Legal concerns of flexible work schedules

Flexible work schedules (FWS) were instituted under 5 U. S. C. 6122 as a form of alternative work arrangement (Department of Homeland Security, 2007). Flexible work schedules are also called flextime which is a non-traditional work schedule where the employee is on full employment but the working hours are flexible and do not follow the traditional working hours. The flextime schedule however incorporates a given number of hours as part of traditional working hours. Being a relatively new approach of working, the flexible working schedule is bound to raise concerns on the part of both the employer and the employee.

This paper focuses on flexible work schedules with specific discussions on concerns and legal rights that arise on either the side of the employer or the employee as concerns FWS. Flexible work schedules Flexible work schedules were first instituted in the U. S. by Hewlett-Packard in 1973 and by 2004; up to 27. 5% of all full-time employees in the United States were operating on FWS (Schaefer, 2005 ). The U. S. Department of Homeland Security recognizes that FWS allows full-time workers who have an 80-hour biweekly work schedule to choose flexible working hours as per outlined regulations in the department.

This is the same with a part-time worker who also has a two weeks basic work schedule of less than eighty hours. Different organizations have different flexible work schedules. For instance, the U. S. Department of Homeland Security has five forms of flexible working schedules including flexitour, gliding schedule, maxiflex schedule, variable week schedule and variable day schedule (U. S. Department of Homeland Security, 2007). The New York State Bar Association recognizes several non-traditional work schedules for attorneys.

These include flextime, flexiplace, compressed work week, caseload sharing and reduced caseload (New York State Bar Association Committee on Women in the Law, 1995). In general flexible work schedules include flextime, telecommuting, compressed work weeks, job sharing and part time work. Flexible work schedules require mutual agreement between the employer and the employee. In general, FWS involve the employer and the employee agreeing on distributing working hours such the employee works in non-traditional working hours over an agreed block of time with a given time being set for traditional office hours.

Specific considerations must be taken if non-traditional working schedules are to succeed. Flextime schedule is one whereby the employee is given an opportunity to choose the timeframe to work in a day per week as well as freedom to make changes to the starting and ending time from one week to another. The worker is therefore able to cater for his or her personal needs. The employer may set out a fixed number of hours (core hours) which the employee must adhere to as much as the employee has freedom to choose the working time (North Dakota Employment Law Letter, 2008).

It is therefore evident that the both the employer and the employee have significant roles in the smoothing running of flextime schedule. Several concerns arise from putting in place a flextime work environment. These are based on the fact that most workers who request for flextime want to attend to crucial personal needs or to strike a balance between work and family. There are several benefits and challenges related to FWS from which concerns may arise to the level of becoming legal issues as each party pursues possible benefits while confronting challenges.

The non-traditional flexible working schedules are capable of increasing employee morale, reducing absenteeism, reduces costs related to leaves, have potential to boost productivity, enhancing work-life balance, and likely increase in income to workers (Bliss & Thomton, 2009). On the other hand, FWS present significant challenges both in planning and implementing the schedules. For instance, employees are faced with the challenge of ensuring that the work program is in tandem with the needs of the employee and the challenge of maintaining good communication with the workers in order to achieve benefits of FWS.

Addressing the needs of certain workers with unique needs without entering into legal battles is also a great challenge for employers seeking to implement FWS. Legal issues in FSW Several issues can result into a legal battle under the flextime schedule. It is observable that conflicts are likely to arise between the employer and the employee due to inability to control work flow. As such, it is possible to find some employees working for longer hours than other yet it is expected that all workers are supposed to work for the same hours.

Conflicts are also likely to arise in relation to assignment of benefits, time keeping aspects of work schedule or even rating of workers (Beierlein & Van Horn, 1995). Employers are most likely to find themselves in situations where the employees have sued them considering the various Acts that have been instituted to cater for flexible work schedules. It is in fact stressed that employers who have adopted flexible working schedules should be familiar with legal aspects of FWS as well as work-life balance (North Dakota Employment Law Letter, 2008).

Several legislations have addressed various aspects of labor practices. For instance, the Fair Labor Standards Act (FLSA) of 1938 addresses unfair practices done to employees. It is however unfortunate that the FLSA has not addressed the FSW issue in specific thus allowing loopholes for employers to exploit their employees. The FLSA requires non-exempt employees to be paid any over time hour worked after the 40 hours weekly working hours (Puleo, 2009). Failure to directly mention about FSW exposes employees to manipulation by the employers.

