Equal employment opportunity laws mandate nondiscrimination in wages, hours and other terms and conditions of employment. Despite an organization's best intentions and nondiscriminatory business motivations, however, some groups of employees may reap more of the benefits of flexible work arrangements than others, simply because their circumstances make such options more attractive to them. Accordingly, employers should take steps to ensure that flexible work arrangements are offered and implemented without discrimination on any prohibited basis. In offering flexible work arrangements, employers should consider employees’ unique, real needs and wants while also taking measures to ensure that flexible work arrangements do not create a second class of employees that has an effect of unlawful disparate treatment or disparate impact discrimination. As with all other employment practices, consistent and careful documentation, consistent decision-making practices and clear policies are critical to fend off possible discrimination charges and to prevent flexible work arrangement scope creep from occurring.
Flexible work arrangements are much more commonplace due to the workforce paradigm shift arising from the COVID-19 pandemic. Prior to the pandemic, flexible work arrangements were traditionally offered as a reasonable accommodation under the Americans with Disabilities Act (ADA).We now know that flexible work arrangements can affect employee retention and engagement for employees not otherwise protected by the ADA.
These arrangements are more likely to be successful when viewed as a mutually beneficial business process. The employer and the employee should ensure a mutual understanding is reached as to when, where and how work is done. This determination should include a paradigm shift in how employers interact with employees to meet each employee’s wants and needs, and to allow them to reap such benefits, while also documenting all interactions and altering of work arrangements as they relate to each individual employee—practices equally applicable to the interactive process in the ADA context. Engaging in a documented, interactive process for all flexible work arrangements, including providing reasonable accommodations under the ADA, lessens adverse effects of “scope creep” from occurring.
What is scope creep? Generally, scope creep occurs in the context of project management when clients add new requirements after the project execution has started. Scope creep results in changes made to the project scope without any control procedure, such as documented change requests. This same problematic concept can apply in the context of flexible work arrangements. In this context, scope creep occurs when employees request or work under an offered flexible work arrangement, e.g., working from home one day a week, working different hours than regular business hours, etc., and the employee exceeds the scope of the initial arrangement over time—and there is not a control in place. Just as defining and documenting the scope and expectations of a project is important for project managers to prevent scope creep, employers need to communicate with employees as to the scope of their permissible flexible work arrangements and concretely document the scope of such flexible arrangement with written and agreed-upon limitations to the arrangement.
Consider this ADA example: An employee, Jan, tells her supervisor she is having trouble getting to work at her scheduled start time on Fridays because of medical treatments she is routinely undergoing on Friday mornings. Jan requests the ability to make up for that missed time by working later at the tail end of her shift. Having little impact on the workplace or fellow employees, her employer determines no undue hardship would be created and approves this reasonable accommodation. Jan’s situation implicates the ADA and should be handled in an official, documented manner. If a change or expansion in scope to the accommodation is made later, the employer can further the interactive process with reference to the original scope as documented.
Compare Jan’s accommodation to Rex’s flexible work arrangement: Rex, who moonlights as a musician, requests to leave work for a couple of hours during the middle of the day each Wednesday to practice with his bandmates. He asks his manager if he may do so on the condition that he catches up by staying for two hours on Wednesday evening after regular business hours. Rex’s employer is embracing flexible work arrangements and grants the request but doesn’t document this arrangement. After a couple of months, Rex's band becomes very popular, and they start to practice on Mondays and Thursdays. The practices begin an hour before Rex is off work. Considering the flexibility he had been afforded with his Wednesday schedule work arrangement, Rex believed he could further flex his work hours to allow for the Monday and Thursday practices as well. But, in time, Rex begins missing client meetings on Mondays and Thursdays because of this scope creep in his flexible work arrangement. Rex’s initial arrangement was not documented, and now his employer is frustrated with Rex for missing an important Thursday afternoon client meeting. Consequently, the employer advises Rex he can no longer miss work during business hours.
Rex’s co-worker, Kate, had also worked out a flexible work arrangement with their employer when she could not find childcare for her two children on Fridays. She asked her supervisor if she could work each Friday remotely, which her supervisor approved. This interaction is documented via email between Kate and her supervisor. However, Kate begins working remotely more and more without communicating further requests to her supervisor, even though she has childcare on the other days, and eventually ends up only coming into her office two to three times a week. Unfortunately, Kate’s productivity also gradually declines, which her supervisor recognizes. With documentation of an express agreement for remote work on Fridays only, the supervisor was easily able to communicate with Kate about that arrangement and Kate retracted from the scope creep and returned to her remote work arrangement being Fridays only, which helped her get back on track with her key responsibilities and productivity potential.
Certainly, neither Rex nor Kate’s flexible work arrangements warrant an interactive process under the ADA, as neither accommodation arise under a disability, though Jan’s reasonable accommodation did fall under the ADA. Nonetheless, the same communication and documentation principles apply to Rex and Kate’s flexible work arrangements as to Jan’s reasonable accommodation. Because Rex’s scope creep resulted in his flexible work arrangement being rescinded altogether (which is not in and of itself unlawful), while Kate was allowed to return to the original scope of her flexible work arrangement, Rex may now have a claim for unlawful disparate treatment or disparate impact against the employer because of the different handling of their scope creep. The lack of documentation regarding Rex’s approved scope for his flexible work arrangement will make the employer’s defense of that claim more problematic.
You know the old saying, “If it isn’t documented, it didn’t happen?” Foresight should be the new hindsight for best protection. Record-keeping should be initiated as soon as the request is made or otherwise brought to the employer’s attention and that record-keeping should continue throughout an employee’s tenure. Even in the case of a verbal arrangement, that verbal arrangement should be documented. Remember though, documentation is not just for the employer’s protection; it should also be used to communicate with the requesting employee.
The bottom line is: Engaging in an interactive process for employee problems or barriers arising under disabilities or for other reasons increases worker productivity, reduces employer liability and will aid with the buy-in of employees in a plan that works best for them and their employer. When an employee is reaping the benefits of a flexible work arrangement, communication and documentation are essential to avoid any impermissible or unknown scope creep or discrimination from occurring.
Kelsie Kirkham is an attorney in Parsons Behle & Latimer’s Idaho Falls office. Kelsie can be reached by calling 208-528-5234 or via email at kkirkham@parsonsbehle.com.
