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Workplace Diversity Legal Advice: 5 Challenges of Work/Life Programs

May 22, 2012
Written by Featured Partner

Workplace diversity includes work/life balance, but can offering employees flexibility and other benefits get you in trouble? What are the pitfalls you need to avoid?

Many employers are providing their workforces an environment that allows employees to better balance the competing demands of careers and personal lives.

This is particularly important to Generation X and millennials, many of whom prefer greater control over their personal time. As an alternative to the Monday-to-Friday 9-to-5 schedule, these “work/life programs” have become increasingly popular. Examples of work/life program components include:

Flexible work arrangements such as flex-time (e.g., flexible hours, compressed work week)
Part-time schedules
Telecommuting
Discretionary or floating leave (e.g., paternity leave, educational leave, community-service leave)
Job-sharing
Shift-swapping

Although the program is usually created at the headquarters level, programs must also be implemented locally, at field facilities or offices. The typical process requires an employee to approach her/his manager with a specific request for flexible or alternative work arrangements.

The manager then must decide whether the request is consistent with the parameters of the company’s program and the needs of the business unit, since approval is not guaranteed. Often, human resources is involved in the decision-making, or review, process.

There are many positive reasons why employers initiate work/life programs. These include:

Increasing productivity
Retaining staff and decreasing turnover
Expanding the talent pool, attracting and recruiting new employees
Enhancing diverse recruitment and retention

Check out the “Work-Life Balance and the Economics of Workplace Flexibility” report from the Executive Office of the President, Council of Economic Advisors.

Properly designed and consistently implemented work/life programs can provide employers a competitive edge in attracting and retaining a diverse, highly productive workforce.

Unfortunately, if improperly designed and inartfully or inconsistently implemented, these programs can backfire. They then may be an unintended source of depressed morale and possible legal exposure for the employer.

To begin, there is nothing (per se) unlawful or illegal about a work/life program. Indeed, the U.S. Equal Employment Opportunity Commission (EEOC) encourages employers to offer such benefits to their employees. Potential legal problems arise in the implementation of these programs. Similar to many other new workplace initiatives, these programs:

Depend on local and individualized processing, deliberation and management
Grant substantial discretion to field managers and human-resources representatives
May implicate federal employment laws and state law.

Employers should identify potential problems in the design and implementation of work/life programs and take steps to minimize risks from the beginning. Some companies experiment with a pilot program. This allows them to further study program implementation before deciding whether to continue with it or make it available company-wide.

We describe below several instances where work/life programs may implicate certain federal (and state) employment laws, and we offer suggestions for minimizing potential legal complications and maximizing the benefits to the employer’s business and workplace.

Title VII of the Civil Rights Act of 1964: Preventing Discrimination

While the EEOC has strongly encouraged work/life programs, particularly in the caregiving context (e.g., for children, elderly parents, etc.), such programs present another potential source of discrimination allegations. Title VII of the Civil Rights Act of 1964 requires equal treatment and nondiscrimination with respect to the terms and conditions of employmentsuch as compensation, benefits and application of company policiesfor covered employers regardless of race, color, religion, sex or national origin (“protected classes”).

Most work/life programs empower local managers and/or human-resources representatives to determine whether employee requests for flexible schedules, for example, are consistent with the needs of the business and should be granted. Local discretion creates an opportunity for aggrieved employees to claim unlawful discrimination.

There is always a risk that such programs may be implemented in a manner that results in perceivedor actualdisparate treatment or disparate impact against one or more protected individuals. For example, if it appears that most flexible work arrangements have been granted to younger, or white, employees, the employer may be exposed to a discrimination claim.

Recommendations for Diminishing Discrimination Risks

Ensure that senior management exercises the same diligence, caution and oversight over the creation and implementation of work/life programs as it would with planning and launch of any other grant of managerial discretion over employment matters.

Establish and disseminate clear policies and procedures to assure that supervisors make nondiscriminatory decisions based on sound and demonstrable business reasons.
Document each decision with clearly articulated reasons. Decision making should be consistent and capable of serving as a potential precedent for future requests and decisions.
Rigorously and regularly train all managers/supervisors and related human-resources personnel on the EEO/nondiscrimination/non-retaliation requirements of implementing work/life programs, making sure they understand that the programs are a central part of company policy.
Ensure fairness in application of the rules by periodically reviewing the grants and denials for disparate treatment or adverse impact. Take appropriate remedial action based on the results of the analyses.

Family and Medical Leave Act

The federal Family and Medical Leave Act (FMLA) (and many state counterparts) requires covered employers to provide unpaid, job-protected leave to eligible employees for specified family or medical reasons. Since some employee requests for work/life flexibility, such as modified hours or compressed work week, might be prompted by medical or family concerns, employers should anticipate some overlap between flexible work arrangements and the FMLA.

Where an employee asks for a work/life arrangement because of caregiver issues and the manager does not know, or recognize, the implications of the FMLA, a legal issue could arise. Denial of such a request could inadvertently violate the act. Employers should incorporate safeguards to allow consideration of arrangements protected by the FMLA, where they are requested under the auspices of work/life programs.

Recommendations

Requests for work/life flexibility based clearly on FMLA causes, such as where the employee expressly says she needs mornings off to care for an elderly parent, should be processed as FMLA requests.

