by Mike Yoder | Business Resource, Culture, HR Tips, Human Resources, Legal Compliance
The sun is out, temperatures are up, and employee attendance is… down. There’s a reason cynics in the HR world nickname The Family and Medical Leave Act (FMLA), the “Friday Monday Leave Act.”
FMLA allows up to twelve weeks of unpaid leave each year, as a means for employees to balance their work and family responsibilities. The specific intent as stated by the Department of Labor, is “to promote the stability and economic security of families, as well as the nation’s interest in preserving the integrity of families.”
FMLA is required of employers that have over fifty employees on twenty or more weeks in the prior or current year. To be eligible, employees must have worked at an organization for at least twelve months and logged at least 1,250 hours of service during that time. Qualified employees are permitted FMLA leave for any of the following reasons:
- To care for their child after birth, adoption or foster care.
- To care for the employee’s spouse, child or parent who has a “serious” health condition.
- The employee’s own “serious” health condition makes him or her unable to perform the job.
FMLA is over twenty years old, but surveys show the act still ranks as one of the most confusing and frustrating employment laws for companies to administer. Along with understanding the specifics of the act as it relates to each state and circumstance, employers must also be aware of FMLA abuse tactics.
FMLA expert Jeff Nowak suggests companies take the following measures to ensure fair leave and accountability to the intent of FMLA.
1. Require (and question) employee leave requests
This is an effective strategy for cutting down on all types of absences. An employer cannot deny FMLA leave to a worker who puts in a notice, but simply requiring a written request can deter employees from taking unnecessary leave. It is also helpful for employers to have a list of questions ready when an employee requests time off. Ask about the job functions they are unable to perform, if they will see a health care provider, and when they expect to return to work. Employers have the right to know why an employee can’t come to work and a little probing can help determine if the FMLA request is legitimate.
2. Enforce a daily call-in policy
Requiring employees to call in one hour before their shift to report an absence is another inconvenience that may prevent abuse altogether. An extended vacation may not sound as appealing if you know you have to call into work every single day. As long as a policy is in place and there are no unusual circumstances, it is okay to deny FMLA leave to an employee who fails to call in before their absence.
3. Certify, and then certify again
According to Novak, one of the best tools employers can use to fight FMLA abuse is the medical certification form. Upon the first absence in a new FMLA year, require medical certification to verify the serious health condition. If circumstances change and an employee needs an extra day or week of intermittent leave, require recertification at the earliest opportunity. Employees typically have fifteen days to get a certification returned to their employer.
4. Follow up on patterns
Noticing a lot of sunny Monday and Friday absences? Is holiday time off frequently extended? These are common patterns of FMLA abuse. If a series of weeks or back-to-back months indicates a regular pattern of absences, employers can follow FMLA regulations to consult the employee’s physician. This can simply confirm whether the pattern is consistent with the employee’s health condition and need for leave.
5. Conduct an audit
FMLA policy and forms must be up to date in order to ensure compliance and the best strategies to combat abuse. Be proactive with your employment counsel or PEO to ensure that loopholes are minimized and your FMLA administration is running smoothly.
By partnering with Servant HR as your PEO, you get a fully integrated human resources team working for your protection. Worried about legal compliance? Not sure if your FMLA policy is at it’s best? That’s where we come in. Contact us today!
by Mike Yoder | Human Resources, Servant HR
Dear Servant HR partners & clients,
I want to update you on some exciting long term changes happening here at Servant HR. My desire for the long-term sustainability of Servant HR, along with encouragement from key advisors, has prompted the development of a succession plan for our future. While a typical PEO succession strategy often involves merging or selling to a competitor, it has always been my desire to find someone with the same entrepreneurial drive, passion, and genuine heart for service that grounds Servant HR’s mission and values.
After much consideration and prayer, it has been decided that Brad Schall, our recent VP of Strategic Initiatives, is the clear choice for our future succession needs.
Brad and I first connected ten years ago at Ronald Blue Trust, where Brad served as my financial advisor. Brad has also worked as a staff accountant at UBS Global Asset Management, a Certified Financial Planner, a CPA, and a teacher at Heritage Christian School.
Although the succession process is intentionally slow and will take approximately 7-8 years to fully complete, Brad’s commitment to stay the course with our clients and staff ensures Servant HR will stay true to whom we have always been, while continuing to grow in the knowledge and skills necessary to meet client needs.
Therefore, effective immediately, Brad will now serve as our new President and I have assumed the role of Founder and Chairman.
Our other leadership will not change. Mike Yoder will continue as our CEO, and Loren Elms as our Director of Operations. These three members of our Executive Leadership Team will provide significant oversight of day-to-day operations, while working alongside me in vision casting for our future.
In preparation for this succession transition, Brad became a minority owner on January 1st of this year and is scheduled to become the sole owner of Servant HR in 2026.
