Work Time Choice: Model Policies

Model Work-Time Policies

The following nations have laws that allow more choice of work hours:

Netherlands: Working Hours Adjustment Act

Germany: Part-Time and Fixed Term Contract Act

United Kingdom: Flexible Working Act

Work-Time Policies in New Zealand and Australia

Jurisdictions in the United States have begun to pass similar laws:

Vermont passed H99 An Act Relating to Equal Pay in 2013.

San Francisco passed Family Friendly Workplace Ordinance (which applies only to caregivers) in 2013.

A similar law was introduced in the United States Congress in 2007, the Working Families Flexibility Act.

President Obama extended these rights to federal employees in a memorandum of June 14, 2014.

The Schedules that Work Act was introduced in Congress on July 22, 2014

Netherlands: Working Hours Adjustment Act

In 1982, the Dutch Foundation of Labor (Stichting van de Arbeid), an organization of trade unions and employers, adopted the Agreement of Wassenaar, with the unions promising to restrain their wage demands in exchange for the employers promising shorter work hours. This agreement led to shorter work hours and to giving employees the choice of part-time work.

In 1996, the Netherlands adopted the Prohibition of Discrimination by Working Hours Act (Wet Verbod onderscheid arbeidsduur). Similar policies forbidding discrimination were later adopted by the European Union in Directive 97/81/EC.

In 2000, the Netherlands adopted the Working Hours Adjustment Act (Wet Aanpassing Arbeidsduur) giving workers the right to choose their work hours.

The Working Hours Adjustment Act says (in part):

The employee may ask the employer to adjust work hours, if the employee is employed by that employer at least one year prior to the intended commencement date of that adjustment.

The request for adjustment of working hours must be made in writing to the employer at least four months before the intended commencement date of the adjustment.

The employer shall consult the employee about his request.

The employer shall grant the employee's request for adjustment of working hours in so far as it concerns the commencement date and the size of the adjustment, unless serious business or service interests dictate otherwise.

This Article does not apply to an employer with fewer than 10 employees.

A survey of the result of this law found that, during two years, 15% of all employees applied for reductions in hours. Of these requests, 60% were fully accepted, 11% partially accepted, 11% rejected, and the rest were pending.

For more information about the history of Dutch work-time policies, see this PDF.

For more information about the Adjustment of Working Hours Act, see the text of the act in Dutch and in English translation.

Germany: Part-Time and Fixed Term Contract Act

On November 16, 2000, the Social Democratic and Green Party government in the German parliament (Bundestag) passed the Part-Time and Fixed Term Contract Act (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge), which took effect on January 1, 2001.

This act protects contract workers and part-time workers from discrimination. It also promotes part-time work and gives workers the right to choose their work hours.

The Part-Time and Fixed Term Contract Act says (in part):

This act seeks to promote part-time work, to lay down the conditions for the admissibility of fixed-term contracts, and to prevent discrimination against part-time and temporary workers.

Part-time workers should be treated no less favorably than a comparable full time workers because of their part-time work, unless objective reasons justify a different treatment. A part-time workers shall be granted pay or other dividable monetary value at least equal to the proportion of his working time to the working time of a comparable full-time employee.

The employer must allow part-time work to employees, even in senior positions.

The employer must advertise a job publicly or within the company as a part-time job when the job is suitable for this purpose.

An employee whose employment relationship has existed for more than six months may request that his contractual hours be reduced.

The employer shall discuss the desired reduction of working time with the employee in order to reach an agreement.

The employer shall agree to the reduction of working hours and to determine their distribution according to the wishes of the employee, unless there are operational reasons to the contrary. Operational reasons for refusing the request exist if the part-time work would significantly reduce the working organization, significantly affect the work flow or safety in the workplace, or cause disproportionate cost.

A survey of the result of this law found that, during two years, 209,000 workers requested shorter hours, and 92% of the requests were accepted.

For more information, see the articles of the act that apply to part-time work in German and in English translation.

United Kingdom: Flexible Working Act ("Soft Touch")

The United Kingdom's Employment Act of 2002 amended the Employment Act of 1996 by adding Part VIIIA: Flexible Working (called the “Flexible Working Act”). Initially, this act gave employees with children under 6 or disabled children under 18 years old the right to request shorter work hours. This right was later extended to all employees who are care-givers. Now that this law has worked successfully for care-givers for over a decade, the UK is planning to extend it to all employees.

