Flexible Work Arrangements: Legal Risks and Solutions

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31st Annual Employment Law Seminar
M A R R I O T T C I T Y C E N T E R H O T E L | S A LT L A K E C I T Y, U TA H
PA R S O...

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Types of Flexible Working Arrangements
• Flex Time: Flexible starting and ending times for the workday. Most shifts with...

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Why Offer Flexible Working Arrangements
• Sustainability/green policies (reduce driving)
• Increased productivity (data ...

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Why Offer Flexible Working Arrangements
• Improved balance of work and family life
• Recruitment and retention especiall...

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Why Not Offer Flexible Working Arrangements
• Too quiet (no one at work and no one at home)
• Company culture—spending t...

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Prevalence
• A study of Work-Life Balance And The Economics Of
Workplace Flexibility released by the Council of Economic...

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Prevalence
• 2013 Pricewaterhouse Coopers Study
◦ 64% of Millennials would like to work from home at least
occasionally
...

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Types of Flexible Working Arrangements
• Flex Location/Telecommuting
◦ It’s ideal for employers who want the best talent...

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Telecommuting Legal Issues: Wage and Hour
• FLSA applies to all employees regardless of where they work
• For non-exempt...

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• Telecommuting arrangements generally do not create
compliance issues for exempt employees because,
assuming they are ...

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Telecommuting Legal Issues: Wage and Hour
• The FLSA does not define the term “work”
• The DOL regulations address whet...

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Telecommuting Legal Issues: Wage and Hour
• General rule: it is the employer’s obligation to manage its
employees to en...

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Telecommuting Legal Issues: Wage and Hour
• Measures that help control off the clock work:
◦ Having a policy prohibitin...

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Telecommuting Legal Issues: Travel Time
• Travel time
◦ Walking to your home office is not compensable—ordinary
commute...

15
Telecommuting Legal Issues: Safety
• OSHA requires employers to provide a safe work place, free
from hazards that could...

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Telecommuting Legal Issues: Safety
• Safety/Workers Compensation
◦ Employer must take reasonable steps to ensure safe h...

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Telecommuting Legal Issues: Safety
• From a worker’s compensation point of view, employers remain liable for
workers’ i...

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Telecommuting Legal Issues: Posters
• State and federal laws require employers to post certain notices for
employees in...

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Telecommuting Legal Issues: Confidentiality
• Confidentiality when employee works at home or remotely
◦ BYOD (Bring you...

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Telecommuting Legal Issues: Confidentiality
• BYOD Policy
◦ What devices are permitted for work use
◦ What support will...

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Telecommuting Legal Issues: Confidentiality
• Some jobs have extra concerns
◦ HIPAA documents
◦ Financial information
◦...

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Telecommuting Legal Issues: Multiple states
• Working in multiple states
◦ Tax issues
◦ Things can get tricky when, say...

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Telecommuting Legal Issues: Multiple states
• In general, employees are covered by the labor laws of the
state in which...

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Telecommuting Legal Issues: Home Office Expenses
• Tax laws regarding home office deductions for the employee
are compl...

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Telecommuting Legal Issues: Insurance
• Prior to implementing a telecommuting program, the employer
should review its e...

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Telecommuting Legal Issues: Terminating a Telecommuter
• “Security will escort you out”
◦ It is one thing to change a p...

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Telecommuting Legal Issues: Agreement
• One way to address the many issues with telecommuting is to have a
telecommutin...

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Telecommuting Legal Issues: Agreement
• Telecommuting agreement (cont.)
◦ Privacy policies, access to computers, and mo...

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Telecommuting Legal Issues: Agreement
• Telecommuting agreement (cont.)
◦ Employer is not liable for injuries to the te...

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Telecommuting Legal Issues: Agreement
• Telecommuting agreement (cont.)
◦ The telecommuting arrangement (as well as the...

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Telecommuting Legal Issues: Agreement
• Telecommuting agreement (cont.)
◦ A specific agreement by the employee to be su...

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Types of Flexible Working Arrangements
• Flextime
◦ Some employers don’t care when employees come in or leave the
offic...

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Flextime Legal Issues: Wage and Hour
• Tracking time for non-exempt employees
◦ Non-exempt employees must receive overt...

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Flextime Legal Issues: Wage and Hour
• Off the clock work
◦ Unrecorded time can get the employer in big trouble
◦ Accur...

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Flextime Legal Solutions: Wage and Hour
• Tracking time for non-exempt employees
◦ Non-exempt employees must track time...

