Flexible Working Arrangements: Right to Ask, Duty to Consider
Effective January 1, 2014, under Act 31 of the Vermont State Law, an employee has the right to request a Flexible Working Arrangement and the supervisor has the duty consider such a request at least twice per calendar year.
[Act 31 includes legislation on a variety of topics in addition to the guidelines on Flexible Working Arrangements. In the text below, the term "this section" refers in the fuller context to the section of Act 31 that is focused on Flexible Working Arrangements. That section is reproduced here in its entirety.]
Sec. 6. 21 V.S.A. § 309 is added to read:
§ 309. FLEXIBLE WORKING ARRANGEMENTS
(a)(1) An employee may request a flexible working arrangement that meets the needs of the employer and employee. The employer shall consider a request using the procedures in subsections (b) and (c) [below] at least twice per calendar year.
(2) As used in this section, "flexible working arrangement" means intermediate or long-term changes in the employee's regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job-sharing. "Flexible working arrangement" does not include vacation, routine scheduling of shifts, or another form of employee leave.
(b)(1) The employer shall discuss the request for a flexible working arrangement with the employee in good faith. The employer and employee may propose alternative arrangements during the discussion.
(2) The employer shall consider the employee's request for a flexible working arrangement and whether the request could be granted in a manner that is not inconsistent with its business operations or its legal or contractual obligations.
(3) As used in this section, "inconsistent with business operations" includes:
(A) the burden on an employer of additional costs;
(B) a detrimental effect on aggregate employee morale unrelated to discrimination or other unlawful employment practices;
(C) a detrimental effect on the ability of an employer to meet consumer demand;
(D) an inability to reorganize work among existing staff;
(E) an inability to recruit additional staff;
(F) a detrimental impact on business quality or business performance;
(G) an insufficiency of work during the periods the employee proposes to work; and
(H) planned structural changes to the business.
(c) The employer shall notify the employee of the decision regarding the request. If the request was submitted in writing, the employer shall state any complete or partial denial of the request in writing.
(d) This section shall not diminish any rights under this chapter or pursuant to a collective bargaining agreement. An employer may institute a flexible working arrangement policy that is more generous than is provided by this section.
(e) The Attorney General, a state's attorney, or the Human Rights Commission in the case of state employees may enforce subsections (b) and (c) of this section by restraining prohibited acts, conducting civil investigations, and obtaining assurances of discontinuance in accordance with the procedures established in subsection 495b(a) of this title. An employer subject to a complaint shall have the rights and remedies specified in subsection 495b(a) of this title. An investigation against an employer shall not be a prerequisite for bringing an action. The Civil Division of the Superior Court may award injunctive relief and court costs in any action. There shall be no private right of action to enforce this section.
(f) An employer shall not retaliate against an employee exercising his or her rights under this section. The provisions against retaliation in subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of this title shall apply to this section.
(g) Nothing in this section shall affect any legal rights an employer or employee may have under applicable law to create, terminate, or modify a flexible working arrangement.