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Telecommuting As A Civil Right: The PORT Act

Mass telecommuting is the most impactful mobility solution no one is talking about. This bill makes it a civil right.

Photo of Mitch Turck
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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:

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

The underlying justification for PORT is that telecommuting -- sometimes referred to as remote working, or teleworking, or working virtually, or working from home -- is among the most impactful and immediate positive changes the U.S. can effect on climate, transportation, and labor issues today. 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 manifested as:

  • 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 and raises
  • 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. The exception conditions listed under PORT already exist as precedent under The Americans with Disabilities Act of 1990 and the Telework Enhancement Act of 2010.

Describe who will use your solution (1,000 characters)

Precise figures are difficult to pin down given the increasing adoption of digital productivity tools, but a fairly common projection estimates 10% of the U.S. workforce (~15 million commuting employees) as “ready to telecommute today.” In most states, 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.

Describe your solution's stage of development

  • Prototype - you have built a prototype and tested it with potential users

Insights from previous testing (500 characters)

Many studies in telecommuting have shown employees to be more productive than their office-bound counterparts. Some notable examples:

Tell us about your team or organization (500 characters)

I am a civilian petitioning for this legislation. I have no financial stake in the passage of the bill.

Size of your team or organization

  • I am submitting as an individual

Funding Request

  • $25,000

Rough Budget (500 characters)

$15,000: Production of materials for corporate awareness and telecommuting best practices, including work-from-home policies, management training, and a repository of productivity tools $7,500: Production of a video educating the workforce on how to achieve and maintain a telecommuting role $2,500: Marketing and advertising dollars to promote video among Indianapolis employees

Describe how you would pilot your idea (1000 characters)

During pursuit of the legislation in State Senate, regional employers who support the idea of the bill (or better, employers who oppose the idea of the bill) would be recruited to pledge support of telecommuting as an employee choice through their own corporate policy. This effort would quickly activate the bill in spirit while the letter of the law is being pursued, thus creating the pilot period. Virtually all outcomes the bill would impact locally could be achieved without the bill itself, if it was broadly adopted in spirit across employers. Worth noting also: given the Challenge's focus on measuring mobility and socioeconomic impact, a telecommuting study of this scale would represent one of the largest -- and certainly, the most holistic -- such studies available in the marketplace. It would place Indy on the transportation reform world stage at that point.

Describe how you would measure the success of your pilot (1000 characters)

Short term: number and rate of telecommuting adoption, decrease in workday office occupancy, decrease in rush hour congestion Long term: decrease in pollution for transportation and commercial building sectors, decrease in car ownership, shifts in commercial building usage

Sustainability Plan (500 characters)

By nature, awareness of the legislation (and the bill itself, once passed) becomes more effective and sustainable as it grows. The greater its presence, the harder it is for employers to dismiss and discriminate telecommuting.

Find this idea inspiring? Add your own!


Join the conversation:

Photo of Jasmine Comer

Hey Mitch Turck , I'm Jasmine one of the online facilitators for the challenge this year. And as someone who hates dealing with traffic to be inside staring at a screen all day, this bill sounds like a breath of fresh air. Not only could telecommuting possibly increase employment for many companies it would also cut down on the amount of traffic at high travel times. Would employees in entry level positions be offered coverage under this act from the time they began employment? And if I understand correctly, you're saying telecommuting shouldn't be used as an incentive, instead it should be an option for all employees correct?

Photo of Mitch Turck

Thanks Jasmine Comer . Indeed, it would be a discrimination protection (i.e., a freedom) for any eligible employee who is seeking to telecommute for any reason. Entry level, management, anyone -- if they are covered under standard Title VII legislation, they'd be eligible. Most notably, that excludes businesses with fewer than 15 employees.

How this all relates to a pilot under the Challenge would be to push a major local employer (at least one, but as many as possible) to trial a corporate policy in the spirit of the legislation -- allowing anyone to telecommute any or all the time, as long as they meet the conditions set by PORT. In doing so, Indy would end up with one of the world's largest (and certainly the most holistic) studies in telecommuting impact.

