5

May, 2023

Small Businesses Are Easily Ensnared by New NYC Hiring Laws

Small businesses that use LinkedIn, Indeed or any online platform to recruit for positions must be wary of the ways in which they can easily pull themselves into the requirements of New York City’s new rules related to AI in hiring.  This is possible because:

  • online services offer multiple free supports to identify the best candidates;
  • the city’s rules define AI in hiring processes broadly enough to include those free, helpful supports; and
  • the city’s rules don’t just apply to worksites in New York City.

My own recent job posting experience was an eye-opening opportunity to see and reflect on the traps and pitfalls, and how I might help my clients solve for them going forward.

Just a Little Help Easily Ensnares the Unwary

LinkedIn wanted to help me. I had posted an open position and it was eager to help me identify candidates who would be the best match. As I composed my posting, it offered for me to include three screening questions – anyone who answered incorrectly or whose credentials did not align would be screened out. “No thank you,” I said, and I bypassed that section. But LinkedIn was not done. As the first stream of applicants filled my inbox, LinkedIn offered another automated tool – if I told it which candidates had potential and which did not, it would screen for those preferences going forward. “No thank you,” I said again.

How NYC Defines AI in Hiring

With each step in my online job posting process, the definition of an AEDT – an automated, electronic decision tool under New York City’s new regulatory framework for AI hiring processes – was resonating in my head. The city defines an AEDT as a tool used “to substantially assist or replace discretionary decision making,” and its new regulations interpret that to include:

  • when an employer relies solely on a score, tag, ranking, or classification generated by the tool (a “simplified output”) to select or eliminate candidates, with no other factors considered;
  • when an employer looks at factors besides the simplified output, but gives that simplified output more weight than any other criterion considered; or
  • when the employer uses the simplified output to overrule conclusions made based on other factors.

Would accepting LinkedIn’s help automatically screen out job applicants without any human consideration?  If the tool worked as LinkedIn seemed to suggest, then my conclusion was “yes,” that the algorithms I could deploy to control my job posting inbox would most certainly exclude some subset of applicants.  Accepting the free help, I feared, would land me squarely within the realm of the AEDT regulations.

Implications for Employers Found to Use AI

To be clear, New York City is not banning employers from using AI or any form of an AEDT.  But the City has clearly declared it is wary of how those tools are deployed, and how rapidly and effectively they can generate biased hiring decisions.  Therefore, beginning July 5, 2023, employers who use an AEDT in their hiring process will need to ensure it has undergone a bias audit conducted by an independent third-party, and post the results of that audit and related information on their websites.

That sounds like a bit of a hassle but innocuous enough – some new certification that service providers will need to add to their AI product, and yet one more blurb I will need to fit onto my website in an accessible place.  Except for two problems.  In the broader sense, AI tool providers are not currently are set up to offer this type of certification, nor can they do it themselves, as the law clearly requires it to be conducted by an independent third-party – not the tool creator, and not the tool user (meaning, not the employer).  There is an entire cottage industry that will need to sprout up to meet this new need, and the likelihood that it will be in place just two short months from now is not so great.

The second problem comes back to my experience with the LinkedIn job posting.  Had the screening tool I was using been tested for bias? Not that I could discern, but more importantly, I do not see how it really could be, as the tool would have been responding to my unique and subjective data inputs, which it could not have predicted and tested for in advance of me posting this position.  Reflecting on the purpose of the AEDT regulations, my subjective screening questions could most certainly have automated a biased review process, if I had a proclivity to take things in that direction.

For the small businesses like mine that leverage LinkedIn and other online platforms to recruit candidates, it seems the only option at present to comply with the New York City law is to decline any tools that can screen out candidates.  Even if free, those tools can create a large headache for the unwary employer.

One week after placing my job posting on LinkedIn, the applications have just filed in to my online inbox, where reviewing them will be my weekend project.  LinkedIn has another tool available for me to use with those that have arrived – allowing me to sort and filter by relevance, rating, location and years of experience.  “Yes, please,” was my reaction.  Filtering allows me continued access to all the data on all the applicants, but it enables me to manage my analysis of the applications in smaller, more relevant batches.  That type of help I will gladly accept, as it falls outside the city’s regulations.

