Page 91 - An Indispensible Resource for Being a Credible Activist

Another form of FMLA abuse is the employee who refuses to provide a clear schedule
to his or her supervisor and HR. There are situations that truly do make this difficult or
impossible—for example, the care of an Alzheimer’s patient who frequently goes missing or
has another serious illness that is truly fraught with elements of unpredictability. However,
if the FMLA leave is, for example, to allow the employee to be present with a family mem-
ber who has a serious illness and who is in the care of a hospital, hospice, or with other
family members, this employee should be able to present a clear schedule and adhere to it,
barring the occasional emergency.
Unfortunately, there are employees who will abuse their FMLA leave by refusing to pro-
vide a schedule, adhere to a provided schedule, or claim repeatedly that he or she simply
does not understand his or her responsibilities under FMLA. In this case, HR professionals
are advised to meet with the employee in the presence of his or her supervisor or another
manager, explain the FMLA policy, ask the employee if he or she has any questions, provide
the employee with four written copies of the policy to keep at home, to share with family
members, to keep at work, and to have an extra just in case. It is then advised to e-mail the
employee after the meeting and request that the employee either ask any questions he or
she has or acknowledge that he or she understands the FMLA policy. It is also advised that
the employee be instructed in writing and preferably via e-mail that if he or she subse-
quently has any questions whatsoever about his or her responsibilities regarding FMLA
leave, he or she is instructed to contact HR immediately.
There are times when non-HR executive staff and other managers don’t understand the
intricacies of FMLA law and don’t understand that FMLA abuse is happening. The HR Tool
entitled “Sample Memo Regarding FMLA Compliance Concerns,” on pages 77–78, shows how
you can customize for your needs.

CONCERNS ABOUT FLSA STATUS:
KNOWING WHO MUST BE PAID OVERTIME AND WHEN

The FLSA’s basic requirements are payment of the minimum wage, overtime pay for time
worked over 40 hours in a workweek, restrictions on the employment of children, and
record keeping. There are a number of employment practices that the FLSA does not regu-
late. For example, the FLSA does not require (1) vacation, holiday, severance, or sick pay;
(2) meal or rest periods, holidays off, or vacations; (3) premium pay for weekend or holi-
day work; (4) pay raises or fringe benefits; (5) a discharge notice, reason for discharge, or
immediate payment of final wages to terminated employees; and (6) pay stubs or W-2s.
In addition, the FLSA does not limit the number of hours in a day, or days in a week,
an employee may be required or scheduled to work, including overtime hours, if the
employee is at least 16 years old. However, some states have laws covering some of these
issues, such as meal or rest periods, or discharge notices. For a list of state labor offices, visit
http://www.dol.gov/esa/contacts/state_of.htm. For more information regarding the FLSA,
contact your nearest Department of Labor Wage and Hour District Office. To find your near-
est office, check your local phone directory under U.S. Government, Department of Labor. 3
The HR Tool entitled “Sample Memo Regarding FLSA Concerns,” on page 78, is an example
of how FLSA issues might be addressed.

74 The H R Toolkit