You Want More Regulation?

Steven Cesare, Ph.D.

A business owner from Vermont contacted me the other day to review her company’s employee handbook. At times coy, while otherwise manifesting elitist complacency, the business owner consciously let her employee handbook fall into an archaic condition bearing proximal resemblance to a Smithsonian treasure. Not quite an actual artifact yet; but the Carbon-14 Test Team was getting ready for emergency deployment.

Please do not let your employee handbook go dormant for several years! It really is a crucial document, underscoring many of your company policies and procedures, representing a formal aspect of your company communication plan, and serving as the administrative foundation upon which countless employee accountabilities are predicated. It should be revised annually to remain aligned with company changes, new laws, and revised benefits, etc.

I know. I know.

You’ll get it reviewed next year.

Try to sell that bridge to me again. Try…

Back to Vermont. Beyond its fossilized nature, I was keenly surprised at the four pages of detailed coverage the employee handbook devoted to the Family and Medical Leave Act (FMLA). For those of us who don’t know, the FMLA allows employees, in those companies that have at least 50 employees, to take up to 12 weeks of unpaid leave during a 12-month period, to deal with their own serious health conditions or those of family members who need medical care. Like all government programs, there is a litany of regulations, restrictions, and rules that must be followed, lest a company fall out of compliance, and then be subject to “personal” liability.

Yes. “Personal” liability.

Read up on that topic when you get some spare time.

The interesting point for me was that this company did not meet the requisite 50-employee threshold mandating FMLA adoption. The owner did not know she was complying with a federal regulation, voluntarily. Prescriptively, let’s remind the Vermont business owner of the basic FMLA rule for private-sector employers. A private sector employer is covered by the FMLA – meaning it must comply with applicable FMLA requirements – if it employs at least 50 employees in at least 20 workweeks in the current or previous calendar year. Not a fiscal year; not a rolling year; a calendar year.

Those 20 weeks do not have to be consecutive. Instead, the question is whether the employer had at least 50 employees in any 20 workweeks in the current or prior calendar year. Another important note: If an employee works for any part of a workweek, that employee is considered to be employed for each working day of the calendar workweek for purposes of determining coverage under the FMLA.

There are several noteworthy points associated with this case study. First, do the relevant research on all federal and state laws that may affect your organization. Many of those laws stipulate a minimum number of employees as an index of organizational size necessary to determine if the respective law is applicable to a particular company. My capitalistic nature strongly advises against becoming submissive to any local, state, or federal law unnecessarily. Think about it.

Next, if you are required to comply with the FMLA, please make sure you are well prepared: the FMLA poster must be found in a conspicuous location and presented to every new employee, you should have the requisite forms, checklists, and flow charts on hand to ensure procedural compliance, and verify your EPLI policy saliently identifies the FMLA as a specific aspect of that insurance coverage.

Key takeaways: Revise your employee handbook annually (not next year), conduct current research on all employment laws that may affect your company, and never voluntarily comply with any unnecessary government legislation. Think about it.

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