United States General Services Administration

Interagency Telework Issues Working Group Subcommittee DRAFT Reports

United States Office of Personnel Management

Existing Arrangements

This report describes the source documents, including legislation, Executive Orders, and relevant case laws, that support telework in the Federal Government. It also addresses pertinent legal issues that have been raised by agencies and the interagency telework issues workgroup, as well as how these initiatives have been administered.

To understand the legal framework and issues, it is important to understand the Government objectives for which telework is a significant solution. They are:

1. protection and enhancement of environmental quality; specifically, clean air as a result of reduced vehicle emissions;

2. reduction in the number of single occupied vehicles in order to reduce traffic congestion and vehicle emissions;

3. enhancements in employee work/life programs; i.e., those that contribute to assisting employees balance their work and personal needs and to reducing work-related stresses.

4. improvement in the efficiency and effectiveness of Government operations through expanded use of flexible work arrangements and use of information technology (IT);

5. energy conservation; i.e., fuel savings; and

6. the ability to recruit and retain highly skilled employees, particularly disabled employees.

It should be apparent that the majority of the objectives focus on transportation-related concerns, while others focus on human resource and work-related concerns, including how work is produced. Telework, therefore, is one solution that is of common interest to several agencies that are responsible for the programs related to these objectives. Those agencies are EPA, DOT, OPM, GSA, OMB, and DOE.

The following are relevant references that support the corresponding objective and briefly explains how they pertain to telework. The agency(s) responsible for implementing the respective reference is in parenthesis.

1. Protection and enhancement of environmental quality; i.e., clean air as a result of reduced vehicle emissions

a. Federal Employees Clean Air Incentives Act (PL 103-172, December 2, 1993; 5 U.S.C. 7905) (GSA*) - This act was established to improve air quality and to reduce traffic congestion by providing for the establishment of programs to encourage commuting by means other than single-occupancy vehicles. It also established a reporting requirement to the President and Congress at least every 2 years that includes non-monetary incentive programs, such as telecommuting (not specified per se in the legislation).

* GSA was designated as the lead agency by the President following the enactment of this legislation, but not by Executive Order.

b. Climate Change Action Plan (http://www.gcrio.org/USCCAP/toc.html) (DOT and EPA) (note: if you are not able to link to the website by clicking on the hypertext link, copy and paste it)- This Presidential initiative directed that DOT, in conjunction with EPA, implement a Federal telecommuting pilot project with the goal of getting one or two percent of Federal employees to work at home at least one day a week and, in conjunction with other agencies, promote part-time, home-based telecommuting to reduce traffic congestion and promote energy conservation.

c. "Energy, Emissions, and Social Consequences of Telecommuting" (PO-0026) (DOE) - This transportation-related research report addressed the benefits of telecommuting in support of the energy conservation and the clean air objectives.

d. 359 of PL 106-346 (DOT and OPM) - This is part of DOT's FY 2001 general appropriations bill which requires each agency to establish a policy under which eligible employees may participate in telecommuting. It also establishes how many employees are to be covered each year for the next 4 years by this provision. The related conference report defines telecommuting as "any arrangement in which an employee regularly performs officially assigned duties at home or other work sites geographically convenient to the resident of the employee" and defines eligible employees as "any satisfactorily performing employee of the agency whose job may typically be performed at least one day per week."

2. Reduction in the number of single occupied vehicles in order to reduce traffic congestion and vehicle emissions

a. Federal Employees Clean Air Incentives Act (GSA) - see 1a above.

b. "Transportation Implications of Telecommuting" (see footnote) (DOT) (http://ntl.bts.gov/DOCS/telecommute.html) - This 1993 report addressed the impact that telecommuting has on reducing traffic congestion and vehicle emissions. (footnote - "THE EVOLUTION OF TELEWORK IN THE FEDERAL GOVERNMENT" by Dr. Wendell Joice, GSA, February 2000)

