Previously I posted about my quest for the perfect economic office chair. And, as everyone knows, nothing's more important than the perfect accessory. When I do manage to find my dream chair, I now know the perfect accessory for it--the Herman Miller Laptop Stand. The Scooter Laptop Stand provides comfortable and ergonomically correct keyboard and mouse support. The Scooter adjusts in height from 22" to 30" and has a tilt range of 20°. It can be purchased at Amazon for $379 and comes in Solid Cherry, Ash, and Ebony finishes.
Teens outrank adults in the use of social networking sites by 30%. But the popularity of social networking sites is not limited to teenagers. Currently, one-third of adults in the U.S. have a profile at a site like MySpace or Facebook. And this number is rising. In fact, the number of adults who utilize these sites has quadrupled since 2005, according to the Pew Internet & American Life Project’s December 2008 tracking survey.
See the full survey here:
What are the consequences of this skyrocketing use? They can only be imagined. As we've posted about previously, employers are taking a hard line when they discover what they consider unacceptable conduct by employees. With more and more adults spending time on sites like Facebook and its more "grown-up" cousin, LinkedIn, it seems inevitable that there will be more and more terminations resulting to online conduct.
The Fair Labor Standards Act (FLSA), requires employers to make, keep, and preserve records regarding employees and employee compensation. The FLSA provides a 15-item list of the types of information that the employer has the obligation to obtain. All primary sources of this information must be preserved for a period of three years for all current and former employees. All supplementary sources must be preserved for at least two years.
What Information Am I Required to Keep?
First, you must be familiar with the information for which you are responsible. The list includes:
- Name and SSN;
- Home address;
- Date of birth if under age 19;
- Sex and occupation
- Day and time on which the workweek begins;
- Hourly rate of pay;
- Basis of pay;
- Nature of any payment claimed as an exclusion from the regular rate;
- Total hours worked for each day and each week;
- Total straight (i.e., non-overtime or premium) pay;
- Total overtime pay;
- Additions and deductions made, including wage assignments;
- Total wages paid;
- Date of payment and pay period covered; and
- The company's sales and purchase records for purposes of determining whether it is an enterprise with an annual business volume of $500,000.
What Are the Primary and Secondary Sources of this Information?
All records that constitute primary sources of the above-listed information must be preserved for a period of three years. Such records include:
- payroll records;
- work certificates;
- CBAs; and
- employment contracts.
Supplementary records are the documents that serve as the source documents for other payroll records. Supplementary records may include:
- time cards;
- production cards;
- wage rate tables;
- piece-rate schedules; and
- work-time schedules.
What Else Should I Keep and Where Should I Keep It?
Although not required by the FLSA, it is a good idea to retain job descriptions, performance reviews, internal memos, job postings, handbooks, and other materials relating to wage classifications and pay practices that you could use to justify your pay practices during an audit, for a period of at least three years.
The FLSA requires that all records be kept at the place or places of employment or at one or more established central record-keeping offices, where such records are customarily maintained. If kept outside the place of employment, they must be available within 72 hours of a request by the U.S. Department of Labor.
And, finally, don't forget about your posting requirements. Employers must post notices in the workplace that state the requirements of the FLSA.
The Fair Labor Standards Act (FLSA), is a very challenging statute to apply correctly. For more information about legal compliance with the federal wage and hour laws, see the following posts:
Leadership blogger, Ed Brenegar, of Leading Questions, is a finalist in the Johnny Bunko 7th lesson contest. If you aren't familiar with the contest, it's a big deal. To become a finalist, Ed submitted his vision on the relationship dynamic in the professional work environment. The concept is called, To Say Thanks Every Day and it can be described as the revolution of the "thank you."
Voting is only open through Thursday, January 15, so visit the Johnny Bunko contest website to register your vote. While you're there, be sure to have a look at some of the more than 50 entries for the contest. Don't know who or what Johnny Bunko is? Oh no! How about Daniel Pink? BusinessWeek Best Seller? How about that? The book, Johnny Bunko, written by Daniel Pink, was a literary phenomenon in 2008 in the business world. From the book's website:
The Adventures of Johnny Bunko is America’s first business book in manga and the last career guide you’ll ever need.
