Office Managers.

OSHA's retreat from its bid to regulate home workplaces sets a subversive precedent.

In late January the Occupational Safety and Health Administration announced, as The New York Times put it, a "clarification" meant to dispel "confusion" about its policies. Contrary to earlier reports, the agency had decided that federal law did not require the homes of the nation's 20 million telecommuting employees to be free of such hazards as inadequate lighting, dangling power cords, ergonomically incorrect seating, rickety stairs, and drafty or stuffy ventilation conditions.

Accordingly, OSHA would not expect the nation's employers to carry out periodic inspections of their workers' home offices, or obtain from them checklists certifying that the employees' dens and basements were safe. Nor would employees who placed the occasional work-related phone call or sent the occasional e-mail message from home on evenings and weekends, or brought a spreadsheet home to work on while tending a sick child, be expected to map out emergency evacuation plans for their homes, keep OSHA-approved fire extinguishers and first aid kits on hand, or mount posters in their hallways to remind themselves of their right to a safe workplace.

Readers could be excused if their heads spun at the idea that all this could count as a mere "clarification" by the agency. A better description would be "abject, tail-between-its-legs retreat." Only two weeks earlier, a front-page story in The Washington Post had publicized an agency directive decreeing that businesses were indeed responsible for making sure that their employees' home work sites were free of federal safety violations. But by the time OSHA Director Charles Jeffress got done clarifying agency policy, you might have thought it was the nation's employers who'd been threatening to wrap home offices in red tape, and OSHA that had been waging a gallant fight against such a prospect. The "bottom line" for his agency, Jeffress said, had "always been" the same: "OSHA will respect the privacy of the home and expects that employers will as well."

What had actually taken place, of course, was a crash exercise in that time-honored Washington art, getting a story off the front pages. It more or less worked: News coverage practically ceased once the agency disclaimed an intent to regulate. But the agency's home office directive was no mere frolic by low-level staffers. It sprang from deep philosophic roots in the federal labor law we live under, and the premises of that law, inherited from the New Deal, unfortunately have not changed. Which means there's no principled reason for OSHA to stay out of this area in the future.

For most of this century, fights over "industrial homework" mostly arose from the activities of embroiderers, glove makers, and others on the margins of the American economy. Until the 1980s, only two groups in public life really seemed to care deeply about the homework issue: organized unionists, who wanted to ban it, and libertarians, who wanted it made legal. Both groups sensed what few others did: Far more was at stake in the practice than its economic importance at the time might have suggested.

Homework in the old-fashioned needle trades had long been an appealing option for many women, especially in rural and immigrant communities. Many already exercised the relevant skills; language barriers were of small importance; the pace of work could be lit around family responsibilities; and piecework for a commercial distributor was likely to provide more steady and lucrative employment than blouse and wedding gown projects for friends and family. But garment unions were determined to stamp out the practice, and their influence helped win passage of the New Deal--era Fair Labor Standards Act. This law authorized the federal government to ban homework, which it soon did with regard to a series of garment trades. Since the economic logic of the practice did not go away, constant vigilance and repeated crackdowns were needed in the ensuing decades to suppress such menaces to society as at-home knitting, tatting, and plush animal stitching.

Libertarians vocally opposed these laws as an infringement on individual rights. By what principle, exactly, had it become unlawful to sit in one's own home and carry on a peaceful, productive economic activity? And the sporadic crackdowns were nearly always bad news for the workers themselves, who were often either unable or unwilling to take up the unionists' implicit let-'em-punch-time-clocks suggestion of going to work in factories. A late-1970s crackdown on Vermont companies that distributed sweaters knitted in private homes, for example, wiped out the jobs of hundreds of retirees and other local residents for whom factory work was hardly a plausible substitute.

Moreover, like other measures directed at controlling consensual private activity, the homework law tended to bestow on authorities disturbingly intrusive powers. In his 1994 book Lost Rights James Bovard writes that New York City kept a staff of 40 investigators to snoop for violations of its homework regulations--this at a time when the city was having trouble protecting its citizens from genuine crimes. "What we do is send out our investigators on surveillance," said one official. "If our investigators identify someone they feel is a likely homeworker, then they merely follow that person to where they may go....If it is in a manufacturing area and you see a person carrying a well-worn shopping bag, and particularly if there are several people doing that, going in, the chances are quite good that it is going to be homework when you get in there." Hardened perps in the home knitting racket presumably could also be identified by their tendency to carry around with them long needles and wicker baskets for the concealment of their contraband.

The actual welfare of the workers ostensibly being protected was often of secondary importance. 'I am very concerned that [by tolerating homework] we are going to increase the lack of payment for unemployment insurance, worker's compensation, Social Security, city, state, and federal tax," a New York official told a congressional committee. "These people are not only engaged in exploiting workers but exploiting everybody else connected to [them] by means of these various programs that they escape."

Preventing "escape" was a key consideration for unions as well. "Traditionally, unions have opposed telecommuting/work-at-home programs because they fear that such programs represent a return to cottage industry piecework," explains one union-sympathetic Web site, Telecommute America. "A distributed workforce makes it more difficult for unions to organize, represent members, and police collective bargaining agreements."