Employers Outside NYC Are Also Covered

I am based in Westchester County, outside of New York City. Did I need to consider complying with New York City law? Unfortunately, yes, as I had posted a hybrid position, one that could be performed remotely at least some portion of the week.  Given the commuting distance, it is entirely feasible that the remote portion would be performed by someone residing in one of New York City’s five boroughs.

The AEDT in hiring rules apply whenever an employer screens candidates for employment or employees for promotion “within the city” of New York, and other portions of the law expressly extend application of the rules to include those who reside in the city. The saving grace for me was that this search was being conducted in May 2023, and not in July when New York City begins to enforce its new hiring rules. But it was a stark lesson, from a small business owner trying to manage her workforce, as to how pervasive AI already is in our hiring processes and how broad New York City’s new regulations may reach.

By Tracey I. Levy

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26

April, 2023

Educate Managers on FMLA/ADA Overlap

Are your managers familiar with the organization’s overlapping obligations under the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA)?  Time and again, I see managers conflate the two, and thereby create liability issues for the organization.  A recent DOL opinion letter exemplifies how this issue can arise, particularly when an employee requests to limit the employee’s daily work hours.

The FMLA and ADA Overlap and Diverge

The FMLA provides employees with up to 12 weeks of unpaid job-protected leave in a 12-month period for various reasons, including when the employee is unable to work because of a “serious health condition.”  The ADA entitles employees to request a reasonable accommodation due to a “disability” if the employee can otherwise perform the essential functions of the job and the accommodation would not present an undue hardship for the organization.  The courts have generally recognized that leave can be an option for a reasonable accommodation.

Not every individual with a medical issue qualifies for leave under both laws, for a host of reasons including:

  • The definition for a serious health condition under the FMLA is broader than the definition of an individual with a disability under the ADA;
  • The FMLA only applies to employers with 50 or more employees working within a 75-mile radius of each other, while the ADA applies to employers with 20 or more employees working anywhere in the country;
  • The FMLA also has eligibility criteria related to the employee’s tenure with the organization, while the ADA has none; and
  • Sometimes a medical condition does not warrant a leave of absence but there may be other accommodations to be considered.

There are, however, times when an employee does qualify for leave under both the FMLA and the ADA.

Managers Need to Understand What Leave is “Job Protected”

Time and again, I have been presented with managers who count down the weeks and days until an employee has exhausted the employee’s annual FMLA leave entitlement, and then (if the employee has not yet returned to work) ask if the employee can be fired.  They universally share the misimpression that, having exhausted the FMLA clock, the employee is no longer entitled to legal protection.

That is not correct.  Exhausting the FMLA clock is only the first step in the analysis.  The employer additionally has to assess whether the employee’s medical condition qualifies as a disability under the ADA.  If it does qualify, then the employer may need to consider extending the employee’s medical leave as a reasonable accommodation.  Courts have held that leave for as long as a year may be reasonable, and even at that point an employer may need to entertain a modest additional extension.

All that time is “job protected” – just under the ADA, not the FMLA.  The manager who overlooks the legal protection the ADA provides, and acts on the employee’s continued absence without obtaining legal advice, exposes the organization to legal risk.

Reduced Schedule Leave Presents Special Challenges

Leave under the FMLA is not limited to full-day absences.  Rather, the FMLA recognizes that, particularly for a serious health condition, an employee is entitled to take leave in the form of a reduced work schedule, perhaps arriving later or leaving earlier than the employee’s regular schedule or stepping out for some part of the day for medical treatment or recuperation.

It is often the case, in my experience, that employees who take FMLA leave solely on a reduced schedule basis almost never fully exhaust their FMLA entitlement.   For an employee working a typical eight-hour day, the FMLA equates to 480 hours annually.  If an employee reduces the employee’s work schedule even by as much as two hours daily or 10 hours weekly, it will take 48 weeks before the employee has reached that 480-hour entitlement.  When absences for vacation time, holidays and paid sick time are factored in (none of which days count against the FMLA entitlement), the employee is typically at or approaching week 52 before reaching the 480-hour annual maximum for FMLA leave.  Then the clock starts again with a new calendar year.

