Category: Wage & Hour

FMLA Eligible Employees

Who Is an FMLA Eligible Employee?

To get really technical about it, there a difference between an FMLA eligible employee and an employee with an FMLA qualifying circumstance. The federal Family & Medical Leave Act (FMLA) generally allows eligible employees to take up to 12 weeks of unpaid leave each year related to the birth or adoption of a child, serious health conditions, and certain family-member military-related situations. But not all employees in these covered situations are protected by the law in the first place.

So, let’s take a look at the requirements for being FMLA eligible.

[The FMLA differs from state laws, such as New York’s Paid Family Leave Benefits Law. New York employers can click here to contrast the two.]

Work For a Covered Employer

In many respects, FMLA eligibility is beyond an employee’s control. This primarily comes down to the size of a company’s workforce. Private sector (non-governmental) employers with less than 50 employees are not subject to the FMLA. Their employees have no leave rights under the law.

The FMLA covers all public agencies, including federal, state, and local governments, and schools even if they have fewer than 50 employees. However, that doesn’t change the eligibility for employees working for governmental employers under that workforce threshold . . . because of the next requirement.

Work within a 75-Mile Radius of 50+ Employees

To be FMLA eligible, an employee must work at a location where their employer has at least 50 total employees working within a 75-mile radius.

Sometimes this is an easy requirement to measure. Many companies have more than 50 employees working at the same location. If you don’t, however, you might need to get out a map (probably digital these days) to check whether employees are FMLA eligible.

And how do you measure those 75 miles? Here’s what the Department of Labor’s regulations have to say about that:

“The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation (e.g., airline miles).”

There are other potential complexities. Some employees have no fixed work location. Then, per the regulations, “the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.”

Have Worked for the Employer for at Least 12 Months

Even in large workplaces, employees don’t become FMLA eligible their first day on the job. Not even the first month . . . or the first year. Instead, they must remain employed for at least 12 months before earning FMLA protections.

However, the 12 months don’t have to be consecutive. Time off, or even formal termination of employment, doesn’t restart the clock. An employee with a year or more of service who quits but then returns to the company later might satisfy this requirement on their first day back. And an employee who first worked less than 12 months before leaving and returning can count the previous period of employment. Except . . . if the break in employment lasted at least 7 years, then prior employment doesn’t count (barring special circumstances).

But gaps in employment will often still affect FMLA eligibility, because an employee must . . . .

Have Worked for the Employer for at Least 1,250 Hours in the Past Year

This requirement means that many part-time employees are not FMLA eligible. It also limits the initial eligibility of employees returning to a company after a break in employment.

The hours requirement looks backward from the date leave begins. In other words, on the day the leave will start, has the employee worked 1,250 hours in the past 12 months. If not, they are not FMLA eligible. However, such employees might be able to delay the leave (assuming a non-emergency situation) until they will have worked enough to become eligible.

Sometimes this eligibility condition prevents employees from taking FMLA leave in consecutive years. Previous time off (under the FMLA or otherwise) might mean that even when an employee would otherwise regain annual FMLA leave time, they will no longer (at least initially) be eligible to use it.

Understanding Which Employees Are FMLA Eligible

If your company is subject to the FMLA, then you must be prepared to evaluate whether a particular employee is FMLA eligible.

Employees don’t have to use any magic words in requesting leave under the FMLA. Asking for time off for a reason that would qualify for leave (e.g., childbirth, surgery, etc.) is usually sufficient to shift the burden to the employer to follow the FMLA. This includes determining whether the employee is FMLA eligible and notifying the employee of their eligibility and rights.

Employers with limited experience applying the FMLA or those facing less-than-straightforward scenarios should consider consulting with an experienced employment lawyer on questions of employee eligibility and other legal parameters.

 

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Employee Side Hustle

Your Employee Has a Side Hustle

Browse the internet these days, and you can find many articles extolling the virtues of allowing employees to have a side hustle. Ask many established employers, however, and the response will often be less enthusiastic. Some will ask, “a what?” Others will instinctively respond, “Bad for my business.” As an employment lawyer, it’s not my job to weigh in on either side of this debate. But I will take on the task of describing some potential legal implications and considerations that arise when employees have outside business interests.

What Is a Side Hustle?

Many companies still have “no moonlighting” policies. These forbid employees from working outside of their “day job.” However, the prevalence and ease of having a second income stream might be at all-time highs.

“Side hustle” itself isn’t a new term. Merriam-Webster reports that it entered our vocabulary in the 1950s, and generally refers to “work performed for income supplementary to one’s primary job.”

Modern and emerging usage focuses more specifically on the nature of the supplementary work. One recent description explains:

“A side hustle is not the same as a part-time job. While a part-time job still entails someone else (your employer) calling most of the shots (including hours worked and what you’ll be paid), a side hustle gives you the freedom to decide how much you want to work and earn.”

