Labor & Employment Law | VT Employers Must Consider Flexible Working Arrangements
Effective January 2014, Vermont’s Equal Pay Act requires Vermont employers to consider flexible working arrangements proposed by employees.
Employers will need to understand the Act and manage carefully.
What is included in the term “flexible working arrangement?”
A flexible working arrangement involves changes in the employee’s regular working arrangement, such as changing the number of hours or days worked, or intermediate or long-term changes to the employee’s arrival or departure time. A one-time scheduling adjustment, such as allowing an employee to come in late to accommodate a doctor’s appointment is not considered a "flexible working arrangement."
How do Employers comply with the Act?
1. Employers are required to consider, at least twice per year, requests for flexible working arrangements and to engage in a discussion with the employee regarding the request.
2. Employers are required to notify the employee of the employer's decision regarding the request. While an employee's request can be either verbal or written, when the request is written, so must be the response. We suggest that all notices of the employer's decision be in writing and that the employer keep a copy of the notice.
3. Employers are not required to grant all flexible working arrangement requests. An employer may deny a proposed flexible working arrangement request if the request is "inconsistent with business operations." An employer may show that the request is inconsistent with its business operations in numerous ways, including:
- If the request would burden the employer with additional costs;
- If the requested arrangement would create a detrimental effect on aggregate employee morale unrelated to discrimination or other unlawful employment practices;
- If the impact of the request would have a detrimental effect on the ability of the employer to meet consumer demand;
- If the employer is unable to reorganize work among existing staff;
- If the employer is unable to recruit additional staff;
If the impact of the request would have a detrimental impact on business quality or business performance;
- If there is insufficient work during the periods the employee proposes to work; or
- If there are planned structural changes to the business.
4. Additionally, the statute protects employees from retaliation. Employers may not take adverse action against an employee because the employee exercised his or her right to request a flexible working arrangement.
To address potential legal exposure, employers should develop and document an internal process for addressing flexible work arrangement requests and should train supervisory staff on how to properly respond if an employee requests a flexible work arrangement.
If you have questions or would like to discuss strategies to manage these developments, please contact a member of DRM’s Labor and Employment Group.