The substitution of paid leave for unpaid FMLA leave occurs often.  A employee eligible for FMLA leave will substitute accrued vacation, sick, medical, or other similar types of paid leave so that he avoids a loss of pay during the leave.  In most circumstances, employers also benefit because, when substitution occurs, the time counts against both the employee’s FMLA and paid time off entitlements.

Under the prior FMLA regulations, substitution of paid leave could be abused.  For example,  vacation leave was required to be substituted for any FMLA leave.  Common restrictions imposed on the use of vacation such as advanced notice or requiring it to be used in minimum blocks of time could not be imposed to prevent substitution.  This ready availability of paid leave surely was very tempting to some employees that could not otherwise use such time.

The new FMLA regulations, however, give employers the ability to reduce abuse.  Under the new 29 C.F.R. § 207, employers can require employees to meet all of the normal requirements of paid leave policies before permitting substitution.  For example, if a policy requires that vacation be taken in full day increments, an employer can deny substitution for an employee’s one-half day FMLA leave.  Similarly, if vacation time cannot be taken during a particular month, substitution could be denied during that time period.

The consequences of the new rule are obvious.  Employees might now be required to take unpaid FMLA leave rather than substitute paid leave.  As a result, the temptation to use the FMLA to obtain paid leave that they otherwise would not be entitled is eliminated.

What do Delaware and Colorado employers have in common? If Delaware House Bill 231 is passed, both states will require employers to grant employees leave to attend school-related functions for their children. Unlike Colorado’s law, which applies only to employers with 50 or more employees, Delaware’s law would apply to all employers. In a nutshell, Delaware’s law would grant working parents 16 hours of unpaid leave per year to attend school-related events.

If passed, the law would require that all Delaware employers, regardless of size, permit employees to attend classroom activities, school meetings and extra-curricular school events related to the employee’s child if the meetings or classroom activities cannot be scheduled during non-work hours, up to 16 hours a year, per child. The time off can be taken in increments of up to 4 hours. The only consolation to small employers is that employers with ten or fewer employees working at one location could limit the number of employees who may take leave on any one day.

Any time off taken under the new law would be unpaid (like FMLA leave), but the employee could substitute any “available leave” such as vacation and personal days to be compensated for this time.

The only responsibility of the employee requesting such leave would be to provide at least 48 hours advance notice of the leave and make a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer. The employer can request written verification of the event.

Any employer who violates this section shall be subject to a civil penalty between $1,000 and $5,000 per violation.

One interesting question is whether sick leave would be considered “available leave.” “Available leave” is defined in the statute as “annual or vacation leave, personal leave, compensatory leave or other similar leave provided to an employee with pay by an employer.” Unlike the Colorado law, Delaware’s statute does not explicitly identify “sick leave” as leave that could be used for this purpose. One would expect employees who have paid sick leave to attempt to use this leave, prior to other types of accrued leave.

Although the leave is unpaid, it could potentially present a considerable burden on smaller employers. Under the statute, an employer with 11 employees, 5 of whom requested leave to attend the same school-related function, would be required to let them all attend. It makes more sense to limit the statute to larger employers, like the FMLA, and like Colorado did in its similar law.

We’ll keep you posted on the progress of this bill.

Military caregiver leave, which was amended to the FMLA in January 2008 as part of the National Defense Authorization Act, provides unpaid leave to employees who need to take time away from work to help care for a covered family member who became ill or was injured in the line of duty. This leave can be critical to these employees.  But what about when the employee is the service member?  There are ways that employers can offer assistance to employee service member, as well. 

Employment can play a major role in the recovery of wounded and injured service members. To support these brave men and women in their return to civilian life, the U.S. Department of Labor (DOL), has launched two employment-related outreach programs for returning service members and their employers—REALifelines and America’s Heroes at Work.

Recovery & Employment Assistance Lifelines (REALifelines)

The DOL's Veterans' Employment and Training Service (VETS), developed the REALifelines program, which is managed by the DOL's Office of Disability Employment Policy (ODEP).  The program creates a personalized network to ensure that wounded and injured service members are trained for rewarding careers in the public and private sectors. REALifelines provides wounded and injured service members—and their primary caregivers—the opportunity to meet face-to-face with a Disabled Veterans’ Outreach Program specialist who provides guidance on how to secure employment and achieve economic self-sufficiency.

