Exceptional Proff 602
The Slow Movement to Better Balance — Part 2
Lesson Topics:
· Defining Paid Time
· Enforcement
· Family and Medical Leave Act (FMLA)
· Other Important Notes
· Affordable Care Act (ACA)
INTRODUCTION
In Lesson Seven, we discussed the minimum wage and overtime provisions of the Fair Labor Standards Act, and the way in which they revolutionized the balance between capitalist business interests and worker rights and liberties. In this final lesson, we will discuss some remaining important provisions of the FLSA, as well as some of the more contemporary legislation which has built on the FLSA’s spirit of fairness to workers, including the Family Medical Leave Act and the Affordable Care Act.
Defining Paid Time
Recall from Lesson Seven that the Fair Labor Standards Act (FLSA) was the first piece of federal employment legislation to set legal standards concerning minimum wages for workers and overtime compensation for excessive hours. However, beyond all this, the FLSA also settled important questions in the context of determining the kinds of time for which employers are (and are not) required to pay employees.
Another milestone that the FLSA achieved was in defining that which does and does not constitute paid time. For example, do coffee breaks count as paid time? What about travel time? And training hours? The answer to most of these questions is yes.
PAID TIME DEFINED
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· Time spent on-call at the premises of a job awaiting requests for performance of duties are covered. For example, firemen on duty awaiting fire alarms are paid for their “waiting” time.
· Coffee breaks, snack breaks, bathroom breaks, and rest periods of 20 minutes or less are all covered.
· Travel that is required from one job site to another is covered. However, travel to and from a single job site for work each day (i.e. a regular commute) is not.
· Training time is covered, although exceptions exist when a job offer is not made until successful completion of a preliminary training agenda. The training in this sense becomes part of the job application, but this is a rare practice and should be avoided unless absolutely necessary.
· Time necessary to prepare for work once an employee has arrived at a job site, such as retrieving and donning uniforms, signing out equipment, counting cash banks out and back in at the end of a shift, etc. (United State Department of Labor, 2008).
One issue that arises in the workplace is the rounding of time entries for pay calculation. The FLSA permits rounding to the nearest 15-minute increment for the purposes of simplifying payroll, but this must be done in such a way so that it is fair and equitable. In 15 minute increments, employers are permitted to round an employee’s clock punches from 1 through 7 minutes down, but must also round punches from 8 to 14 minutes up.
So, for example, if an employee clocks in at 8:56, her time may be rounded to 9:00. However, if that same employee clocks out at 5:09, her punch must be rounded to 5:15. This rounding scheme provides a policy of fairness that tends to add as much to employee time in the aggregate as it subtracts. However, it is important to note that even though the rounding rules require employers to pay for all time evidenced by an employee’s true and accurate time card (changing punches to avoid payment is illegal), employers are still free to set policy concerning acceptable punch times, and to discipline any employees who violate those policies (up to and including termination). Unless it is expressly agreed to by the employee at the time of hiring, compensation cannot be withheld or “docked” as a form of punishment for undesirable behavior, but an employee can still be fired for breaking the rules (United States Department of Labor, 2009).
Again, it is important to remember that state and local laws, and even union agreements, may expand upon coverage, and include such mandates as required break intervals based upon hours worked and other paid time. HR professionals should ensure that their policies are in alignment with all obligations, legal and contractual.
Enforcement
An employee who is the victim of an FLSA violation may pursue a legal remedy in two different ways. First, the employee may directly sue the employer for damages based on the FLSA violation. Second, the employee may file a claim with the Wage and Hour Division of the U.S. Department of Labor, which will handle the investigation and remedial measures in much the same way that the EEOC handles discrimination investigations. Sufficed to say that these types of claims can be very costly for employers, which is why it is so important that HR professionals understand and follow the law (United States Department of Labor, n.d.-a).
Family and Medical Leave Act (FMLA)
Following the FLSA in 1938, it would be another 55 years before American workers saw another piece of legislation that so drastically impacted worker rights and protections. In the time between the 1930s and the 1990s, a fundamental philosophy shift occurred over the course of the 20th century whereby Americans began to look at their jobs not as the reason for their existence, but instead as necessary means of survival and support for other ambitions such as family, lifestyle, etc.
Enter the Family and Medical Leave Act (FMLA) of 1993, President Bill Clinton’s single greatest contribution to employment law reform in his eight years in office. At its core, FMLA requires certain covered employers to grant certain covered employees up to 12 weeks of unpaid leave for certain qualifying family and medical events and to provide them with a job upon returning after such leave. As implied by all of the modifiers in the preceding sentence, there are myriad caveats and exceptions (United States Department of Labor, n.d.-b).
