-access communities — much like tourist towns, the income generated inside such communities comes not from exchanges with other members of the community, but as incremental revenue from an outside source (the telecommuter’s employer).

Second, as a new era of urban renewal in U.S. cities has pushed many low-income city residents further into the outskirts and further away from transit and food access, ideas such as affordable housing and upzoning have become hot button issues. Questions as to where new construction should occur, and who should pay for it, have divided many neighbors politically.

The adoption of telecommuting en masse solves these dilemmas in graceful fashion. The areas best-served by public transportation and most accessible to economic opportunity are urban cores — which also happen to be where the largest office buildings reside. Those buildings currently exist to house employees for eight hours a day, despite the fact that those employees have their own homes. By broadly adopting telecommuting, those highly-accessible buildings — and vitally, the many parking spaces servicing them — will experience a massive increase in vacancy, making them perfect candidates to be turned into housing. While PORT obviously does not make provisions for affordable housing, the immediate availability of highly-accessible housing stock created by telecommuting solves many issues for cities and organizations in search of affordable housing opportunities. ↑ Back to top

What is this chart that claims I’m working more than 12 months a year?

The productivity vs. commuting chart (about five seconds into the video) references the fact that, per the Fair Labor Standards Act, a typical commute is an “incident of employment”: in other words, you aren’t necessarily getting any work done, but it’s understood that you’ve dedicated that time to a work-related action — driving to/from your work site. In that respect, the time you spend commuting is a dedicated work period with zero productivity, and so the left side of the chart shows how many additional work hours commuting dedicates to your job (in working months: 8 hours in a day, 22 days in a month).

The right side of the chart then compares your wasted commuting hours to your standard working hours (the Federal estimate for a full-time job is 2,087 hours in a year), resulting in the potential productivity gain you could see by not commuting. Of course, employers do not require the recapturing of a non-commuter’s newfound free time (because again, commuting time is an incident of employment, and therefore not necessarily compensable), but the chart’s “potential productivity gains” simply expose the impact of a scenario wherein an employee chooses to telecommute and applies that newfound free time directly to their work.

You can create your own estimate using a formula made available here, which helps to quantify the value of telecommuting to your supervisors by providing both the potential productivity gain %, and a rough estimate of the employer’s ROI multiplier in dollars (the ROI multiple is likely unknown to you as an employee, but you may ask your supervisors to estimate it: this is the amount of money an employer expects to generate from your role’s productivity in exchange for each dollar invested in you). ↑ Back to top

Who created PORT, and how do they stand to benefit?

PORT was conceived by Mitch Turck, a civilian. He has no financial stake in the passage of the bill. ↑ Back to top