One night Johnny meets Diana, a magical and butt-kicking adviser who teaches Johnny -- and you -- the six lessons of satisfying, productive careers:
1. There is no plan.
2. Think strengths, not weaknesses
3. It’s not about you.
4. Persistence trumps talent.
5. Make excellent mistakes
6. Leave an imprint.
The book could be described as "the revolution of the Everyman." Revolutions all around! Check out Ed's entry on the real value of saying "thank you," as well as the other top contenders. Then be sure to pick up the Johnny Bunko book and give yourself the sixty (or ninety) minutes it takes to read it cover to cover. Enjoy the revolution.
Bullying in the workplace has been a hot topic in the labor and employment world since 2007, when The Workplace Bullying Institute published a revealing survey on the topic. Since then, the subject of Jerks at Work has played a regular role in scholarly discussions about how employers can work to improve the working environment. The attention, at least from legal scholars, has been focused on the overlap between unlawful harassment and the bullying epidemic. So the theory goes, bullying conduct looks enough like harassing conduct that a jury could reasonably interpret the former as the latter.
I speak frequently on the topic and, when making a case for the implementation and enforcement of anti-bullying policies, I explain it as a matter of simple business sense. Happy people don't sue. (Most of the time.) But pissed-off people make great plaintiffs. Pick on someone long enough and be mean enough and it's just a matter of time until the person reacts. The reaction can come in a myriad of forms, all of which are adverse to the employer's interest. Workplace violence is one possible response to bullying experienced by workers. Legal action is another.
This topic also comes up when I give general employment discrimination training or harassment-prevention training. When discussing the legal elements of harassment, I tell attendees that the harassing conduct must be because of a protected class. If a male supervisor terminates a female employee, this is not gender discrimination. For gender discrimination to exist, the termination decision must have been made because of the employee's gender. There is a principle in discrimination law that stands for the idea that, where the alleged discriminator is in the same protected class as the plaintiff-employee, it is less likely that discrimination occurred.
At this point in the lecture, I laugh to myself because I know what comes next. I give some examples of this principle at work. If a worker alleges that he was not hired because of his age, the fact that the hiring manager was older than the candidate weighs against the candidate. Similarly, if an employee complains that he was unlawfully terminated because of his race (Indian), the fact that the manager who made the decision to terminate also is of Indian origin will weigh in the employer's favor. I go on to give another example involving an employee who is not promoted and files a charge of discrimination alleging gender discrimination. Just as in the other examples, if the manager who made the promotion decision also is a woman, this fact will weigh against the employee's case. I then say, "As any woman in this room will attest, this idea is ridiculous. Women are treated the worst by other women." All the women in the room laugh--the truth is funny.
If she had been in the training session, Peggy Klaus of the N.Y. Times would have laughed, too. In her recent article, A Sisterhood of Workplace Infighting, Klaus discusses the reality that exists among women at work. As she puts it, "we can be our own worst enemies at work." She cites the Workplace Bullying Institute's study, which found that women bullies target other women 70% of the time, whereas male bullies are equal-opportunity abusers.
Why is it that this dynamic is so true? Why is it that women are most likely to pick on other women at work? Although this certainly has been true for as long as women have had a seat at the table, I think that the tides have begun to turn and that women are comfortable enough in their seats so that they have no need to worry about someone kicking them out.
Walking while you work was the topic of an earlier post. This post stays within the same theme--how to be healthy at work--but with a different perspective--mine. I have some thoughts of my own on this topic.
For one, I would cherish the opportunity to move more through the day without sacrificing working time. It's not the walking part, really, as much as it's the idea of not sitting that I find attractive. Basically, anything that involves me not sitting would be of value. Alternatively, sitting comfortably and without permanently wrecking my posture would be a heck of an idea.
Somehow, I've never gotten around to buying one and my back really pays the price for my indecisiveness. What's stopping me? There's just too many from which I could choose! But that's not to say that I haven't given it a lot of thought. Here's the rundown on my years of searching.
There's the classic Herman Miller Aeron chair. Everyone knows that the Aeron is pretty hard to beat when it comes to function and design. Being a lover of modern furniture, I can admire the Aeron even for the story of its creation--and if you haven't yet read the story, it's a great story of perseverance and dedication, of leadership and teamwork. Good stuff. The Executive Aeron can be purchased for approximately $1,300.