DOL Considers What Law Applies to Leave on a Reduced Schedule

A recent DOL opinion letter responded to an employer that was presented with an employee’s reduced schedule leave request.  The employee, who suffered from what was described as a chronic condition and whose workday typically exceeded eight hours, had asked to work a reduced schedule of no more than eight hours daily for an indefinite period of time, using FMLA leave for the balance of the workday.  The DOL had been asked to advise whether the employee was entitled to designate the hours not worked as FMLA leave.  The employer asserted the request should instead be considered one for a reasonable accommodation under the ADA.

While not discussed in the opinion letter, it appears the employer was endeavoring to resolve a conundrum.  Under the ADA, an employer can deny a request for reasonable accommodation if it would present an undue hardship.  This particular employer indicated that it needed 24 hour coverage at times, and multiple employees were requesting a reduced schedule.  Considered under the ADA, the employer might be able to deny or minimize the reduced schedules for its employees.

The FMLA does not offer anything comparable to an undue hardship exception.  If an employee’s current role is not conducive to a reduced schedule, the employer can reassign the employee to another position on a temporary basis for which the reduced schedule might be less disruptive to the operation of the business.  If that is not feasible, for example because there are no such positions for which the employee is qualified, the FMLA offers no other out.  The employer must approve the FMLA reduced schedule leave request and then manage its operations accordingly.

DOL Holds Employees Get the Benefit of Both

The DOL rejected the employer’s suggestion that the employee’s request should be framed solely as one for reasonable accommodation under the ADA framework.  Rather, the DOL concluded that, provided the employee’s medical condition qualifies as a serious health condition under the FMLA, the employee can use FMLA leave to work a reduced schedule until such time as the employee exhausts the employee’s annual FMLA entitlement. If the employee never exceeds the 12-week annual FMLA entitlement, then the reduced work schedule effectively becomes indefinite.  The DOL added that the employee might additionally be able to request a reduced schedule as a reasonable accommodation under the ADA, particularly after having exhausted available FMLA leave.

Prepare Managers to Comply with All the Laws

Consistent with the DOL’s opinion letter, employers need to prepare their managers on how to respond to requests for a reduced work schedule where the request is prompted by an employee’s medical condition.  Organizations need to consider an employee’s eligibility and whether to approve such requests through all applicable laws, including possibly the FMLA, ADA and other state and local leave laws.  Failing to conduct that broad analysis may lead an employer to overlook or inappropriately deny an employee’s request.

By Tracey I. Levy

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14

February, 2023

Workplace Breastfeeding Laws Offer General Consistency with Local Nuance

Breastfeeding protections have gone mainstream.  Through the magic of a budget spending bill, nursing employees in workplaces throughout the country now have legal protections that will afford them break time and access to spaces outside of toilet stalls in which to express breastmilk.  That is a sea change in many parts of the country, and a more modest shift for employers in the tri-state area of New York, New Jersey and Connecticut, where these protections have been afforded to varying degrees under state and local laws going back nearly a decade.

Amazingly, the new laws are fairly consistent with those already in existence, which makes compliance less burdensome for employers.  The laws focus on requiring three things:

  • suitable space;
  • sufficient time; and
  • protected access.

Suitable Space

Make it Private

Nursing a baby often can be done discretely even in public, under cover of a light blanket, shawl or loose garment.  Expressing breast milk to be stored in bottles for later use is an entirely different operation and experience, as anyone who has seen or used the various pumping apparatuses well knows.  For that reason, the existing and new laws entitling employees to suitable space for expressing breast milk all prioritize that the space offer “privacy.”  Often the laws clarify that means the space should be “shielded from view” and “free from intrusion.”   And to dispense with the most obviously private but apparently not suitably hygienic option, the laws consistently state that the space cannot be a restroom or toilet stall.

Employers looking to achieve compliance should consider options like a private office or conference room with solid walls, blinds, or filtered glass – and a lock on the door or at least signage advising against entry while the room is in use.  Even a storage closet, if appropriately cleared out, may be fit for this purpose.

Consider Proximity

While the federal law only mandates privacy, the state and local laws often also consider accessibility.  New York, New Jersey, Connecticut and New York City, for example, all require that the designated space be in close proximity to the employee’s work area.  This criterion serves employers’ interests, as well, in that it minimizes the time that the employee needs to spend away from the work area.