For instance, employers can easily regulate how the employee will schedule his or her flexible work schedule. While thinking of alternative work schedules, it is pertinent for the employer to consider laws that address equal employment opportunities (EOE) in order to avoid legal challenges. EOE laws prohibit discriminating workers in terms of wages as well as number of working hours. Managers running their organizations based on flexible work schedules are supposed to be very careful in planning the work schedules in order to avoid legal confrontations regarding discrimination.

It is notable that employees working in the flexible work schedule are likely to reap benefits associated with this kind of a program whereas traditional work hour’s employees may not get such chances (Meade, 2009). This may happen even when the management has no intention to discriminate in terms of benefits. Not only is such a program likely to lead to wrangles within the organization but it is also likely to have some employees file discrimination charges against the employers.

In consideration that there are labor laws set by states as well as those instituted by the federal government, it is very crucial for employers to be compliant with such laws. Federal and state laws may for instance have certain exemptions or requirements regarding flextime working hours and wages. It is for instance notable that non-exempt employees are allowed to have flextime whereas exempt employees may not enjoy such flexibility (Grantham & Ware, 2009). In such a case, being familiar with the FLSA in order to understand how to take record of working hours is very important.

This is a necessary step towards avoiding legal challenges relating to working hours and wages as required of flextime eligible workers. Also notable is that state laws may differ with federal laws regarding a particular flexible work alternative thus the need to be familiar with both state and federal laws. For instance, while the FLSA (a federal law) exempts holiday pay for compressed week workers, it is possible to find that state laws allow compressed workweeks workers to obtain holiday pay (North Dakota Employment Law Letter, 2008).

It should also be clear to the employer whether it is possible for compressed workweek workers who receive bi-weekly payment is eligible for overtime pay. A likely legal issue concerning flexible work schedule is the employer complying with benefits that employees are entitled to. It is for instance important to understand that employees who have worked for 1,000 hours consecutively for 12 months are entitled to retirement benefits or other profitable plans given to other employees. This has been stipulated in the Employee Retirement Income Security Act (ERISA) (Grantham & Ware, 2009).

Without understanding such an Act and its implications, it is almost unavoidable to be involved in legal confrontations with flextime workers. It is also pertinent for the employer and the employee to have a clear understanding of what state and federal laws say concerning eligibility to various types of work leaves and benefits. There are several concerns related to flextime schedules that employers and employees ought to take into consideration. As earlier noted, poor communication between the employer and the employee is likely to jeopardize the flexible work plan schedule since the needs of each party may not be addressed properly.

In such a case, Schaefer (2005) advises that the employer should ask for employees’ opinions before developing let alone implementing a flextime schedule. In this consultation, the employer should seek to identify the appropriateness of the schedule to the needs of the workers as well as the likely effect of the work schedule on workers effectiveness. It is important that while the agreement addresses workers’ personal needs, the needs of the company are also equally addressed to avoid jeopardizing the organization’s activities.

In the process of coming up with a flexible work schedule, it is crucial to identify positions and individuals who may not fit in the flexible work arrangement. For instance, it is unwise to include a person in the flexible schedule only to result into difficulties in running office activities or end up having many customers complain of a failed service. In other words, a costs/benefits analysis of implementing a flexible work schedule should be done (Erickson, 2010). In another example, it would be inappropriate to have individuals who are ineffective without the emotional and physical presence of other telecommuting.

To avoid legal actions and internal conflicts, it is advisable to take flexible working arrangements formally and with seriousness. Having noted that FWS involves understanding various labor legislations, it would only be wise if the flexible work policy in any organization is made formally. With informal policies, inconsistency pertaining application for FWS would result eventually leading to reduced employee morale and likely legal implications. To avoid consequences of informal policies on FWS, it is recommendable to have formally written regulations guiding FWS (Bliss & Thornton, 2009).

This goes a long way in avoiding discrimination and resultant legal battles since everything is clearly stated. Some flexible work schedules such as telecommuting are likely to result into decreased social contacts not only between fellow employees but also between employees and their supervisors. It is for this reason that the management should encourage staff meetings other then merely relying on phone and email contact. By encouraging staff meetings, workers are able to identify that no discriminatory practices are done by the management in addition to enhancing social contact.