This act is called the "soft-touch" law, because it gives employees the right to request part-time or flexible work and gives employers the duty to consider these requests and state a business reason if it refuses the request, but it does not allow the employee to appeal if the employee considers the business reason invalid.

Though employers are not required to reduce hours, the act has been effective. A survey of the result of this law found that, during two years, 14% of all employees requested a change, 69% of the requests were fully accepted, 12% were partially accepted, and 11% were rejected, and the rest were pending.

The Flexible Working Act and related administrative regulations say (in summary):

An employee with a child under age six, or under eighteen if the child is disabled, is eligible to make a request if he or she has been continuously employed for at least twenty-six weeks and is the mother, father, adopter, guardian or foster parent of the child ....

These employees may request 1) shorter working time 2) flexible hours of work 3) work at home.

Employee requests must be made in writing, specifying the requested change and proposed effective date, and explaining the employee’s relationship to the child under his or her care. The written request must explain what effect, if any, the employee thinks the change might have on his or her employer and how any such effect might be handled.

The employers must consider the request and meet with the employee within 28 days to discuss the request. Employers may refuse requests for the following reasons:

the burden of additional costs

detrimental effect on ability to meet customer demand

inability to reorganize work among existing staff

inability to recruit additional staff

detrimental impact on quality

detrimental impact on performance

insufficiency of work during the periods the employee proposes to work

planned structural changes

If the employer refuses the request, the employee has a limited right of appeal to the Advisory, Conciliation and Arbitration Service (“ACAS”) only if:

the employer failed to follow proper procedures for considering an employee’s request.

the employer’s decision to refuse the employee's request was based on incorrect facts

The government does not enforce an employee's requests for shorter or flexible hours because public comments made the government decide to "be light touch and recognize the needs of small businesses."

For more information, see the Georgetown University Law Center Memo about this act [PDF].

Flexible Hours for Care Givers in New Zealand and Australia

Other jurisdictions have adopted laws that are specific to care-givers, like the UK:

New Zealand: The Employment Relations (Flexible Working Arrangements) Amendment Act of 2007 gives all caregivers the right to request a change in their work hours, work schedules, or place of work. It provides procedures for reviewing this request, similar to those in the UK. New Zealand is currently reviewing this law to decide whether to extend this right to all employees. For more information, see this web page from the New Zealand Department of Labor.

New South Wales and Victoria, Australia: In New South Wales, The Careers' Responsibilities Amendment Act of 2000 took a different approach. It amended the Anti-Discrimination Act of 1977 by defining care-givers as a protected class. Employers must make "reasonable accommodations" for people who have a responsibility to care for children or other family members, just as they must make reasonable accommodations for people with disabilities. Accommodations include part-time work and flexible work hours. Victoria, Australia, later adopted a similar law. For more information, see this web page from the New South Wales Government.

Vermont: H99 An Act Relating to Equal Pay

Vermont's legislature passed H99 in 2013, and it went into effect on Jan. 1, 2014. Its main intention is to combat discrimination against women, and it has many provisions requiring equal pay for equal work. It also includes a section that gives employees the right to request part-time and other flexible working arrangements.

Like the UK's "soft touch" law, it requires employers to consider and respond to these requests, but it does not require them to grant the requests. Unlike the UK law, it applies to all employees, not just to care-givers.

H99 An Act Relating to Equal Pay says (in part)

An employee may request a flexible working arrangement that meets the needs of the employer and employee. The employer shall consider a request using the procedures in subsections (b) and (c) of this section at least twice per calendar year.

As used in this section, “flexible working arrangement” means intermediate or long-term changes in the employee’s regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job-sharing.

The employer shall discuss the request for a flexible working arrangement with the employee in good faith. The employer and employee may propose alternative arrangements during the discussion.

The employer shall consider the employee’s request for a flexible working arrangement and whether the request could be granted in a manner that is not inconsistent with its business operations or its legal or contractual obligations.

The employer shall notify the employee of the decision regarding the request. If the request was submitted in writing, the employer shall state any complete or partial denial of the request in writing.

For more information, see section 6 in the text of H99 An Act Relating to Equal Pay.

San Francisco: Family Friendly Workplace Ordinance

San Francisco's Board of Supervisors unanimously passed the Family Friendly Workplace Ordinance in 2013, and it went into effect on Jan. 1, 2014.

