Flexible working arrangement

Our colleague  at Epstein Becker Green has a post on the Health Employment and Labor blog that will be of interest to our readers in the retail industry: “New York City Council Passes Bills Establishing Procedures on Flexible Work Schedules and Reasonable Accommodation Requests.”

Following is an excerpt:

The New York City Council recently passed two bills affecting New York City employers and their employees. The first bill, Int. No. 1399, passed by the Council on December 6, 2017, amends Chapter 12 of title 20 of the City’s administrative code (colloquially known as the “Fair Workweek Law”) to include a new subchapter 6 to protect employees who seek temporary changes to work schedules for personal events.  Int. No. 1399 entitles New York City employees to request temporary schedule changes twice per calendar year, without retaliation, in certain situations, e.g., caregiver emergency, attendance at a legal proceeding involving subsistence benefits, or safe or sick time under the New York City administrative code.  The bill establishes procedures for employees to request temporary work schedule changes and employer responses.  Exempt from the bill are employees: (i) who are covered by a collective bargaining agreement; (ii) who have been employed for fewer than 120 days; (iii) who work less than 80 hours in the city in a calendar year; and (iv) who work in the theater, film, or television industries. …

Read the full post here.

On November 2, 2017, three Republican Representatives, Mimi Walters (R-CA), Elise Stefanik (R-NY), and Cathy McMorris Rodgers (R-WA), introduced a federal paid leave bill that would give employers the option of providing their employees a minimum number of paid leave hours per year and instituting a flexible workplace arrangement. The bill would amend the Employee Retirement Income Security Act (“ERISA”) and use the statute’s existing pre-emption mechanism to offer employers a safe harbor from the hodgepodge of state and local paid sick leave laws. Currently eight states and more than 30 local jurisdictions have passed paid sick leave laws.

The minimum amount of paid leave employers would be required to provide depends on the employer’s size and employee’s tenure. The bill does not address whether an employer’s size is determined by its entire workforce or the number of employees in a given location.

Number of Employees Amount Of Sick Leave For Employees With Five Or More Years Of Service Amount Of Sick Leave For Employees With Fewer Than Five Years Of Service
1,000 or more

 

20 days 16 days
250 to 999

 

18 days 14 days
50 to 249

 

15 days 13 days
Fewer than 50

 

14 days 12 days

In addition to paid leave hours, employers would be required to offer at least one of the following flexible workplace arrangements: (1) a compressed work schedule that allows employees to increase their daily hours so as to qualify for a four-day workweek, (2) a biweekly work program that permits employees to work a total of 80 hours over a two-week period, (3) a telecommuting program, (4) a job-sharing program, (5) flexible scheduling, or (6) a predictable schedule. Employees would become eligible to participate in a flexible workplace arrangement once they have worked for the employer for 12 months and at least 1,000 hours.

The bill would not affect state paid family leave insurance programs, such as one about to take effect in New York, nor would it affect job-protection coverage afforded by the Family and Medical Leave Act. If signed into law, the bill would become the first ever federal paid leave law.

By: Andrew J. Sommer

San Francisco has just become the first municipality in the country to pass a law providing working parents and caregivers the “right to request” flexible or predictable work schedules. The law, which will take effect on January 1, 2014, applies to employers with 20 or more employees within the City of San Francisco. Known as the Family Friendly Workplace Ordinance, the new law allows San Francisco-based employees, after completing six months of employment, to request a flexible or predictable working arrangement so that they can assist with caregiving responsibilities for (1) a child; (2) a parent age 65 or older; or (3) a spouse, domestic partner, parent, child, sibling, grandparent or grandchild with a serious health condition.

Any employee requesting this flexible working arrangement must do so in writing, and specify the arrangement applied for, the date on which the arrangement becomes effective, the duration of the arrangement and how the request is related to caregiving. Under the ordinance, the flexible arrangement may include modified work schedules, change in start and end times, working from home and telecommuting.

The employer must meet with the employee within 21 days of receiving the request, and then respond in writing 21 days thereafter. The employer may deny the request for a “bona fide business reason” such as identifiable costs, inability to meet customer demands and insufficiency of work. Any denial must set out a bona fide business reason and notify the employee of the right to request reconsideration.

Employers are prohibited from retaliating against any employee for requesting a flexible or predictable working schedule. The San Francisco Office of Labor Standards Enforcement is supposed to publish a notice of rights under this ordinance, which qualifying employers will be required to post in the workplace. The San Francisco Office of Labor Standards Enforcement is also charged with investigating any complaints for violation of this ordinance and may initiate civil action against employers to secure compliance. While the agency may review adherence with procedural and posting requirements, it is not authorized to issue findings regarding the validity of the employer’s bona fide business reason for denying an employee’s request for a flexible or predictable working arrangement.

Companies with employees in San Francisco should become familiar with the procedural requirements of this ordinance and update their personnel policies and procedures accordingly.