COVERED AND ELIGIBLE
· COVERED EMPLOYERS
FMLA applies to all public agencies at local, state, and federal levels, and to all private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. This includes time accrued through successive ownership of the employer in question (United States Department of Labor, n.d.-c).
· ELIGIBLE EMPLOYEES
In order to be eligible for FMLA leave, an employee must meet certain specific criteria:
· The employee must have worked for the employer in question for at least 12 months prior to the leave being sought;
· The employee must have worked at least 1,250 hours during the twelve month period immediately preceding the leave being sought; and
· The employee must work at a location where at least 50 employees are employed or live within 75 miles of the work location (United States Department of Labor, n.d.-c).
Under FMLA, the following circumstances qualify for approved leave:
· The birth of a child, and/or time to bond with a newborn child within one year of birth. Although this event naturally applies to mothers, interestingly, it also applies to fathers as well.
· Adoption of a child, and/or time to bond with such a child within one year of placement with the employee.
· A serious condition which compromises the employee’s ability to perform his or her job.
· Care for the serious health condition of an immediate family member. Under FMLA, this includes spouses, children, and parents. If an employee is next of kin to a military service member who is suffering a serious injury or illness, this would also be covered.
· Exigencies arising from the military service of an immediate family member. For example, if an immediate family member is deployed and the employee needs to care for children of the deployed family member, such an event would qualify (United States Department of Labor, n.d.-c).
Other Important Notes
If the employee requests FMLA leave due to a serious medical condition of him or herself, or of a qualifying family member, the employer may request medical certification from a qualifying health care provider. In such an event, the employer must allow the employ 15 calendar days to obtain the certification.
It is important to note that the leave mandated under FMLA is unpaid . An employer may choose to offer employees paid leave if they wish, but they are under no obligation to do so. The employer may also insist that the employee use any paid time that he or she has accrued in accordance with other company benefits (e.g. vacation time) before taking unpaid leave.
The employer is required to maintain any health insurance benefits offered to the employee during the term of FMLA leave. If the employee’s portion of premium expenses is normally paid through payroll deduction, the employer is permitted to insist upon direct payment from the employee during the leave in order to maintain the benefits. Other ancillary employment benefits, such as vacation accrual, corporate discounts, etc. need not be maintained, however.
The employee is not required to take the 12 allowed weeks all at one time. Employees may take hours or days at a time, intermittently and as necessary to accommodate the nature of his or her qualifying event. A reduced-hours regular work schedule may also be arranged with the employer for regular periodic use of FMLA time.
The job to which the employee is permitted to return at the conclusion of the leave must be either the same job or an “equivalent” job. Equivalent jobs are jobs that are “virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.” (United States Department of Labor, n.d.-c).
FMLA prohibits retaliation against any employee who claims benefits under the law. However, if upon return from the qualified leave the employee is unable to perform his or her job, or if the employee violates company rules or policies during the leave, the employer may legally choose not to reinstate him or her.
This is just a review of essentials, and the list of FMLA provisions is long and complex. HR professionals should be intimately familiar with these details so that they don’t inadvertently deny any employees their federally-protected right to leave.
Affordable Care Act (ACA)
Fast forwarding another 17 years, the Affordable Care Act (ACA), commonly known as “Obamacare”, was passed in 2010 and is the most recent drastic change in law as it pertains to employment rights and privileges. Although the ACA does not exclusively pertain to the employment context (it mandates health insurance for all citizens notwithstanding employment status), its main effect was to require all employers with 50 or more employees to offer employer-sponsored medical insurance as an employment benefit (United States Department of Health and Human Services, 2015). Prior to the ACA, health insurance benefits were commonly used as a competitive advantage in attracting employees. However, providing health insurance was never previously a legal requirement, and the 2008 economic recession provoked many businesses to begin discontinuing such benefits in the interest of solvency.
The ACA is over 1,100 pages long and contains a plethora of provisions concerning covered employers, eligible employees, and the government subsidization and regulation of the health insurance industry. Additionally, the ACA is perhaps the most controversial legislation in modern political discourse; politicians in Congress have attempted more than 50 times to repeal the act, but have failed due to insufficient support (Benen, 2015). With that in mind, the future of the ACA is far from certain. However, HR professionals should familiarize themselves with the ACA in order to ensure that their company is in compliance with all of its mandates.
Conclusion
In this lesson, we reviewed the paid-time definitions and stipulations under the Fair Labor Standards Act, as well as the ways that grievances can be redressed for violations thereof. We also reviewed the Family and Medical Leave Act and discussed the details most relevant to human resource professionals. Finally, we briefly discussed the controversial Affordable Care Act and its importance in mandating health care coverage for all qualified workers.