Tag Archives: Legal Compliance

Can Employees Volunteer to Work for Free?

Recently someone asked me about allowing employees to volunteer for free instead of being paid. I wanted to answer that more fully here because it might be something you have run into or might be considering in your own business.

For starters, here’s the DOL ruling on that. Let’s break it down and look at two broad categories: for-profit and non-profit organizations.

Employing volunteers at non-profits

The Fair Labor Standards Act (FLSA) defines employment very broadly, i.e., “to suffer or permit to work.” However, the Supreme Court has made it clear that the FLSA was not intended “to stamp all persons as employees who without any express or implied compensation agreement might work for their own advantage on the premises of another.” In administering the FLSA, the Department of Labor follows this judicial guidance in the case of individuals serving as unpaid volunteers in various community services. Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.

As you might expect, non-profits have some leeway here. I talk again at the end of this article about a specific problem non-profits might run into with employees and volunteering. It’s when we get to the for-profit side of things that it really cracks down on what employers can do.

Can paid employees volunteer for their employer?

Under the FLSA, employees may not volunteer services to for-profit private sector employers. On the other hand, in the vast majority of circumstances, individuals can volunteer services to public sector employers. When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies and their community with but one exception – public sector employers may not allow their employees to volunteer, without compensation, additional time to do the same work for which they are employed. There is no prohibition on anyone employed in the private sector from volunteering in any capacity or line of work in the public sector.

Okay, so that helps us understand if employees can volunteer their time.

  • Private/for-profit=no
  • Public/for-profit=yes, as long as the person isn’t an employee doing the same work they normally perform

Even if the employee wants to do it and offers, there is still the chance that the employer would be seen in a negative light. Remember my visit to the OFCCP a few years back? Here’s the highlight of the visit:

Ever heard the phrase “innocent until proven guilty?” Not the way of life with the OFCCP, apparently. During the seminar, the speaker reminded us that having interview notes and other data available could help in the event of an investigation. However, in the next second he casually mentioned, “If you don’t have the data to back up your claims as to why person X was paid differently from person Y and one of them is a minority, we will assume the worst intentions.”

I’ve been around the business world long enough to know that if you’re looking for trouble, you’ll find it. If you assume the worst, you’ll find something to substantiate your claim, no matter how minuscule.

Even if the person is a good employee, there’s no guarantee that will always be the case. DOL audits aren’t started by employees who are happy with their work. They are started by people who are generally unhappy or even those who had a single rough day at work and are looking for a way to fight back. Keep that in mind–it happens to everyone.

Can employees volunteer to work fewer hours?

There is an interesting tangential discussion that I wanted to include here. One of our employees at a previous job was interested in reducing her work schedule to help get through lean times without eating up all of her vacation time. In that instance, exempt employees can voluntarily reduce their work hours, and their pay, without causing issues for the employer.

In that instance, I simply had her draft a short email to her manager and me stating that. The verbiage was something like:

To Whom It May Concern: 

I realize that we are seeing tighter budgets and I would like to voluntarily request a 32 hour (4 days per week) schedule every other week until further notice. I understand that I will not be compensated for the additional 8 hours I take off and that those hours will not be deducted from my leave balance. I also understand that my manager can recall me to full time service at any time without notice. 

Sincerely, 

Jane Doe

Again, if we had simply told the person to stop coming one day every other week, that could have opened up some FLSA issues since technically the person could have said they were an exempt professional ready and willing to work (thus owed their full compensation).

Can volunteers be considered employees?

One final area to cover. Can volunteers be treated like employees? As we have seen, for-profit organizations would do well to stay away from the entire concept of volunteers. For that reason we’ll discuss nonprofits. If given the option, I would try to avoid having volunteers performing any work that other ordinary employees are doing. That helps to keep the “swim lanes” separate and can help to avoid any issues between staff. Imagine doing work for free that the other person next to you is being paid for and you’ll quickly understand that concept.

We used volunteers when I worked at a nonprofit organization and the screening process was handled outside of the normal employment process for the sake of simplicity. We didn’t want to clutter up an already busy hiring process with people who wouldn’t technically be employees.

