Flexible Work Schedule Policy
(with Acknowledgment)Flexible Work Schedule Policy

You should advise the employer about any applicable state or local predictive scheduling laws, such as those in New York City and Seattle, which require employers in certain industries to provide employees with advance notice of their schedules. For more information, see Predictive and Flexible Scheduling Laws State and Local Law Survey. For state and local secure scheduling policies, see the Attendance, Leaves, and Breaks column of Employment Policies State Expert Forms and Checklists Chart.

You should work with the employer to tailor this list as appropriate for the employer's workplace. Not all types of flexible (or hybrid) work schedules, such as telecommuting, will work for all employers. For example, employers with limited hours of operation may not be able to provide employees with the opportunity to work a compressed work schedule.

For guidance on telecommuting agreements (also known as teleworking and remote working agreements), the essential components of effective telecommuting agreements, and practical drafting suggestions and tips, see Telecommuting Agreements: Key Drafting Considerations and Telecommuting Agreement.

For detailed guidance on teleworking agreements, see Telecommuting Employees: Best Practices Checklist.

Although the employer should determine an employee's eligibility for a flexible (or hybrid) work schedule on a case-by-case basis, to avoid claims of favoritism or discrimination, the employer should apply consistent standards to determine which employees are eligible.

You should advise the employer about federal and state law overtime requirements and the impact that an employee's alternative schedule may have on the employer's obligation to pay overtime. Federal law requires employers to pay overtime to employees who work more than 40 hours in one week. Some state overtime laws require employers to pay overtime for all hours worked beyond a certain number of hours in one day. Note that state law may provide an exception for employees working compressed or alternate work schedules. Where possible, an employer should tailor its flexible work arrangements to avoid the obligation to pay overtime as required by law or employer policy. For more information on federal overtime provisions, see Overtime Requirements for Hourly Non-Exempt Employees under the FLSA.

You should also ensure that an employee's flexible (or hybrid) work schedule complies with applicable meal and break period requirements. This is important, particularly with respect to employees who work compressed schedules. See Compensable Time (FLSA).

Federal, state, or local law may require an employer to provide a flexible work arrangement, such as the ability to work remotely, as a reasonable accommodation for an employee's disability. For more information about an employer's obligation to provide a reasonable accommodation to an employee with a disability, see Americans with Disabilities Act: Guidance for Employers. For more information on state laws prohibiting disability discrimination and/or requiring reasonable accommodations, see Discrimination, Harassment, and Retaliation State Practice Notes Chart.

In addition, the Family and Medical Leave Act or its state equivalent may require an employer to provide a reduced work schedule as a form of leave. See FMLA Leave: Guidance for Employers and Employees — FMLA Employer Rights and Obligations. For more information on state family and medical leave act laws, see the Family, Medical, Sick, Pregnancy, and Military Leave column of Attendance, Leaves, and Disabilities State Practice Notes Chart.

Accordingly, a flexible (or hybrid) work schedule policy should clearly state that the employer will also provide alternative work arrangements where required by law.

For guidance on remote work agreements, see Telecommuting Agreements: Key Drafting Considerations and Telecommuting Agreement. See also Telecommuting Employees: Best Practices Checklist.

You should work with the employer to develop an agreement to be signed by the company and the employee that describes the employee's work schedule, sets forth the employee's pay and benefits eligibility, defines the employer's expectations, and establishes any other parameters of the flexible (or hybrid) arrangement. The agreement should also cover whether the employee is entitled to reimbursement for any expenses incurred while working at home. The agreement should state that the employer can end the arrangement at any time and that the employer may require the employee to adjust his or her schedule as necessary to meet the needs of the employer.

You should include an acknowledgment provision, particularly if the employer will use this form as a standalone policy without incorporating it into an employee handbook, which should have an acknowledgment provision for its entire contents. This provision serves as evidence that the employee was made aware of and understood the policy, and it helps negate any argument that the policy establishes a binding employment contract. Because it may be difficult to authenticate an e-signature in a subsequent litigation, the employer should obtain a handwritten signature, if possible. However, business realities often mandate that large employers use e-signatures. If this is the case, ensure that the employer takes steps to authenticate each e-signature as belonging to a particular employee. For more information on obtaining e-signatures, see What Every Employer Needs To Know About E-Signatures.