Wednesday, June 12, 2013

Right-to-Request--Let's Give Dialogue a Try

An initiative was launched this week to include a ballot measure for San Francisco voters that would give caregivers and parents a right to request a flexible work schedule from their employers ("Family friendly SF? New measure would pioneer flexible work rules"). Employers would only be allowed to deny such requests if they posed an "undue hardship" for the company such as an increase in costs or a "detrimental effect on the ability to meet customer or client demands." According to the San Francisco Appeal, "the San Francisco Chamber of Commerce is already voicing opposition to the proposal because of its potential impact to the city's business community." But this type of flexible approach can provide a good model for balancing the needs and interests of employers and employees.

Indeed, Steve Befort and I called for U.S. policymakers to experiment with right-to-request policies in our book Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus that was published by Stanford University Press. As with many areas of employment and labor law, the U.S. lags behinds. In the Netherlands, after one year of working for an employer, a worker can request in writing an increase or decrease in their work hours by specifying the desired number of weekly hours and distribution of hours across the days of the week. Such requests can only be made every two years. The employer is required to consult with the employee and to grant the requested number of hours unless there are "serious business reasons" such as being unable to recruit another employee to fill the needed hours. Germany has a similar law that grants workers the right to request specific work schedules. Even though these laws are frequently associated with enhancing workers' work-family balance, workers do not have to provide a reason for their request because workers are seen as autonomous individuals with rights to individual self-determination.

The United Kingdom also has a right to request law and though it only applies to parents of young or disabled children, employers must meet with the employee to discuss their request and can only deny it on "clear business grounds." The British statute is particularly intriguing because it establishes a mandatory voice mechanism in the form of an interactive dialogue between employees and employers but does not impose any enforceable substantive standard relative to the outcome of those dialogues. Unlike the Dutch and German statutes, the U.K. version does not authorize any substantive judicial review of the employer's business judgment. Nonetheless, the British approach has achieved resounding success. During the first year of the statute's operation, 75 percent of all employees submitting requests received full voluntary approval from their employer, and most employers reported no significant compliance issues.

U.S. policymakers should adopt something similar to these European right-to-request policies. These policies facilitate employee voice by requiring employers to consult with individual employees, but also allow employers to reject onerous requests. Such policies therefore do not create a burdensome set of unwavering standards or rigid entitlements; rather, they create a participatory framework where employees and their employers can work out mutually-agreeable arrangements. In short, these statutes represent a flexible regulatory response to a work environment characterized by an increasing demand for flexibility by employers and employees.

No comments:

Post a Comment