3. Enhanced employee work/life programs; i.e., those that contribute to assisting employees balance their work and personal needs and to reducing work-related stresses

a. Presidential Memorandum for Heads of Executive Departments and Agencies, dated July 11, 1994, subject: Expanding Family-Friendly Work Arrangements in the Executive Branch (OPM) - This document directed agencies to encourage and support the expansion of flexible family-friendly work arrangements, including telecommuting and satellite work locations.

b. Presidential Memorandum for Heads of Executive Departments and Agencies, dated June 21, 1996, subject: (Implementing Federal Family Friendly Work Arrangements) (OPM) - This directed all agencies to "expand their ability to provide their employees ... opportunities to telecommute, when possible...."

c. National Partnership for Reinventing Government (formerly National Performance Review) Initiatives (http://govinfo.library.unt.edu/npr/library/reports/hrm07.html) (GSA and OPM) - These initiatives include promoting telecommuting, family-friendly work arrangements, and expansion of the use of IT to work more efficiently, i.e., do more work with less human resources.

4. Improvement in the efficiency and effectiveness of Government operations through expanded use of flexible work arrangements and use of information technology (IT)

a. National Partnership for Reinventing Government (formerly National Performance Review) Initiatives (GSA and OPM) - see 3c above.

b. Information Technology Management Reform Act of 1996 (also known as the Clinger/Cohen Act) (http://wwwoirm.nih.gov/policy/itmra.html) (OMB and GSA) - This directed OMB to "promote and be responsible for improving the acquisition, use, and disposal of information technology by the Federal Government to improve the productivity, efficiency, and effectiveness of Federal programs ..." as part of the budget process. It also provides the authority for each executive agency "to acquire information technology as authorized by law" and established Chief Information Officer (CIO) positions at each agency. This law serves as the basis for budget proposals for telecommuting resources.

c. Executive Order 13011 (http://www.itpolicy.gsa.gov/mks/regs-leg/exo13011.htm) (OMB and GSA) - This established the policy that executive agencies will "implement an investment review process that drives budget formulation and execution for information systems...;" "improve the management and use of information technology within and among agencies by developing information technology procedures and standards and by identifying and sharing experiences, ideas, and promising practices" (e.g., telecommuting); and established the CIO Council to "share experiences, ideas, and promising practices...."

d. 1993 Treasury, Postal Service and General Government Appropriations Act (PL 102-393) (GSA) - This authorized GSA to acquire, lease, construct, and equip the first telecenters.

e. 1996 Treasury, Postal Service and General Government Appropriations Act (PL 104-52) (GSA) - This authorized GSA to accept and retain income from agencies (and non-Federal sources) for the use of the telecenters.

f. 1997 Treasury, Postal Service and General Government Appropriations Act (PL 104-208) (GSA) - This directed GSA to charge user fees at commercial rates for the use of the telecenters; agencies were not charged the full commercial rate.

g. 1999 Omnibus Bill (PL 105-277, 411) (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ277.105 - This directed GSA to charge agencies 50% of the commercial charges for fiscal years 1999 and 2000, but beginning in FY 2001 agencies are to be charged based on 100 percent of the annual operating costs.

Sec. 411. Notwithstanding any other provision of law, the requirement under section 407 of Public Law 104-208 (110 Stat. 3009-337-38), that the Administrator of General Services charge user fees for flexiplace telecommuting centers that approximate commercial charges for comparable space and services but in no instance less than the amount necessary to pay the cost of establishing and operating such centers, shall not apply to the user fees charged for the period beginning October 1, 1996, and ending September 30, 1998, for the telecommuting centers established as part of a pilot telecommuting demonstration program in the Washington, D.C. metropolitan area by Public Laws 102-393, 103-123, 103-329, 104-52, and 104-208: Provided, That for these centers in the pilot demonstration program for the period beginning October 1, 1998, and ending September 30, 2000, the Administrator shall charge fees for Federal agency use of a telecenter based on 50 percent of the Administrator's annual costs of operating the center, including the reasonable cost of replacement for furniture, fixtures, and equipment: Provided further, That effective October 1, 2000, the Administrator shall charge fees for Federal agency use of the demonstration telecommuting centers based on 100 percent of the annual operating costs, including the reasonable cost of replacement for furniture, fixtures, and equipment: Provided further, That, to the extent such user charges do not cover the Administrator's costs in operating these centers, appropriations to the General Services Administration are authorized to reimburse the Federal Buildings Fund for any loss of revenue.

