National Association of
Counties * Washington, D.C.
Vol. 32, No. 6
* April 3, 2000
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DOL We Love You
It is time to say thank you to the Department of Labor (DOL) for the
many years of enhanced job security it has made possible for the human
resource and attorney staff members of the cities and counties throughout
America.
It is hard to imagine how dull and routine life would be
in the HR profession were it not for the periodic proposals and
interpretations from the Department of Labor. They are both entertaining
and chilling at the same time. In this season of Grammys and Oscars,
therefore, here are a few examples of the winners of the HR Doctors
annual Bizarre Award.
The sole nominee and winner in the science
fiction award category has to be the short-lived, proposed regulation
which would have opened our homes to federal inspection if we do any work
at home on behalf of the city or county.
Home accidents would have
become an employer responsibility and home office inspections could have
become common place. That would likely have also meant photos, memos, and
permanent records. Never mind that your home office may be in your bedroom
or den, or, for that matter, in your bathroom.
The fact that the
announcement of these proposals evoked cries of anguish and amazement all
over the country was probably only a marginal reason for the withdrawal of
the proposals.
My guess is that the proposals were headed non-stop
toward becoming permanent in force regulations, except that the paperwork
was probably lost somewhere in the department.
The award for Best
Persistent Vegetative State goes to the Wage and Hour Division for failing
to take a pro-active stand on the many vague, foggy phrases and
interpretations of portions of the Fair Labor Standards Act.
As
readers may know, the HR Doctor is also the HR dog owner. Even the HR
dog, Kamala, was amazed that the Department of Labor did not weigh in
early and powerfully with clear guidance for cities and counties when the
subject of overtime pay for playing with and caring for police puppies
turned into lawsuits and threats of lawsuits all around the country.
The same pro-active approach could have saved everyone a lot of
trouble when the subject turned from dogs to horses. The lawsuits and
complications over whether or not the time spent bonding with the police
horse, appropriately named Trigger should also count as time and a half,
led many of us to think about career changes.
From the HR Doctors
vantage point, swift and clear Department of Labor support for any
practical approach to this problem would have been very helpful and very
positive. Instead, public agencies were left to figure this subject out
for themselves.
The translation of figure it out for yourself
means leave it to lawsuits, attorneys fees, unfortunate labor relations
complications and uncertainty.
A similar award for Best Lost
Opportunity also goes to the Wage and Hour Division because there has been
a shortage of guidance and help in dealing with other FLSA vagueries
including the practical problems cities and counties have in trying to
figure out whether administrators, professionals and executives meet the
criteria for escape pardon me, exemption from the Fair Labor
Standards Act.
A final award for Best Performance by an Electric
Guitarist during a Power Failure also goes to the Department of Labor in
its lack of clear intervention in interpreting the Family Medical Leave
Act (FMLA).
A current debate relates to the efforts by public
agencies to take reasonable steps to reduce excessive absenteeism. Many
agencies, for example, offer awards and recognition programs for employees
who are fortunate enough and dedicated enough to have no unscheduled
absences from work in a period of time, such as six months or a year.
One interpretation of FMLA is that persons who use their federal
entitlement to time off should not be denied bonuses and recognition by
virtue of having been absent. As such, an employee could get an attendance
award for not coming to work if the leave is FMLA-related.
The
result can be obvious if this interpretation holds. We can say goodbye to
the idea of recognition for those who perform and contribute more
regularly and consistently than others.
The same could be argued
for sick leave monitoring programs applied to employees who consistently
use unscheduled time off much more than others. The disruptive affects of
frequent unscheduled absences represent real workplace productivity
issues.
As long as sick leave reduction or control measures are
applied on a job-related and nondiscriminatory basis to persons who are
frequently absent on Mondays, Fridays or the days before or after a
holiday with only vague excuses, it is an appropriate business practice
for agency managers to take these steps.
DOL should weigh in with
policies and guidelines in these areas, which are clear and built upon a
base of understanding of the increasing need for business practices which
take excuses away rather than provide new excuses to not perform rather
than to effectively perform.
Having offered these comments, I want
to quickly add that I have met many DOL representatives in nearly 30 years
in human resources administration. These individuals are uniformly
pleasant and effective listeners.
They also reflect, even when
they dont say it overtly, that they lack authority to do more than carry
the concerns of local government, elected and appointed officials, up the
chain of command and to help arrange meetings and dialog. DOL staff in
many respects reflect symptoms of helplessness and lack of empowerment,
which on a chronic basis, would make a great subject for an Employee
Assistance Program organizational needs assessment.
The HR Doctor
would suggest that no one at DOL be allowed to write a proposed regulation
that would affect local government without two new criteria being met.
The first would be that the writer of the regulation actually have
some direct experience as a manager or supervisor, subject to living under
the regulations. I cant help but suspect that there is perhaps one GS 13
or 14 at DOL in a small windowless office on the 8th or 9th floor who
produces all these proposals. If that person could only be identified and
offered either an early retirement or random drug testing, public HR
administration would be well served.
The second requirement would
be that every proposed regulation be the subject of a mandatory, written
review to be provided by representatives of a coalition of NACo, the U.S.
Conference of Mayors, the National League of Cities, ICMA, and the
National Governors Association.
The result would be required
reading for DOL decision makers, including those of the Wage and Hour
Division and the Secretary of Labors Office. The coalition model would at
least require some overt attention being paid to the input of local
governments in a more formal, structured manner than by simply inviting
general comments.
I know that many of my colleagues in public
administration join me in wishing that concepts like reasonable
accommodation and avoidance of undue hardships on local governments
would play a very heavy and ongoing role in whatever thought process goes
into the creation of DOL guidelines and proposed regulations.
Finally, the HR Doctor remains a practitioner active in local
government and would like to stay that way. Therefore, I would like to
make it perfectly clear that I love the Department of Labor deeply and
that some of my best friends work there.
The HR Doctor wishes you
and my brothers and sisters at the Department of Labor the very best. Feel
free to visit at http://www.hrdr.net/.
Sincerely,
(If you have questions for the "HR Doctor," e-mail him
at philrosenberg@prodigy.net.
Rosenberg is the Human Resources director for Broward County,
Fla.)
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