It gives the right to request shorter hours and other types of workplace flexibility to caregivers. It establishes a process for employees submitting and employers responding to these requests. It allows employers to refuse the request for any bona fide business reason. It gives employees the right to appeal the employers decision to the city - but only to appeal that the employer has not followed the process correctly, not to appeal the validity of any business reason that the employer gives for refusing the request. It requires employers to inform employees of their rights under this ordinance.

This ordinance says, in part:

SEC. 12Z.4. RIGHT TO REQUEST FLEXIBLE OR PREDICTABLE WORKING
ARRANGEMENT.

(a) An Employee who has been employed with an Employer for six months or more and works at least eight hours per week on a regular basis may request a Flexible or Predictable Working Arrangement to assist with caregiving responsibilities for 1) a Child or Children (or whom the Employee has assumed parental responsibility, 2) a person or persons with a Serious Health Condition in a Family Relationship with the Employee. or 3) a parent age 65 or older ofthe Employee. That request may include. but is not limited to. a change in the Employee's terms and conditions of employment as they relate to:
(1) The number of hours the Employee is required to work:
(2) The times when the Employee is required to work:
(3) Where the Employee is required to work;
(4) Work assignments or other factors: or
(5) Predictability in a Work Schedule.

(b) Any request submitted to the Employer under this Section shall be in writing

SEC. 12Z.5. RESPONSE TO REQUEST FOR FLEXIBLE OR PREDICTABLE WORKING ARRANGEMENT.

(a) An Employer to whom an Employee submits a request under Section 12Z. 4 must meet with an Employee requesting a Flexible or Predictable Working Arrangement within 21 days of the request.

(b) An Employer must consider and respond to an Employee's request for a Flexible or Predictable Working Arrangement in writing within 21 days of the meeting required in subsection (a).

(c) ... An Employer who denies a request must explain the denial in a written response that sets out a bona fide business reason for the denial ... Bona fide business reasons may include but are not limited to, the following:
(1) The identifiable cost o[the change in a term or condition of employment requested in the application. including but not limited to the cost ofproductivity loss, retraining or hiring
Employees. or transferring Employees from one facility to another facility.
(2) Detrimental effect on ability to meet customer or client demands.
(3) Inability to organize work among other Employees.
(4) Insufficiency of work to be performed during the time the Employee proposes to work.

SEC. 12Z.10. IMPLEMENTATION AND ENFORCEMENT.
(a) Administrative Enforcement.

(1) The Agency is authorized to take appropriate steps to enforce this Chapter .... The Agency's finding of a violation may not be based on the validity ofthe Employer's bona fide business reason for denying an Employee's request.... Instead, the Agency's review shall be limited to an Employer's adherence to procedural. posting and documentation requirements,

For more information, see the full text of the ordinance at http://sfgsa.org/modules/showdocument.aspx?documentid=11033 [PDF]

The Working Families Flexibility Act

This act would give employees the right to request shorter or more flexible work schedules. Like the laws in the UK and Vermont, it would require employers to respond to the request, but it would not require employers to grant the request.

We call on Congress to pass this law, and we call on the states to pass similar laws, as a first step to giving workers the right to choose shorter hours.

This bill was first introduced in Congress in 2007. It had many sponsors in both houses, but we will just mention three sponsors of the Senate bill (S. 2419): At the time, one was senator from Massachusetts, Edward Kennedy; one was senator from New York, Hillary Clinton, and one was senator from Illinois, Barack Obama. The bill was reintroduced in later sessions of Congress.

This bill says (in part):

An employee may apply... for a temporary or permanent change in ... (1) the number of hours the employee is required to work; (2) the times when the employee is required to work or be on call for work; (3) where the employee is required to work; or (4) the amount of notification the employee receives of work schedule assignments.

(A) ... the employer and the employee shall hold a meeting to discuss such an application; (B) ... the employer shall give the employee a written decision regarding the application, within a reasonable period after the date of the meeting; (C) ... a decision ... to reject the application shall state the grounds for the decision.

(This bill should not be confused with another bill with the same name, H.R. 1406, the Working Families Flexibility Act introduced in the House of Representatives in 2013, which would not provide any right to request more flexible hours or working conditions, and which would deny employees with flexible schedules the right to time-and-a-half pay for overtime on weeks when they do work more than 40 hours.)

