In "Other Duties as Assigned," HR Dive's lead editor, Kate Tornone, weighs in on employment trends, compliance best practices and, of course, the situations that require you to go above and beyond your normal duties. Today: why HR sometimes has to be the bad guy.
At HR Dive, you'll frequently see us talking about employee preferences in our articles. Recent research indicates that there's often a disconnect between what workers want and what employers are providing, so we sometimes suggest that employers ask employees about their preferences and try to personalize things as much as they can.
But there is a line, and on the other side of that line are portions of the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). We get questions about these laws and employee preferences from readers all the time: "Can my employee decline to have leave designated as FMLA-protected?" "And what if she wants to be an independent contractor?"
These laws leave little room for employee preference, regardless of how generous you want to be.
Declining to use FMLA
Until just a few months ago, it wasn't completely clear whether employers could allow workers to decline FMLA coverage. It's a request that employees make a lot, hoping to, for example, use PTO for today's short-term illness and save their 12 weeks of job protection for maternity leave later in the year.
Employers sometimes obliged, but experts have long advised against doing so. Better to have employees exhaust their FMLA entitlement and then, as desired, offer unpaid leave that doesn't come with the potential for liability if something goes awry, they often suggested.
And then, earlier this year, the U.S. Department of Labor (DOL) made clear that employers don't have a choice in the matter; employees can't opt out of FMLA coverage, the agency declared in a March opinion letter. If an employee needs leave for a reason that qualifies for the FMLA's protections, that time off counts against their available allotment — period.
Importantly, it's up to an employer to designate that leave. Remember, employees don't have to use any special language or even know that the FMLA exists to qualify for its protections. Once an employer knows that an employee needs time off for a potentially FMLA-qualifying reason, the ball is in the employer's court to provide certain notices and request information that will allow it to determine whether the law applies.
Despite DOL's opinion letter, we're still getting this designation question. It's troublesome because the stakes are high: An employer that fails to designate FMLA-qualifying leave as such — even at an employee's request — runs the risk of a lawsuit. So, one more time: employees can't waive FMLA coverage for qualifying leave.
They can, of course, decline to take leave altogether. In fact, employers must be careful not to force employees out of work. Even a well-intentioned action for a pregnant employee can create a discrimination lawsuit. Similarly, an employee with a disability may only need an accommodation to stay on the job; that's important to note because the Americans with Disabilities Act (ADA) favors accommodations that keep employees at work. (But it's also worth noting that if an employee wants to take FMLA leave and qualifies, the employer generally can't decline it. If he or she is only eligible for the ADA's protections, however, the employer is permitted to choose any effective accommodation — not the one the employee prefers. Hey, look at that, employee preference has a limited role in ADA compliance, too.)
On a related note, there's still nothing stopping employers from running certain available leaves concurrently. So if an employee wants to start off using his or her PTO, they can go right ahead (and you may well want to require that), but make sure you go ahead and complete the designation paperwork, too.
Declining employee status
The other worker preference question we're often asked — "employee" versus "independent contractor" — has no corresponding recent update. That fact makes it all the more troubling that we still regularly hear managers say things like "he moved and went remote so we made him an independent contractor." Yikes.
While the tests for independent contractors are varied and unsettled right now, that doesn't give employees or employers the ability to choose. Instead, HR must know which tests apply — that's DOL's plus any relevant state, local or judicial tests — and let those dictate worker classification.
While employee flexibility sometimes factors into these tests, it's nowhere near the sole determining factor and means a lot more than mere working from home. A workers' potential for profit and loss can come into play, as well whether he or she can work for other employers, among many other things.
Those and other factors are the issues a judge will be looking at — not the employee's desires. And an employee's happiness is no guarantee that you won't face a lawsuit, either; employers must remember that DOL is on the lookout for misclassification and empowered to pursue charges on its own.
Be the bad guy
So by all means, survey workers about which benefits matter to them. Personalize your learning and development initiatives. Ask for their input about your upcoming office redesign.
But you're going to have to be the bad guy when it comes to these FMLA and FLSA issues. As frustrating as it may be to refuse an employee's request to, for example, become an independent contractor, a court is unlikely to accept employee preference as an excuse for a violation.