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Compressed Hours Legal Issues
• Compressed hours
◦ Watch for overtime in states like California—over 8 hours in one
day...

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Types of Flexible Working Arrangements
• Part-time
◦ This is ideal for employees who can’t work a full 40 hours
 Could...

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Part-Time Legal Issues
• What is part time?
◦ Bureau of Labor Statistics—between one and 34 hours per week
◦ FLSA—no de...

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Part-Time Legal Issues: Benefits
• Part-time Benefits
◦ Part-time employees who work 1,000 hours or more during a
calen...

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Part-Time Legal Issues: Moonlighting
• Part-time employees are more likely to have a second job
◦ Could work for a comp...

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Types of Flexible Working Arrangements
• Results or Output Arrangements
• Results Only Work Environment (ROWE)
◦ The RO...

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Results Legal Issues
• Results or Output Arrangements
◦ Does not work for non-exempt employees who must be paid at
leas...

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Legal Issues: Discrimination
• With all of the flexible arrangements, certain employees
may claim that they were discri...

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Legal Issues: Discrimination
• Lack of consistency
◦ Leads to discrimination claims
• Solution
◦ Written policy
◦ Legit...

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Scenarios
• Velez v. Novartis Pharmaceuticals, S.D. N.Y. 2010)—
class action alleging gender discrimination and pregnan...

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Legal Issues: ADA
• Reasonable accommodate under ADA
◦ A physical or mental impairment that substantially limits one or...

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Legal Issues: ADA
• The ADA requires reasonable accommodation of disabled employees
◦ Working from home may be such a r...

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Legal Issues: ADA
• EEOC guidance
◦ Employers aren’t required to have a telecommuting policy but
 If they have one, th...

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Legal Issues: ADA
• Is physical attendance an essential function of the job?
◦ Written job description
◦ Amount of time...

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Legal Issues: ADA
• Consideration
◦ Some jobs cannot be performed off site—food servers, cashiers,
truck drivers
◦ Does...

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Legal Issues: ADA
• Pauling v. Gates (E.D. Va. May 6, 2011) – work at home
was not reasonable where the employer requir...

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Legal Issues: ADA
• Woodruff v. Peters (D.C. Cir. 2007) – held that working at
home could be a possible accommodation f...

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Legal Issues: ADA
• EEOC v. Ford Motor Company
◦ District Court (E.D. MI): granted summary judgment to Ford on
failure ...

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Legal Issues: ADA
• EEOC v. Ford Motor Company
◦ Employee was a retail steel buyer who suffered from severe IBS
◦ Her J...

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Legal Issues: ADA
• EEOC v. Ford Motor Company
• First supervisor adjusted schedule:
◦ Allowed two trial opportunities ...

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Legal Issues: ADA
• EEOC v. Ford Motor Company
• Employee had excessive absence and tardiness
• Absenteeism harmed coll...

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Legal Issues: ADA
• EEOC v. Ford Motor Company
• Employee asked to telecommute up to 4 days/week in 2009:
◦ Doctor said...

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Legal Issues: ADA
• EEOC v. Ford Motor Company
• Ford denied request because:
◦ Job required “regular interactions” wit...

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Legal Issues: ADA
• EEOC v. Ford Motor Company
• Ford identified circumstances where telecommuting could
work: (1) Pred...

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Legal Issues: ADA
• EEOC v. Ford Motor Company
• Well-established general rule that regular attendance at
site is essen...

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Legal Issues: ADA
• EEOC v. Ford Motor Company
• EEOC’s own regulations support general rule, despite
EEOC’s position i...

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Legal Issues: ADA
• EEOC v. Ford Motor Company
• Why did Ford win?
◦ Patience—actions spanned multiple years
◦ Thoughtf...

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Legal Issues: ADA
• Doak v. Johnson, 798 F.3d 1096 (D.C. Cir. 8/18/2015) –
Employer denied Employee’s request to work a...

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Legal Issues: ADA
• Fischer v. Pepper Hamilton LLP, (E.D.Pa. 2016) –
Employer terminated Employee for irregular attenda...

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Legal Issues: ADA
• 5 questions to ask when considering telecommuting as an
accommodation:
1. What are essential functi...

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Legal Issues
• Plan a strategy
◦ Which departments can successfully allow flexible work
◦ Which employees can successfu...

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Thank You
• Christina M. Jepson
801.536.6820
cjepson@parsonsbehle.com

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