630 of the Conference Report (ftp://ftp.loc.gov/pub/thomas/cp105/hr760.txt), Flexible Work Telecommuting Programs, for this bill specified that each agency will make available at least $50,000 for FY 1999 and each year thereafter for "flexible work telecommuting programs." However, the definition of "flexible work telecommuting programs" limited the application to work performed at telecenters, rather than any alternative workplace.

h. Federal Information Technology Accessibility Initiative (29 U.S.C. 794d) (http://www.section508.gov/) (EEOC, Architectural & Transportation Barriers Compliance Board (Access Board), GSA) - In 1998, Congress amended the Rehabilitation Act to require Federal agencies to make their electronic and information technology accessible to people with disabilities. 508 was enacted to eliminate barriers in information technology, to make available new opportunities for people with disabilities, and to encourage development of technologies that will help achieve these goals.

5. Energy conservation; i.e., fuel savings

a. Climate Change Action Plan (DOT and EPA) - see 1b above.

b. "Energy, Emissions, and Social Consequences of Telecommuting" (PO-0026) (DOE) - see 1c above.

6. The ability to recruit and retain highly skilled employees, particularly disabled employees

a. Presidential Memorandums (OPM) - see 3a and b above.

b. Presidential Memorandum for Heads of Executive Departments and Agencies, dated July 26, 2000, subject: Employing People with Significant Disabilities to Fill Federal Agency Jobs that can be performed at Alternate Work Sites, Including the Home (http://www.opm.gov/disability/memos/clinton1.htm) (OPM) - This establishes the policy that the Government will utilize the skills of qualified people with significant disabilities by recruiting them for appropriate off-site, home-based employment opportunities.

c. Federal Information Technology Accessibility Initiative (29 U.S.C. 794d) (GSA) - see 4h above.

There are several other legal issues and concerns surrounding flexible work arrangements that have been addressed in a variety of ways.

1. Liability Issues

a. Home Inspections - OSHA Directive CPL2-0.125 - Home-Based Worksites (http://www.osha-slc.gov/OshDoc/Directive_data/CPL_2-0_125.html) (DOL) - This directive states OSHA's policy that it "will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees" (emphasis added). However, "OSHA will conduct inspections of other home-based worksites, such as home manufacturing operations" and hold employers responsible for them.

b. Worker Injury (DOL) - The Office of Workers' Compensation Programs (OWCP) is responsible for determining whether an injury should be covered by the Federal Employee Compensation Act (FECA). To date, OWCP has issued two decisions on workers' claims for an injury sustained while at home (see FECA Bulletin No. 98-09 Performance of Duty - Alternative Worksites at http://www.va.gov/vasafety/OSHPgmDocs/DASHOConferenceCalls/DASHO-Call-2000-Attach2.htm). In both cases, the OWCP ruled that only those injuries which occur while an employee is actually performing his or her work at home are considered to arise in the course of employment.

c. Damage to Personal Property -

1) Military Personnel and Civilian Employees Claims Act (31 U.S.C. 3721) (DOJ) - This Act, which is the only recourse for Government employees to seek recovery from the Government for damages to personal property, authorizes heads of agencies to settle claims from their employees if:

a) the following criteria are satisfied:

1) the claim is substantiated,

2) the claim does not exceed $40,000,

3) the claim is filed within 2 years of the incident,

4) the agency head decides that possession of the property was reasonable or useful under the circumstances, and

5) no part of the loss was caused by any negligent or wrongful act of the claimant or an agent or employee of the claimant

b) there is no agency policy or regulation that precludes coverage.