Flexible work schedules face challenges of implementation due to employers’ resistance to relinquish supervision. With such a mindset, attempts to apply for flexible work arrangements by employees are likely to be fruitless. Such employers for instance may not entrust workers to telecommute since the direct supervision of the employer is not possible. Educating managers and encouraging them to build trust on their employees is an effective way of changing the mindset and ensuring that FWS are implemented (Puleo, 2009).

On another note, it is of concern that if flexible work programs are not monitored and update regularly, they fail to meet the flexibility target especially with changing employees’ personal needs. In other instances, a flexible work program may fail to deliver as expected and if it is not revised, it remains irrelevant to the employees and the employers. Flextime abuses have resulted to law suits in the past. In most cases, litigations on flextime have been due to employers misclassifying employees into the category of workers who are exempted from overtime.

This stresses the need to understand which class of workers belongs to exempt category and those who are to be classified as non-exempt workers as stipulated in the FLSA. It should be clear to the employers as well as the employees that belonging to the non-exempt category qualify one to overtime pay for every hour worked after the 40-hours per week. At the same time, the employee is supposed to have a record of all the overtime hours to claim the overtime pay successfully. For individuals working under the telecommuting schedule, injuries incurred at home while performing company duties are an often cause of litigation.

To curb this, it is advisable that employers continually encourage telecommuters to work in safe environments at home offices. It is also advisable that the home worker reports the work-related injury within a stipulated time (mostly within 24 hours) with full details of the work-related injury (North Dakota Employment Law Letter, 2008). Failure to adhere to such may jeopardize a likely compensation and launching a case against the company may be unfruitful. While considering flextime schedules, it is notable that one has to consider disable employees especially in regard to reasonable accommodation.

A disabled employee should not be denied a flextime arrangement on the basis of lack suitable accommodation. It is in fact advisable that work schedules be adjusted to accommodate disabled employees. This may include adjusting working hours for workers who have mobility impairments such that they do not experience transport difficulties encountered during peak hours in working day. Adjustments also ought to be made to accommodate employees who may be attending medical treatment programs. Such adjustments are worthwhile in avoiding lawsuit. In a case between Katz v. Metropolitan Life Ins. Co. , S. D. N.

Y. , 1998, Katz lost case as per the federal court ruling. In this case, Katz (who had multiple impairments) had been offered a job sharing schedule by the employer, Metropolitan Life Ins. Co. , but he declined the job and went ahead to sue the company (HR Specialist, 2000). The company’s victory in this litigation was based on the fact that the company had offered the job sharing schedule as an attempted to accommodate the impaired salesman. The telecommuting form of flexible work schedule is one of the forms of FWS that raises a number of controversies considering the different working environment.

Despite being a very promising schedule in terms of benefits to the employer and the employee, telecommuting is surrounded by many controversies especially in relation to setting up a home office. Erickson (2010) explains that for an employee to qualify for telecommuting schedule, he or she must be having enough office infrastructures at home. These include access to broadband internet, a computer which can access the company’s server, a phone, a printer as well as a favorable office environment.

The fact that the cost of setting up the home office is mainly on the side of the employee creates difficulties in instituting telecommuting schedules as this appears discriminatory. Some employees will cite discrimination in that they expect the organization to facilitate this work schedule by providing all the resources available to employees working in the company’s office. As earlier mentioned, safety concerns are also of importance as these are likely to open legal contentions. Telecommuting is also controversial and challenging in that it is only fit for jobs that do not require face-to-face interaction.

In addition, telecommuting requires individuals who are not only efficient but most importantly trustworthy. This is in consideration that the employee experiences greater freedom with less direct supervision. Other than experiencing difficulty in supervising telecommuting workers, it is also observable that projects assigned to telecommuting workers are not easily monitored especially on a daily basis (Puleo, 2009). The virtual office therefore becomes problematic to the employers despite perhaps being good for employees.

The employed is constantly reminded to keep a good record of the time the employee has worked in addition to properly classifying employees as either exempt or non-exempt failure to which a loophole for legal challenges is opened. Possible solutions To avoid legal issues related to most forms of FWS, an organization is advised to follow several guidelines in addition to understanding the various labor laws touching on flexible work schedules. For instance, an employer is advised to come up with a policy that outlines the standards and expectations in the flexible work program.

