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Paving a Way to Greater Flexibility

San Francisco became the first municipality in the country to pass an ordinance that gives employees working in the city the right to request changes in their working arrangements in order to meet their caregiving responsibilities. Some experts predict other cities and states could soon follow with similar regulations.

Tuesday, November 19, 2013
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At the national level, proposed federal legislation aimed at giving employees the right to request flexible-work arrangements has gone nowhere. But that hasn't deterred Vermont and, most recently, San Francisco from enacting similar bills at the state and municipal levels.

On Oct. 9, San Francisco became the first municipality to pass an ordinance that gives employees working in the city the right to request changes in their working arrangements in order to meet their caregiving responsibilities. The legislation also employment discrimination based on a person's status as a caregiver or parent.

Coming on the heels of a similar bill enacted in Vermont this past May, some experts predict other cities and states could soon follow Vermont and San Francisco's lead.

"It will be very interesting to see how San Francisco's ordinance is received by employers and employees and enforced by the city," says Jack Swetland, government affairs manager in the Washington office of WorldatWork. "Other cities are likely to use San Francisco's ordinance as a template once they have seen how it is implemented."

Swetland predicts there will likely be an overlap between cities and states that have pursued paid sick days - "so the prime candidates for a right to request mandate similar to the one in San Francisco would be New York City, Portland, Seattle and Washington, D.C."  

In July, Reps. Carolyn Maloney (D-N.Y.) and Sen. Bob Casey (D-Pa.) reintroduced federal legislation titled the Flexibility for Working Families Act, which would give employees the right to request a change in terms and conditions of work. But most experts don't foresee such a bill advancing in Congress anytime soon, given Congress' track record on this issue and other priorities in the nation's capital.

Swetland points out that federal bills aimed at establishing a right to request flexibility -- patterned after laws in such countries as the United Kingdom and New Zealand -- have failed to make it out of committee, even in the Democratic-controlled Senate.

In proposing the San Francisco ordinance, Board of Supervisors President David Chiu declared that San Francisco needed to do more to accommodate the dramatic changes taking place in the workplace. "The proposal will make it less likely that San Franciscans will be in the difficult situation of having to choose between their jobs and the well-being of their children and loved ones," he said.

Under the law -- which passed by an 11-0 vote and goes into effect on Jan. 1, 2014 -- an employee would have to submit his or her request in writing. The employer would then be required to consider the request and schedule a face-to-face meeting with the employee within 21 days of its receipt. If the employer believes the change would create undue hardship on its business, it would need to spell out in a written response why the request was denied.

Reasons for denying the request could include an increase in business costs, a negative impact on the ability to meet customer demands and an inability to organize work among remaining employees.

"The goal of the [San Francisco] legislation is to change the gestalt of [workplace] culture," says Jodie Levin-Epstein, deputy director for the Center for Law and Social Policy in Washington. "We have employers with great policies on paper, but not much happening beyond that. That can be frustrating to employees."

Levin-Epstein believes that employers, by having this conversation, would benefit from having more engaged and productive employees.

It's not clear to everyone, however, whether an ordinance such as San Francisco's is necessary, since some employers already have in place mechanisms for addressing this issue.

True, an ordinance such as San Francisco's would inevitably lead to more dialogue on this subject. But as Swetland points out, "it may be unnecessary and potentially burdensome for [those] employers who already offer flexibility options that work for their unique businesses."

That said, most experts agree more dialogue on this issue would be a good thing.

"Everyone knows it can be hard to have the conversation about flexibility, both from the employer and the employee side," says Ellen Galinsky, president and co-founder of the Families and Work Institute in New York. "Employees believe having this conversation could put their jobs in jeopardy ... and employers worry that there won't be people around to cover things - that it puts one more rock in the knapsack as far as doing more work with fewer people."

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Whether it's through legislation or voluntary employer action, Galinsky says, these kinds of conversations need to happen more in the workplace. She also believes they need to be framed in a way that makes it work for both employers and employees.

To the detriment of both parties, Galinsky says, employees and employers alike too often take a "we-they" stance.

Shani Magosky, CEO of Vitesse Consulting in Fort Lauderdale, Fla., agrees the success of any flexible-work arrangement hinges on whether it's mutually beneficial for both the employee and the employer.

In seeking a different arrangement, Magosky says, it's important that the employee is "thoughtful and proactive about presenting the case when making the request -- first and foremost, to confirm there is one! - and to ensure it has a great chance of being efficacious for his or her colleagues, customers, managers and other relevant constituencies.

"Smart, forward-thinking companies will get ahead of this legislation because it just makes good business sense," she adds.

If employers decide to deny the request, experts stress that they clearly spell out their reasons.

"If an employer says it has a good business reason to turn it down but doesn't articulate that reason, there's a good chance some sort of claim could result," explains Margaret Hart Edwards, a shareholder with Littler Mendelsohn in San Francisco. "There needs to be a bona-fide business reason."

Hart Edwards also advises employers to make sure their managers are well-trained to handle these requests.

"If they don't train their managers [on this ordinance]," she explains, "they're going to have problems on their hands, because the ordinance specifically instructs the city to do an outreach program to educate employees [about their rights]."

None of the experts interviewed for this story were aware of other states or municipalities considering similar legislation at this time. But most predict others will likely be closely watching how the laws in San Francisco and Vermont play out.

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