Right to Request Flex: It Seems to Be on the Fast Track in the U.S.

Flexibility stops plodding and goes for the fast track

In 2012, the tally of employees covered by a legislated right to request flexible schedules was:

Flash forward to today. As we acknowledged our many rights on the 4th of July, the Right to Request (RTR) gathered momentum and threatened to join them. A decade-old UK practice spread to its resistant former colony.

Right to Request is accelerating in the U.S.

The current number of U.S. employees in areas with such laws or pending legislation are:

We take note of new cars that race from 0 to 60 in record time. Perhaps we should pay attention to RTR acceleration in the U.S. that in one year has leapt from 0 to 7 million covered employees. Can we expect this trend to continue?

RTR laws may be shifting to a higher gear

As I said in my November TLNT article, (San Francisco’s Flex Work Legislation: Will It Be Win-Win or Lose-Lose?) :

Many observers, including a surprising number of critics, see FFWO (Family Friendly Work Ordinance) as an early step in a broader national movement.”

Six months later, those critics have proven prescient.

Judging from what we have heard from San Francisco’s Supervisor David Chiu and other advocates, inquiries about the legislation are coming in from cities throughout California and state legislators, and cities and states around the country. Legislation might be underway in jurisdictions near you.

It is not surprising why. Federal RTR legislation has stalled repeatedly since its first introduction in 2007.

An insistently unproductive Congress has refused to deal with workplace issues from minimum wage to flexible schedules. Calls for “leave it to the states” have been taken seriously by family and flexibility advocates. Thus cities and states legislate issues that have been national ones elsewhere.

Advocates are sharpening their briefs

New York City Comptroller Scott Stringer explains his city’s motivation as follows:

For New York City to remain an economic engine, it must actively compete with other global cities for top talent and business investment … [F]lexible work arrangements not only boost employee morale and productivity, they also improve corporate profitability and reduce turnover.

From American Express and Citigroup to KPMG and IBM, flexible work arrangements are on the rise … However, the pace of change is still frustratingly slow for millions of New Yorkers who are not afforded the opportunity to integrate work and family life through the use of FWAs. By implementing best practices and creating a framework for discussions between employers and employees, businesses both large and small will be spurred to consider flexible work arrangements. It is an idea whose time has come.”

Clearly the New York City comptroller sees the Right to Request firmly lodged in the work-life or family support movement. His preference is for an RTR for caregivers, similar to San Francisco’s. Vermont’s law and Berkeley’s initiative would extend the RTR to all employees. Interestingly, just this month after 10 years of caregiver-only focus, the UK law was broadened to cover all employees.

Options and chaos in the “laboratory” of local action

A year ago, a call to pay attention to the Right to Request experiment might have seemed trivial given many other economic, organizational and social issues in the workplace. As this process unfolds, the time seems to have come for those concerned with employee engagement, performance and, yes, flexibility to join in the RTR conversation – especially as it comes to a theater near you.

Comptroller Stringer makes two points about flex that are absolutely right:

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  1. The pace of change is still frustratingly slow for millions;” and,
  2. It is an idea whose time has come.”

Although we have had reservations about the Right to Request approach, we have offered conditional support because business practice has lagged well beyond proven practice – and popular pressure. And we believe that regulation without intelligent design and proven implementation support will create numerous new problems as it tries to solve old ones.

Designing the right program

As you consider the issues raised by RTR and possible involvement in legislation in your neighborhood, here are some design decisions to bear in mind:

Coverage — In the political tension between what’s right and what’s feasible, one must ask:

  • Does the Right to Request apply to all employees or only caregivers?
  • Is if for all employers or only those with 10/20/50 employees?
  • Does the RTR take effect at time of hiring, or with a tenure of 6 months, 1 year or…?

Process — The method for proposing, reviewing requests can range from loose to tight, such as:

  • An expectation that managers will meet with employees to discuss a request.
  • A requirement that employees make requests in writing and supervisors respond in writing.
  • Stipulation of a detailed, timed back-and-forth in writing, with an internal (and/or external) appeal.

Decision — Existing and proposed RTR legislation allow denial on the first basis below; but, there are options:

  • A manager or business can deny a request for general or defined business reasons.
  • A denial can be appealed to an external third party.
  • Employees must identify business value of requested schedule; managers deny by proving harm.

Implementation — The greatest variety and weakness occurs in this area:

  • The more formal process can be enforced by a relevant agency.
  • Process guidance can be offered by that or other agencies
  • Implementation assistance for businesses goes beyond process to how to manage flex.

U.S. experience suggests a consistent approach

In this decentralized march toward Right To Request, a consensus on best practices might emerge.

One push in that direction could come from the experience of hundreds of U.S. companies that already offer flexibility on more inclusive terms than much of this legislation. Drawing on our experience with more than 100 companies and hospitals and our observation of hundreds more, we might suggest these four guiding design principles:

  • Coverage — It should apply to all employees. Equity demands it. It’s proven easier for small firms; include them. Flex maximizes recruitment if new hires can request.
  • Process — A formal and timed proposal process with internal appeal brings sunshine to the process, and with available software need not be cumbersome.
  • Decision — Our clients say “Yes” to proposals with a positive or neutral impact and “No” if a negative impact. Employees should bake the business into their proposals; employers should prove harm.
  • Implementation — Process guidance alone is not enough. Helping employees and managers succeed with these new ways of working is essential. A range of tools exist to avoid reinventing the wheel.

This was originally published on The Co Scheduler blog 

Paul Rupert has collaborated with colleagues, clients and business leaders to embed flexibility in the workplace for the past 40 years. His consulting firm, Washington, DC-based Rupert & Company, has provided dozens of major employers with innovative strategies, training and online tools to build the flexibility the market will bear. Paul has played a leading role in developing flexibility systems in companies ranging from Aetna and AOL to Wal-Mart and Xerox, and is the architect of the Co Scheduling approach. Contact him at paulrupertdc@cs.com.

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