America’s Heroes at Work

The DOL’s second initiative, America’s Heroes at Work, focuses on the employment challenges of returning service members living with Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD), which are two of the most common injuries among today's service members.  America’s Heroes at Work offers a variety of educational resources devoted to workplace best practices for returning service members with TBI and PTSD. Materials include fact sheets, Web-based training tools, educational presentations and more—all designed for employers, workforce development professionals, service branches, key military support systems, veterans’ service organizations and One-Stop Career Centers.

These two programs are representative of the ODEP's ongoing efforts to give the men and women of the U.S. Armed Forces practical assistance in their transition back to civilian life.  Employers who employ service members or the family of service members should not hesitate to take advantage of the many initiatives made available by the DOL and ODEP.  

I spoke about Paid Time Off (PTO), Systems during a recent audioconference.  Following the seminar, I received the following question from a participant. I imagine many others have had similar concerns about making the switch from a traditional time-off system, where vacation, sick, and personal time are all separate and treated differently, to a PTO system, where all time off is lumped together in a "bank" from which the employee can withdraw, regardless of the reason. 

Q:  We are considering switching to a PTO bank for paid time off.  We discovered that we have some employees who have built up huge banks of personal and sick time that we have traditionally allowed to be carried over from year to year.  Until recently, we "bought back" sick time at the end of the year, so long as the employee had at least five years of service and had accrued a minimum amount of sick time.  Now, we pay out unused vacation and personal time but sick time is forfeited.  As we plan our PTO policy we wanted to limit the carryover of PTO to 10 days (80 hours) at the end of our fiscal year.

Can you provide me with examples of what other companies have done when implementing a PTO system to handle situations where people have extremely large banks of time to be converted to PTO?

A:

Many employers decide to reduce the amount of hours that may be paid out when they switch to a PTO system because the understanding is that PTO is a richer benefit.  So the first thing to do is to determine whether you will permit payout or rollover at all.  (Note that the laws vary on the permissibility of "use it or lose it" policies from state to state.)  Once you establish a maximum number of hours that can be carried over into the next fiscal year, you'll have to decide what to do with any time in excess of the minimum.  There are a number of viable ways to handle these excess hours.  If possible, try to consider allowing employees to choose from several options.  Here are just a few:

1.  Pay out cash for the PTO hours over the maximum number at a discounted rate, similar to your buy-back plan. 

2.  Designate the excess hours as sick-leave-only time.  This would never be paid out or rolled over from year to year.  But if an employee has reason to think he or she may need the sick time (for example, for maternity leave), this would be a very desirable alternative.

3.  Forfeit any time above the minimum.

4.  Permit a certain amount of hours to be carried over based on the length of service; i.e., the longer the individual has been employed, the more time he or she may carry over.

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

If enacted next year, the Employee Free Choice Act (“EFCA”) would amend the National Labor Relations Act by doing away with secret ballot elections and replacing them with a card-check procedure that would require unions only to obtain signed authorization cards by a majority of employees in order to organize.

Employers’ current concern that the law will be enacted is causing some to overreact by, among other things, implementing grievance and arbitration procedures that mimic those in union contracts. But doing so at this stage makes little sense, whether or not the EFCA is passed. If it is not, employers would find themselves with unwieldy and expensive procedures that might not be suitable for their workplaces. And they would be handing the unions an argument in favor of organizing – pointing to adoption of these procedures as something almost all union contracts already have, and being able to puff about how much more the potential union members can expect if they agree to unionize. Moreover, by adopting these procedures now, employers deprive themselves of a major bargaining chip in the event they do reach the table for collective bargaining negotiations. All in all, adopting a wait and see approach makes a great deal of sense in this situation.

Working families, especially women who work outside the home, want to know what the presidential candidates have on their respective agendas that will affect the workplace.  Barack Obama has begun to address some of the employment-related portions of his campaign platform.