What other thoughts do you have about employees and volunteering? 

Why I Don’t Believe in Parental Leave Requirements

parental leave requirementsMy friend Lance Haun wrote last week about why he thinks we should fight for legislating parental leave in the US. I don’t know that I’ve ironed out my point of view 100%, but I don’t know that I agree with him at this point. Remember, this is a dialogue, not a requirement to conform. :-)

So, as a father to three small children, you might expect me to be for this type of thing. I mean, heck, getting paid to stay home with a baby would be pretty darn awesome. I love my three kids and spending time with them is pure joy.

But here’s the core reason I’m not a raving fan of legislating parental leave:

it’s not the government’s job

Now, if a company out there wants to pay parents, men or women, for leave, then that is an excellent idea. I’m all for it, and I would be happy to work for such an organization. But the truth is that according to census data, approximately half of the workers in the US are working for employers with fewer than 500 employees. I’ve worked in several companies from 10-600 employees (and some larger) in my working life, and I have no earthly idea how those companies would be able to afford paying people for not working. I remember at one employer we had six of our staff members having new babies in a single month!

Family medical leave is one thing–holding your employee’s job while he or she takes time at home for a variety of health and family-related reasons isn’t easy, but it’s doable. But paying them to not work? That’s something else entirely. Several of those companies I worked for were very small or nonprofit organizations, which meant there was little to no wiggle room for things like bonuses or other performance-related measures, much less a coffer set aside to pay people who were expecting children.

But what about Netflix?

The big story last week in this world was about Netflix offering a full year of paid leave for new parents. Having a baby? No worries–take up to 12 months off. People declared the company forward-thinking and were quick to jump on board with the idea.

But this wasn’t forced. It wasn’t legislated. Nobody made them do it.

They chose to.

Why? Probably because it’s a great recruiting tool. It’s also pretty awesome as a retention tool for new parents.I’ve talked before about when our girls were born and my boss didn’t seem especially receptive to me taking ANY time off, even though I only requested a week. 

And you know what? That’s what started the ball rolling for me to leave that company and find an employer who did offer me some flexibility to support my family, whether financially or by being there physically for them. I think more companies will offer slightly-less-boisterous benefits in this area over time, because they’ll see (as they did with medical insurance, workplace flexibility, and a host of other benefit offerings) that it makes them more competitive, makes employees happier, and creates a better working environment. 

Last year I was talking with a company about a new leave program for fathers. The company had been losing male employees in the 20-35 age range at 2-3 times the rate of other employee groups, and they determined that it was the long hours surrounding the birth of a new child that often contributed to the turnover.

So the company began offering 1-3 months of paid leave for new dads and reversed the negative turnover trends within a few short months. That’s an exciting story and one that I expect to hear more often as time goes on.

Facebook got a series of kudos and strange looks when it offered to freeze eggs for young ladies who would rather work than start a family. It’s the same story. The company wanted to offer something different that appeals to a specific audience and makes it more competitive than others in the space. 

The recruiting spin

I’ve recruited for some great (and not so great) companies. The thing that I absolutely loved about one of the good ones was that I could play up some of the benefits we had that no other company offered. Flexibility? We don’t just say it, we live it. Healthcare? We have you covered. Need personal leave? We treat you the same as we treat the CEO–no questions asked. Have an issue? You can get access to anyone, up to the Owner/CEO, in moments.

I’ll say it again: I loved representing the company that offered what others didn’t. And that’s why I think Netflix is doing this. And that’s another (smaller) reason I’m not keen on the government attempting to force employers to provide paid leave for parents. It has to be a choice for the company. Some can afford it and some can’t. Some would be overly burdened, some wouldn’t care. But it’s not a blanket solution, at least not overnight.

Seriously, I’ve been there

When my son was born almost a year ago, my wife had no work benefits to continue her pay. She had some accrued leave and then we used savings to keep her at home until she was ready to go back to work at the end of her leave. And it was fine. I didn’t ask or expect anyone else to foot the bill for her to stay home, because it was our choice in the end. Just as it is her employer’s choice to offer the benefits it does.

