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What Employment and Labor Laws Apply to Flexible Work Schedules?

The benefits of introducing a flexible work schedule may be alluring for both companies and employees, but business owners would be well advised to consider the underlying legal issues of this modern day work hour alternative before pulling the trigger.

While Federal labor laws do not address flextime directly, flexible work schedules are affected by the Fair Labor Standards Act, worker’s compensation, the Occupational Safety and Health Act and anti-discrimination laws.

  • Fair Labor Standards Act (FLSA). The Act requires that employers pay workers at a rate of at least one and a half times their regular pay rate for hours worked beyond 40 in a single workweek. A standard 9 to 5 workweek avoids overtime, but employees who set their own schedules may work more than 40 hours a week. To address this potential, employers need to set strict standards for their flextime programs and structure days off so that the 40-hour workweek isn’t exceeded.

  • Discrimination Issues. If telecommuting and flexible work schedules are distributed like rewards or prizes for good behavior or seem to favor a certain sex or ethnicity, there could be potential for discrimination claims. In order to avoid this, companies should establish objective standards spelled out in a written policy about what positions are open to flextime arrangements and what are not. They should also review the wording of their benefits policies to make sure employees aren’t accidentally rendered ineligible if they shorten their workweeks.

  • Occupational Safety and Health Act (OSHA). The OSHA concern is related to telecommuting complications and what an employer’s obligation is for an employee who works from home. After a congressional inquiry into OSHA and home-based worksites, it was declared that OSHA will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees. However, it is recommended that employers require employees working at home-based worksites to complete a thorough safety checklist.

  • Worker’s Compensation. The issues surrounding worker’s comp are still being determined. It is unclear what is classified as a workers’ comp injury when an employee is working in their home. While there are very few reported cases involving workers’ compensation claims of home-based workers, it is important to note that the law does not distinguish between home-based and office-based worksites. Employers should ensure that workers’ compensation coverage is provided for home-based worksites and that policies and procedures are in place for reporting any at home injuries.

Whether or not a company has an established flexible work program in place may not matter as recent legislation is making it the right of employees to request it.

Vermont was the first state to pass a law allowing employees to request flexibility at work and similar legislation was passed in San Francisco. Comparable federal legislation was also introduced in 2009 and referred to subcommittee

This shift echoes what is happening in the United Kingdom. Beginning in June of this year, new UK laws will extend the right of all eligible employees to request flexible working hours. Previously, that right was limited to individuals caring for children under the age of 18 and those caring for adult dependents. Now, any employee with over 26 weeks of service to a company will be able to apply for a flexible working schedule for any reason. The employer will have three months from the receipt of the request to reflect on its viability and the legal ramifications of a rejection before ultimately issuing a decision. While it is unclear whether the United States will adopt such all-encompassing stance, employers may be well advised to educate themselves on the issue of flexible scheduling and how it could be integrated into their business model.

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* Cathleen Scott is licensed to practice in Florida only.

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