As recently as the 1980s, the AFL-CIO was calling for at least a temporary ban on telecommuting. A 1991 booklet issued by the Coalition of Labor Union Women, as summarized by an article in Telecommuting Report, warned: "Homework makes it hard to develop the kind of solidarity among employees which naturally occurs in a workplace....Many home-based computer workers are treated as independent contractors. Independent contractors cannot be organized into unions." Similarly, Communications Workers of America President Mort Bahr said that allowing home employment was dangerous "particularly if that worker wants to work at home."

It's hard to imagine how different the American economy would look today had telecommuting been suppressed by force of law. While unionists didn't succeed in that goal, they did have every reason to expect that Washington would back them in the lesser objective of making sure that home-based work was regulated at least as stringently as centralized workplaces; that the government, as opposed to (heaven forfend!) individual workers themselves, would decide what working conditions were tolerable; and that talk of "privacy" and "worker choice" would be dismissed as irrelevant special pleading concocted by employers. Such premises had, after all, gone unchallenged for years in the hermetic world of "industrial relations."

Still, OSHA did not have to state its views for the record until 1997, when a Houston credit manager asked for guidance as to what, if anything, he was legally obliged to do about the safety of salespeople who worked for his firm out of their homes. The agency took two years to respond to his request, and there's no indication that its response was in any way whimsical. Indeed, OSHA considered the letter, signed by Richard Fairfax, director of compliance programs, to be a declaration of existing policy rather than a new departure.

The letter explained that when an employee works at home, the employer "is responsible for correcting hazards of which it is aware, or should be aware." Should be aware, of course, was the operative phrase: "Employers should exercise reasonable diligence to identify in advance the possible hazards associated with particular home work assignments, and should provide the necessary protection through training, personal protective equipment, or other controls appropriate to reduce or eliminate the hazard." Moreover, employers were responsible for ensuring that equipment used in the home office was safe and ergonomically appropriate. Would all this require employers to conduct on-site inspections? "In some circumstances," yes, the agency said.

OSHA officials seemed much surprised when, after a couple of months' delay, the papers got hold of this letter--which was posted on the agency's Web site under the heading "OSHA policies concerning employees working at home"--and ran it as big news. True to form, unionists defended the agency. The new directive "makes sense,' said Peg Seminario, the AFL-CIO's health and safety director. "Employers have to provide employees a workplace free from hazards."

Two University of Virginia academics, women's studies professor Eileen Boris and labor historian Nelson Lichtenstein, wrote in the Los Angeles Times: "When today's computerized homebodies find themselves with a pain in their wrist, fatigue in their neck or a crick in the lower back, the cause is remarkably similar to that of their sweatshop ancestors: inadequate equipment, self-exploitation and overwork." Boris and Lichtenstein attributed criticism of the directive to the tendency of "today's Internet capitalists to denounce even the most timid government efforts to regulate such work"--blithely ignoring the fact that telecommuters themselves, and not just their bosses, were up in arms about the directive, and the fact that relatively few home office workers are in fact employed by "Internet capitalists" (most are in more traditional lines of work).

From everyone else, the reaction was a more or less uniform hail of dead cats. "This is nuts," said Pat Cleary, vice president of the National Association of Manufacturers. Editorial page brickbats descended from the Hartford Courant ("Bureaucrats Gone Berserk") and the Dallas Morning News (OSHA "once again has emerged as a poster child for a federal bureaucracy run amok"), among others. "This is one of those regulatory rulings that sets liberalism back a generation," wrote Matthew Cooper at Slate's "Breakfast Table." Even a spokeswoman for House Minority Leader Richard Gephardt (D-Mo.) said the directive "seemed excessive."

Equally important in forcing the agency's hand, perhaps, was the reaction of employers--not what they said, but what they did. When the letter hit the front pages, reports The Washington Post, "A number of companies immediately put on hold plans to expand telecommuting privileges to employees." The National Law Journal reported that FINOVA, a financial firm that had made a list of the nation's best employers, intended to reassess its work-at-home program in light of the OSHA directive. In other words, the effort to assign employers more legal responsibility was making them less willing to permit telecommuting at all.

In its retreat, OSHA salvaged what it could for its union constituents: It insisted that manufacturing activities conducted at home would still come under its jurisdiction. This represented another reversal: Earlier, OSHA had denied that there was any legal significance to the distinction between blue- and white-collar work.

There's something deeply subversive, however, in the notion that individuals might actually be trusted to cope by themselves with the hazards to be found in their file cabinets and laser printers. Before long, they might feel competent to manage even more dangerous parts of the house, such as the kitchen and garage. When people work at home, you can see the level of safety they actually demand when they're in charge--and their standards are often rather more relaxed than the one OSHA imposes on businesses. Who knows where that realization might lead? In the meantime, perhaps we can enjoy a respite from the oft-heard refrain that the AFL-CIO's legislative agenda defines what's "progressive," while libertarian principles are a relic of the 19th century.

Contributing Editor Walter Olson ([e-mail]) is a senior fellow at the Manhattan Institute and the author of The Excuse Factory: How Employment Law Is Paralyzing the American Workplace.