Gruntled Employees

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.