Before I get started, let me preface what I am about to say with a very simple fact: I am not a lawyer, nor do I aspire to be a lawyer. However, in my profession it does help to stay up with some legal trends – especially employment law. So, while I am not an attorney, per se, I wouldn’t still like to think of myself as fairly well versed in matters of employment and labor law, which is why it always amuses me when someone comes to me and tells me that “we” (and by “we” I am referring to my employer/client at the moment) cannot do X, Y, or Z because it is against the law.
Let me explain. I used to have the distinction of doing HR for a retail chain. If you have ever stepped foot into a retail store of any size, you have probably experienced the phenomenon where there are long lines at the register and only a handful of cashiers. In the retail world this is known as “$^%#@! Where are all the cashiers!” In these situations, it is not uncommon for a cashier who is working the line to look at his or her watch and realize they have been working for 4 hours without a break and to shut off their light and in some, but not all cases, direct the line to another register. Their excuse to management is “I have been working 4 hours, I am entitled to a break.” Now the company I worked for had stores in several states,none of which had specific laws that required employees to be given a break after so many hours working (over the age of 17 at least). That didn’t stop the calls to me where the employee would tell me that they are entitled to a break.
“It’s the law!” they would scream at me. I would tell them that it in fact is not the law. They would almost always go on and argue some more so I would offer up that I had an open mind and tell them that if they could prove to me that there is in fact a law requiring them to have breaks I would not only apologize, but make sure that this never happens again. I would go on and tell them that I am certain that their fellow employees would appreciate it as well… Needless to say, no one ever proved me wrong.
Does this mean that employers should make people work non-stop without a break? Uh, no. Not just because that is crumby, but also because there are other places these people can go to work – or at least the good ones. So just because something isn’t legally prohibited doesn’t mean it shouldn’t be done.
Another example is leaves of absence. There are several legitimate ways to take a legally protected leave of absence, but perhaps the most widely known is FMLA (the Family Medical Leave Act). Granted, not every employer is covered, but this is a pretty broad law and if your company has need for an HR person, chances are its employees qualify under FMLA Or the more lenient state equivalent. But what does FMLA cover? Birth or adoption of a child; or to care for yourself, your spouse, parent or child who suffers from a Serious Health Condition. It has recently been amended to provide for leaves for families with returning service members. So, what if your dog is ill? Sorry, Charlie, that isn’t covered under FMLA. Should it be? I honestly don’t think so, but I do think that a lot of good will can go towards an employer who gives someone some flexibility if they are dealing with something like this. I have a dog who is a part of my family. Before him, I had another Dalmation that was also a part of my family but after a long life of chasing squirrels and peeing on every tree, Pete went on to the great fire hydrant in the sky. That was over 12 years ago, but I still have his picture in my office. When I lost him, I called to let my boss know I was going to be a little late because I needed to take care of him. She told me to not come in – she didn’t tell me to use sick time, she just told me not to come in and to take the time that I needed, and I did. OK, so maybe this falls more under bereavement, but the bottom line is there isn’t a law that entitles me to anything, yet that simple act of kindness will never be forgotten. Sticking to the law isn’t always the best practice. The same goes for policies. No doubt policies are written for the best interest of the company at heart, but there is always something that is not considered. Something that goes against the policy in writing, but in this particular instance doesn’t make sense to the company. As an HR practitioner, it is easier to toe the policy line and not waiver (not to mention it usually makes the lawyers happier as well), but what about the person you are working with? What if they knew that there is a policy in place, but also knew you actively sought out a loop hole (or loosely interpreted a policy) to allow for something to happen that you didn’t have to? Is that person more or less likely to fire up their computer once they get home (or at work – on your dime) and check Careerbuilder?
If you are not an HR person, what is your takeaway? First, don’t BS a BSer. Don’t tell someone that something is the law unless you are absolutely certain. Instead, make your case from the business standpoint. “Look, I know I am not entitled to a break, but I was about to piss my pants.” That will probably get someone’s attention. One thing that is worse than standing in line is being checked out by a cashier with a pee stain in the front of their pants. It is quite unbecoming. From an HR perspective, if someone were to have told me that, I would have put in a call to the manager or District Manager, or Regional VP… Dog died? Explain that you really hate to miss work, but you just don’t know how productive you will be. Hopefully your manager will understand and have some compassion. I’m not promising anything, but it is better than “I ain’t gonna make it, Muffy died.”
Until next time, y’all.