On July 28, 2008, Barack Obama unveiled the blueprint for his Plan to Support Working Women and Families. In it, Barack promises many changes to improve the lives of working women in America – among them include:

• Expand FMLA coverage to cover employers with 25 or more employees (currently it only covers employers with 50 or more employees) and to cover additional purposes including participation in children’s school-related activities
• Encourage states to adopt paid leave with fund to assist states with start-up costs
• Protect against caregiver discrimination by enforcing the recently enacted guidelines on Caregiver Discrimination
• Expand flexible work arrangements with the federal government leading by example on flexible work arrangements and telecommuting.

If Barack wins the presidency, it will be interesting to see how many of these agenda items he follows through with. Obviously, it could mean big changes for American employers. Stay tuned!

Federal Employees Paid Parental Leave Act (H.R. 5781) Passes the House

The FMLA mandates that employers of a certain size give parents 12 weeks’ leave, and allow them to return to the same or substantially similar position. But with the exception of a few states who have enacted states requiring that some amount of this leave be paid, employers have no obligation to pay for any parental leave.

That may soon change for the nation’s largest employer. On June 19, 2008, the House passed the Federal Employees Paid Parental Leave Act (H.R. 5781) by a 278-146 vote. H.R. 5781 provides federal employees with four weeks of paid parental leave after the birth or adoption of a child. A bipartisan companion bill has been introduced in the Senate. Stay tuned until after the November elections to see what kind of momentum this one builds!

Workplace Flexibility Across Borders

The Institute for Women’s Policy Research in conjunction with the Center for WorkLife Law recently released “Statutory Routes to Workplace Flexibility in Cross-National Perspective.” The report presents an interesting statutory overview of what 21 high income countries, including the U.S., are doing or not doing in the area of workplace flexibility. Many of these countries have some form of “flexible working statutes,” which put the burden on the employer to defend why it will not allow a flexible working schedule.

The report notes U.S. legislation—the U.S. Working Families Flexibility Act—which was introduced by Sen. Ted Kennedy and Congresswoman Carolyn Maloney and modeled after the United Kingdom and New Zealand laws. Intrigued? You can read the whole report on WorkLife Law’s website.

Gender stereotyping is a common topic today.  Plenty of ink's been poured on topics like the maternal wall, maternal profiling, and the effect of "off-ramping" by women who take time away from their careers to raise children. But it's not often do we hear about the struggle for a work-life balance faced by men.  So, in celebration of Fathers' Day, here are a few facts and statistics about the challenges faced by the modern stay-at-home dad.

17.4% of children aged 0-4 in the U.S. with an employed mother are cared for full-time by their fathers. As compared to 11% in the U.K.

The Family Medical Leave Act ("FMLA") provides for unpaid leave to care for a newborn or a newly placed adopted child.  The act is gender-neutral and the availability of leave is unrelated to status as "mommy" or "daddy."  But what about employers with less than 50 employees, to which the FMLA does not apply?  Well, dads, good luck.

Paternity leave policies, which offer paid leave in varying amounts to fathers of newborns, are uncommon in any size company. And closer to rare in small businesses, which are less likely to be able to afford paid leave than their big business counterparts. 

If your employer does not offer paid paternity leave, you may be left with accrued vacation or personal time as the only realistic alternative.  And those will likely be very short.  Certainly not close to the 12 weeks of maternity leave that many employers offer.

A 2007 study from recruitment firm Adecco USA found that 59% of U.S. working dads would not take unpaid paternity leave if their employer offered it.  The most commonly cited reason was cost.  Apparently it would put too big a dent in household budget.  Other frequently cited reasons included the fear that it would damage their careers, being too busy to take time off, or the concern that they're too indispensible at work.

Well, there's always flextime.  But given the difficulty women face as they try to get more employers to join the alternative-schedule bandwagon, men may be looking at an uphill battle with this option, too.

No matter whether you're a dad who stays at home or a dad who stays at work, happy fathers' day to all of the hard-working dads!

Federal employment laws often track state-law trends. And, across the country, proposals for paid and unpaid leave have become frequent visitors in state legislatures.  Employers should be aware of these proposals, even if your state hasn't yet been affected.  Are these new laws a sign of what's to come?