Herman Miller also offers the Mirra ($829) and Celle ($629) chairs as less pricey Aeron alternatives. Both chairs come in a variety of colors, which is an advantage over the Aeron. Color is important.
I have to pass on the Aeron because, honestly, it's just not "pretty" enough for me. Yes, mock me if you will, but at least I'm honest. I appreciate the aesthetic but I need more glamour than the black mesh has to offer.
The Freedom chair by Humanscale is next in the rotation. The Freedom chair (with headrest, of course), also has plenty of design awards on its resume and is known as one of the best in the ergonomic category. But, to its credit, it comes in a variety of colors and textures, including leather, which happens to be my preference. At around $1,000, the chair is priced competitively. The Liberty chair, priced for under $800, is Humanscale's task chair alternative.
Next up is Steelcase--the maker of the Walkstation treadmill-desk combo that prompted this post. Steelcase has plenty to offer in the way of ergonomic seating, the two most popular choices being the Leap and Think chairs. Both are offered in various colors and both have a contemporary look, with the Think chair's sleek, linear design being my preference between the two.
I've been known to be open to new things so it's not surprising that I've given a lot of thought to the out-of-the-ordinary seating options. For instance, the HAG Capisco saddle chair (in red, below, $690 - $1,200) dares to be different. Even assuming that it's as comfortable as could be and the look was where I wanted to go, the whole "saddle" concept just doesn't work for me. The idea is that you can sit in the chair backwards (why, I haven't the foggiest). Sorry, I wear too many skirts to make this a realistic possibility. I'll pass, although I do love the height-adjustable feature. In my ideal office, I would have a height-adjustable desk, making this feature quite important.
The same principles go for the "stool" option but, in the interest of fairness, I'll list them anyway. The Swopper Stool by Via (left, $600) is designed to force its user to keep their balance by engaging their abdomen muscles instead of letting us lazy office workers slump over in our traditionally terrible posture. The HAG Balans Kneeling Chair (right) is even less likely to ever see the four walls of my office. I've witnessed these in use and, unless you work at a health club or in another industry where you are expected to wear clothes designed for comfort, this option is just impractical. My devotion to improved posture is not this strong.
Now let's get to the serious contenders. If and when I get around to breaking open the office-chair-piggy-bank, there are just two that make me stand up and cheer.
First is the Steelcase Leap Worklounge Chair in Leather ($2,700-$3,400 depending on options).
It's beautiful. And that's exactly why I like it. It comes in white leather, which is my favorite upholstery option (practicality be damned). There is also an optional ottoman but who has time to put their feet up? We're working too hard to afford the chair!
And then there's the ultimate in luxury office seating, the Silver chair by Interstuhl. Interstuhl is a German company and brings German precision to its line of couture office furniture. I could say more but the pictures speak for themselves.
Beauty is not cheap. The base model in black will cost you around $4,500. But why stop there? If you're going to do luxurious, go all the way. And Interstuhl has just the chair for satisfying the maximum luxury quotient.
For a mere $65,500, you can be one of the lucky owners of the world's most expensive office chair. You'll get not just the chair but the matching ottoman, as well, both of which are plated in 24-karat gold.
The chair has even had a few roles on the silver screen. It was used as Al Pacino's chair in the movie Ocean's 13. And, more recently, made a cameo in the latest Bond film, Quantum of Solace.
Mandatory use of E-Verify has been on the agenda for several months. Today in my inbox I found a message from the Society for Human Resource Management (SHRM), saying that SHRM, the U.S. Chamber of Commerce, Associated Builders and Contractors, the HR Policy Associate, and the American Council on International Personnel had filed suit in December in the United States District Court for the District of Maryland to stop the OFCCP from requiring federal contractors and subcontractors from using E-Verify.
On Thursday, January 8, the U.S. Department of Justice agreed to delay the effective date of the new requirement from January 15, 2009, until February 20, 2009, so that the court can conduct a hearing on the merits of SHRM’s claims. The plaintiff organizations argue in their 28-page December 23, 2008, complaint that the government has exceeded its authority by requiring government contractors to follow the new requirements to use E-Verify for not just new employees but also previously verified current employees.
