A decade ago, our former master from Colonial days, Great Britain, granted its own modern-day working subjects a narrow slice of flexibility. Legislation which became known as the “Right to Request” (RTR) offered some British caregivers the “right” to ask for a menu of flexible schedules. While this would seem like something any British or American employee should be able to do without legislation, the habit of saying “No” to even mild requests was widespread. Today, the Right to Request movement is starting to move across the United States, as well.

Right to Request Legislation Abroad

The core of this new “right” was that employers couldn’t intimidate, retaliate, punish, demote or otherwise disadvantage those who exercised their seeming free speech rights in the interest of greater flexibility. But, the legislation also went to great lengths to enshrine the employer’s continued right to “Just Say No.” Any business’s contention of possible organizational harm, no matter how genuine or fanciful, trumped any employee request—no matter how sensible, valuable or viable.

Despite the modest nature of this legal milestone, it did offer greater legitimacy to flexibility in workplaces throughout the country. And Britain’s former colonies took notice, and acted—mostly. Australia and New Zealand soon adopted similar measures. Then the U.S. Senate took up its own version of this legislation, without success—again and again and again. It has languished for most of a decade.

U.S. Pushback Continues

On July 1 of this year, the UK adopted new legislation that expanded the RTR to all employees with 26 weeks tenure or more, required an internal appeals process, and created an external tribunal for appeals.

In the U.S., flexibility has remained almost exclusively the province of employers, not government. It has gained ground solely as a matter of private, voluntary action— individual policies, practices and preferences. It is not confined to caregivers, nor is it protected for anyone. It is an “arrangement” or an “option” or a “perk.” It has certainly not been a right or an expectation.

Skeptical Congresses have kept this “right” at bay. Fourth of July holidays have come and gone neither acknowledging nor celebrating it. Our fundamental freedoms in this domain have apparently included only the inalienable “right to be rigid.”

Except this year is different. Perhaps flex has finally proven itself or familiarity has bred tolerance. But when it comes to legislation, it turns out that do-little or do-nothing Congresses may have had a perverse effect on workplace policies. Failure to act nationally on matters such as flexibility, paid parental leave, or minimum wage has led to states taking up these issues—and often going beyond the goals of earlier federal proposals.

The Expansion of Right to Request in the U.S.

This July 4, the Right to Request, modelled on the early UK legislation, is law in Vermont and San Francisco. Implementation is underway. Late in June, President Obama issued an Executive Order with a Right to Request for 2 million+ Federal workers. Cities as different as New York and Berkeley are considering such laws, and other cities and states from both coasts and in between are exploring their options.

The good news is that visible support for greater flexibility seems to be growing. The question for champions of flexibility is becoming: “What shape should such legislation take to expand availability and feasibility of practices that benefit all employees and employers?”

Key Pieces of Right to Request Legislation

We can’t help but acknowledge the role Britain played in establishing what became the U.S. on this continent. But we celebrate the Fourth of July as the day we broke from their tutelage and charted our own path. In a far more modest way, we might want to think twice about spreading mini-UK laws about the countryside without examining their limitations.

Consider these key pieces of existing RTR legislation:

In 2004, the UK law conferred the RTR on a carefully defined set of caregivers. Ten years later, it has expanded that right to most employees. Those who are considering legislation might believe that it’s politically easier to start with family issues and then broaden. However, the level of support for and use of flex in the U.S. in 2014 probably argues for setting a broader eligibility from the start. And this fits better with the egalitarian spirit of “We the People.”

Potential framers of such legislation have to decide whether there is any enforcement mechanism, and if so, is it aimed at “process” or “content”? All legislation to date focuses on process: if there is any employer requirement or sanction, it addresses the “how” elements of a written form or proposal, a meeting between manager and employee and/or a written response and a clear timeline. Outcomes are not typically reviewed.

Burden of proof
All existing legislation enshrines the Right to Request with no hint of Responsibility to Accept. Indeed, all explain quite clearly that this “right” is really a hard-to-enforce “protection.” It is a modern equivalent of the right to petition the King. Any request can be rejected or withdrawn at any time for any reason by any business.

The right to petition is a great thing. But endless petitioning without the corresponding Redress of Grievances is a slender assurance. The various flexible schedules from telework and remote work to part-time and job sharing have been proven to be beneficial to both employees and managers in millions of cases.

The next generation of legislation might consider a sharing of the burden of proof. Consider this approach: petitioners have the right and responsibility to make a clear, compelling and measurable case for the business value and viability of any request; and organizations / managers should have the right to reject only those proposals that will demonstrably harm the business—not just disrupt habit, prejudice, preference, etc.

The devil may prove to be in the details. But bold and broad progress in the spirit of the Declaration of Independence requires getting the equities—the balance of interests—right. As Right to Request conversations spread in the period ahead, and before borrowed legislation is rubber-stamped, it may be time to step back and apply the imagination, innovation, and ingenuity that have served us well since colonial days. And imagine flexibility legislation that is above all flexible and effective—for us.

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