Thank you for taking the time to let me share with you this exciting news, and thank you for allowing us the continued privilege of serving you and your work site staff.
Sincerely,
Jeff Leffew
by Mike Yoder | Business Resource, Culture
Imagine you see a friend or coworker carrying something heavy—perhaps a big box, or a table.
You grab the other end to help carry it, or rush to a door to hold it open for them. You do whatever is necessary to help. You don’t really think twice.
While it’s simple and often instinctive to lend a hand to someone in need, helping carry the burden of mental health disorders still brings many employers pause. Hesitation is attributed to stigma—the mark of shame or disgrace associated with circumstances, qualities and people living with mental illness.
This hesitation is also caused by uncertainty and fear. Suddenly, offering help seems precarious and political, and employers fumble to make what would otherwise be natural accommodations. However, Paul Heck of DuPont, suggests the same simple courtesy we extend to someone carrying a heavy box be applied to people demonstrating distress.
The Extent (and Expense)
One in four people in the world will be affected by mental or neurological disorders at some point in their lives. According to a World Health Report, 450 million people currently suffer from these conditions, placing mental disorders among the leading causes of ill-health and disability worldwide.
As if the scope of mental health disorders weren’t enough, the cumulative economic cost of mental disorders is projected to reach $16.3 trillion worldwide. In the U.S. alone, the cost of untreated mental illness to employers is estimated to be as high as $100 billion a year. According to the National Business Group on Health, more days of work are lost or disrupted by mental illness than by many chronic conditions, including arthritis, diabetes and heart disease.
With depression now the world’s second leading cause of disability, workplaces can no longer keep mental health disorders quiet—and businesses can no longer afford to.
An Employer’s Role
Creating awareness and providing accommodations is necessary, but perhaps even more important is the employer’s role in fighting the stigma around mental health.
To support employees with mental illness, the National Mental Health Association and the National Council for Behavioral Health recommend seven action steps:
1. ) Educate employees about the signs and symptoms of mental health disorders.
Routine talk about mental illness warning signs, steps for assessing situations and where to find help is necessary for educating employees in the workplace. Empowering employees with resources and language is a good first step in eliminating fear and tension around the subject of mental health.
2.) Encourage employees to talk about stress, workload, family commitments and other issues.
This kind of encouragement often comes in the form of thoughtful questions. Instead of vaguely asking about health or saying, “You seem depressed,” mention that the employee is not being their usual self. Ask, “Do you want to talk about it?” and remind them it’s okay to ask for help.
3.) Communicate that mental illnesses are real, common and treatable.
This goes hand-in-hand with education. Take the stats from this blog and share them with your employees! Let people know that they’re not alone by having frequent conversations, equipping employees with resources and initiating check-in’s.
4.) Discourage stigmatizing language, including hurtful labels such as “crazy,” “loony” or “nuts.”
Again, attention to language is critical. Less than one third of employees coping with mental illness receive treatment, due to fear that they will be called out or treated differently at work. While it may be easy to brush off such small words, careless labels like these directly contribute to stigma.
5.) Invest in mental health benefits.
Mental health disorders are often rooted in a range of issues that make individuals feel helpless and overwhelmed. Employee Assistance Programs (EAP’s), health insurance, leadership training, flex schedules, financial literacy training and even childcare all contribute to an individual’s total health. These benefits care for employees as whole people and ultimately improve workplace effectiveness.
6.) Help employees transition back to work after they take leave.
A common misconception about mental illness is that individuals can’t recover. However, 65 to 85 percent of people will improve with appropriate diagnosis, treatment and monitoring, according to the Partnership for Workplace Mental Health. Return to work plans might include counseling and accommodations aimed at bringing employees back to work faster. In this way, work provides a self-esteem boost and plays an important role in an individual’s recovery.
7.) Consider Obtaining Access to an Employee Assistance Program.
Employee Assistant Programs are work-based intervention programs designed to identify and assist employees in resolving common marital, financial, substance abuse and mental health issues. EAP’s can be offered to employees for free and are usually administered by a third-party, to ensure confidence in talking about private issues that many people fear will jeopardize their employment.
Communicating Care
To maintain a healthy work culture and ensure efficiency, mental health can no longer be a topic to whisper about behind closed doors. With the average American spending 90,000 hours at work over their lifetime, it’s impossible to assume the effects of mental health disorders are absent in the workplace.
Employers have a responsibility to fight proactively against mental health stigma, ensuring their employees are spending their 90,000 hours well, in a good and safe place.