For background on the E-Verify program, see:
Better writing is a worthy goal for anyone. And certainly for lawyers, who make a living by being persuasive. I work on my writing skills year round but, for the purposes of this series of posts, I'm calling this goal a resolution. In the spirit of resolutions, I posted on 10 of the Funniest Writing Blogs. (If you missed that post, go check it out--you're guaranteed a laugh from the very particular bloggers who feel so passionately about things like the overuse of quotation marks.)
In the second post in the series, I offered readers a list of 20 Online Dictionaries, which included everything from the Dictionary of Philly Slang (our native language), to the RhymeZone, to the Dictionary of Sushi. You can never have too many reference sources, right?
Today, in the third post in the series, I'm being a bit more serious and scholarly. Below are 30 of the Best Writing Blogs. Some of the blogs focus on legal writing, some are strictly business (writing, that is), and some are whatever they want to be on any given day. Here's to better writing everywhere!
|Adams Drafting, by Ken Adams, concentrates exclusively on contract drafting and writing issues facing transactional lawyers.|
|Bad Language is a U.K. blog by Matthew Stibbe. The blog is dedicated to business marketing, which Stibbe (rightly) believes is linked to effective writing.|
|Building Rapport, The Plain Language Blog, is written by Canadian Cheryl Stephens. The blog's mantra sums up Stephens' philosophy quite well. The purpose of the blog is to "advocat[e] plain language, clear design, sensitivity to audience concerns, and civility."|
|Business Writing, by Lynn Gaertner-Johnston, offers helpful and gracious instruction on writing in the business world. Lynne's posts often derive from questions she's received in one of her writing seminars, which ensures the timeliness of the topic.|
|Confident Writing, by writing coach Joanna Young, offers words of encouragement, as well as words of instruction, to a broad audience, including writers and writing hopefuls.|
|Copyblogger by Brian Clark is targeted towards those who want to improve their online presence through effective blogging.|
|Daily Writing Tips is maintained by five talented professional writers and offers just what it promises--daily tips on how to improve your writing. If you're feeling confident, take one of the several "tests" offered at the site to measure your vocabulary, grammar, and spelling skills.|
|Disputed Issues, by Stephen R. Diamond, J.D., Ph.D., tackles common missteps in legal writing, as well as the reasons why lawyers write so badly.|
|Fairyland Castle is a new blog written by recent law-school graduate, Martin Magnusson, who provides commentary--not instruction--on legal writing.|
|Grammar Girl Mignon Fogarty offers short, friendly tips to improve your writing. Covering the grammar rules and word choice guidelines, Grammar Girl makes complex grammar questions simple with memory tricks to help you recall and apply those troublesome grammar rules. Grammar Girl is also available via podcast, if you want to make that morning commute count for something.|
|Grammarphobia Blog is the love-child of Patricia T. O'Conner and Stewart Kellerman, who met as editors at the New York Times. They offer practical advice for handling every type of grammar problem.|
|Legal Writing Prof Blog offers resources and news updates by legal-writing academics.|
|Legalwriting.net, by Wayne Scheiss, who also maintains an excellent website.|
|Manage Your Writing, by Dr. Ken Davis, former chair of English at Indiana University-Purdue University Indianapolis. This site offers readers short, to-the-point posts on discrete ways to "manage" your writing. It also offers a great list of writing resources.|
|Men with Pens is a Canadian blog by three, you guessed it, men with pens, who post regularly on ways to improve your writing, blogging, web design, and business generally, in an edgy and irreverent way that's proven very popular with readers. [Update Jan. 16, 2010: According to Mister Thorne, this blog is not written by three men with pens but by one woman. How delightful!]|
|Mr. Rewrite is a sassy blog that looks at "spelling, grammar, and usage with a dash of humor."|
|Party of the First Part, by Adam Freedman, is devoted to eradicating the world of the pompous and verbose writing style commonly referred to as "Legalese." At the website of the same name, you can get your kicks by laughing at people who write worse than you at the Legalese Hall of Shame, where "POFP points the Fickle Finger of Fate at some real-life gobbledygook — from insurance contracts, jury instructions, and other literary gems (with translations)."|
