While the movement in the 1980s away from the traditional five-day, 40-hour work week in favor of more flexible scheduling is good news for the nation's work force, flexible work schedules are creating new problems for employers, says a Brigham Young University law professor.
In setting up flexible-time schedules to meet growing employee demand, employers are encountering two divergent groups of legal statutes governing workers' scheduling, says Stephen G. Wood. That has led to questions in such areas as terminating flexible-time programs, characterizing flexible-time workers and interpreting state and federal policies governing flexible scheduling."Although the majority of American employees continue to work traditional hours, undeniable changes are taking place in the American work place as employees and employers experiment with new and innovative ways to meet employees' needs," Wood says.
Several factors motivate the shift toward alternative work schedules, according to Wood. The desire for a satisfying family life, the increasing numbers of women and minorities in the workplace, the shrinking pool of employees and the aging of the work force have all contributed to the appeal of alternative work schedules.
"Many companies, in an attempt to meet the changes in the work force, are exploring the use of non-traditional work schedules," he explained.
These include "flextime," which allows employees to set the starting and ending times of their work shifts within bounds set by the employer, as well as job sharing and even part-time employment.
But in implementing such alternative work schedules, employers and administrators are discovering that workers and their work schedules are regulated by two different groups of statutes, Wood points out.
One group of regulations was written in the 1930s and 1940s, with an emphasis on expanding employment and increasing overtime compensation. The other group of statutes, written in the 1970s and 1980s, favors increasing productivity, Wood explained.
In attempting to implement flexible schedules, Wood discovered, employees, employers and ultimately the courts have run into conflicts in three distinct areas:
1. Collective bargaining. One case brought before the Federal Court of Appeals grappled with the question of whether a federal agency, once it voluntarily implemented a flexible-time option, could then unilaterally dismantle it if the employees were represented by a union.
The court ruled that the employer could not simply revoke the flexible schedule; the union representing the federal employees and the employer had to bargain about whether the flexible-time option could be terminated.
2. Characterization of workers. Is an employee who engages in flexible scheduling a full-time employee, thereby eligible for benefits and unemployment compensation, or can the employer withhold benefits? It's a significant question for employees and their employers, says Wood. "The benefits package currently represents about 30 percent of the total package an employee receives.
"The Court (of Appeals for the 10th Circuit) decided it wasn't a definitional question but a factual one," says Wood. The court wanted to know what made a person a full-time employee. "Based on the facts, some flexible-time employees are going to be eligible for benefits," he notes.
3. State and federal policy questions. A trend currently exists on the federal level to repeal eight-hour-a-day statutes. "The motivation behind these repeals is to do away with the eight-hour work limit and to say 40 hours is the work week," Wood says. The repeals would then allow for such flexible-time innovations as four-day work weeks.
With such a trend on the federal level, will the states follow suit? Some states actually have regulations on the books that prohibit flexible working hours.
"In the state of Utah, the question of repeal (of the eight-hour day) is being considered by the Labor Recodification Task Force," he says.
Flexible-time schedules are also complicated by federal rulings against compensatory time off. "Under this prohibition, an employer does not have the option to give employees who work more than 40 hours a week compensatory time off. The employer must pay overtime," he explained.
This issue has only been partially resolved. "As a result of 1985 amendments (to the Fair Labor Standards Act), state and local governments are permitted to give compensatory time off rather than pay overtime," Wood noted. "However, employers in the private sector do not enjoy this option."