Working At Home, And At Play

Constant connectivity creates pressure to work around-the-clock, wherever you may be. After all, the Net is always on ' and open for business.

But tapping away at a laptop during a ballgame? It's coming: Many pro and college sports teams have built stadiums with wireless access (See www.informationweek.com/story/showArticle.jhtml?articleID=22103332&tid=13690). They anticipate fans accessing statistics, trivia and, perhaps, one day, even replays or electronic concession stands. (See www.boston.com/business/technology/articles/2004/07/13/peanuts_popcorn_wifi.)

At least one team found a different problem. The chief information officer of baseball's San Francisco Giants, speaking about his Wi-Fi enabled stadium, complained: “The real problem is business people coming and doing their office e-mails at the game.”

(See www.usatoday.com/sports/columnist/2004-06-09-hiestand_x.htm.)

Mixing Pleasure and Business

While Casey Stengel would have been appalled to see fans using a laptop during a tight ninth inning, today's reality is the widespread expectation for near-instantaneous turnaround of work, or replies to e-mail. Personal, social or business commitments that may interfere become irrelevant. Even successful baseball managers keep laptops in the dugout for instant statistics.

Fortunately, the technology that fosters those expectations also allows businesspeople to maintain a life outside the office while keeping up with work. The fan sending office e-mails doesn't have to miss a game or family event to keep in touch with clients and provide them with timely work product.

However, as the traditional office becomes less important ' because technology lets work shift location with the workers ' will the legal rules for the workplace also follow? For example, auto-accident victims have attempted to hold employers liable for accidents that occurred while an employee was doing business on a cell phone. Disgruntled neighbors have tried to control the traffic from home offices with business-oriented zoning laws. If the same principle is applied to Wi-Fi hotspots or other mobile work locations, can regulators be far behind? In fact, the U.S. Occupational Safety and Health Administration (OSHA) has tried to regulate home offices ' until it was forced to back down less than 2 months after its proposal. (See www.osha.gov/pls/oshaweb/owadisp.show_documentp_table=DIRECTIVES&p_id=2254.)

Where Is 'Work' Anyway?

Long before widespread Internet use, courts applied workplace laws to leisure activity. After-work softball-team injuries may qualify for workers' comp and disability coverage. Employers are often held responsible for alcohol-related accidents after a firm function or business dinner.

If a social event outside the workplace legally counts as work, then why shouldn't actual work, done outside the workplace through electronic devices, receive the same treatment? In the cell-phone cases, for example, the demands of business conversations allegedly distracted drivers from traffic.

Instead of blindly regulating any location where work is performed as a “workplace,” courts have asked instead whether the employer required that work take place at the off-site location. In other words, is working outside the office for the convenience of the employee, or of the employer? If the employer benefits, then holding the employer to all the same rules that would apply to a cubicle doesn't seem outrageous.

Under that rule, entertaining clients at conventions and restaurants is easily classified as mandatory work. Sports and other recreation, in contrast, often fail that test because they are not essential to job performance.

A technologically enabled mobile work force shouldn't change this rule. Instead, with the growth of wireless communications, perhaps many more locations could be treated as workplaces. For example, if an employer provides laptops to employees to keep them constantly connected, and tells them to check for messages on evenings and weekends to serve clients, then off-site work does seem compelled. The off-site duties don't have to be recorded or stated explicitly in writing, if employees know they must stay in constant contact. However, if remote, Wi-Fi enabled locations have become “workplaces,” then they should be regulated the same as any other place where work is regularly done.

Finding the Right Pathway

But perhaps one-size-fits-all, across-the-board regulations aren't the best solution. Because laptops are now found at almost every conceivable location ' even at baseball games and the ballet ' no rule could cover all e-business and off-site workplace situations adequately. Instead, as has been the case for hundreds of years, perhaps the only practical approach is to let courts find the best solutions, case by case, for what should be regulated, and how. Unfortunately, that provides no certainty for employers who need employees to work remotely today, such as mobile e-commerce workers ' or protection for employees who are forced to do so. But as a society, we may be more willing to accept the case-by-case approach, than having to consult an employment lawyer before letting staff go to the coffee shop.

