Legal Tips for Flexwork Policies

laptop on desk Associations Now January/February 2017 Issue By: Julia Judish

More and more employers are offering flexible work arrangements to attract and retain high-performing staff. Follow these tips to make sure your flexwork policies are fair, legally compliant, and well managed.

Telework and flexwork arrangements have gone mainstream. According to GlobalWorkplaceAnalytics.com’s analysis of survey data collected by the U.S. Census Bureau, the number of employees who work at home regularly has grown by 103 percent since 2005, with 3.7 million now working from home at least half the time. Employee demand explains some of this growth: One study reported in the Harvard Business Review found that employees who were allowed to telework were happier, less likely to quit, and more productive than those required to work at the office. Flexwork schedules, which allow employees to tailor their work schedules to their personal needs, are also popular.

Associations looking for ways to attract and retain good employees other than through hefty compensation packages should consider adopting telework and flexwork policies, keeping three practical tips in mind.

Grant privileges fairly but strategically. Telework or flexwork arrangements are a good fit for exempt positions in which employees work fairly independently, while producing work product or deliverables often enough for managers to monitor performance and productivity levels. Some nonexempt positions may also accommodate telework or flexwork, such as member relations call center jobs where work hours are centrally logged. Individual history also matters: Associations should limit approval of alternative work schedules to employees with a proven track record of reliable, high-quality performance.

Educate managers in performance management. Unless full-time onsite presence is fundamental to a position, managers should not equate face time in the office with good performance. Rather, they should identify performance and productivity metrics based on results achieved and the quality of work employees produce, and they should monitor the extent to which their employees meet those metrics. Communicating these expectations—and documenting when employees fall short of them—is fundamental to good performance management of all employees but is especially important for those in telework and flexwork arrangements.

Follow employment laws. Even without a general telework or flexwork policy, associations may be required to offer such arrangements as a reasonable accommodation under the Americans with Disabilities Act. Nonexempt employees who telework must record all hours worked, and associations must pay for any overtime worked in accordance with federal and state laws. Finally, employers should verify that teleworking employees have home office environments that comply with workplace safety rules and that meet any confidentiality requirements for the job.

[This article was originally published in the Associations Now print edition, titled "Work Outside the Box."]

Julia Judish

Julia Judish is special counsel in the Washington, DC office of Pillsbury Winthrop Shaw Pittman, LLP.