Gruntled Employees

An organizational belief

As many readers know, I'm a big Red Sox fan. (That might explain my current bad mood, as the possibility of a playoff berth fades away with the end of summer.) Baseball aside, I've often written about the management style and philosophy of the current team. (See "Clubhouse rules.") Here's another example, along with an explanation of the philosophy behind it.

Red Sox first-base coach Ron Johnson has been away from the team for a month. His daughter was in a horrifying accident in Tennessee, where a car hit her while she was horseback riding. Most of the details have been kept out of the media, but the girl ended up losing her leg.

Yesterday, a reporter asked general manager Theo Epstein when he thought Johnson would return. Epstein wouldn't speculate, but his answer gave great insight into how the team treats its employees:

I’ll leave that to RJ or until he lets us make some sort of public disclosure. His priority is with his family, and that’s an organizational belief, that at times of crisis, family comes first. He’s doing a great job supporting his family through this tough time.

My emphasis. The quote's from Sox beat reporter Amalie Benjamin's notebook column in The Boston Globe.

If you're an employer or a manager, ask yourself this: Do you want to be seen as having the kind of workplace where employees' families come first in times of crisis, or do you want to be seen as the kind of workplace that counts days off, demands doctors' notes, and docks pay? I don't know this for sure, but I can pretty much guarantee that the Red Sox are keeping Johnson on salary and not tracking the days he has missed.

If you haven't already, adopt a similar organizational belief. The Red Sox might be destined for third place this season, but they're showing championship-caliber managerial skills here.

Division-leading employee management

If you know me, you know that I'm a big Red Sox fan. This is always a tough week, because baseball goes into midseason hibernation, with no games scheduled on the Monday before and Wednesday after the All-Star Game. (In fact, those two days are the only days in the calendar without any games in the four major North American sports.) (The fourth one is hockey, although I'll entertain arguments that it's not a major sport.)

But even without a Red Sox game on the schedule (they even have today off, more's the pity), I thought it appropriate to showcase an important management and HR lesson from the majors.

Every HR pro and manager should read "Pedroia benefits from the embrace of hardball’s softer side," by Dan Shaughnessy, an award-winning sports columnist for The Boston Globe. Dan is hands down the Globe's best writer, sports or otherwise.

The article, from a week ago, talks about how the Red Sox All-Star second baseman and reigning American League Most Valuable Player Dustin Pedroia was scratched from a game to be with his wife, Kelli, who was hospitalized with late-pregnancy complications. The Sox ended up getting blown away, 6–0, by the A's. Dan writes:

No problem. The important thing was that Kelli Pedroia was OK and Dustin Pedroia had some peace of mind.

The episode is a perfect demonstration of Terry Francona’s managing style and the evolution of old-fashioned hardball rules. In the bad old days, players heard about family emergencies and baby deliveries via Western Union. Management did not encourage players to leave. Ever.

Not anymore. Today, the Red Sox get it. Family comes first. Dan sums it up:

Players’ families come first. It earns him a lot of loyalty in his clubhouse.

“Times have changed,’’ said Francona. “Different people probably feel differently. If one of our players’ wives is giving birth, I think they should be there. I just feel what I feel and do what I feel is right.’’

Pedroia certainly won’t forget these last few days. He has new appreciation for his bosses.

“It’s the best,’’ he said. “The Red Sox organization. [GM] Theo [Epstein] texted me late last night. My whole team. That’s why we’re a great team, because we care about each other.’’

To my thinking, it's no coincidence that the Red Sox are the only team to have won the World Series twice this decade, and that they currently lead the American League. (Pedroia, who fans voted in to be the starting second baseman on the AL All-Star team, also ended up skipping the Midseason Classic to be with his wife. Again, Sox management was completely supportive.)

Do you want your team to lead its division? Remember what's important to your players, and they'll remember that.

Employers' Rx for swine flu? Eliminate sick days

You may have noticed that you can't spell pandemic without P-A-N-I-C.

Today, the World Health Organization raised its pandemic flu alert to DEFCON 3. Or something. Actually, it's called "Phase 6," WHO's highest pandemic alert and the first called since 1968. (Reuters story here.) Obviously, this is a serious illness worldwide. But to put it in perspective, regular seasonal flu kills about 500,000 people a year worldwide, and 36,000 in the US. By contrast, swine flu has killed 175 worldwide, and 57 in the US.