For more information on how Servant HR can act as your coach for workplace issues like this one, contact us today.
by Mike Yoder | Business Resource, General, HR News, Human Resources, Legal Compliance
In December 2016, compliance with the Obama administration and the Department of Labor’s proposed wage minimum required extreme reclassification. (Read our 2016 blog on this proposal here.) The proposal would have raised minimum exemption wage to a jarring $47,476 from the previous $23,660. Push back from businesses combined with a late term lawsuit kept the proposal pending until Trump took office.
This Just In
As of last week, the Department of Labor has proposed an increase straight down the middle of the historic minimum and attempted Obama-era hike. The current proposed salary-level threshold for white-collar exemptions now sits at $35,308. According to the Society of Human Resource Management (SHRM), the proposal, if finalized, could result in the transition of more than one million currently exempt workers to non exempt, as well as many pay increases for employees below the new threshold.
Nonexempt employees (those who do not meet the salary base and do not match FLSA work requirements) must receive a “time and one half” pay rate for any hours worked over forty in a workweek. The FLSA “duties test” defines specific regulations for executive, administrative and professional work that make an employee exempt, in addition to the salary threshold.
Tricky Business
While compliance is mandatory if the proposal is finalized, the specific way of reaching compliance is left to employer decisions.
If exempt employees currently make salaries significantly lower than the threshold, reclassifying employees to non-exempt and overtime eligible might make sense.
But, employers can also avoid salary and overtime pay altogether. Hours for newly non-exempt employees may be reduced, part-time or contract workers may be hired to fill gaps, tasks may be re-assigned to other exempt employees, and perks may be dismissed since the exempt/non-exempt distinction is often used to provide benefits.
Employers must then weigh the cost of morale.
Overall, it makes more sense to reclassify to nonexempt if an employee does not work much beyond forty hours. But for employees who often work over 40, it may be less difficult and less expensive to increase salary to the new threshold, rather than paying consistent overtime.
What Now?
There is still a long way to go before reclassification. Proposals are always small first steps in a lengthy process before finalization.
However, employers do not have to wait for the final rule to review FLSA duty requirements. Jeffrey Ruzal, an attorney with Epstein Becker Green, recommends employers begin auditing their exempt workforces to determine how many might qualify under the criteria of executive, administrative and professional exemptions. Before raging re-classification, it is possible that employees currently or potentially exempt due to salary, may not pass the primary duties tests.
In general, this pending proposal offers valuable time for fixing current errors and planning for the future. We at Servant HR would love to help plan for yours. If you’re our client, we’re already on it. But if you have questions about the specifics of the proposal, or are wondering how a PEO can help manage these crucial details, please don’t hesitate. Contact us today!
by Mike Yoder | Business Resource, General, HR News, Human Resources, Legal Compliance
A new National Labor Relations Board (NLRB) decision has drawn a blurrier line between employers and independent contractors. Returning to pre-Obama-era policies, the NLRB is now more likely to acknowledge independent contractor relationships.
A wide array of federal, state and local laws govern the relationship between employers and their employees. But often these laws do not apply to those classified as independent contractors.
The distinction between the two is critical, but hazy, as each law has a slightly different way of discerning independent contractors from employees. Courts and agencies add complication as well through differing interpretations of those laws, along with frequently changing standards according to appointed political party.
Back and Forth
Last year the California Supreme Court broadened the definition of “employee” for wage order claims. Obama-era guidance restricted an employer’s ability to classify workers as independent contractors. Now under President Trump, federal agencies are swinging back the other way.
According to Ryan Funk of Faegre Baker Daniels, the new NLRB decision returns to how it viewed independent contractors before Obama-era restrictions. Funk writes, “The main difference between the new test and the Obama-era one is how the agency looks at whether workers have ‘entrepreneurial opportunity.’”
Action vs. Opportunity
The Obama-era decision gave weight only to actual entrepreneurial activity (and even then, only when looking at just one part of a multi-factor test.) This narrow view makes the chance of meeting criteria significantly slim.
The new NLRB decision re-establishes the value of entrepreneurial activity. The principle of “opportunity for entrepreneurial activity” is used to evaluate the overall effect of each of the ten factors in a common-law analysis of an independent contractor relationship.
The decision is employer friendly, as it frees up employers to classify independent contractors and drop the host of governing laws.
Boiling It Down
While employers are freed up through the new decision, the line is still blurry. Those looking for a clear distinction between employee and independent contractor are in for a letdown. According to Funk, “Any legal test with ten factors is bound to boil down to a case-by-case approach.”
Even tests and their factors can vary case-by-case. Over the last thirty years the IRS has used an old revenue ruling twenty-point test, the tax court has used a seven-point test, and the IRS has espoused a three-pronged “control test.” Confusion is certainly understandable.
Therefore, independent contractor relationships should be re-analyzed in light of the new NLRB approach. Based on potential IRS involvement, it’s also important to note that the NLRB is just one voice in a crowd of agencies, so employers should stay up to date as independent contractor tests continue to evolve.
