OriginalPIC

The Burden of FLSA, FMLA and ADA

I was having lunch the other day with a dear friend and HR colleague and he was telling me a story that I had lived through many times before. In a nutshell, he had a manager who wanted to break the rules because it was “too burdensome” to follow them.

More honestly stated: the manager did not care to do the right thing because the right thing was a pain in her ass.

HR professionals face this dilemma all the time. Shoot, it’s not uncommon to find it is the HR professional who breaks the rules!

Egads! That makes me more than a little sad.

When did doing the right thing become optional?

Never!

My intent of this post is to alert you, the reader, that you must do the right thing. You think it’s burdensome because you’ve been conditioned or allowed to do otherwise for too long.

So let’s get back to basics. I’ve given a brief overview of three laws that, unfortunately, are often ignored and/or applied incorrectly. My overview is simple, like my chicken soup (making it complicated doesn’t make it better).

Fair Labor Standards Act (FLSA)

Many…most…US employers have to comply with the FLSA. The FLSA is herculean, and rightly so. It was born in an era where, quite honestly, US employers took advantage of their employees. You have benefited from the FLSA during your working lifetime and your children have or will benefit from it too so please, for the love of a good banana cream pie, quit denying your employees these benefits.

I won’t go into all of the elements of FLSA…there are way too many for this post…but I will speak to Exemptions because that is the issue I see most often ignored or done wrong.

  • Employers, not employees, are required to determine if an employee’s duties are considered “exempt” from overtime. In order for an employer to do this, a qualified representative from the employer should compare the employe’s job description and, bare with me now, do a little thinking. What I mean by this is the individual needs to review the job description against the Department of Labor (DOL) Exemption requirements.

I, personally, believe the webmaster for the DOL should be denied dessert for a lifetime for how ridiculously difficult it is for many to navigate it, but that’s beside the point. I’ll make it simple for ya. Here is a fact sheet for the Exemptions. Granted, this won’t make it as easy as eating my grandmas spicy pickles (they are tasty) but it’ll at least take the Exempt or Non-Exempt issue from muddy to mirky.

  • Well snap, that means the employer should have a job description for each of its employees, or, at the very minimum, for each group of employees doing very similar work.
  • Employers must track the hours worked of Non-exempt employees because they are guaranteed hourly wages at or above minimum wage. (States vary on what this amount may be.)
  • Employers need to ensure timekeeping is accurate because Non-exempt employees are entitled to overtime for all time worked 40 hours in a work week (or over eight hours in one day for many states.) Moreover, these employees are entitled to such overtime whether the employer asked them to or not.
  • Employers must review the job descriptions for their employees on a regular basis for two reasons. The first is job duties change (you’re lying to yourself if you think otherwise) and the second is the regulations change.

I know…this all seems like a pain in the ass but it is the right thing to do.

Family Medical Leave Act (FMLA)

Employers of 50 or more employees are required to give up to 12 weeks of unpaid, job-protected leave (herein referred to as FML) to eligible employees for the birth or adoption of a child, or for the serious illness of the employee, his/her spouse, his/her child or his/her parent. (Please note, some states have much more beneficial laws than this.)

Before you go rolling your eyes at this benefit, STOP!  Is it likely, during your career, you will get ill, your spouse will get ill, you will have a new baby at home, your child will get ill, etc. So quit your bellyaching, show some empathy and decency, and follow the rules.

  • Covered employers must notify and educate their workforce regarding FMLA benefits, processes, etc. Not only should they take pro-active action in giving all employees a good overview of their rights and responsibilities, they must provide specific guidance and instruction when the need or potential need of FML occurs.
  • Employees seeking this leave are required to provide 30-day advance notice when foreseeable and practicable, or as soon as practicable given the circumstances. Moreover, eligible employees must provide sufficient information for an employer so the employer can reasonably determine whether the FMLA applies.
  • Eligible employees are required to follow the employer’s normal call-in procedures when taking FML.
  • Regardless of whether or not the eligible employee requests FML, employers are required to inform him/her of his/her rights THE MOMENT an agent of the employer (supervisory staff, HR representatives, managers, etc.) learns of a qualifying condition.
  • The same type of FML noted above is extended to 26 weeks if the eligible employee is a member of the armed forces, has a qualifying condition or has a child or parent with a qualifying condition.

