Expert: Fix Government Barriers to Flexible Workplaces

By Stephen Miller, CEBS Mar 9, 2012

"HR professionals face a complicated web of often outdated laws and regulations when trying to implement workplace flexibility," observed David S. Fortney, co-founding partner of Washington, D.C.-based law firm Fortney & Scott LLC. Fortney, who focuses on workplace compliance issues, spoke at the Society for Human Resource Management (SHRM) 2012 Employment Law & Legislative Conference, held March 4-7 in Washington, D.C.

"Flexible work arrangements are a way of allowing people to be more productive in the work," Fortney said. But the federal government seems to be of two minds when it comes to workplace flexibility. On one hand, the Obama administration is on record as promoting flexibility through the President's Council of Economic Advisers report Work-Life Balance and the Economics of Workplace Flexibility, issued in March 2010. But on the other hand, labor law and regulations, some of which have been in effect since the 1930s, are "the biggest choke-hold we have on flexible workplace arrangements," Fortney said. Moreover, federal agencies "sometimes have expansive, nonsensical readings of law" that are counterproductive to workplace flexibility, he remarked.

Among the many laws that have limited the adoption of flexible workplace arrangements, he explained, the most burdensome is the Fair Labor Standards Act (FLSA), which raises hurdles for tracking hours worked out of the office on irregular schedules. "The FLSA exposes employers to lawsuits over uncompensated overtime—including suits over the use of mobile devices when employees are off the clock," Fortney pointed out. As a result, some employers won't allow employees to work beyond the standard 40-hour week at the worksite. (To learn more, see the SHRM Online articles “FLSA Inhibits Workplace Flexibility Policies” and “Flexible Work Arrangements: A Compliance Checklist.”)

Recent, well-intentioned laws come into play as well in ways that might not be readily apparent, including the Americans with Disability Act (ADA) and the ADA Amendments Act, Fortney said. Some employers, he noted, when told that disabled employees who wish to work from home must have their houses equipped per government specifications, will instead tell these workers to come into the (already ADA-compliant) office to work—and that it is their responsibility to find a way to get to the office because providing transportation is not required by the ADA.

Toward a 21st Century Policy

Despite these challenges, Fortney was optimistic that compromises can be worked out among policy-makers, employer groups such as SHRM and labor advocacy groups. What's needed is "a 21st century workplace flexibility policy that meets the needs of both employers and employees and that reflects different work environments, representation, industries and organizational size," he said.

Fortney pointed to SHRM's Principles for a 21st Century Workplace Flexibility Policy as an outline for supporting and encouraging flexible workplace arrangements. This policy statement calls for encouraging maximum flexibility for employers and employees—providing employers with predictability and stability in workforce operations, for instance, and providing employees with the predictability and stability necessary to meet personal needs.

For example, regarding the contentious issue of paid leave, the policy statement suggests focusing on key points, including:

Shared needs. Rather than an inflexible government-imposed paid leave mandate, policies governing employee leave should be designed to encourage employers to offer a paid leave program that meets baseline standards to qualify for a statutorily defined "safe harbor." The policy statement envisions a safe harbor standard under which employers provide a specified number of paid leave days voluntarily for employees to use for any purpose, consistent with the employer's policies or collective bargaining agreements. The safe harbor, by satisfying federal, state and local leave requirements, would facilitate compliance and save on administrative costs.

Scalability. Federal policy should recognize diverse workforces rather than impose a one-size-fits-all approach. For example, it should allow leave benefits to be scaled to the number of employees at an organization and to talent and staffing availability. Such a policy could allow employers to provide prorated leave benefits to employees that are tailored to specific workforce needs, consistent with the safe harbor.

"Employees and employers can benefit from a public policy that meets the diverse needs of the workplace in supporting and encouraging flexible work options such as telecommuting, flexible work arrangements, job sharing and compressed or reduced schedules," according to the policy statement. "Federal statutes that impede these offerings should be updated to provide employers and employees with maximum flexibility to balance work and personal needs."

Bringing Workplace Flexibility Policy into the 21st Century

In 2011, SHRM's efforts to promote government policies that accommodate workplace flexibility included:

Facilitating a work-flex roundtable with the General Services Administration.

Testifying before a House subcommittee examining the Fair Labor Standards Act.

Sponsoring a Congressional Hispanic Caucus Institute briefing on workplace flexibility.

Hosting policy-makers as part of the SHRM/FWI Work-Life Focus Conference.

Stephen Miller, CEBS, is an online editor/manager for SHRM.

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