Furnish Appropriately

Some of the laws additionally require that the designated space be outfitted appropriately to its purpose.  New York State and New York City require that the space be well lit and include a chair and working surface.  New York City and Connecticut require access to an electrical outlet, and New York City further requires that employees have nearby access to refrigeration.  New York State recognizes greater variability in work locations and therefore requires access to an outlet only if the workplace is supplied with electricity, and access to refrigeration if it is available.  Connecticut also requires nearby refrigeration or an employee-provided cold storage unit.   The New York state and city versions finally require access to clean running water.

Optimally, therefore, employers looking to achieve compliance should be looking to provide the following furnishings and equipment:

  • a chair and work surface;
  • ample light;
  • an electrical outlet; and
  • nearby running water and refrigeration.

Employers that incorporate those items will meet their obligations under the current jurisdictional variations in the law.

Undue Hardship Is Considered

Employers with fewer than 50 employees are exempt from the federal PUMP Act if they can demonstrate that compliance would impose an undue hardship.  Comparable state and local laws similarly recognize an undue hardship exception, but employers invoking this exception should be prepared to demonstrate that they reasonably explored options for providing suitable space and were unable to do so.

Sufficient Time

Access to a suitable location would be virtually meaningless if employees could only use it on their meal break.  The laws therefore additionally require employers to provide “reasonable” break time for employees to express breastmilk.  The federal “PUMP Act” grants this right to break time for up to one year after the child’s birth.  The New York State version extends the protection to up to three years after childbirth, while other state laws are not specific as to duration.

New York State has issued guidance that employees are entitled to break times of at least 20 minutes in duration in these circumstances, but can use more or less time as needed.  The U.S. Department of Labor previously had advised that a break of 15 to 20 minutes to pump, plus some time for set up and clean-up, was most common.  The DOL has removed any specific reference to duration in its most current Fact Sheet on break time for nursing employees.  Employers generally are not required to pay employees for break time taken to express breast milk, provided the time is actually a break and the employee is not performing work while pumping.

Reasonableness is a Variable Threshold

“Reasonableness” is determined through the same process that employers are expected to follow for accommodating employees for other legally-protected reasons.  In New York City, the process is called a “cooperative dialogue,” and the city’s phrasing is indicative of that which is expected of all employers in this context – some degree of discussion, consultation and consideration of the employee’s needs in relation to the nature, size and operations of the employer’s business.

The duration of break time needed for expressing breast milk may include factors beyond the employer’s control, such as the speed of the pump itself, as well as factors that the employer can influence.  For example, employers that offer a secure location for employees to store their breast pump in close proximity to the employee’s work space and/or the designated break room can thereby reduce the time needed for set-up and cleanup.

One of my clients was frustrated that an employee was taking hour-long breaks to express breast milk.  In speaking with the employee, the employer learned that each break period, the employee would leave the work area, go out to her car in the parking garage to retrieve her breast pump and walk to the designated room (waiting for elevators along the way), and then return her pump to her car before coming back to the work area.  A secure storage solution was all that was needed to cut the break time in half.  The more comfortable an environment the employer can provide, and the fewer obstacles an employee faces in cleaning and storing needed equipment for pumping, the less time an employee will need to be away from productive work.

Protected Access

All the laws related to nursing employees include an assurance that the break time and designated spaces are legally-protected.  This means that employers cannot discriminate or retaliate against employees for requesting or using the time or facilities, or for breastfeeding in the workplace.  Some of the laws, including New York State, New York City and Connecticut, additionally require that employees receive notice of their rights with regard to expressing breastmilk.  In New York, the state and city laws additionally require employers to have written policies with specifically-delineated provisions.

Compliance with these varied laws is more readily achievable than, for example, many of the paid leave laws.  Employers must still, however, note the variations in legal requirements and adjust their workplace practices accordingly.

By Tracey I. Levy

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10

February, 2023

Pay Transparency Laws Can Help Workers, But Not in the Way Advertised

Led by the rationale proffered by legislatures in support of pay transparency laws, I have been thinking about them from the wrong perspective.  Promoted as a means of closing the gender wage gap, I have been vocal in my criticisms that the laws will be of little or no effect for two key reasons.  First, because they do not get to the root problems that produce most of the pay gap, as I discussed in this blog article.  Second, because even where they provide useful information for negotiations, they do not overcome the tendency of certain groups to “undersell” themselves.

