Benefits and Compensation

Flex Arrangements—Outmoded Laws Are a Chokehold

Fortney is a co-founder of law firm Fortney & Scott, LLC in Washington, DC, and is editor of the Federal Employment Law Insider. He made his remarks about FWAs at SHRM’s Employment Law and Legislative Conference, held recently in the nation’s capitol.

What Are Flexible Workplace Arrangements?

First, says Fortney, here are the typical alternatives to traditional schedules and workplaces that comprise “flexible work arrangements” (FWA):

  • Flexible schedules
  • Compressed workweeks
  • Job sharing
  • Part-time work
  • Telecommuting

Why Are FWAs Important?

FWAs are particularly attractive because they serve three interests, says Fortney:

Employees’ interests

  • More flexibility with regard to family responsibilities
  • Less commuting time and costs

Employers’ interests

  • Increased productivity
  • Workforce retention
  • Continuation of operations during bad weather, natural disasters, etc.

Societal interests

  • Less traffic congestion
  • Reduced fuel consumption

What’s Driving the Flex Trend?

What’s driving the trend toward more flexible work environments? Workforce demographics are different in 21st century, says Fortney. Consider the following:

  • Women comprise nearly one-half of the labor force
  • In nearly one-half of households all adults are working
  • Dual-earner couples are the norm
  • There are more single-parent families
  • Many of the people in the workforce are caregivers for older people
  • More people with disabilities are working and are able to work because of FWA
  • Technology makes a lot possible that wasn’t possible just a few years ago

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Laws Are FWA’s Biggest Chokehold

Unfortunately, our laws were not designed with FWA in mind, says Fortney. They were designed for people who worked regularly scheduled hours at a particular place of work. The main laws that impact FWAs are:

Fair Labor Standards Act. The federal Fair Labor Standards Act’s rules can interfere with some attempts to arrange flex hours. For example:

  • For nonexempt employees, overtime required when working more than 40 hours in a workweek.
  • Off-the-clock issues (use of laptops, mobile phones).
  • Tasks like uploading data at the end of a day’s work or downloading the list of clients to visit can create issues—do they represent paid time?

One client, Fortney says, requires employees to turn in PDAs when leaving work, to be sure that no one uses them to do any work off hours.

National Labor Relations Act. The Act may impose a duty to bargain over FWAs.

Occupational Safety and Health Act.  OSHA wanted to control home offices, Fortney says, but they had to back off of that. Nevertheless, you have workers working in places you can’t supervise. Some employers do distribute specific rules for home offices, Fortney notes.

Family and Medical Leave Act. The FMLA may come into play, and the Americans with Disabilities Act/ADAAA could bring up questions about flex accommodations required.

State and local laws. Finally, state and local laws must be considered. For example, California has a daily overtime requirement makes difficulties for some flex programs.

Fixes to these mismatches between old laws and new workplace realities are not likely in the short term, says Fortney.

A Sampling of Research and Reports

One helpful thing is that there are lots of good resources out there, Fortney says. He recommends two reports in particular:


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Alfred P. Sloan Foundation’s National Initiative on Workplace Flexibility. This is lengthy report from the National Advisory Commission on Workplace Flexibility was issued May 2009. It identifies obstacles to FWAs and recommendations for removing those obstacles. You’ll have to tailor its information to your organization, Fortney says.

President’s Council of Economic Advisors Report on “Work-Life Balance and the Economics of Workplace Flexibility. Issued in March 2010, this is a thoughtful report on middle class issues, says Fortney, and a good resource if you need ammo to support your FWA initiatives. The report:

  • Analyzed current workforce demographics.
  • Examined current state of FWAs and employers’ adaptation to changing realities.
  • Discussed the economic benefits of FWAs.
    • Lower absenteeism and turnover
    • Increased productivity

In tomorrow’s Advisor, more on FWAs plus an introduction to a special program created just for smaller or even one-person HR departments.