Several courts have held that the decision of an agency concerning a claim under this section is not subject to litigation. In Walter Meade v FAA, 855 F. Supp.619; (E.D. N.Y.1994), a Federal District Court in New York found that the FAA's denial of a plaintiff's claim under 31 U.S.C. 3721 is not subject to judicial review. This case has not been followed by another court, but suggests that agencies can establish policies that will preclude certain categories of claims for damages from employees.

The Comptroller General decision in B-209721, September 2, 1983, 62 Comp. Gen. 641 clearly articulates that agencies cannot refuse to settle all claims that could otherwise be filed under this Act, but they should exercise discretion in settling such claims. This may be done by identifying certain categories of claims that may be excluded in an agency regulation or policy or by a review on a case-by-case basis.

2) Federal Torts Claims Act (28 U.S.C. 1346) (DOJ) - This Act allows civil actions by individuals for injury or loss of property caused by the negligent or wrongful act or omission of any Government employee. Under this Act, the Government could face a lawsuit for actions that occur in the employee's home - to another family member or guest - while the employee is teleworking or, more likely, from an auto accident while the employee is commuting between authorized work sites. The telework program operates under existing law. Thus, if an employee was acting in his official capacity and within the scope of his/her employment when the wrongful act or omission occurred, the fact that s/he was at an alternate location would not prevent the lawsuit against the Government. These cases are very fact based, as would be true if an injury happened in a Government building.

2. Expenses Associated with Telework

a. Unauthorized Expenses -

1) Antideficiency Act (31 U.S.C.1341 (a)(1)) (OMB)) - This Act specifies that "an officer or employee of the United States Government may not

a) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation or

b) involve the government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law."

Since agencies have some latitude in the use of program funds for telecommuting purposes and there are laws that pertain to most expenditures associated with telecommuting, it is unlikely that an employee would incur an expenditure that an agency could not authorize if deemed appropriate. The same rules that would apply at the Government worksite would pertain to any expenditures related to, and because of, the employee teleworking.

2) The Comptroller General has issued many decisions and guidance on employee claims made by Federal employees for use of their personal funds to procure goods or services for official use. Generally, the rule is that an employee may not be reimbursed for these items. However, in certain circumstances repayment is allowable. The leading decision in this area is B-206236, June 1, 1983, 62 Comp.Gen. 419, which sets forth criteria for allowing reimbursements to an employee. In those cases where there is a real need to act without delay to protect a legitimate Government interest, the employee may be reimbursed. The key is whether the employee could have used the normal procurement process to obtain the goods or services. If s/he could, s/he would most likely not be reimbursed. It is conceivable that, as employees perform work at home or at a telecenter during hours when their supervisors and/or help desk support is not available, they may be faced with having to incur expenses not previously authorized in order to complete their work. To be reimbursed, however, the employee will have to show that the purchase was made in an emergency situation. The employee takes the risk that s/he will be reimbursed for the purchase.

b. Utility Costs - The Comptroller General issued a decision (B-225159, June 19, 1989, 68 Comp. Gen. 502) which denied reimbursement for utility costs under Work-at-Home Programs at the IRS. The Comptroller General is "not persuaded that the government would primarily receive the benefit of the incremental cost of utilities, such as heating, air conditioning, lighting, and the operation of government-furnished data processing equipment occasioned by the employee using his residence as his work place. It is difficult to apportion such utilities between those for which the employee is clearly responsible and any added increment attributed to having the work place in the residence."

c. Telephone Lines - (PL 104-52; 31 U.S.C. 1348)(GSA and OPM) - Beginning in FY 1996 and each year thereafter, agencies "may use funds appropriated by this or any other Act to install telephone lines, and necessary equipment, and to pay monthly charges, in any private residence or private apartment of an employee who has been authorized to work at home in accordance with guidelines issued by the Office of Personnel Management: Provided, That the head of the "agency" certifies that adequate safeguards against private misuse exist, and that the service is necessary for direct support of the agency's mission."

