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Present But Not There: Ruling Supports Telecommuting


Working from home used to be an exception. Technology's changed that and now, an appeals court has ruled that being at work doesn't always require you to physically have to be at work. NPR's Jennifer Ludden reports.

JENNIFER LUDDEN, BYLINE: Jane Harris was a resale buyer of steel for Ford Motor Co. After she developed a severe case of irritable bowel syndrome, she asked to work from home up to four days a week. Ford said no; being in the office was essential. A district court said case closed. But the Sixth Circuit Court of Appeals said not so fast, and sent the case back to the lower court.

KELLY HUGHES: This is a dramatic deviation from precedent.

LUDDEN: Kelly Hughes, of Ogletree Deakens, is a legal counsel for employers.

HUGHES: This kind of second-guessing of an employer's business judgment is extremely dangerous, and is only going to open the floodgates to further litigation.

LUDDEN: Hughes says the court's basically saying it knows better than Ford if its employees need to be in the office - all the more a shock since both sides in the case agree courts have routinely deferred to the business judgment of employers.

CAROLYN WHEELER: I think that's right, they have; and that that's been an error.

LUDDEN: Carolyn Wheeler is with the Equal Employment Opportunity Commission, which brought the case against Ford.

WHEELER: This panel did it correctly in saying, we don't just defer when there's contrary evidence.

LUDDEN: Ford said Harris' job required face-to-face problem-solving, and other employees agreed. But for the plaintiff...

WHEELER: Her own testimony had been that most of her interactions with co-workers were on the telephone or by email, whether she was in the workplace or not. They did not usually walk out in the hall to encounter each other.

LUDDEN: The court ruling makes clear not all jobs can be done from home. But as technology has advanced, it says, the law must recognize that the workplace is anywhere an employee can perform her job duties.

Absolutely, says employment lawyer Kelly Hughes. But the irony is that Ford has a robust telecommuting program. If businesses now fear a flood of more people asking to work from home, she thinks this ruling might backfire.

HUGHES: It could be that employers may have a knee-jerk reaction and modify their job descriptions, stating in all job descriptions that face-to-face contact and physical presence in the worksite is an essential function of the job.

LUDDEN: Ken Matos is with the Families and Work Institute, a nonprofit that studies the workplace. He thinks the ruling will boost telework even beyond cases like this one, which falls under the Americans with Disabilities Act.

KEN MATOS: There's no reason why that same logic can't be applied to other employees and say, oh, we can let you work from home, and you'll do just as good a job as you would have otherwise.

LUDDEN: Ford says it will ask for a hearing of the full appeals court. If the court declines, then a jury will decide whether Jane Harris could do just as good a job from home. Jennifer Ludden, NPR News.

SIMON: This is NPR News. Transcript provided by NPR, Copyright NPR.

Jennifer Ludden helps edit energy and environment stories for NPR's National Desk, working with NPR staffers and a team of public radio reporters across the country. They track the shift to clean energy, state and federal policy moves, and how people and communities are coping with the mounting impacts of climate change.