This isn't the first time that a novel-sounding disease has gotten undue press attention: recall the coverage of SARS in 2003 and avian flu in 2004–06. Both had deaths numbering in the hundreds worldwide, and no American deaths.

But the current swine-flu pandemic has employers concerned. Many employment lawyers have added to the hysteria by flacking doom-filled seminars on emergency preparedness and other pandemic responses.

My response? Get rid of sick days.

Now before you go all "What you talkin' about, Willis?" on me, let me explain.

Having a set number of paid sick days is a nice idea in principle, but it often has the unintended consequence of encouraging sick employees to come into work. Employees who have used up their paid sick days feel pressure to return to the office. Other employees who are hoarding their paid sick days to use up during Spring Training or something also turn into host monkeys when they should have stayed home.

(A few months ago, I talked about a similar syndrome involving so-called "Iron Man" or perfect-attendance awards. See "The Iron Man Award Integrity Act of 2009.")

My solution involves treating employees like adults, a recurring theme on this blog. If employees are sick, send them home. Tell them to stay home until they get better. You'd rather have them play the role of Absent Employees instead of Patients Zero. That's how our firm handles sick time.

Some employers and HR folks (the ones who don't Get It) will whinge: "But what if they take advantage of us and abuse the privilege?"

What if indeed. If you have an employee who would sink so low as to feign illness to steal pay from you, then that person should quickly become an ex-employee. Malingerers tend to be easy to find, and they'll quickly give you reason to axe them. (Natch, do it carefully to avoid the classic bogus disability-discrimination claim.)

As for your grown-up employees, tell them to wash their hands frequently, cover their coughs and sneezes, and stay the hell away from work when they're ill. And pay them.

• • •

A few weeks ago, Legal Talk Network interviewed me on a program with the all-too-sexy title, "Compliance in Pandemic Planning." (I pushed for something with "hamthrax," but was overruled. Too soon?) Paul Boynton, LTN's excellent In-House Legal host, did a great job framing the issues around how in-house counsel should approach pandemics. You can check it out here.

The Iron Man Award Integrity Act of 2009

Cal Ripken Jr. must be be relieved. Thanks to the Department of Labor, it just got a little bit harder to become an "Iron Man."

On Friday, the DOL's new Family and Medical Leave Act regulations go into effect. The changes are many and we will cover them in greater detail in posts to come. But before we judge the new regulations, we should consider the thinking that went into these changes. And wonder whether Washington regulators have perhaps a little too much time on their hands.

Apparently, someone thought that the FMLA and its previous regulations left open a question over a critically important issue: namely, who should be entitled to win a "perfect attendance" award. Fortunately, many smart and well-intentioned people devoted countless hours to examining the potential injustices that could arise from the awarding of an honor like this. Apparently, some companies, mired in the 1950s, still give out perfect-attendance awards to employees who infect their coworkers with whatever cold or flu or other virus they have when they should have stayed home and eaten chicken soup and watched "The View." These host monkeys then win trophies for the mere fact that each and every day, they showed up. Woody Allen would be proud.

Enter the FMLA. Part of the statute talks about returning FMLA leavetakers to their same jobs or to "equivalent positions." Unsurprisingly, "equivalent positions" must get "equivalent pay." In calculating "equivalent pay," employers must take into account any raises or bonuses that the leavetaker would have gotten had he or she not been on FMLA leave.

Aha! Now comes the puzzle inside a riddle wrapped in an enigma, or a jelly roll, or whatever. What if the bonus the employee would have gotten but for the FMLA leave is a perfect-attendance award? Forget superstring theory and the God particle — this is a tough one. Even "Where did the Island move to?" is a far easier question.

Fortunately, the DOL has solved this conundrum in the new regs. The regs say that

if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.

The regs then provide a helpful example:

For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA- protected purpose also must receive the payment.

In other words, if an alcoholic employee takes four weeks of FMLA leave to go through rehab, he can't come back all clean and sober and expect to be granted a perfect-attendance award. Which makes sense, since he didn't actually attend work for four weeks.

The fact that so many people worried about foolish attendance trophies that the DOL needed to waste time on this issue is amazing enough. That organizations such as the Working America Education Fund, the Center for WorkLife Law, and the National Partnership for Women & Families actually argued against this change is truly unbelievable. These groups claimed that this change would create a disincentive to take FMLA leave. You know, because workers like trophies.

