The Legal Landmines of Flexible Working Arrangements The Legal Landmines of Flexible Working Arrangements Imagine that you are called to the human resources office and handed a complaint filed by an employee you manage. The complaint states that you promoted another employee and discriminated against the complainant who has a disability. How can you be accused of discrimination when you chose the best employee for the job? You picked a person you see everyday on company premises, instead of the complaining party who is a telecommuter and out of the loop. You have just hit a legal landmine. Many people who choose a flexible work arrangement are also protected under specific employment laws, such as protections for gender, age or disability. With flexibility options ranging from telecommuting to flextime, a compressed workweek to job sharing, additional legal and management considerations arise. Avoid the problems that can put you in legal hot water by thinking through the following considerations. Have an agreement with each employee detailing the arrangement. Nothing communicates expectations better than a written agreement that discusses the obligations of both the employer and the employee. Have a discussion about the items in the agreement, answer any questions and then have the employee commit to the plan by signing it. Be careful to clarify that the agreement is for the flexible work arrangement only. Clearly state that the employee is still subject to the rules and policies of the organization and can still be terminated under those rules. In those states with “at-will” employment, avoid changing an employee’s status by stating that the employee is not under an employment contract, is still employed at-will and can be terminated for any reason. Define what behavior is not permitted. For example, spell out that telecommuting is not a substitute for appropriate child or dependent care. Inform those employees working a compressed week that they are expected to work all hours scheduled and be productive the entire time even though their day is longer. If you have to discipline an employee later or a question arises about the fairness of your treatment, you have a written document that supports the agreement and can help to justify your actions. Define working hours. If you are going to hold employees accountable for attendance and availability, don’t try to verbalize your practices later to a governmental agency. Spell out what you expect in writing. If you require an employee’s presence or availability during a particular part of the day, make sure to define that time. For example, an employer with a flexible work schedule might allow employees to work any eight-hour block during the day as long as all employees are available during the “core” hours of 10:30 a.m. to 3:30 p.m. Unexpected overtime payments are a potential problem posed by employees with less supervision. Under wage and hour laws, employers probably are responsible for payment of overtime even if it was not approved. However, if your company states that no worker can acquire overtime without prior permission, you can discipline an employee for violating company rules. Have objective reasons for your management decisions. Review all employees on results, not personal relationships. Also, give reasons why an employee’s request for flexibility is turned down instead of later being accused of unfairness. For example, not all jobs are appropriate for flexible schedules or telecommuting. Not everyone is working at a level that allows a job with less supervision. A new employee needs to learn the job first. An employee who has received reprimands for failure to turn in work on time or has used company time for personal business would have to correct that behavior before a request for an offsite position would be granted. Discuss security and insurance issues. Information and intellectual property are many companies’ most valuable assets. Therefore, clear guidelines must be established such as how confidential information, passwords, company equipment and files will be secured. Establish what insurance the company will maintain on company property and whether an employee’s personal property will be covered. Discuss what to do when injuries occur. Usually, worker’s compensation or the company’s insurance policy covers employees’ injuries while performing work related functions. Many companies’ telecommuter policies place liability on the employees if their visitors are injured at their home offices. Some companies require pictures of a home office or even a visit by a company representative to insure personal safety before a telecommuter may begin working outside the company office. Other organizations require employees attend a computer or equipment course to learn how to avoid on-the-job hazards. Some things to consider Scrutinized programs and practices to ensure there are no illegal discrimination or unfair labor practices. Don’t forget to include all the key people in your decision making. You must have the commitment from the top, as well as managers, co-workers and any union representatives to make a flexible workplace work. Review the relationship periodically, for example every 90 days, to ensure both the employee’s and the organization’s needs are served. Author’s note: This article should not be construed as legal advice or as pertaining to specific factual situations. Attorney-mediator Linda Byars Swindling is co-author of The Consultant’s Legal Guide and creator of Peacemaker Productions. Linda’s training series includes Dealing with Difficult People, Negotiations for Decision Makers, Sexual Harassment, Peacemaking in the Workplace and Keeping Key People. Contact Linda at www.lindaswindling.com or 877-800-5023. Additional information for editor: Some sites to visit regarding flexible work arrangements: www.about.com & www.shrm.org Return