More busybody government intrusiveness

By Charles Bloomer
web posted January 10, 2000

The Occupational Safety and Health Administration (OSHA) issued an advisory last November that says that companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work place, according to a January 4, 2000 article in the Washington Post. This meddlesome policy is clearly an unconstitutional overreach by the federal government that could spell the end of telecommuting for millions of workers.

The ability to work at home is a private agreement between employer and employee. Employees prefer to work at home for a variety of reasons – to remain closer to children at home, to avoid traffic congestion, to have flexibility in time management. Employers allow telecommuting because it is in their interests to do so. Allowing employees to work at home decreases overhead costs and can improve productivity and employee morale. If telecommuting were not mutually beneficial, it never would have gotten off the ground as an alternative to traditional working arrangements.

With an OSHA determination that employers are responsible for home work sites, employers will be reluctant to allow telecommuting. Insurance rates will force companies to cancel telecommuting arrangements with employees. Very few, if any, companies will be willing to take on the responsibility for working conditions in places they cannot reasonably control. OSHA has effectively overridden the voluntary arrangements of over 19 million workers in the US who choose to work at home full time and many others who choose to do some work at home.

OSHA claims that the advisory is not a proposed rule, but rather a "declaration of existing policy the agency deems already to be in effect". This clever sleight of hand allows OSHA to avoid the customary review and comment period that would accompany the announcement of a proposed new rule. The policy is effective immediately, and could be construed as being retroactive. Trial lawyers must be salivating at the possibilities. Home workplace injuries that occurred prior to this advisory could potentially lead to suits against employers.

According to the Washington Post article, the OSHA advisory was issued quietly in mid-November of last year but came to the attention of companies only recently. Several corporations contacted by the Washington Post were either unaware of the new guidelines or chose not to comment. Why was an advisory with such potential wide reaching impact released with no fanfare or broad announcement? Why did it take over two years of study to reach this decision? Who was involved in the formulation of this policy?

Not surprisingly, the OSHA decision received a positive endorsement from organized labor. Unions have been losing membership and power for the last thirty years in this country and have turned to government to halt the erosion of union influence. Telecommuters are seen as another threat to union power and influence. Making telecommuting more difficult forces more workers back into traditional workplace arrangements where union recruiting is easier.

OSHA is another prime example of good intentions producing negative consequences. No one will argue that worker safety and health aren't important. But the real argument is whether or not the federal government should make the determination of what constitutes safety and health, or interfere with mutually agreed working arrangements, or claim some jurisdiction over certain areas in our homes. In an attempt to exercise control of the workplace, disguised as worker protection, OSHA has attempted to undermine American workers' quality of life.

Luckily, enough outrage was generated that Secretary of Labor Alexis Herman has withdrawn the policy. Rep. Frank Wolf (R., Va.) blasted OSHA's policy, saying it would have a "chilling effect on telework or telecommuting." Business groups and supporters of telecommuting joined Mr. Wolf to denounce the ruling. Republican congressional leaders have announced plans to introduce legislation to overturn the Labor Department ruling.

But that does not mean this issue is dead. According to the Wall Street Journal, Secretary Herman has "called for a ‘national dialogue' to determine what policies are necessary". She also said she plans to host a series of meetings with business and labor groups across the country.

But Americans do not need a "national dialogue" led by the Department of Labor on how or where to do their jobs. America does not need more busybody government bureaucrats poking their noses into the arrangements between workers and employers, or claiming some kind of jurisdiction over our homes. Does anyone really believe OSHA's claim that they would not be inspecting private homes for violations? What exactly will a "national dialogue" tell us when OSHA has already spent two years studying this issue? Will this "national dialogue" reveal the constitutional authority for this type of action? Congress should not let up until this issue is dead and buried.

The era of big, intrusive government is not over. Not by a long shot.

© 2000 Charles Bloomer. Mr. Bloomer can be reached at

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