San Francisco’s Flex Work Legislation: Will it Be Win-Win or Lose-Lose?

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Dec 5, 2013

China Gorman, CEO of Great Place to Work, wrote an excellent Thanksgiving Day TLNT piece on San Francisco’s new Family Friendly Workplace Ordinance (FFWO) that goes into effect on New Year’s Day.

The Flex Work Question: Is Legislation Really the Right Approach? asks many questions we all should be asking – and answering.

This is not one more HR or legal blog post noting just that 1) a UK practice of many years has skipped the Washington logjam and come to San Francisco; and, 2) it requires a set of (pick one) modest or burdensome steps for employees and employers to follow in dealing with flex requests.

Challenges in the San Francisco flex work ordinance

All changes can have winners and losers, and I want to raise several serious challenges confronting those who roll out this initiative:

  • FFWO may protect employees, but does it go too far and restrict business operations?
  • The ordinance supports reluctant employees, but what will it do to businesses that have little experience with flex?
  • Will the FFWO cause a roadblock and additional internal conflict?

The workplace ordinance is a government mandate aimed primarily at private sector treatment of flexible work. To this point, employers – both businesses and governments – have offered flexibility successfully on a voluntary and individualized basis. So IBM and the Federal government each have large, successful telework programs, and diverse small governments and businesses offer flexibility as well.

The questions above have been raised and resolved within these organizations at their own pace, driven by internal pressures and drawing on internal and external consultative resources.

One other result: Voluntary employer flex has not spread widely, deeply or quickly, especially among hourly workers. The City of San Francisco has decided to mandate a speed-up of that process – and it won’t be voluntary or individualized. Thus, in much of San Francisco, government and business can end up as antagonists, not partners.

Answers to critical questions

Since the city does not see its role as helping employers implement flex internally, businesses with 20 or more employees are on the line and may be on their own. It is against this backdrop of limited practical support for complying businesses that Ms. Gorman’s challenging questions emerge – and I suggest answers.

Question 1: The FFWO may protect employees, but does it go too far and restrict business operations?

San Francisco’s new Family Friendly Workplace Ordinance should protect at least some flex-seeking caregivers from a hostile climate or retaliation. We’ll see how well the ordinance delivers on this promise.

On the question of restricting business operations: FFWO shouldn’t, but it probably will. The ordinance almost bends over backwards (yes, flex ordinances can do that!) in defining the many business reasons for saying “No.”

At first glance, the acceptable reasons appear clear, even precise. But give any one a closer look (e.g., “The inability to organize work among other employees”) and to an inexperienced supervisor it may be far from clear. Without guidelines or training, and as can happen even with those, uncertain managers may succumb to pressure and stumble to” yes.” And once they have said “yes,” where is the guidance to make a difficult arrangement work?

The city of San Francisco has not done flexible scheduling this way with its own employees. Large SF employers from banks to oil companies have not done it without resources and help, and much costly trial and error.

But there is a general success model that all draw on. On the FFWO’s current trajectory of process prescription alone, it seems almost inevitable that business operations will be restricted to at least some degree. With more attention to implementation best practices, that need not be the case.

Will it cause more internal conflict?

Question 2: It supports reluctant employees, but what will the ordinance do to businesses that have little experience with flex?

My firm’s experience with hundreds of employers wrestling with flex for the first time offers an answer: they will waste time and energy reinventing some version of the wheel.

The ordinance lays out a process (written requests with an internal appeal, each segment timed and all records kept for three years.) Everything else – final forms, standard responses, process training, expanded offerings and implementation guidance – needs to be invented, borrowed or done ad hoc.

It seems both unwise and way too late to suggest a city-wide free-for-all to invent a better wheel. Funky wheels yield rough rides and proven wheels exist. Their use can offset much business inexperience.

Question 3: Will the ordinance cause a roadblock and additional internal conflict?

Again, the answer to this question depends on “Implementation, Implementation, Implementation.” The great downside to legislating flex is that political support in the UK, Australia, Vermont and San Francisco comes from tying eligibility to “family reasons.”

The politics inside companies argues the opposite. There drivers include equity, inclusion and business, not status-based decision-making. Thus nearly all voluntary, employer-based flexibility programs are open to all applicants and approved or rejected on the basis of business impact. This greatly reduces or eliminates internal conflict

If this process ends with companies embracing a more inclusive approach to flexibility, concerns about a roadblock and internal conflict will certainly diminish. But unless the business community and others step in to promote this outcome, we will be bystanders to a missed opportunity.

FFWO needs more participants, fewer bystanders

San Francisco’s Family Friendly Workplace Ordinance occurs in a nation divided on workplace issues and saddled with a dysfunctional Congress. Britain’s flex request policy began not as a Cambridge initiative, but as national policy.

So it was in Australia and elsewhere. Here one city and one state (Vermont) are acting by default.

Many observers, including a surprising number of critics, see FFWO as an early step in a broader national movement. As the January launch approaches, those concerned with effective workplace flexibility might focus on how implementation might be strengthened – and the outcome made more win-win than otherwise.

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