DOL says: Don’t Be Too Generous With Your Employees

By Beth Ann Lennon

Thursday the Department of Labor (”DOL”) issued three new opinion letters, two of which warrant a quick note. One provided guidance regarding the Family Medical Leave Act (“FMLA”), and the other addressed the Fair Labor Standards Act (“FLSA”). Both had the same ultimate takeaway – employer generosity easily backfires.

Providing more than unpaid FMLA Leave – According to the DOL, employers who want to provide employees more leave than the FMLA requires violate the FMLA if they delay designating leave as FMLA-qualifying to allow employees to exhaust other available paid leave. “[A]n employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave . . . as FMLA leave,” even if doing so benefits the employee. Employers have five days from when they have “enough information” to determine whether an employee’s leave is for a “FMLA-qualifying reason” to designate that leave as FMLA leave. The catch-22? The DOL also considers it a violation of the FMLA for an employer to not provide FMLA eligible employees “any employment benefit [provided for in a company policy] . . . that provides greater family or medical leave rights to employees than the rights established by the FMLA.”  In other words, employers who provide more than 12 weeks of unpaid leave to employees need to make sure their leave policies are properly drafted and implemented, or their generosity could get them into hot water.

Encouraging Volunteer Work –  The DOL also determined that employer generosity can be a violation of the law when employers provide bonuses for employees who engage in company sponsored volunteer work. According to the DOL, employers who encourage employee participation in volunteer activities may have to treat that volunteer time as “hours worked” under the FLSA unless they are very careful. Don’t want to pay overtime for your employees’ weekend housebuilding activities?  Follow these (not so) simple rules…

  • Employers cannot “direct or control the employees’ activities” during these volunteer activities.
  • Employers cannotguarantee a bonus for volunteering.”
  • Employers cannot require participation in the volunteer program or even “unduly pressure its employees to participate.”
  • And employees cannot suffer any “adverse effect” on “working conditions or employment prospects” because they do not participate.

Again, the takeaway is clear – if you encourage volunteer activities by your employees, this encouragement must be through a policy that is effectively drafted and administered to ensure compliance with the DOL’s new list of “do not”s.