© 2005 Snell & Wilmer L.L.P. SAFETY AND OTHER EMPLOYMENT ISSUES CONFRONTING EMPLOYERS REGARDING TELECOMMUTING Presentation By: Charles P. Keller, Esq. Snell & Wilmer, L.L.P. Phoenix, Arizona (602) Presentation By: Charles P. Keller, Esq. Snell & Wilmer, L.L.P. Phoenix, Arizona (602)

© 2005 Snell & Wilmer L.L.P. I.HISTORY A. In a November 15, 1999 letter of interpretation, the OSHA Director of Compliance stated: OSHA Act applies to work performed by an employee in any workplace including workplaces located in an employees home. Employer must retain some degree of control over the conditions of the work at home employee. This included control over ergonomic, air quality, lighting, and heating issues. A. In a November 15, 1999 letter of interpretation, the OSHA Director of Compliance stated: OSHA Act applies to work performed by an employee in any workplace including workplaces located in an employees home. Employer must retain some degree of control over the conditions of the work at home employee. This included control over ergonomic, air quality, lighting, and heating issues.

© 2005 Snell & Wilmer L.L.P. I.HISTORY, (contd) B. As soon as this letter was published, business leaders, lawmakers, and employers expressed shock and surprise. C. It took one day for then Secretary Alexis Herman to withdraw the policy interpretation. D. Querywas Richard Fairfax correct? B. As soon as this letter was published, business leaders, lawmakers, and employers expressed shock and surprise. C. It took one day for then Secretary Alexis Herman to withdraw the policy interpretation. D. Querywas Richard Fairfax correct?

© 2005 Snell & Wilmer L.L.P. II.CAN ADOSH INSPECT THE TELECOMMUTERS WORK AREA? A. Is the telecommuter an employee? A.R.S. § (6)employee means any person performing services for an employer. B. Is the telecommuters home a workplace? A.R.S. § (15)workplace means a location or site wherein work is being conducted in connection with a business. A. Is the telecommuter an employee? A.R.S. § (6)employee means any person performing services for an employer. B. Is the telecommuters home a workplace? A.R.S. § (15)workplace means a location or site wherein work is being conducted in connection with a business.

© 2005 Snell & Wilmer L.L.P. II.CAN ADOSH INSPECT THE TELECOMMUTERS WORK AREA? (contd) C. Is the telecommuters home subject to inspection? A.R.S. § (A)ADOSH may, upon presentation of credentials, shall be permitted to inspect places of employment, question employees, and investigate conditions, practices or matters in connection with employment. C. Is the telecommuters home subject to inspection? A.R.S. § (A)ADOSH may, upon presentation of credentials, shall be permitted to inspect places of employment, question employees, and investigate conditions, practices or matters in connection with employment.

© 2005 Snell & Wilmer L.L.P. II.CAN ADOSH INSPECT THE TELECOMMUTERS WORK AREA? (contd) D. Clearly, legally speaking, ADOSH has the right to conduct an inspection of a telecommuters workplace inside a private home. The area defined as the workplace must comply with the OSHA standards. E interpretationOSHA stated: An employer is responsible for ensuring that its employees have a safe and healthful workplace, not a safe and healthful home. D. Clearly, legally speaking, ADOSH has the right to conduct an inspection of a telecommuters workplace inside a private home. The area defined as the workplace must comply with the OSHA standards. E interpretationOSHA stated: An employer is responsible for ensuring that its employees have a safe and healthful workplace, not a safe and healthful home.

© 2005 Snell & Wilmer L.L.P. III.PRACTICAL RAMIFICATIONS A. ADOSH is not going to conduct random inspections of telecommuters home. B. Two circumstances where ADOSH may inspect a home: Home-based business with employees working in hazardous conditions. Telecommuter contacts ADOSH and files a complaint. A. ADOSH is not going to conduct random inspections of telecommuters home. B. Two circumstances where ADOSH may inspect a home: Home-based business with employees working in hazardous conditions. Telecommuter contacts ADOSH and files a complaint.

© 2005 Snell & Wilmer L.L.P. IV.OTHER AREAS OF GREATER CONCERN A. Fair Labor Standards Act Wage and hour issues Exempt v. non-exempt Required to keep accurate time records Non-exemptit is the employers burden to track hours B. Workers Compensation Claims A. Fair Labor Standards Act Wage and hour issues Exempt v. non-exempt Required to keep accurate time records Non-exemptit is the employers burden to track hours B. Workers Compensation Claims

© 2005 Snell & Wilmer L.L.P. IV.OTHER AREAS OF GREATER CONCERN, (contd) C. Americans with Disabilities Act (ADA) Required to make reasonable accommodations for qualified individuals with a disability. D. National Labor Relations Act (NLRA) May jeopardize rules regarding use. Rules that prohibit use of company for non- business purposes may be overbroad. Telecommuters only method of communication with other employees may be through . NLRAprotects concerted and protected activities. C. Americans with Disabilities Act (ADA) Required to make reasonable accommodations for qualified individuals with a disability. D. National Labor Relations Act (NLRA) May jeopardize rules regarding use. Rules that prohibit use of company for non- business purposes may be overbroad. Telecommuters only method of communication with other employees may be through . NLRAprotects concerted and protected activities.

© 2005 Snell & Wilmer L.L.P. V.EMPLOYERS RESPONSES A. Employers do not have to permit telecommuting: Can restrict it Certain employees Employees in good standing Can withdraw permission Can prohibit it A. Employers do not have to permit telecommuting: Can restrict it Certain employees Employees in good standing Can withdraw permission Can prohibit it

© 2005 Snell & Wilmer L.L.P. V.EMPLOYERS RESPONSES (contd) B. Employers can require a telecommuter to sign a contract agreeing to abide by certain terms and conditions. Approved desk Requisite lighting Certain types of chairs Require certain equipment, i.e. computers, telephones, fax machines Consent to inspection of home prior to approval Require child care Enforce certain report-in requirements B. Employers can require a telecommuter to sign a contract agreeing to abide by certain terms and conditions. Approved desk Requisite lighting Certain types of chairs Require certain equipment, i.e. computers, telephones, fax machines Consent to inspection of home prior to approval Require child care Enforce certain report-in requirements

© 2005 Snell & Wilmer L.L.P. V.EMPLOYERS RESPONSES (contd) C. Employers may also require telecommuters to participate in training program. Merrill Lynch requires participation in two- week training program. C. Employers may also require telecommuters to participate in training program. Merrill Lynch requires participation in two- week training program.