Photo of Robert P Tweed

So if im understanding if i worked for a cabinet maker, they need allow me make the cabinets at hone? Or say a miner, how could those willing to do that work applied this.
I can understand the points that using technology that we have at both work and home be addressed. In order to use this most effectively i do believe you would need employees to consent to conference/ video streaming of their activities towards the jobs benefit. Otherwise to require companies adhere to the laws written would require an extensive review of all companies, in every state by Police. That way the company would be subject to fines if the job could be done. And someone like me would get a check and sincere apologize for the negligence and discrimination. Therefore compensating men/women ike myself.

Photo of Mitch Turck

This is not how PORT works. It's also worth keeping in mind these are not new conditions or procedures for discrimination protection -- they already exist under Title VII, and specifically the Americans With Disabilities Act (ADA). Deciding whether an employee or their job qualifies for protection is a well-established practice at this point.

If your core job functions cannot be performed away from the work site, or if it requires undue burden on the employer (i.e. unreasonable alterations to current business operations) in order to be performed away from the work site, your job would not qualify for the protection.

In the two examples you provided, it seems highly unlikely that the employee could perform the core functions of their job away from the work site. As with ADA, the employee could certainly make a request to telecommute -- and subsequently file a complaint or lawsuit if the request was denied -- but the burden is on the employee to prove discrimination occurred.

Title VII rights are empowerments that civilians can exercise; they are not actively monitored by law enforcement for compliance.

Photo of Robert P Tweed

And to correct you i could provide a company with cabinets to be placed in homes/apartment from home/garage. So on that you would be mistaken. And you state the ovious, i am aware. The only way to effectively use PORT, would be as I stated. Would you think Police enforcement/PORT officials wouldn't need such authority? The employees wouldn't need be on a video feed, as to prove they can do the work from home. Im not arguing against your point I'm enhancing and further suggesting smart applications of 'PORT' program/law in action

Photo of MaCie' Moore

Hey Mitch Turck this is MaCie' one of the facilitators here! Thank you for participating in the challenge! As a regular 9-5 millennial employee, i love the idea of telecommuting/working from home. It saves energy building usage, and it also helps bring down emissions by lessening congestion and commuters (one of Indianapolis largest emission sectors).

I know a lot of companies who do not support telecommuting have ghost employment clauses in their employee handbooks how would you address this? Additionally is this funding request generated manly on legislation change? one suggestion if so, would be balancing this out, maybe start a collective for businesses who allow employees to telecommute, hand out stickers, create a dashboard, and/or mobile app that will can serve as an educational tool for others looking to start a telecommuting program, but also an app that awards companies points on job productivity and dollars saved due to less people in the office (energy saved, parking spots saved, job retention, etc)could be a cool way to attract young new talent. Just an idea!

Photo of Mitch Turck

Thanks MaCie' Moore . I alluded to this in the budget/pilot section, but to clarify: the pilot and budget spent towards it would be the development of programming and education for Indy's local employers and workforce, in the spirit of the legislation but independent of it. In this way, it becomes a true pilot for the legislation: if focusing the resources and publicity of the Challenge leads to a significant increase in telecommuting adoption, then we can surmise the legislation may be unnecessary. If it doesn't, we know the legislation still needs to be pursued. Any employer who doesn't want to see this legislation passed would be incentivized to demonstrate during the pilot period that they have pursued telecommuting employment to the best of their ability, and have a solid business case to defend any lack of it.

Ghost employment is a felony committed by a specific employee; often someone solely in charge of payroll or budgets. If there are any Indiana employers using that code (Article 35-44.1-1-3) as a defense for not hiring remote workers, PORT would contend they are practicing discriminatory behavior. Refusing to hire a defined group of people because their traits make it easier for another employee to commit fraud wouldn't stand up in court under any established Title VII protection. Further, if we were to follow the logic of such an employer -- the argument that an employee you can't physically supervise presents other employees with greater opportunity to commit fraud -- they ought not to hire anyone who works in a separate building from their supervisor, or who travels regularly for work, or who works overtime when their supervisor isn't present, etc. The employer would have to prove that they only pay for work they can directly observe as it occurs.