This isn’t the same as the Civil Rights Act or the ADA. People don’t choose a specific color, gender, or disability. The discussion here is whether we should pay people who choose to have children, and I’d say it’s up to the company to decide, not the government.

I’d love to hear your thoughts…

 

The Affordable Care Act: Something to Appreciate

If you’re an in-the-trenches HR pro, the Affordable Care Act has brought multiple emotions to bear: frustration, worry, and more. I know exactly how it feels, but I have also come to appreciate a particular side effect of the law.

The “good old days”

The creepiest thing I could find referencing the ACA online.

The creepiest thing I could find referencing the ACA online.

Five or ten years ago, the benefits administrator for a fully insured organization would receive a rate renewal notification from the insurance company with the new premiums for the coming plan year. In most cases, that rate was set in stone and the organization had to grin and bear it. We’ve been over the ACA health insurance premium increases before, but that’s not what we’re focusing on today.

I was speaking with a friend earlier this week about some changes his organization’s leadership team is debating related to health insurance for employees. There was a time in the past where this type of internal discussion would have made me a little uncomfortable; however, with the implementation of the Affordable Care Act, it would be crazy not to spend some time talking about how the market is changing, what trends are evident, and how to develop a strategy for moving forward.

The single most important result of the ACA is this: perspectives are finally changing.

Click here to continue reading about the best change as a result of the Affordable Care Act.

Hostile Work Environment? A Common Misconception

Anger in itself doesn't constitute a hostile work environment

Anger in itself doesn’t constitute a hostile work environment

Friend: My boss is kind of a jerk, and he’s breaking the law.

Me: Really? How?

Friend: He makes this place a hostile work environment.

Me: So he’s discriminating against others illegally?

Friend: Well, no, but he makes it uncomfortable to work there. He’s unpleasant, angry, and unpredictable.

I had this exchange with a good friend of mine recently, and the person was so convincing in the discussion that I had to go and look up “hostile work environment” one more time to be sure I was correct. Thankfully I was, but I thought it would be a good reminder to share the key pieces of the law that apply to that specific type of discrimination here.

What is a Hostile Work Environment?

In laymen’s terms, it’s an environment where a reasonable person cannot carry out the functions of their job due to some form of illegal discrimination that is occurring. Remember, all discrimination is not bad. That word has taken on some baggage in recent years, but you should discriminate on a daily basis.

The discriminatory behavior needs to be illegal, and we’re all pretty familiar with the categories that are protected under the law. And just in case you need a refresh on that, I have included the actual verbiage from the EEOC below to remind you.

What the EEOC says about a Hostile Work Environment

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people. Source: eeoc

One last reminder

I ask one thing from you. If this was a good reminder for you, if you didn’t already know this, or if you just think this will be helpful to someone else, please forward this to them! The more people we can educate, whether it’s fellow HR professionals or our management staff, the better off we’ll be. :-)

Like this post? There’s more where that came from. Click here to get updates when new articles are published.

Photo source: soukup

Workplace Flexibility: What’s Changing (and What’s Not) #shrmtalent #workflex

Earlier today the latest workplace flexibility research from the Families and Work Institute and SHRM came out, and there were some very interesting data points in the study. A few quick hits from the 2014 National Study of Employers (link to the full study below):

  • The presence of women/minorities impacts offerings: Organizations with more women and racial or ethnic minorities who are in or report to executive leadership positions are more likely to offer a high level of health care and economic security benefits than organizations with fewer women/minorities in those positions.
  • How are employers preparing their people? Employers are more likely to provide training for supervisors in managing diversity and least likely to have a leadership development program for women (63% vs 11%).
  • The all important culture discussion: Respondents were asked to assess the supportiveness of their workplace cultures… The majority of respondents indicated “very true” to statements assessing whether supervisors are encouraged to assess employee performance by what they accomplish rather than “face time” (64%) and whether supervisors are encouraged to be supportive of employees with family needs and by finding solutions that work for both employees and the organization (58%). Far fewer employers, however, responded “very true” to statements asking whether management rewards those within the organization who support flexible work arrangements (11%) and whether their organization makes a real and ongoing effort to inform employees of the availability of work-life assistance (24%).
  • Twenty one percent of employers overall indicated they must comply with the FMLA but fail to offer at least 12 weeks of paid or unpaid leave for at least one type of leave. In other words, approximately one in five employers appear to be out of compliance with the Family and Medical Leave Act.

