Flexible Work Week

Question:
“Our organization has moved to a flexible work week for all employees. We want to remove references to all work schedules, schedule types, and organization hours in our handbook. Can you help with that?”

Our first step is to identify the goals and associated considerations without jumping to solutions.

Apparent goal(s):

1. Align the new flexible work week policy with handbook.

Associated Considerations:

1. The Fair Labor Standards Act (FLSA) – Overtime requires employees to accurately track their hours worked, including any overtime hours if applicable. Non-exempt employees must be compensated for all hours worked in accordance with FLSA guidelines. Is there an alternative place where employees are provided with notice of the workweek? (Workweek = Seven consecutive 24-hour periods that will be used to determine overtime pay.)
2. The Fair Labor Standards Act (FLSA) – Travel Time, work-related travel time that occurs during an employee’s regular working hours is generally considered compensable work time and must be paid accordingly. If all reference to work schedules is removed, how will this be determined?
3. The Family Medical Leave Act (FMLA), and many other state specific provisions, require each qualifying employer to provide a qualifying employee 12 weeks (or some other amount) of protected time for certain mental or physical conditions as well as those of certain family members. To determine what 12 weeks means for each qualifying employee you would typically multiply the employee’s regular weekly work hours by the number of weeks in the 12-week period. For example, if the employee’s regular work schedule is 40 hours per week, and the 12-week period consists of 12 consecutive weeks, you would calculate: 40 hours/week * 12 weeks = 480 hours. This is particularly important when an employee qualifies for intermittent leave. How will the regular weekly hours be identified and where will employees be notified of this process?
4. Paid Time Off (PTO) or other discretionary paid time provisions (holiday pay, sick time in addition to that which is protected, vacation time, or compensatory time) are typically based on accrual on hours worked and/or seniority or are front loaded based on forecasted hours or full time equivalent (FTE). These offerings also have provisions for when these must be used and the impact on pay and benefits. Where will these requirements be made known?
5. The Affordable Care Act and benefit offering to full-time employees (someone who works, on average, at least 30 hours per week or 130 hours per month). Most health insurance benefit offerings have a “hours worked” or “days in employment” requirement which starts the process of offering insurance to an employee. If there are no defined work schedules and your current policies are based on hours worked, amendments may be needed in your health benefits contract and appropriate notice will need to be provided to your employees.
6. Other considerations may be found in areas such as Performance Evaluations, Bonuses, Workload Distribution, and Compliance Reporting.

The Answer:
Yes, we can help with the alignment of your new policy to existing policies and processes. However, this is not an editing exercise. This is an exploration of how the goal(s) impact other legal requirements and important aspects of the existing employment relationship. Followed by clear communication with managers and employees about the changes that will be made in support of the goal.