For more information, see the full text of a recent version of the bill at http://www.govtrack.us/congress/bills/112/hr4106/text

Presidential Memorandum of June 14, 2014

During his White House Summit on Working Families, President Obama issued a memorandum giving the two million federal employees the right to request flexible working arrangements and directing their managers accommodate these requests whenever possible.

This memorandum says (in part):

Section 1. Right to Request Work Schedule Flexibilities.

(a) Agencies shall make Federal employees aware, on a periodic basis, that they have the right to request work schedule flexibilities available to them under law, pursuant to an applicable collective bargaining agreement, or under agency policy, without fear of retaliation or adverse employment action as a consequence of making such a request.

(b) To facilitate conversations about work schedule flexibilities, each agency shall review, and if necessary amend or establish, procedures within 120 days of the date of this memorandum. Subject to collective bargaining agreements, agency procedures must provide:

employees an ability to request work schedule flexibilities, including telework, part-time employment, or job sharing;

that, upon receipt of such requests, supervisors (or their designees) should meet or confer directly with the requesting employee as appropriate to understand fully the nature and need for the requested flexibility;

that supervisors must consider the request and supporting information carefully and respond within 20 business days of the initial request, or sooner if required by agency policy

Sec. 2. Expanding Access to Workplace Flexibilities.

Agency heads shall ensure that the following workplace flexibilities are available to the maximum extent practicable, in accordance with the laws and regulations governing these programs and consistent with mission needs:

(a) part-time employment and job sharing, including for temporary periods of time where appropriate;

(b) alternative work schedules, including assurance that core hours are limited only to those hours that are necessary;

For more information, see the full text of the memorandum.

Schedules that Work Act (H.R. 5159)

On July 22, 2014, Senators Tom Harkin (D, Iowa) and Elizabeth Warren (D, Mass.) and Representatives George Miller (D, Calif.) and Rosa DeLauro (D, Conn.) introduced the the Schedules That Work Act (H.R. 5159) in Congress.

This act has one major difference from the Working Families Flexibility Act. It provides the full right-to-request to employees who need the change in schedule for care-giving, for education, or for another job: they can request flexible or predictable work schedules, and employers can refuse that request by giving a business reason. Other employees can request flexible or predictable work schedules, but employers do not have to give a business reason for refusing.

This act also places more emphasis on predictable work hours than earlier acts, since unpredictable work hours have become a bigger problem recently. Other measures, such as the Working Family Flexibility Act and San Francisco's Family Friendly Work Place Ordinance do give employees the right to request predictable hours, but the Schedules that Work Act puts more emphasis on this point in its findings.

This bill says, in part:

(a) RIGHT TO REQUEST .—An employee may apply to the employee’s employer to request a change in the terms and conditions of employment as they relate to-

(1) the number of hours the employee is required to work or be on call for work;

(2) the times when the employee is required to work or be on call for work;

(3) the location where the employee is required to work;

(4) the amount of notification the employee receives of work schedule assignments; and

(5) minimizing fluctuations in the number of hours the employee is scheduled to work on a daily, weekly, or monthly basis.

(b) EMPLOYER OBLIGATION TO ENGAGE IN AN INTERACTIVE PROCESS.

(1) If an employee applies ...

a), the employer shall engage in a timely, good faith interactive process with the employee that includes a discussion of potential schedule changes that would meet the employee's needs.

(c) REQUESTS RELATED TO CAREGIVING , ENROLLMENT IN EDUCATION OR TRAINING , OR A SECOND JOB

If an employee makes a request for a change in the terms and conditions of employment as set forth in subsection 24 (a) because of a serious health condition of the employee due to the employee’s responsibilities as a caregiver, or due to the employee’s enrollment in a career-related educational or training program, or if a part-time employee makes a request for such a change for a reason related to a second job, the employer shall grant the request, unless the employer has a bona fide business reason for denying the request.

(d) OTHER REQUESTS

If an employee makes a request for a change in the terms and conditions of employment as set forth in subsection (a), for a reason other than those reasons set forth in subsection (c), the employer may deny the request for any reason that is not unlawful. If the employer denies such a request, the employer shall provide the employee with the reason for the denial, including whether any such reason was a bona fide business reason.

For more information, see the full text of the bill [PDF].

Full Employment and Full Enjoyment!