Employee Policies

Let’s move back to where the employer does call the shots. You have a business to run and need employees to operate it. While they’re working for your company, you have to exercise reasonable control over your workers. You are, after all, responsible for what they do on the job. This includes both the outcome of their work (productivity, customer satisfaction, etc.) and legal liability (harassment, personal injury, etc.).

Most companies with more than a few employees have an employee handbook of some kind. This manual contains a number of policies about what employees can and can’t do. Let’s take a closer look at some of these policy areas that relate to your employee’s side hustle.

Moonlighting

Moonlighting has typically meant having a second job outside of work. This more often meant working for a second employer. But, as mentioned, is now increasingly likely also to encompass an employee’s self-employed side hustle.

Not all of these policies are absolute. Some are limited to competitors, customers, or other restrictions related to a potential conflict of interests. Employers should revisit their moonlighting policies in consideration of the side hustle proliferation.

Conflicts of Interest

With or without specific moonlighting policies, many employers have a conflicts-of-interest policy. These policies might encompass, but often exceed, references to outside jobs. They might, accordingly, be both more and less likely to cover concerns related to employee side hustles. While unlikely to use the term, these policies are broader in scope of activity and thus not limited to outside “jobs.” At the same time, they usually don’t address outside activities that don’t relate to the company’s business.

Confidentiality

Most handbooks contain policies that prohibit employees from disclosing confidential company information or using it for personal gain. These policies should limit how employees use proprietary data, often including customer information, in their side hustle. But few of these policies were written with the current landscape of outside employee business interests in mind. So, again, now would be a good time to review your policies with modern realities in mind.

Vacation and Other Leaves

Many employers, of course, provide employees with vacation, sick leave, personal leave, or other forms of paid-time-off (PTO). Employee handbooks often address the conditions for these leaves. Sometimes these policies preclude the use of PTO for outside work or other business pursuits. But many policies are silent in that area. If your employees do have side hustles, they might decide to use vacation time to work on their personal venture. Or, in any event, they probably will not entirely abstain from working their side hustle while on vacation. Consider how those scenarios impact your business and make policy revisions, if necessary.

Computer Use & BYOD

Do your employees use computers in their jobs? Do they have smartphones (personal or company-owned) in hand during their workday? Employers usually address related issues in their handbooks or policy manuals. Some of these policies permit incidental personal use. Few specifically address an employee’s side hustle. If there is language regarding outside business ventures during work time, does the company monitor or enforce those restrictions? Striking the right balance for your workforce is important.

Bring on Employment Laws

In addition to the company’s policies, employers also must stay within the boundaries of numerous labor and employment laws. I don’t think I’m going too far out on a limb in suggesting that most of these laws came into being without specific consideration of the modern side hustle. Many of them pre-date the internet, which is the platform for much of the side hustle realm. And even newer employment laws tackle a specific concern without fully considering the workplace and societal implications.

Here are just a few examples of federal employment laws that could cause headaches when balancing employer and employee interests regarding outside business interests.

FMLA and ADA

The Family and Medical Leave Act (FMLA), directly, and Americans with Disabilities Act (Act), indirectly, give many employees the right to take time off from work for medical and certain other situations. These laws do not specifically address the extent to which employees may engage in outside employment or business activities while on protected leave. Although courts have weighed in on a case-by-case basis, employers still face a gray area when employees on leave continue to pursue their side hustles.

It is one thing for an employee on FMLA leave to spend full days running a company store. Then their employer (from whom they’re taking leave) might have the right to terminate them for FMLA abuse.

But what if an employee recovering from surgery continues to post on a personal (for-profit) blog and manage related social media accounts? Do they lose their leave protection?

Harassment

Federal laws prohibiting harassment of employees include Title VII of the Civil Rights Act of 1964 (race, color, sex, religion, and national origin), the ADA (disability), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA). Under these laws, employers must avoid a hostile work environment based on protected characteristics. This obligation does not conveniently cease once an employee steps outside the employer’s facility.

There have been many cases where employees complain of harassment because co-workers treated them inappropriately outside of work. Whether this conduct creates legal liability for the employer depends on the circumstances. But it is at least possible that an individual could create a hostile work environment for co-workers through their side hustle.

For example, despite the platforms’ user guidelines, YouTube or Instagram accounts are not always workplace friendly. People might resort to more colorful language or less conservative clothing through these channels. They might generally relax their inhibitions from what they demonstrate in their office or factory job. And co-workers might find their conduct offensive along various lines. This could affect their ability to work side-by-side Monday through Friday. Even where not raising a legal concern, productivity could suffer.

Minimum Wage and Overtime

What happens when an employee’s side hustle supports their employer’s business? At some point, it could become difficult to draw the line between the employment relationship and the outside activity. This might raise questions of whether the employer must compensate employees for time worked on their “personal” ventures.

