White House Lays Out Flexible Workplace Blueprint for Private Sector

by Franczek Radelet P.C.

CalendarWith the German victory in the 2014 World Cup now in the books and baseball finishing up its All Star break (Go Tigers—Cabrera with a 2-run HR, Scherzer with a W!), I wanted to turn my attention this week to the latest push by the White House to encourage change in the private sector workplace, specifically alternative or flexible work schedules.

For the pay period that included July 4th, we discussed how to address holiday pay for employees with alternative work schedules. This post was particularly timely given that the week before, in the run-up to the July 4th holiday, President Obama issued a new Presidential Memorandum on Enhancing Workplace Flexibilities and Work-Life Programs, which was published in the Federal Register.  Further support for this agenda occurred last Thursday, when Department of Labor Secretary Thomas Perez reiterated in a conference call with reporters that pushing for greater flexibility in workplaces ranks as a top priority of the administration. The new Memorandum and Secretary Perez’s comments come amid the ongoing push by the Obama administration and the Department of Labor to rally support for a number of employee- and family-friendly laws: expansion of the minimum wage for roughly 200,000 federal workers and contractors, the permanent extension of unemployment insurance benefits, an increase in the federal minimum wage, the Paycheck Fairness Act, and the Pregnant Workers Fairness Act, just to name a few.

President Obama’s memorandum reads like a statutory framework and may be viewed as a blueprint for states and private sector entities to follow. In it, the President announces that “it is the policy of the Federal Government to promote a culture in which managers and employees understand the workplace flexibilities and work-life programs available to them and how these measures can improve agency productivity and employee engagement. The Federal Government must also identify and eliminate any arbitrary or unnecessary barriers or limitations to the use of these flexibilities and develop new strategies consistent with statute and agency mission to foster a more balanced workplace.”

Pursuant to the mandates in the memorandum, executive branch agencies “must better utilize existing and develop new workplace flexibilities and work-life programs” in five key areas:

  • Giving workers the “Right to Request Work Schedule Flexibilities” without fear of retaliation or adverse employment actions
  • “Expanding Access to Workplace Flexibilities” by adding telework and other flexible work options, leave transfer programs, and additional categories of available leave
  • “Expanding Availability and Encouraging Use of Work-Life Programs” such as expanded dependent care programs, health and wellness programs, and support for nursing mothers
  • “Helping Agencies Encourage the Use of Workplace Flexibilities and Work-Life Programs” through additional outreach by the federal Office of Personnel Management (OPM)
  • “Agency Review of Workplace Flexibilities and Work-Life Policies and Programs” by requiring agencies to report back to OPM about their efforts within 4 months

Insight for Employers

In general, the goal of the memorandum is to require federal agencies to ensure that workplace flexibilities are available to the “maximum extent practicable.”  Of course, many states have already enacted some of the provisions in their own laws—such as blood and organ donor leave or specific supports for nursing mothers. Even though this memorandum does not have the force of law or even apply to the private sector generally, employers should understand that it could serve as a blueprint for state legislators and, perhaps more importantly, the EEOC and state human rights agencies in crafting new laws and regulations and in evaluating claims of discrimination by employees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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