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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 Doctor’s 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 Doctor’s 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 don’t 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 can’t 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 Labor’s 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


Phil Rosenberg,
The HR Doctor

(If you have questions for the "HR Doctor," e-mail him at Rosenberg is the Human Resources director for Broward County, Fla.)


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