Suppose you own a boutique clothing store and your employee has a popular fashion vlog. These could be entirely separate businesses. But if your employee repeatedly references your store (presumably in a positive way) and starts driving customers to the store, is the employee working for you while vlogging? The devil is probably in the details here. But it’s a question worth asking. Otherwise, you might run afoul of minimum wage or overtime requirements under the Fair Labor Standards Act. Or, at least, you might not be keeping adequate records of the employee’s time worked (by not counting time spent vlogging about your store).

Here’s another example. Your employee does landscaping jobs after work and on the weekends. He’s employed by your company as a facilities manager. If you pay him to mow the grass around the company offices, does that time count toward overtime? It might, depending on the nature and extent of his landscaping “business” and the scope of his normal job tasks. And it might be an open question even if the employee’s job position is entirely unrelated to any physical labor.

Plan Ahead

The side hustle is a real phenomenon that is not likely to go away soon. Employees of all ages are looking for supplemental income outside of their traditional jobs. Employers should review their policies and evaluate whether the boundaries they impose go too far or not far enough in guiding employees with outside business interests. A proper balance for your workplace might not only serve as a competitive advantage, but could also help you avoid legal compliance problems down the road.

 

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Employment Law Checkup

Quick Employment Law Checkup

If you have employees, you’re subject to an array of laws governing the workplace. Going from zero to even just one employee is a huge step. After that, the more employees you have, the more laws apply. And more employees and laws bring along increased risks of noncompliance. To tackle these issues, companies would ideally hire robust human resources departments and employment lawyers. But, that’s not practical for every business in every situation. So, in case you need somewhere to start, you can use this to conduct your own basic employment law checkup.

1. Are you paying workers enough?

I mean legally. Presumably, you’re paying them enough to work for you. And whether you pay enough to retain employees is another subject altogether. But I’m talking about minimum wage and overtime here.

With just one employee in the U.S., virtually all employers become subject to minimum wage and overtime laws. What laws apply to you and your employees? Are employees exempt from overtime? The exemptions are trickier than many understand, so double check this.

2. Are you paying payroll taxes?

For most employers, this is a no-brainer. Taxes are a way of life. But some employers try to avoid these obligations by either paying employees “under the table” or treating them as independent contractors. The first practice is simply illegal. The latter is more complicated.

Genuine independent contractors are responsible for their own taxes (and don’t have to receive minimum wage or overtime). But you can’t just avoid dealing with legal requirements by calling someone an independent contractor. The exact requirements vary, but generally, if a person is working only or primarily for you, they are probably your employee. Especially if they are performing tasks in line with your primary business. For example, a graphic designer “hired” for a one-off project creating a new company logo may be an independent contractor. But a graphic design company hiring the same person to create designs periodically for its customers looks more like an employment relationship.

3. Do you have an anti-harassment policy?

Various state and federal laws prohibit employment discrimination for all but the smallest employers. Even if you’re not subject to these laws, you can’t afford to tolerate workplace harassment. As a starting point, you should have a written anti-harassment policy that advises employees of prohibited behavior and provides a mechanism to report violations. Again, this is a bare minimum. So, after you institute or update your policy, consider providing training to employees. And, of course, take all complaints seriously and investigate promptly.

4. What do your personnel files look like?

If legal issues arise, the employee’s personnel file will come under scrutiny, so don’t be careless. Whether physical or electronic, you should have separate files for each employee. These should contain the “new hire” paperwork such as offer letters, I-9s, and tax withholding forms. They also include employee benefit documents, such as for insurance and retirement plans, if applicable. They would also include any formal disciplinary records. And if you receive medical information about an employee, that must go in a separate file.

5. How do you handle employee medical issues?

If you do have medical information, you’ve probably had to deal with employee medical issues. These can touch on a surprising number of employment laws. I regularly advise clients about single employee medical situations that potentially implicate 6-7 laws. For example, you may have to make reasonable accommodations to an employee with a disability. This might include time off, even if you don’t have a sick leave policy.

6. Will your employees go union?

Most employees have the right to join unions. As an employer, it’s not your choice. But that doesn’t mean your fate is sealed. Getting the above issues right, treating employees well, and listening to them will often keep unions out. But if your employees do unionize, then you’ll be playing by a new set of rules. You’ll have to negotiate with the union over many issues. You will enter the world of potential grievances and arbitrations. And employees will likely receive “just cause” job protection. Make sure you understand how this world works before you find yourself in it. (There are geographic and industry-based factors affecting the likelihood that your workforce will unionize, but it’s at least a possibility in nearly every company.)

Beyond this Employment Law Checkup

I’m only providing this quick employment law checkup as a starting point. I want employers to get these issues right. But that’s not always an easy task. Plus, there are many more employment laws beyond the subjects addressed here. The laws are complex. Often there are extensive regulations. Minor nuances can entirely change an employer’s responsibilities.

 

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