In addition, whenever a flexible work arrangement is denied under the work/life program in circumstances where the manager is unaware of the basis, employers should invite employees to request the same or similar arrangements under FMLA.

These issues can be both technical and problematic. Managers should recognize and utilize expert advice whenever appropriate to avoid confusion by employees and missteps by management.

Americans with Disabilities Act Concerns

The Americans with Disabilities Act (ADA, recently amended by the Americans with Disabilities Amendments Act) generally prohibits discrimination against applicants or employees with defined disabilities and requires employers to provide reasonable accommodations where requested, except where doing so would cause undue hardship to the employer.

Some work/life requests may be prompted by an employee’s medical or other covered disability. As with Title VII, employers need to be cautious that their actions do not result in disparate treatment or cause disparate impact for employees with disabilities as defined in the statute and regulations. Here, too, expert advice should be sought for challenging or complex scenarios.

Related Article: Embracing Disabilities in the Workplace

A cautionary note regarding the ADA reasonable-accommodation requirement: Employers should be aware that granting work/life requests will make it more difficult to argue in a separate but similar ADA situation that the requested accommodation under the ADA would cause an undue hardship; if management has already granted the same request to one employee, how could there be “undue hardship” to grant a similar ADA request to another.

Recommendations

If there is any reason to suspect that an employee is requesting a flexible work arrangement because of a personal medical or other covered condition, the employer should analyze that request as one for a reasonable accommodation under the ADA.
Alternatively, the employer should provide employees who have been denied flexible work arrangements under the work/life policy an opportunity to renew the request as one for reasonable accommodation under the ADA if their need is prompted by a legitimate physical or medical condition that the business can appropriately consider granting without undue hardship to the business.

Fair Labor Standards Act Wage-Hour Concerns

The federal Fair Labor Standards Act (FLSA), along with analogous state and local laws, generally governs the wages workers receive and the hours they work, including minimum wage, overtime pay and record-keeping requirements for covered employees and employers. Telecommuting, flex- and part-time schedules, shift-swapping and job-sharing can trigger FLSA concerns.

This is especially true where tracking hours becomes challenging, for example, with telecommuting or flex-time.

Compressed work weeks (e.g., four 10-hour days) may present overtime issues under state (but not federal) law, where working more than eight hours in a day (rather than 40 in a week) requires premium overtime compensation.

While the full range of FLSA and state-law issues implicated by work/lifebalance programs are complex and must be considered by legal counsel, the following recommendations address a few of these concerns.

Recommendations

Establish a process to maintain accurate time records for telecommuters, including strong policies requiring: employees to report all time spent on work-related duties and prohibiting “off-the-clock” work; daily reporting of hours worked; and supervisors to review time records frequently.
Establish a process for maintaining accurate time records for flex-time employees, such as: requiring “badging” (secure electronic entry/exit) at the start and end of shifts; maintaining badge-swipe data; and periodically comparing badge data to employee time records, among other measures.

Cultural/Managerial Resistance

Although not strictly a legal issue, employers implementing work/lifebalance programs often encounter resistance by managers accustomed to a 9-to-5 regimen. These managers may improperly deny meritorious requests for flexibility or evaluate an employee who has taken advantage of a work/lifebalance initiative more harshly than one who has not. In most companies, managers hold the keys to the program’s ultimate successor its failure. Their “buy-in” is critical if the benefits are to be achieved.

Recommendations

Initial training of managers should communicate the importance of this program to the ultimate success of the company. Effective administration of the program should be an element of supervisors’ performance evaluations.
Train managers to understand that employees should not be disadvantaged in performance reviews or career advancement because of participation in work/life programs.
Conduct routine “audits” of employee-performance reviews, compensation and other personnel actions to discern any negative treatment or trends, and institute remedial measures, if necessary.
Acknowledge and reward managers who demonstrate effective implementation and achievement of anticipated benefits of work/life balance in their business units, and share evolving “best practices” with other business units. Publicize such achievements.
Encourage employee involvement through satisfaction surveys, group meetings and exit interviews to gain important workforce input on work/life initiatives.

Conclusion

This article necessarily addresses only a few of the legal and practical considerations of work/life programs and provides recommendations to avoid legal claims and achieve the anticipated benefits. While work/life programs offer many advantages to employers and their employees, they also can raise thorny legal issues in areas where the law is constantly changing. Employers should work closely with their employment-law counsel to address and eliminate or reduce these concerns. This should take place prior to the introduction of the program and throughout its implementation. Employers may then proceed more confidently in winning their “war for talent.”

— Weldon Latham and John M. Bryson II, Jackson Lewis partners, contributed to this article.

Weldon H. Latham is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He is Leader of the Corporate Diversity Counseling Practice Group, Chair of the firm’s internal Diversity and Inclusion Committee, and a member of the firm’s Board of Directors. Mr. Latham is a former Adjunct Professor of Law at the Georgetown University Law Center and a Guest Professor at both the University of Virginia and Howard University Schools of Law.

John M. Bryson II is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He is Co-Chair of the firm’s Corporate Diversity Counseling practice group engaging in diversity assessments and counseling, preparing comprehensive action plans and related litigation issues. He is also a nuclear engineer by training.