Expansion of Flexible Work Arrangements

A bill mandating employees’ rights to request certain changes to their terms or conditions of employment is likely to be reintroduced in the 111th Congress. The potential bad news for employers is that legislation promoting more work/life balance is apt to receive bipartisan support. The good news is that this bill – if it resembles the Working Families Flexibility Act introduced in 2007 (S. 2419, H.R. 4301) – does not pose as onerous a burden on employers as other employment legislation likely to be resurrected under the New Administration. However, if passed in its current form, the bill would radically alter employees’ rights and create additional burdens for employers, particularly small businesses with little or no human resources function.

The Working Families Flexibility Act, whose companion bill was co-sponsored by then-Senator Obama, would have permitted employees to request changes to:

  • the number of hours the employee is required to work
  • the times when the employee is required to work
  • where the employee is required to work

Upon receiving a request for changes to the terms or conditions of work, an employer would be required to meet with the employee to discuss the request, and provide a written decision regarding that request. An employer would need to provide a reason for any denial. Additionally, under the Act an employee would be entitled to reconsideration, and a final written determination by the employer. If the employer refused to comply with this process, an aggrieved employee could file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the Department of Labor. The Administrator would have the power to investigate, and assess civil penalties or award appropriate equitable relief, such as employment, reinstatement, promotion, back pay and a change in the terms or conditions of employment.

In essence, the burdens on the employer under this proposed act are largely administrative, as the requests could be denied for legitimate business reasons. On appeal, the Administrator would likely not be second-guessing the presumed legitimate business reasons denying the employee’s request for work flexibility. However, the mere fact that the employer would have to meet with the employee and justify its decision to not grant the employee’s request, combined with the possibility of yet another way employees could initiate legal action against their employers is a cause for management concern. In the event such legislation passes, employers should ensure they have an established process in place to ensure compliance and for dealing with employee work change requests.


Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.