In this policy, the employer should state the type of employees who are eligible for flexible work schedules. It is in this section that workers who have to be in face-to-face interaction with customers or fellow employees get excluded from the program. The measures of eligibility also ought to be candidly outlined in order to avoid discrimination charges from some employees. Even the process of making the decision on whether an employee qualifies for FWS should be clearly stated as a means of ensuring transparency in the organization (Beierlein & Van Horn, 1995).

By having the employees well versed about the eligibility criteria and other requirements in the schedule, chances of conflicts between the employer and the employee are greatly reduced. The employer is highly advised to make sure that the FWS does not alter terms and conditions stipulated in the employment agreement. For instance, it is the responsibility of non-exempt workers to maintain accurate documents of hours worked in addition to being responsible of maintaining company privacy more so to telecommuters.

On another note, the employer is advised to ensure that evaluation and monitoring of flextime workers is in tandem with that of other employees (Schaefer, 2005). Failure to follow the same monitoring and evaluation criteria to all employees indicates discrimination and may lead to legal challenges. Since it has been observed that most legal issues arise due to failure to follow the FSLA requirements that all non-exempt workers be paid for overtime hours (with accurate hours being recorded), it is advisable to have a reporting mechanism.

With a good reporting system, it is possible for employees to accurately record the number of hours worked whereas the employer can easily track the hours work with a lot of accuracy. Such as system is viewed as invaluable for flextime and telecommuting workers since workers in these schedules usually experience challenges of misclassification and inaccurate recording of working hours. In conclusion, it is appreciable that flexible work schedules have become popular in most organizations due to their broad benefits.

Flextime schedules have the capacity to enhance employee morale and increase flexibility. The employee is also able to retain valuable employees by allowing the employees to operate on flexible work schedules. Despite the numerous benefits to be amassed through adopting flextime schedules, the non-traditional working programs have come with enough challenges some of which are of legal concern. Employers are faced with the challenge of identifying which employees and positions are eligible for flexible work schedules and the challenge of following various laws addressing flexible work schedules.

Court cases abound due to misclassifying exempt and non-exempt employees thus violating the FLSA. In other cases, the ADA is violated in case disabled employees are not provided with appropriate accommodations or when such are offered but the employees fail to accept. Telecommuting employees can enter into legal challenges with employees citing discrimination in terms of provision of office infrastructure while other cases involve work-related injuries. To confront the above challenges, employers are called upon to come up with policies outlining eligibility for flexible work schedules.

Employers are also advised to maintain good communication with the employees in order to come up with widely accepted policies. It is also the responsibility of both the employer and the employee to understand laws such as FLSA and ADA in order to minimize legal issues. With clear understanding and strict adherence to laws and policies governing flexible work programs, employers and employees stand to reap all the benefits of flextime. References Beierlein, J. G. and Van Horn, J. E. (1995). Alternative work schedules. Retrieved 10, July 2010 from http://www.

nncc. org/EO/emp. alt. work. sched. html Bliss, W. and Thornton, G. R. (2009). Managing flexible work arrangements. Society for Human Resource Management. Retrieved 10, July 2010 from http://www. shrm. org/Research/Articles/Articles/Pages/ManagingFlexibleWorkArrangements. aspx Department of Homeland Security. (2007). Alternative work schedules. Retrieved 10, July 2010 from http://www. dhs. gov/xlibrary/assets/foia/mgmt_directive_254-04_alternative_work_schedules. pdf Erickson, R. (2010). Telecommuting and flexible work arrangements: Do them right.

Retrieved 12, July 2010 from http://www. blueavocado. org/content/telecommuting-and-flexible-work-arrangements-do-them-right Grantham, C. and Ware, J. (2009). Flexible work arrangements for nonexempt employees. WorldatWork Research. Accessed 10, July 2010 from http://www. worldatwork. org/waw/adimLink? id=33622 HR Specialist. (2000). Plan for legal consequences of flextime, job sharing. Retrieved 10 July 2010 from http://www. thehrspecialist. com/1944/Plan_for_legal_consequences_of_flextime_job_sharing. hr? cat=employment_law&sub_cat=employment_contracts

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