|Robust Writing, by freelance writer Jesse Hines, encourages readers to use writing as a persuasive tool for success in business, marketing, and life in general.|
|Set In Style, by Mister Thorne, the "Legal Wordsmith."** One of my favorite writing blogs, this site is directed to the legal profession but is beneficial for anyone whose writing is intended to serve as marketing material.|
|Style & Substance is one of the many great blogs of the Wall Street Journal. Maintained by Paul R. Martin, editor of the WSJ's stylebook, the blog is host to monthly bulletins about style (and the lack thereof) in contemporary language.|
|The (New) Legal Writer, by Ray Ward, an appellate lawyer practicing in Louisiana, is very popular with those in the know around the blogosphere.|
|The Slot is written by Bill Walsh, author of Lapsing Into a Comma and The Elephants of Style. Walsh also maintains the website, The Slot, which provides regular commentary targeted to copy editors and interesting enough for anyone with a passion for writing.|
|The Vocabula Review "battles nonstandard, careless English and embraces clear, expressive English." In short, this blog is dense with solid content that offers valuable instruction to writers at every skill level.|
|The Word Blog, by Boston Globe columnist Jan Freeman, is a blog about "the rules and realities of the English language."|
|Triangle Grammar Guide is a blog hosted by North Carolina's News & Observer journalist, Pam Nelson. The posts are short and witty and propose to be your "online grammar class."|
|Word Wise is written by Dan Santow, VP at Edelman, which, according to Dan, is the world's largest privately held PR firm. Satow's posts are inspired by everyday observations of language done well and not so well.|
|Write to Done is authored by blogger extraordinaire, Leo Babauta. His twice-weekly posts cover "the art and craft of writing." If Leo Babauta blogs it, you can bet it's worth reading it.|
|Writing, Clear and Simple, by Roy Jacobsen, offers writing tips to legal and non-legal writing alike.|
|Writing Tools by Poynter Online is the online home of The Poynter Institute, a school for "journalists, future journalists, and teachers of journalists" located in St. Petersburg, Florida. Poynter maintains one of the very best online resources for everything related to writing.|
|You Don't Say: Language & Usage is a Baltimore Sun blog, written by John McIntyre. McIntyre's bio, as stated on the blog, says it far better than I possibly could: "John McIntyre, a mild-mannered copy editor for a great metropolitan newspaper, has fussed over writers’ work at The Baltimore Sun since 1986."|
The other posts in this series on Writing:
What are your resolutions for 2009? I predicted the top 5 workplace resolutions based on the popularity of various topics on the blog. One of the most popular topics in 2008 was Corporate Wellness. There's no time like the present so why wait to get fit? If you're ready to jump on the healthy-employee bandwagon, here's an interesting way to get started: the treadmill desk. We've written before about this fascinating workplace wellness concept.
The premise is this: Healthy employees are productive employees. To be healthy, employees need to move. Moving employees aren't being productive. It's a vicious circle.
Until now, that is.
Steelcase is trying to change that with its Walkstation treadmill desk. The Walkstation is, in a basic sense, a treadmill and an adjustable desk. Using this nifty tool, employees can walk while they type, talk on the phone, or review documents. Employees aren't asked to jog while working, though. The treadmill runs at speeds of 0.3 - 2 mph.
Health doesn't come cheap, though. A single Walkstation will set you back about $5,000. According to Steelcase, employers are buying single units to be shared among several employees, who can reserve the unit for small periods during the workday.
I have some thoughts of my own on this topic. For one, I would cherish the opportunity to move more through the day without sacrificing working time. It's not the walking part, really, as much as it's the idea of not sitting that I find attractive. Basically, anything that involves me not sitting would be of value.
I'm also in touch with the fact that I am just not that coordinated. The thought of me trying to walk on a treadmill in 4" heels while typing an e-mail to opposing counsel is funny to me, even funnier to anyone who's seen me try to walk and chew gum at the same time. I think it's a disaster waiting to happen. So what would be my preferred alternative? Stay tuned to find out.