Long live the DOL website! (Ok, I jest, we all know it sucks. However, this is a killer FAQ on FMLA that explains the above in more detail and really dives into the words in italics.)

I know…this all seems like a pain in the ass but it is the right thing to do.

Americans With Disabilities Act (ADA)

Most employers with 15 or more employees are prohibited from discriminating against qualified individuals with disabilities. And this means everywhere, folks…recruitment, hiring, evaluating, training, disciplining, advancement, compensation and any other terms, conditions or benefits of employment. Before you roll your eyes again, know they are gonna stick that way and then you’ll have a qualifying disability! In all seriousness, don’t disregard the ADA as yet another ridiculous “employee” issue because let’s not forget, you could one day need it yourself!

  • ADA protection applies to qualified individuals with disabilities; a person has a disability if he/she has a physical or mental impairment that substantially limits a major life activity. (Please note, this extends to individuals who have a record of a substantially limiting impairment and people who are regarded as having a substantially limiting impairment; this means that if you treat the person as if he/she is impaired, boom, he/she is impaired!) This individual must also be able to perform the essential functions of the job with or without reasonable accommodation. (HA! There is yet another reason to write the darn job description!)
  • The ADA does not interfere with the employer’s right to hire the best qualified applicant, nor does the ADA impose any affirmative action obligations.
  • Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified individual to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.
  • Employers must provide reasonable accommodation unless to do so would impose an undue hardship on the operations of the business. (Undue hardship means the accommodation would require significant difficulty or expense.)
  • Reasonable accommodations could be one or more of the following:
    • acquiring or modifying equipment or devices,
    • job restructuring,
    • part-time or modified work schedules,
    • reassignment to a vacant position,
    • adjusting or modifying examinations, training materials or policies,
    • providing readers and interpreters, and
    • making the workplace readily accessible to and usable by people with disabilities.
  • Reasonable accommodations are determined by what is called an “interactive process.” Simply put, this process involves these steps:
    • The employer analyze the particular job involved to determine its purpose and essential functions. (That pesky job description is like sugar in my pantry…can’t do much without it.)
    • Then, the employer and the individual with the disability work together to identify what barriers exist to that individual’s performance of a particular job function. Yep, you read that right, work together! This analysis should include a review of the individual’s abilities and limitations and a determination as to which factors in the work environment or job tasks pose difficulties.
    • The employer, working with the individual with a disability, identifies a range of possible accommodations that have the potential to remove the difficulties, either in the work environment or with the job tasks, and would allow the individual to perform the essential functions of the job.
    • Having identified various possible accommodations, the employer should assess the effectiveness of each accommodation and the preference of the individual to be accommodated and then determine whether the various accommodations would pose an undue hardship upon the employer.

Now, in my opinion, the ADA website is worse than the DOL website and worse than my neighbor’s enchiladas so I won’t bother you with that link. However, the Equal Employment Opportunity Commission (the governing body for ADA issues) has a decent fact sheet for your use; additionally, the Commission is charged with educating employers on how to work through this process because, hello, it is sometimes daunting!

I know…this all seems like a pain in the ass but it is the right thing to do.

I’ll climb down off my soap box, have a slice of zucchini bread and perhaps even a tasty beverage because I’m all riled up but please promise me these things:

  • You’ll focus on the intent and goals of these laws…they are worthy and just…and not on the pain they give you.
  • You’ll accept your responsibility for doing the right thing.
  • You’ll have patience with the process.
  • You’ll demonstrate some empathy and compassion for the employee…he/she has to put up with the process too!
  • You’ll encourage your peers to do the same things.
  • You’ll stop any of your peers from cheating.
  • You’ll refuse to cheat.

I know…it all seems like a pain in the ass but it is the right thing to do!

 

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