Reflection on their efficacy is important, because the laws are proliferating and the existing versions are already being tweaked.  Less than three months after it took effect, New York City is considering amending its pay transparency law, partly to align with the New York State version of the law, and partly to capture forms of compensation beyond base salary.   The city’s proposed amendments to the law will not do anything to address its deficiencies in resolving the gender pay gap.

Connecticut, on the other hand, currently has an earlier version of pay transparency, which requires employers to disclose salary ranges to job applicants during the hiring process.  The state is considering amending the law to align with the approach in New York, California, and Colorado, and require that salary ranges appear in job postings.  That is a distinction with a difference.  Not so much for the gender pay gap problem, but relative to the new way in which I am considering the benefits of pay transparency.

Reconsider Pay Transparency as Serving a Different Beneficial Purpose

How are pay transparency laws helpful to U.S. workers?  Sometimes you need to consider things from a different perspective.  The aha moment for me was in the epilogue of Barbara Ehrenreich’s book, Nickel and Dimed, which I recently had the opportunity to read. Reflecting on her own experience as a journalist undercover, temporarily occupying the space of a low-wage worker, Ehrenreich observed that her coworkers in those positions had little opportunity to comparison shop for higher-paying positions.

Time is money, transportation is money, and when you have little or no money saved, you cannot afford to hop between multiple employers and interview processes.  You only go to as many places as it takes to land a job, even if it is not the best job.

We Don’t Talk Much About Money

Friends and family may provide few insights into other work opportunities because, at all levels of society, most people tend not to say how much they are paid. This was illustrated last month, when The New York Times ran a Sunday feature on people’s compensation, 27 People on the Streets of New York Talk About How Much They Make.” They reported that most of the people they stopped on the streets (nearly 400 were asked) declined to speak with them on the record about how much they earned.

Similarly, from the employer’s perspective, I suspect my own approach is similar to that of most small business owners.  Even this past year when I knew pay transparency laws were on the horizon I did not list pay in my job postings. In my interviews with candidates, pay is usually one of the last points covered, and only if I am asked. But why is that?  I have done benchmarking and believe I am paying on the higher end for the roles I am filling. And yet I have historically hidden that fact. I could say I wanted people to work for me because they were interested in the work and not the money. While true, I am not sure that was my motive. Rather, I think I am just reticent to talk about pay, worried that my benchmarking is wrong, or that I am planning to offer too much and should pay less. I hedge as long as I can before committing to compensation to reassure myself that I am not overpaying the person or, if I am, that it is because they are a great candidate and worth the investment.

Comparison Shopping Is a Valuable Benefit

Overcoming that reticence and secrecy to allow for “comparison shopping” is how pay transparency laws can make a difference for workers. Imagine if every help wanted ad in the paper or online included a wage range.  Employers would be disinclined to inflate that number, lest too many of their current employees start to question their pay, and they would not want to lowball it too much, lest they lose out on attracting the best candidates.

How valuable would it be for people who are barely getting by financially to have salary information for dozens of open jobs at their fingertips?  They could quickly pinpoint the highest paying opportunities and prioritize applying for those. Would that equalize pay between men and women, or between individuals of different races?   I am not sure that it would for the various reasons I have covered in prior articles. But it sure might help those at the bottom rungs of the pay scale do just a little bit better. Over time those incremental differences can mean the difference between paying for food, shelter, clothing and transportation, versus having to forego one or more basic necessities.

For low wage workers, then, there is a benefit to pay transparency laws.  And for any worker the laws force disclosure of data that allows for some degree of benchmarking and comparative analysis, which can help inform wage negotiations. But at more skilled, higher-level positions, the compensation range for posted positions tends to get wider, so the comparative data is less helpful.

New York City’s Newest Contemplated Changes Will Not Help

Currently, New York City only requires employers to disclose base salary, not incentive compensation or commissions. The City Council is considering amendments to the law that would require inclusion of the job description, which would make the law consistent with New York State’s pay transparency law that takes effect in September 2023.  The amendments would also require employers to describe the non-salary or non-wage compensation for the position, including bonuses, benefits, stocks, bonds, options and equity or ownership.  All that additional data will make for a mighty long (and pricey) job posting for employers, and in my experience those non-wage factors can encompass so many variables that the information employers include in their postings in response to such a mandate will be of little value to applicants.

