Flex Legal Challenge from FlexPaths & Littler

TAKE THE FLEX LEGAL CHALLENGEDo you have a solid understanding of the legal ramifications of flexible work? Are you armedwith the right information to avoid putting your organization at risk?With legislation changing, you may be surprised to find that, right now, you’re not. A great wayto test your knowledge of the legal implications and challenges of flexible work is to take ourchallenge.We’ve put the questions and answers on separate pages to avoid giving away the answerimmediately and so that you can really think about the question as it pertains to yourorganization.Ready? Go!

Should you provide remote workerswith a telecommuting agreement?

YES. Employers should provide each worker who performs duties from a remote location witha telecommuting or remote worker agreement. A company’s telecommuting agreement, amongother things, should: incorporate the company’s privacy policies, including limitations on access;seek consent to company monitoring of and access to any computer or other electronic device(whether company-owned or personal); secure commitments to report immediately anyunauthorized access or loss of company equipment or data; require participation in any internalor external investigation concerning the equipment or data stored on the equipment; andrequire the return of all company equipment and data upon termination of employment. Inaddition, remote workers should be required to execute non-disclosure covenants either as partof their telecommuting agreement or in a separate non-disclosure agreement.

In discussing flexible work options, doyou only need to ask femaleapplicants and employees about theirchild care responsibilities?

NO. Flexible work should not be assigned or denied on the basis of a worker’s protectedclassification or family situation, but most typically problematic are race, gender, age, anddisability, in association with disability or caregiver status. The assignment or denial of flexiblework on the basis of any protected characteristics or caregiver status constitutes unlawfuldiscrimination under federal law. Some of the prohibited conduct related to workers’ election toparticipate in flexible-work programs include: asking female applicants and employees, but notmale applicants and employees, about their child care responsibilities; steering women, olderemployees, and employees with caregiving responsibilities to flexible work arrangements thatare lower paid or provide less opportunity for promotion; treating persons of color who havecaregiving responsibilities differently than other workers with caregiving responsibilities due togender, race, and/or national origin-based stereotypes; steering individuals with disabilities towork off-site, despite their ability to perform work on-site with a reasonable accommodation;providing accommodations, including flexible work opportunities, for temporary medicalconditions, but not for pregnancy.

Who should receive training regardingmaintaining and promoting yourcompany’s flexible work policies? HRor Managers?

BOTH. The attitudes of managers and other employees regarding employees who takeadvantage of flexible work opportunities can create as much exposure to liability as the policiesunder which flexible work is offered. In Velez v. Novartis Pharmaceuticals Corp., No. 04 Civ.9194v, (S.D.N.Y. May 19, 2010), a class action alleging gender discrimination, pregnancydiscrimination, and Family Rights Discrimination, a jury awarded over $3 million incompensatory damages to twelve female plaintiffs, and $250 million in punitive damages to theclass of 5600 current and former female employees of Novartis. Plaintiffs alleged that they hadbeen discriminated against on the basis of gender in promotions and pay, and subjected togender hostility and retaliation. In addition, they alleged discrimination based on pregnancyand motherhood, claiming that women were fired while on maternity leave and mocked bysupervisors if they were visibly pregnant. While the jury noted that Novartis had progressivewritten flex-time policies, the jury found that those policies were not followed in practice, andthose who used flex-time schedules suffered a “flexibility stigma” that resulted in lostpromotions and terminations.

Should you provide benefits to yourflexible workers?

IT DEPENDS. As a general rule, an employee’s status as a flexible worker should not impactsuch individual’s eligibility for participation in an employer’s employee benefit plan. Full-timeflexible employees should be entitled to the same benefit plans that the employer offers toemployees that are not participating in flexible work arrangements. One exception to thisgeneral rule, is with respect to part-time, seasonal and temporary workers. As a result, anemployer must decide whether it desires to provide certain employee benefits to its part-time,seasonal or temporary workers. In reaching a decision, the employer should review generalemployment discrimination laws to ensure that any potential exclusion will not have the effectof excluding a protected class. For example, if an employer’s part-time workers arepredominantly women who choose to work part-time so that they are able to spend more timetaking care of their families, the employer may face potential legal exposure for employmentdiscrimination if it excludes such part-time workers from certain of its employee benefit plans.As a result, and in an effort to minimize this potential legal exposure, an employer may wish toprovide proportional benefits to its part-time workers.

Should you pay your independentcontractors by the hour?

IT DEPENDS. A company should avoid using the same payroll practices for independentcontractors that it uses for its employees, such as paying contractors by the hour or on asalaried basis. In order to determine if a worker is correctly classified as an independentcontractor, one part of a test that courts and government agencies apply is to look at payroll--isthe contractor treated the same way as employees. Companies may wish to pay independentcontractors on a per-contract or by-the-job basis. It is important to note that how a worker ispaid, by itself, will not be determinative of correct contractor classification. There are a numberof tests (each with its own factors) that courts and government agencies use to determinewhether a worker is an independent contractor under state and federal law, and thatdetermination has many implications as to how a worker is paid, the benefits that worker isentitled to, and the federal and state tax withholdings an employer is obligated to pay.Independent contractor misclassification is a hot button issue, with plaintiffs’ attorneysprocuring large class action settlements and verdicts pertaining to misclassification.So, did you learn something new? Want to have access to a resource that will help to ensurelegal compliance as it relates to your flexible work practices and updates you every time there’sa change in legislation? We’ve got a solution for you.Contact:Kelly Gouteixkelly.gouteix@flexpaths.comBeth Starrbeth.starr@flexpaths.comFor more information via white paper, see “MITIGATE OR LITIGATE: Flexible Working and LegalExposure.”

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Flex Legal Challenge from FlexPaths & Littler

by FlexPaths on May 09, 2011

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Flex Legal Challenge from FlexPaths & Littler — Document Transcript