d. Other Related Telework Expenses - There is no existing reference for such expenses as installation (upgrading) of electric service, the cost of providing Internet service, etc. B-225159, June 19, 1989, 68 Comp. Gen. 502 states that, "(a)s a general rule, appropriations for "necessary expenses" of any agency may be used for purposes not specifically set forth in the appropriations act, if the expenses in question are for the direct support of the agency's mission. See 27 Comp. Gen. 679 (1948) and 54 Comp. Gen. 1075-1076 (1975)....An agency may not use appropriated funds to pay for items of personal expense unless there is specific statutory authority. 63 Comp. Gen. 296 (1984). We have allowed exceptions to this rule only where there is clear and convincing evidence that the expenditure that would ordinarily be a personal expense primarily benefits the government."

3. Protection of Records

a. Privacy Act (5 U.S.C. 552(a)) (http://www.usdoj.gov/foia/privstat.htm) (OMB) - This Act attempts to balance the Government's need to maintain information about individuals with the rights of individuals to be protected against unwarranted invasions of their personal privacy stemming from Federal agencies' collection, maintenance, use, and disclosure of personal information about them. It restricts disclosure of personally identifiable records maintained by agencies and requires agencies to provide adequate protection of records about their employees. It applies to records available in any form and at any designated workplace.

b. Electronic Communications Privacy Act (ECPA) (18 U.S.C. 2510 et seq.) (see http://www.digitalcentury.com/encyclo/update/ecpa.html for a discussion of the major provisions of the Act) (DOJ) - This Act was adopted to address the legal privacy issues that were evolving with the growing use of computers and other new innovations in electronic communications and surveillance. ECPA extended privacy protection to electronic mail and computer transmissions. It also was intended to prohibit providers of the electronic communication services from disclosing the content of communications that has been stored electronically without the lawful consent of the person who originated the communication. Under ECPA an employer cannot monitor employee telephone calls or electronic mail when employees have a reasonable expectation of privacy. However, the Act does allow employer eavesdropping if employees are notified in advance or if the employer has reason to believe its interests are in jeopardy.

c. Computer Security Act (PL 100-235; 15 U.S.C. 271-278h) (GSA and NIST) - This Act established minimum acceptable security practices for Federal computer systems. These rules would apply regardless of where the employee is using a computer that contains Government information, and who owns the particular computer.

d. Government Information Security Reform Act (PL 106-398, FY 2001 Defense Authorization Act, Title X, subtitle G) (OMB, NIST, OPM, GSA) - This Act addresses the security of both classified and unclassified computer systems to ensure proper management and security for the information resources supporting Federal operations and assets. (See M-01-08, a Memo from the Director of the Chief Information Officers Council for guidance on implementation of the Act.)

4. Reasonable Accommodation

a. There have been several relevant cases filed under the Americans with Disabilities Act (ADA), which is the equivalent of the Rehabilitation Act (29 U.S.C. 791 et seq) (http://www.eeoc.gov/laws/rehab.html) that provides coverage for Federal employees. The decisions have been mixed.

The EEOC Enforcement Guidance (see question 33 and the related footnotes at http://www.eeoc.gov/docs/accommodation.html#contents6) concerning work at home states that "(a)n employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship. Whether this accommodation is effective will depend on whether the essential functions of the position can be performed at home."