Constant connectivity creates pressure to work around-the-clock, wherever you may be. After all, the Net is always on ' and open for business.

But tapping away at a laptop during a ballgame? It's coming: Many pro and college sports teams have built stadiums with wireless access (See www.informationweek.com/story/showArticle.jhtml?articleID=22103332&tid=13690). They anticipate fans accessing statistics, trivia and, perhaps, one day, even replays or electronic concession stands. (See www.boston.com/business/technology/articles/2004/07/13/peanuts_popcorn_wifi.)

At least one team found a different problem. The chief information officer of baseball's San Francisco Giants, speaking about his Wi-Fi enabled stadium, complained: “The real problem is business people coming and doing their office e-mails at the game.”

(See www.usatoday.com/sports/columnist/2004-06-09-hiestand_x.htm.)

Mixing Pleasure and Business

While Casey Stengel would have been appalled to see fans using a laptop during a tight ninth inning, today's reality is the widespread expectation for near-instantaneous turnaround of work, or replies to e-mail. Personal, social or business commitments that may interfere become irrelevant. Even successful baseball managers keep laptops in the dugout for instant statistics.

Fortunately, the technology that fosters those expectations also allows businesspeople to maintain a life outside the office while keeping up with work. The fan sending office e-mails doesn't have to miss a game or family event to keep in touch with clients and provide them with timely work product.

However, as the traditional office becomes less important ' because technology lets work shift location with the workers ' will the legal rules for the workplace also follow? For example, auto-accident victims have attempted to hold employers liable for accidents that occurred while an employee was doing business on a cell phone. Disgruntled neighbors have tried to control the traffic from home offices with business-oriented zoning laws. If the same principle is applied to Wi-Fi hotspots or other mobile work locations, can regulators be far behind? In fact, the U.S. Occupational Safety and Health Administration (OSHA) has tried to regulate home offices ' until it was forced to back down less than 2 months after its proposal. (See www.osha.gov/pls/oshaweb/owadisp.show_documentp_table=DIRECTIVES&p_id=2254.)

Where Is 'Work' Anyway?

Long before widespread Internet use, courts applied workplace laws to leisure activity. After-work softball-team injuries may qualify for workers' comp and disability coverage. Employers are often held responsible for alcohol-related accidents after a firm function or business dinner.

If a social event outside the workplace legally counts as work, then why shouldn't actual work, done outside the workplace through electronic devices, receive the same treatment? In the cell-phone cases, for example, the demands of business conversations allegedly distracted drivers from traffic.

Instead of blindly regulating any location where work is performed as a “workplace,” courts have asked instead whether the employer required that work take place at the off-site location. In other words, is working outside the office for the convenience of the employee, or of the employer? If the employer benefits, then holding the employer to all the same rules that would apply to a cubicle doesn't seem outrageous.

Under that rule, entertaining clients at conventions and restaurants is easily classified as mandatory work. Sports and other recreation, in contrast, often fail that test because they are not essential to job performance.

A technologically enabled mobile work force shouldn't change this rule. Instead, with the growth of wireless communications, perhaps many more locations could be treated as workplaces. For example, if an employer provides laptops to employees to keep them constantly connected, and tells them to check for messages on evenings and weekends to serve clients, then off-site work does seem compelled. The off-site duties don't have to be recorded or stated explicitly in writing, if employees know they must stay in constant contact. However, if remote, Wi-Fi enabled locations have become “workplaces,” then they should be regulated the same as any other place where work is regularly done.

Finding the Right Pathway

But perhaps one-size-fits-all, across-the-board regulations aren't the best solution. Because laptops are now found at almost every conceivable location ' even at baseball games and the ballet ' no rule could cover all e-business and off-site workplace situations adequately. Instead, as has been the case for hundreds of years, perhaps the only practical approach is to let courts find the best solutions, case by case, for what should be regulated, and how. Unfortunately, that provides no certainty for employers who need employees to work remotely today, such as mobile e-commerce workers ' or protection for employees who are forced to do so. But as a society, we may be more willing to accept the case-by-case approach, than having to consult an employment lawyer before letting staff go to the coffee shop.