The Growing Drumbeat to Legislate More Workplace Flexibility

The idea of providing employees more flexibility at work seems like a no brainer. Alas, not to all brains.

That’s why some politicians are taking out the big workflex stick and moving to try and mandate more flexibility at work.

Vermont became the first state in the nation to pass a law allowing employees to request flexibility at work, and San Francisco has moved to introduce a similar regulation.

“Trying to encourage open dialogue”

The Vermont legislation specifically mentions pay inequity between men and women, and points to inflexible workplaces as a possible culprit. “Employees may temporarily drop out of the workforce because there is insufficient workplace flexibility; when such employees do return to the workforce, they may be unable to catch up to employees performing the same work.”

The regulation goes to state:

A number of European countries, such as Great Britain, France, and Germany, have successfully implemented laws that grant employees the right to ask for flexible workplace arrangements without fear of retaliation and that require employers to consider such requests in good faith. Employers with flexible, family-friendly policies tend to have lower rates of absenteeism, lower rates of employee turnover, and higher worker productivity.”

The law came under fire from the business community, which saw the legislation as one that would hurt the bottom line. But in the end, the bill’s author Rep. Linda Waite-Simpson got enough business leaders on board, albeit after the legislation was watered down.

“We are trying to encourage open dialog in the workplace – a protected right to ask for flexible work time and a mandated response to the employee’s request; not a mandated affirmation, just a response and even with this, we had the business community push back pretty hard,” explained Waite-Simpson.

What the Vermont law requires

Here’s a breakdown on what the law requires from

The law requires employers to consider employee requests at least twice each calendar year, and outlines a process that requires an employer to engage in good-faith discussions with the employee that can include alternative proposals by both the employer and employee. Included in the process is an analysis of whether the request can be granted in a manner “not inconsistent with business operations” in which the employer considers:

  • The burden of additional costs;
  • Detrimental effect on aggregate employee morale unrelated to discrimination or other unlawful employment practices;
  • Detrimental effect on employer’s ability to meet consumer demand;
  • Inability to reorganize work among existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on business quality or performance;
  • Insufficiency of work during the periods the employee proposes to work; and
  • Planned structural changes to the business.”

More flex time but less “reduced time”

Clearly, we still have a long way to go when it comes to providing flexible work arrangements in the U.S. workplace.

“Families and Work Institute’s National Study of Employers 2012 found that since 2005, employers have become more likely to provide flex time and place and less likely to offer reduced time options, caregiving leaves and flex careers,” said Ken Matos, the Institute’s director of research.

“The irony is that while this imbalanced approach to flexibility is likely to keep employees working more in the short term, it is a perfect environment for problems with overwork, burnout, presenteeism and mistakes,” he explained. “Organizations may resist giving leave based flexibility because they see it as a loss of productivity, but it’s a more predictable and controllable alternative to high absenteeism and turnover or poor quality products and services.”

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The big question is will the big stick approach encourage more workflex?

The UK’s struggles with flextime

Workflex legislation was implemented in the United Kingdom in 2003, and a study of the law by the Georgetown University Law Center found:

This legislation on the organization of work and family in the UK remains unclear. There has yet to be a signi?cant expansion of the number of full time employees who work a ?exible schedule.

According to a 2005 labor organization’s analysis of the government data, 23 percent of full time employees in the UK had working time ?exibility. They report that this represents less than a 1 percent increase since implementation of the law in 2003. The uptake is slow in spite of the fact that most businesses are not reporting serious negative consequences and most workers who have made requests have had such requests granted.

A recent assessment of the law raises several overarching concerns.

  • The report’s authors suggest that the right to request may reinforce gender inequalities through the emphasis on care-giving responsibilities. While women have been more likely than men to have their requests accepted, they also continue to face demotions in pay and position when they move to part-time work, reinforcing a “mommy track” in occupational career ladders.
  • The report’s authors also believe that the potentially positive impact of the law is blunted by the continued prevalence of long working hours in the UK.
  • Finally, the authors argue that because the right to request is conditional, rather than substantive, employees have little ground on which to stand if they challenge an employer’s decision. In effect, this limits the potential of the right to request to contribute to the modernization of working practices.”

A growing push for more than lip service

It’s also unclear how such laws will play out in the United States. The Vermont flexibility act goes into effect on Jan. 1, 2014.

What is clear, is there’s a growing drumbeat globally to give workflex more than just lip service.

“Women often have to chose between a career path and their families – something that isn’t as routine a decision for men and certainly isn’t a part of the interview process,” said Linda Waite-Simpson. “Although Vermont is ahead of the curve regarding equal pay, we have not been able to move the dial in a number of years. Moving toward flexible work schedules where possible will help women avoid the either/or dilemma.”

Author’s note: If you want to learn more about flexible workplaces and the law, among other workflex topics, join us for our 2013 Workflex Conference: Transformational Workplaces: Making Work “Work” in a 24/7 Global Economy in San Francisco this coming October. Click here for more information.)

This was originally published on the Families and Work Institute website. 


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