Continue reading

Employee Leave Management-It’s a Manager’s Game

Yesterday I attended day one of the Alabama SHRM Conference. The pre-con session on employee leave management was an interesting one for me, and I quickly saw three key areas where many companies can trip up if managers are not properly prepared. Just a word of warning–none of them are a quick fix. They require training, patience, and more training.

HR’s not the center of the employee leave management universe

employee leave managementWith the managers on the front lines with regard to employee communication, your organization can be in trouble before you ever know what hit you. It’s critical to train managers on what Family Medical Leave Act requirements are and how those should be routed to you or the appropriate person for employee leave management purposes. You should also cover the other key legal areas (Americans with Disabilities Act, etc.) so they know to come to you whenever one of these potentially sticky areas presents itself.

If you assume managers will know what to do, you’re kidding yourself.

Handling the “favorite” child

Another discussion I had today was around ADA accommodations for employees who request them. I think we understand the implications of offering accommodations, and some managers even seem to have a grasp on that side of the equation. I think one of the challenges that spins out of that is how the other employees see the accommodation.

Maybe someone gets an office on the first floor because they can’t climb stairs. Maybe they get a nicer chair because they have back issues. Whatever the case, it’s important to head off any commentary from the unaffected employees if it crops up.

All the work put in to provide accommodations and assist the employee can be undone by insensitive comments from other peers. I’d hope that nobody would say anything, but I’ve been around long enough to know it’s always a possibility. Situations where people think someone else is getting a benefit they don’t have, even when it’s related to employee leave management, tend to cloud peoples’ judgement at times.

Changing the mindset

Picture yourself as a supervisor with an employee on intermittent FMLA status. That’s a pretty typical employee leave management situation. When it comes time to rate employee performance, how are you going to keep the leave separate from the actual performance on the job? If I was in that situation, I admit that it would be a difficult proposition.

I think supervisors need support and encouragement to continue focusing on the work accomplishments and getting people back up to full productivity, not looking at what is not getting done due to someone being on leave for some protected status.

It would be very difficult not to, in some corner of your mind, consider the employees on FMLA as slackers compared to the rest of the staff. In this example you can substitute USERRA or ADA just as easily. I think it’s important to get it out there and off the table as soon as possible when discussing with managers.

“I know Katy’s leave is making it tough on you guys to get your deliverables completed on time, but let’s focus on the positive side of things and work to get her back up to speed as quickly and safely as possible. She’s a good worker and wants to get back to work full speed as soon as she can.”

Simple, easy, but probably a rare conversation.

Again, these are only a few of the key areas that I’ve seen can become issues if not dealt with early in the process. Have you seen these play out well (or not so well) in your own organization? Care to share any best practices around employee leave management?

Culture as a Type of Hiring Discrimination (Video)

Today I’m going to dispel the myth that culture is a form of hiring discrimination. Well, I’ll actually prove that it’s true, but in a different way than most people would expect. I use culture to discriminate against candidates  in every interview for every job we post. I look at how we do things, what attributes we find valuable in a candidate, and how well the person fits into those categories. In the video below I explain this in more detail.

This week I’ll be running a series of videos on culture topics, from defining culture to leveraging it in the hiring process and more. I’m a culture junkie and believe that organizations that use it well can differentiate themselves from the competition. It’s a strategic competitive advantage. Use it well. Other videos in this series:

  1. Defining corporate culture
  2. Hiring for culture fit
  3. Unique corporate culture ideas Continue reading