5. Compensation and Travel (OPM and GSA) - (from the HR workgroup)

6. Work Schedules (OPM) - (from the HR workgroup)

Areas of Concern with Existing Arrangements

1. Leadership - The leadership for implementing telework in the Federal Government has varied significantly over the past decade and hasn't always corresponded with the source agency and its mission(s). For example, EPA has never been a leader in the Federal sector as it has been in the private sector for addressing environmental concerns through telework initiatives. Although GSA's program responsibilities include IT and facilities, such as telecenters, and neither program is a primary "driver" of telework arrangements, GSA has provided the primary leadership for most initiatives either singularly or in partnership with DOT or OPM. DOT's leadership has been selective and inconsistent, even after it published "Transportation Implications of Telecommuting" in conjunction with EPA and DOE in 1993. OPM's leadership has primarily focused on human resource issues consistent with its mission, but OPM has also been expected to provide leadership in non-human resource areas as well.

2. Confusing or Needed Legislation - Some telework legislative initiatives, such as the ones regarding the payment of $50,000 for "telecommuting work programs" and establishing policies for eligible employees, have resulted in different interpretations by agencies and news reporting firms, even after review of the associated conference reports. Based on the cited Comptroller General decision regarding "Other Related Telework Expenses," agencies may be reluctant to support such expenses without specific legislative authority, as was done for telephone lines.

3. Confusing and Overlapping Reporting Requirements - Because of the variety of agencies that have lead select projects and reporting requirements, there has been considerable duplication among them, as well as inconsistency in data that has been provided by agencies for such relevant reports as the Federal Employee's Clean Air Incentives Act, DOT's transit subsidy report, and OPM's report on work/life programs, all of which involved similar and different data. Much of this problem stems from White House and Congressional inconsistency in designating specific lead agencies and the unwillingness of some of agencies to take the lead for initiatives that affect their respective programs.

4. Lack of IT Participation - There has been a noticeable lack of partnering between the primarily human resource community that has been responsible for establishing and implementing telework programs in most agencies and the IT community. A good example of this is that a representative of the CIO Council is not participating in this Government-wide review of telework policies and guidance and the workgroup that is focusing on IT issues has been limited because of the lack of IT expertise by the workgroup members.

5. Use of Telecenters - Because the telecenters have not been embraced by many employees, some agencies, particularly the smaller ones, are having difficulty in spending at least $50,000 per year for this purpose, and thus, are not in compliance with the legislation.

Existing Flexibilities

1. Claims for Personal Property Damage - Agencies have the authority to restrict some types of damages in an employee's home that may be filed under the Military Personnel and Civilian Employees' Claims Act.

2. Reporting Requirements - The Federal Employees Clean Air Incentives Act report, which covers most programs covered by this report, may be prepared more frequently than every 2 years, as is currently done, to satisfy the needs of other programs. The content of the report is discretionary and can be expanded and definitions changed, if need be, to address all related program concerns and reporting requirements.

3. Home Inspections - There is nothing that precludes an agency from conducting home inspections. As mentioned previously, there is no OSHA requirement that the employer actually physically inspect an office in an employee's home.

4. Electronic Monitoring - Agencies can establish policies that allow them to monitor employee communications to and from alternate workplaces providing employees are notified in advance, e.g., in their telework agreements.

5. Access - Agencies can request additional funding and design their communications systems in whatever manner they desire, providing they meet the standards set forth in the above mentioned Acts, to permit teleworkers increased access to internal electronic mail and office files.

6. Resources and Expenses - Agencies can determine the amount and source of resources that may be provided teleworkers, how those determinations can be made based on reasonableness, and under what circumstances an employee may incur expenses. Agencies can establish policies that identify what related telework expenses are considered appropriate and under what conditions.

7. Recruitment and Retention of Employees - Agencies can establish policies which define eligibility beyond that contained in the 359 conference report language and determine when a new employee becomes eligible to telework based on the employee's knowledge of his/her organization, organizational relationships, and work requirements.

Possible New Approaches and Recommendations

1. Leadership - An interagency workgroup or council should be formally established by the President which would determine the leadership, perhaps on a rotational basis, between the primary agencies (EPA, DOT, GSA, and OPM) that would provide centralized management of telework initiatives and reporting requirements and ensure that related initiatives and reporting requirements, such as transit subsidies and ridesharing reports, are properly coordinated. A representative from the CIO Council should be an active member of this group to ensure that telework and IT initiatives are being communicated effectively between councils. This organization should work closely with applicable Congressional and OMB staffs to assist in the development of Legislative and Executive Branch initiatives that will help to minimize the confusion and differences of interpretations of future initiatives.