New Jersey Paid Family Leave

In April 2008, New Jersey became the third state in the nation to enact paid family leave legislation. The new law, which goes into effect in January 2009, will extend the State's existing temporary disability insurance (TDI) system to provide workers with family leave benefits to care for sick family members or newborn or newly adopted children. The legislation will provide 6 weeks of TDI benefits (two-thirds wage replacement up to maximum of $524 in 2008) for a worker taking leave.  Employees will be subject to an additional payroll deduction to finance the leave.  Workers will be able to take paid leave beginning in July 2009.

Paid Sick Leave In California

On Thursday, May 29, 2008, the California approved a bill that, if successful, would require that state's employers to provide paid sick days.  California would be the first state in the country to mandate paid sick time. 

Who Is Covered?

As drafted, the law would require businesses with more than 10 employees to provide at least 9 days of paid leave.  Businesses with 10 or fewer employees would be required to provide 5 days of paid time off.

An employee would become eligible for leave after 90 days of employment.  Every employee who works in the State for at least 7 days during the calendar year would qualify.

The sick days could be used for personal illness, the illness of a family member, or to recover from domestic violence or sexual assault.

What Are Employers Required to Do?

In addition to providing the paid leave, employers would have to comply with posting, notice and recordkeeping requirements.  And failure to do so could result in state enforcement through the Department of Industrial Relations, but could also serve as the basis for a civil suit.

One thing the law would not require employers to do is to pay employees for accrued but unused time off at the time of separation. 

The bill went to the state Senate on Friday.  Governor Schwarzenegger has not indicated his position on the proposed law.

Domestic Violence Leave in Washington

Effective April 1, 2008, all Washington employers, regardless of size, must provide "reasonable leave" for victims of domestic violence, sexual assault and stalking. 

Who Is Covered?

Eligible employees include victims of domestic violence, sexual assault or stalking.  The law also protects the employee's family members, which is defined by the statute and includes someone with whom the employee has a "dating relationship." 

The leave may be taken for the purpose of participating in legal proceedings, to receive medical treatment and mental health counseling, or obtain support from social services programs. Family members can take leave to help the employee secure help or safety. 

What Must Employers do to Comply?

The law requires employers to provide unpaid job-protected leave, including intermittent leave.  As with the Family Medical Leave Act (FMLA), upon return to work, the employee must be restored to his prior position or its equivalent.  Health insurance coverage must be maintained during the absence, as well.  The statute also contains an anti-retaliation provision.

There are also notice and verification laws very similar to those contained in the FMLA.  The employee must provide notice to the employer no later than the end of the first day of leave.  And employers may require timely verification in the form of a police report, court document, or a statement from a victim's support group, an attorney, clergy, or medical professional.  The statement may also come from the employee directly.  The law requires that the confidentiality of this information be preserved.

The Paid Family Leave Collaborative maintains a website with detailed coverage updating the movement for various types of paid and unpaid leave across the country.

Family and Medical Leave has hit New Jersey employers. The N.J. Senate passed legislation that would make the Garden State only the third state (after California and Washington) with state-sponsored paid family and medical leave. Governor Corzine said he intends to sign the bill, so employers should start preparing now.

The New Jersey Division of Civil Rights, the state agency charged with enforcing the bill, has posted a helpful Q&A on the NJ FMLA on its website.

The criteria for employee coverage will be the same as for coverage under the state’s unemployment compensation law. Employers are covered if they are covered under the New Jersey Temporary Disability Benefits law, that is, if they have one or more employees who earned at least $1,000 in the current or preceding calendar year. Employees will be entitled to benefits in the amount of two-thirds of their weekly pay, up to $524 per week, for up to six weeks in any 12-month period.

Benefits are payable for time off taken to care for a seriously ill family member, or in connection with childbirth or adoption. Benefits will be funded by an additional tax on employees of about $.48 per employee per week, beginning on January 1, 2009. Benefits will begin to be available on July 1, 2009.

The law does not include any job restoration guarantees, and provides that employers with fewer than 50 employees (who are not covered by the federal FMLA) will not be liable to a discharged employee.