GUEST POST: Flexible Work Location for FLSA-Exempt Employees

guestblogger.jpgToday, we have a guest blogger at The Employer Handbook. It’s Johanna Harris. Johanna has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace, is a basic primer on HR law and personnel policies.

Flexible work arrangements take many forms. Arranging flexible hours and schedules can be fairly straightforward and is often dictated by business needs. Flexibility of work location, however, is more difficult to manage. After the jump, this guest post addresses the issues raised by allowing employees to work at locations other than their assigned offices.

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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Under the Fair Labor Standards Act (FLSA), flexible work arrangements do not present special problems for exempt employees, as they can work anywhere and any time for an unlimited number of hours without any effect on their compensation. Employers should be cautioned, however, that for non-exempt employees, flexible work scheduling does present a challenge, as they must be compensated for all hours worked, no matter where or when.

Allowing exempt employees to perform all or part of their work away from the office can boost productivity and increase morale. Advances in technology including conference lines, web conferences and Skype have markedly increased the range and feasibility of out-of-the-office work options.

When an exempt employee requests a flexible location arrangement, several action items need to be addressed. First, enumerate each of the tasks and responsibilities of the requesting employee and, for each task, determine whether it is possible to perform the work outside of the office. Second, for each task that can be performed outside of the office, determine how it will be evaluated. A manager can no longer rely on “face time” to assess an employee’s contribution to the enterprise.

Once it has been determined that an exempt employee can perform work off site, the employee’s manager needs to pin down specific plans for communication with co-workers and managers, enumerate those critical times when the employee definitely needs to be present in the office, and make arrangements for coverage if the employee’s presence in the office is suddenly and unexpectedly required.

The manager should create a written agreement memorializing the home office requirements, including purchase and ownership of equipment, payment for office supplies, and adherence to all privacy and data protection requirements. The manager and employee should agree on a specific duration for the out-of-office work arrangement, with the option of renewal if both sides find the arrangement satisfactory.

Although work-at-home arrangements are popular, there are several factors that can make them problematic. If the exempt employee needs to interact personally with clients or customers, working at home may not be appropriate. If the employee needs to interact with co-workers on a regular, unpredictable basis, work at home could be difficult. If the employee uses computers or software that require on site maintenance, work away from the office will be frustrating. Finally, if the employee has caretaking responsibilities that intrude on work-at-home time, the arrangement will not be productive.

While these factors can complicate out-of-the-office work arrangements, most situations can be managed with some creativity. Nonetheless, employees need to understand that flexible work arrangements can put them at risk for a RIF. First, there is still a widespread perception that an employee who works at home is less committed to the company. Second, work-at-home arrangements reduce flexibility. The employee will not be present at the office to solve a problem at a moment’s notice. Third, if the company decides to reduce its workforce, the work-at-home employee could be viewed as “out of sight, out of mind” and therefore expendable.

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