2. Reporting Requirements - All clean air, transportation, and work/life reports that involve telework should be reviewed and consolidated wherever possible into one or two formats so that agencies can establish appropriate tracking mechanisms to provide consistent data that will meet most White House, Congressional, and agency needs.

3. Property Damage Claims - The proposed workgroup (in recommendation no. 1) needs to address the types of claims that an agency may consider for exclusion under the Military Personnel and Civilian Employees Claims Act, as this is a controversial topic. DOJ assistance is suggested.

To minimize any potential loss to the employee for unforeseen damages to an employee's residence, agency telework agreements should include a provision that the employee has liability, homeowner's, or renter's insurance to cover any potential damage to his/her personal property. As part of a self-certification process, agencies should ensure that employees review, and upgrade if needed, their electrical circuitry to accommodate any additional load, including a separate line for a computer.

4. Loss of Agency-Provided Equipment - Agency policies and agreements should also reflect that, when agency-provided equipment has been stolen from the employee's residence, vehicle, or personal possession, and the employee was not found to be negligent in protecting the equipment or engaged in misconduct, then the employee would not be responsible for the replacement of the equipment. However, employees should be advised to carry a reasonable amount of homeowner's or renter's insurance to cover the replacement value of the equipment as a precautionary measure. This may mean that a separate rider to the basic policy is needed, depending on the insurance policy.

5. Home Inspections - Agencies should include in their policies a provision that allows inspections under specified conditions, such as to ensure that adequate safeguards are being adhered to when records subject to security policies or the Privacy Act are involved.

6. Eligibility - OPM should establish a regulation that requires agencies to identify eligible and ineligible positions, communicate that information to employees, identify barriers to eligibility, and establish management plans that address the barriers and set goals for eliminating them.

7. Accountability - OPM should include the review of agency eligibility determinations and management plans as part of its oversight review program and report its findings to the new council on a periodic basis.

8. Telecenters - If the GSA continues to provide telecenters, then the problem that agencies are having in spending at least $50,000 per year to utilize them should be addressed by GSA proposing legislation that statutorily expands the definition of "flexiplace work telecommuting programs" to apply to "work performed at any alternative workplace." Thus, agencies will be required to spend at least $50,000 per year in support of their telecommuting program(s) in any way they deem appropriate. This can be clarified as part of the FY 2002 Treasury, Postal Service and General Government Appropriations Act in conjunction with item 9 below. The problem that this recommendation may create or further exacerbate is tracking and reporting the costs. Many agencies are not able to track all of those expenditures for various reasons. The tracking issue needs to be addressed by the proposed interagency workgroup or council and by each agency budget and finance staffs, including those in operating program offices, to identify and "roll up" those expenses so that they can be reported accurately via the Federal Clean Air Incentives Act Report, which currently includes that information.

9. Utility and Other Expenses -

a. Legislation should be initiated that authorizes (not requires) agencies to pay for expenses associated with their telework programs, similar to that for telephone lines that authorizes OPM (and/or GSA) to issue further guidance wherever needed, as part of the FY 2002 general appropriations bill. This should be worded loosely since the type of expenses are very apt to change in the near future with technology developments.

b. Agencies should establish policies that address under what conditions, if any, expenses that are not pre-approved may be reimbursed; e.g., for after-hours equipment maintenance on Government-provided equipment that is essential to completing pre-approved, critical work assignments.

10. Transportation Officers - Agencies should have Transportation Officers established as "other duties" for appropriate positions to effectively coordinate all transportation-related initiatives and reporting requirements. Most agencies had those during the early days of establishing their ridesharing programs, but many have let these duties terminate as staffs have been reduced.

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