U.S. Citizenship & Immigration Services (USCIS), will issue a revised I-9 Employment Eligibility Verification Form. Employers must use the new form on February 1, 2009. USCIS issued an Interim Final Rule describing what documents can be used as proof of identity and authorization to work in the United States.
The biggest change under the new rule is the new prohibition on accepting expired documents. Expired documents will no longer be acceptable proof of the right to work. This means that U.S. Passports and List B identity documents, such as driver’s licenses, may not be used for employment verification purposes if they have expired. In the Interim Rule, the USCIS explains that this measure will help prevent the use of counterfeit documents since current documents are more likely to include security features and up-to-date photographs.
The revised form will also include changes in references to various immigration documents (I-551, I-688, I-688A, I-688B, I-766, I-94, I-94A) to conform to current Department of State and USCIS practices with regard to those documents. There will be two new acceptable List A documents: (1) a machine-readable immigrant visa with a temporary I-551 printed notation, and (2) A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.
The new form and a revised version of the instruction book for completing the form will be available on the USCIS website by February 1. Employers must use the new form for all new employees and for reverification of current employees beginning on that date. The draft of the new form is attached to the Interim Rule.
Workplace attire is a favorite topic of mine. When the New York Times announced that the "man-short" suit was going to sweep corporate offices across the country, I had my doubts. Recently, the Wall Street Journal asked whether unshaven faces would be the next big thing as men laid off from their fast-track jobs rebelled against the system by, well, by dressing like men without jobs.
For those who find this type of fashion-of-the-absurd-style commentary as entertaining as I do, I'm glad to bring another soon-to-be fashion classic to your attention. Corporette, a fairly recent and worthy edition to the blogosphere, spotted this first.*
This Bebe twill suit is available as separates--a jacket with piping and pleats, a bustier vest in the same style, wide-leg (and super-long) pants, and a reasonably conservative skirt. But what really takes the day is not the slightly off-beat twill suit. There's a third option. If neither the pants nor the skirt does it for you, try the super-short shorts. How short is short, you ask? Try a 2.25 inch inseam. Wowser.
*In case you don't already have Corporette in your feed reader, now's the time to add it. The blog is described as a "fashion and lifestyle blog for women lawyers, bankers, MBAs, consultants, and otherwise overachieving chicks who work in conservative offices and need to look professional, but want to be fashionable." Great stuff.
Employment discrimination against pregnant women and moms is on the rise. Or so says the author of an article in this month's Delaware Today magazine. Young Conaway attorney Adria Martinelli was quoted in the article, commenting on the relationship between the state of the economy and discrimination against women with children.
The number of single mothers has increased dramatically over the last three decades, rising from 3m in 1970 to 10m in 2003. And, according to a Cornell study cited in the article, a woman with children is 44% less likely to be hired than a non-mother with the same resume, experience, and qualifications. Mothers who were hired were offered, on average, $11,000 less than non-mothers.
Although these statistics are sobering, Delaware mothers have some statistics worth celebrating. Two Delaware employers were included in the 2007 100 Best Companies for Working Mothers award, AstraZeneca and the DuPont Company. AstraZeneca was also recognized by Fortune magazine as one of the 100 Best Companies to Work For in 2008. The pharma corporation's adoption and fertility benefits earned it recognition from the Dave Thomas Foundation for Adoption and Conceive magazine.
Although the question of whether maternal profiling really occurs in the workplace and, if so, to what extent, is subject to debate, this article clearly believes that it does occur--a lot. Maybe so. But the law is designed to prevent this and, if pregnancy discrimination or caregiver discrimination does occur, the law provides victims with critical remedies and a day in court.
The FMLA gives eligible employees up to 12 weeks of unpaid leave to care for a newborn or just-placed adopted child. Both parents are eligible for the leave--the FMLA does not discriminate based on gender. Additionally, Title VII was amended to add the Pregnancy Discrimination Act ("PDA"), in 1978. In 2008, the Third Circuit ruled that the PDA also prohibits a woman from being fired for having an abortion. The law also offers women protection for undergoing fertility treatment. Lastly, the EEOC has interpreted Title VII as prohibiting discrimination based on caregiver status. This branch of discrimination law protects both men and women from workplace discrimination based on caregiver or family responsibilities they may have at home, including caring for young children, as well as for elderly parents.
