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."

Comments

[Martin S. Ebel]

Now Jay, just to make it fun, let's take it one step further.

If the alcoholic employee takes those four weeks off to get clean and sober--and is paid during this absence by using his four weeks of accrued vacation time--then he is magically transformed (Godliness aside, I suspect fermion transformation over Higgs boson transformation, primarily because of my preference for — even if it is silly — string theory) into a perfectly attending employee and is eligible for the award. This assumes that eligibility for the perfect attendance award is not destroyed by actually taking paid vacation time during the year.