The DOL's Final Regulations are here in PDF form. The prefatory material makes reference to these organizations' concerns. The DOL has an entire portal devoted to the rules here.

In the meantime, employers with perfect-attendance-award programs should probably tear them up and go home and watch "Leave It to Beaver."

The right way to be a boss

Last week, I was blasting overwrought and overwritten employee handbooks. (See "The world's shortest employee handbook.") I called attention to the Alabama A&M University personnel manual and its bereavement-leave policy in particular. The bereavement policy is robotically impersonal. Imagine being a valued member of the A&M faculty or staff, losing a family member, and then having to parse this:

Staff members shall, upon request, be granted up to three (3) days annually of bereavement leave for the death of a parent, spouse, child, brother or sister, grand parents [sic], grand parents-in-law, grandchild, son or daughter-in-law, mother-in law, father-in-law, brother-in-law, sister-in-law, step children, children-in-law, aunts, uncles, nieces, nephews, and first and second cousins. Other relationships are excluded unless there is a guardian relationship. Such leave is non-accumulative, and the total amount of bereavement leave will not exceed three days within any fiscal year. If additional days of absences are necessary, employees may request sick or annual leave, after providing an explanation of extenuating circumstances.

Now compare this sterile handling of employee-family death to the following tale from Brian McGrory's column in last week's Boston Globe. McGrory writes about a man named Jack Pichnarcik, whose 16-year-old son Mark died of leukemia. McGrory then writes about how the man's boss, trucking-parts-company owner Brian Pomerleau, treated his employee:

When Mark went into the hospital last November, Pomerleau told Jack to go be with his son, however long it was, and rest assured he wouldn't miss a day of pay.

He slipped Jack a couple of thousand extra dollars here and there over the next few months.

On the eve of Mark's death, Pomerleau quietly picked out a cemetery plot and made all the funeral arrangements himself, then headed to Boston to tell the Pichnarciks that everything was ready and funded, no questions asked or money accepted.

To me, Pomerleau shrugged it off, saying, "Hey, I made a few extra dollars in my life, so it's always nice to help someone you know."

This is the right way to be a boss. If employers acted more like Brian Pomerleau than like the handbook drones of Alabama A&M, they would attract better talent, and their companies would be more successful. Corporate bean counters who obsess over whether a bereaved employee took a day too many or lost a relative too distant should rethink their careers and find work that keeps them away from people.

Brian McGrory's complete column, called "Final Say," is here. Its title refers to the column's being his last, as the Globe has named Brian its news editor. Congratulations, Brian, and keep up the fine work.

The FMLA and the MapQuest Defense

Most of you know that the Family and Medical Leave Act only applies to employers with 50 or more employees. And many of you — especially those of you with multiple offices — also know that that this definition extends to all locations within 75 miles. In other words, if you have 30 employees at the main office and another 25 at two other locations, each within 75 miles, then you're over the statutory 50, and the FMLA applies to you.

But do you know what "within 75 miles" means? It might not be what you think.

Kelly Hackworth worked in Progressive Insurance's Norman (Okla.) office as an injury operations manager. She asked for and received FMLA leave to care for her mother. At the end of her leave, Progressive required her to choose between a demotion and a severance package. She sued, claiming that Progressive had failed to return her to her original job after her FMLA leave.

Progressive argued that she was never eligible for FMLA leave in the first place because it didn't employ 50 people within 75 miles of the Norman office. In its Norman and Oklahoma City offices (31 miles away), Progressive employed 47 people. Hackworth argued that its Lawton office was 67 miles away from Norman, and the three additional employees at that office brought the total to the magic number 50.

Not so fast, said the federal district court. Turns out Lawton is 67 linear miles away from Norman — that is, "as the crow flies." But it is 75.6 surface miles away from Norman — that is, the distance your odometer would click off if you drove between the two offices. And while Congress neglected to define what it meant by the phrase "within 75 miles" when it drafted the FMLA, the Department of Labor's regulations defined it as 75 surface miles. The court ruled, and the Tenth Circuit agreed, that the DOL's regulations deserved deference. So Hackworth doesn't get protection under the FMLA because the Lawton office was about a thousand yards too far away.

The moral of the story is that words matter, and it's important to know the proper definitions. And that maybe you should use MapQuest or Google Maps to see if your offices are covered.

The Tenth Circuit decision in PDF form is here. Big shout out to Michael Fox's always-informative Jottings by an Employer's Lawyer, which covered the decision here.