It's likely that, for years to come, the debate over whether maternal profiling occurs in the workplace will likely continue. What is clear, though, is that maternal profiling is a type of employment discrimination prohibited by law.
The FMLA is complicated for employers to apply. One reason for this is that most every "definition" in the statute contains another word that has its own definition. For example, we know that FMLA leave may be taken to care for the serious medical condition of a family member. We know that "family member" includes a child of the employee. But who is a "child" under the statute? Here's one twist on that question.
Q: An employee has requested to take intermittent FMLA leave to care for her adult son, who has long-term emotional problems, whenever there is a “situation where she is needed.”
There are three questions that the employer would need to have answered before being able to determine whether the requested leave is FMLA qualified. First, the employer must determine if the adult son is a covered family member, which requires a determination of whether he is “incapable of self-care.” If he requires assistance to engage in the activities of daily living, the second question is whether this inability is a result of a chronic serious medical condition. Third, the employer would need a further description of the “situations” for which the employee would require leave.
Adult Children and the FMLA
Adult children can qualify as a “family member” for purposes of the FMLA only if the individual is incapable of self-care because of a mental or physical disability. “Incapable of self care” means that the individual requires active assistance or supervision to provide daily self-care in at least three “activities of daily living,” such as bathing, dressing, eating, cooking, cleaning, shopping, or taking public transportation.
Emotional Problems as a Serious Medical Condition
The statement that the employee’s son has “emotional problems” is insufficient to qualify him as having a serious medical condition, as is required for FMLA protection. A health-care provider, such as a psychologist, should determine whether the son’s emotional problems constitute a serious medical condition as that term is defined by the FMLA.
“Situations” as Reason for Leave
The FMLA broadly defines the times that an eligible employee can take leave. Simply, the employee must only be taking leave to provide care for or provide psychological comfort to an immediate family member with a serious health condition. If, in the first question, we determined that the adult son qualifies as an “immediate family member” and, in the second question, determined that his “emotional problems” qualify as a serious health condition, the final question is whether the employee is requesting leave to provide care or psychological comfort for her son. If she is taking him to medical appointments or simply caring for him while he is not well, this time is protected by the FMLA. But if she was requesting leave to take him to have his picture taken for the annual holiday card, or to a friend’s house to visit, these would not qualify as protected activities and would not constitute FMLA-eligible leave.
What counts towards “hours worked” under the Fair Labor Standards Act (FLSA), can become an issue when it comes to the Family and Medical Leave Act (FMLA), as well. An employee has been approved to take intermittent FMLA leave one to three days per month. When the employer asks the staff to work overtime, the employee volunteers. He claims that he should be paid at his overtime rate even though he was out on FMLA leave for some portion of the week. Is this true?
Let’s look at the numbers. Let’s say that the employee takes off on Monday and Wednesday for FMLA leave, thus working 24 of the 40 hours for which he was scheduled. And then he volunteers to work on Saturday, a day outside his normally scheduled work time. In all, he actually worked 32 hours (24 + 8), with an additional 16 hours of FMLA leave time. The 16 hours do not count as “hours worked” under the FLSA.
Because he did not work more than 40 hours in one week, the employee is not entitled to overtime pay.
The result is the same even if the employee is paid sick or vacation time during the FMLA leave time. The use of such paid time still does not count toward an employee’s total hours worked.
The Americans With Disabilities Act Amendments Act ("ADAAA"), is giving employers another reason to pay close attention to what's happening on the Hill. The ADA Amendments Act became effective last week with the start of the new year. The EEOC has not completed its final regulations for the new law but that doesn't mean employers aren't still obligated to comply.
To help employers manage this new law, the Job Accommodation Network ("JAN"), has released a new publication and a resource page. All wise employers know about the power of JAN. JAN is a treasure trove of accommodation-related information. If you have questions about what options there are for accommodating just about any disability, JAN is the place to look. And JAN provides not only the answer but actually gives you direct resources for purchasing the necessary goods and services.
The new publication is JAN's Accommodation and Compliance Series: The ADA Amendments Act of 2008 and will be periodically updated as additional information is made public. Complementary resources on the ADAAAA is also available.