Rather than bog down employers with further mandates and clutter their job postings to such a degree that the most useful information gets lost in the fine print, local and state governments would be better served in recognizing the value of mandating pay transparency in job postings simply as to base salary.  For those who lack the time and resources to interview widely or otherwise collect comparative pay data, it could be invaluable.  As for solving the gender pay gap, move past the quick fix window-dressing of pay transparency.  Instead, consider the societal changes needed to really make a difference.

By Tracey I. Levy

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7

February, 2023

Legally-Prescribed Policy Wording Ensnares Those Striving to Be Employers of Choice

I write a lot of policies.  They come with the advisory work that I do, and I also gravitate toward those types of projects.  In doing that work, one of my frustrations has been the increasing degree to which legislatures are imposing new legal obligations on employers – particularly, but not exclusively, with regard to paid and unpaid time off benefits – and mandating specific language be included in employer policies.

Today I want to focus on the wording requirements, because they can be so particular and such an affront to well-intentioned employers.  Pet peeves, because they cause me so much pushback from my clients – are provisions like the New York City lactation accommodation law and the New York State paid sick leave law.

Specificity Feels Like Mandating Minutia

New York City requires employers to have a lactation policy with very specific provisions, the granularity of which can produce surprise or dismay from employers.  Under the city’s law, the employer’s policy must include language that the employer will respond to a request for a lactation room within no more than five business days.  The policy also must outline a procedure to follow when two or more individuals need to use the lactation room at the same time.  New York State recently adopted its own lactation accommodation requirement applicable to private employers, and that law similarly requires a written policy that incorporates language about the five business day response time.

I draft the appropriate language, and then the conversations with my clients go something like this:

Client:   Five days?!

Me:       Yes, five business days.

Client:   Of course we are going to be responsive.  Why would it take us five business days to get back to our employee, and why does it have to be spelled out in the policy?

Me:       I understand you will get back to people promptly, but New York City law says that language has to be there.

Client:   And why do we have to spell out what happens if two people need the room at the same time?  We’ll just work it out.

Me:       I know you will, but again, the city requires it.

Some Provisions Are Effectively Meaningless

Another requirement that I have had to explain numerous times to clients is the provision under the New York State paid sick leave law that mandates employees be allowed to carry over any unused days from one year to the next, but allows the employer to cap the number of days used in any given year at the annual legal entitlement (i.e.: 40 hours or 56 hours, depending on the size of the employer).   That conversation generally proceeds like this:

Client:   What is this part about carrying over days but then not being able to use more than one year’s allotment?  What is the point of that?

Me:       It is intended to ensure that, for example, an employee who gets sick or injured early in the calendar year will have paid sick days available, carried over from the prior year.

Client:   Okay, I get that.  But we front-load the days at the start of each calendar year.  Everyone starts with a fresh bank with no accrual time.

Me:       I understand, and under New York City’s earlier version of this law, the city excused you from the carryover requirement if you front-loaded the days.  Employers asked New York State to do the same, but when the state issued its regulations, it expressly rejected that exception.

Client:   So we have to let employees carryover unused days, but we don’t ever have to allow them to actually use them?!

Me:       Exactly.

My client comes away bewildered, and I am frustrated that legislators and regulators have so little confidence in employers that they feel the need to be this prescriptive.

Two Universes of Employers

New York City and New York State in particular, but a trend I see repeating itself throughout the country, are continuously proposing and to a lesser degree adopting new employment law mandates, especially with regard to protecting employees’ time away from work.  Certainly there are employers that will only provide that which is legally required, and only when they feel they have no choice but to do so.  Often in my experience those organizations employ mainly hourly workers, for positions at the lower rungs of the pay scale.  The specificity written into the time off laws is intended to dictate obligations for those employers and thereby assure protections for their employees.

The challenge is that prescriptive legal mandates do not consider the other universe of employers – those that are vying to be an “employer of choice” and that tend to err on the generous side when it comes to leave and benefit policies.  Those employers often want their handbook policies to reflect the organization’s commitment to the welfare of their employees by outlining expectations for appropriate behavior, offering a generous safety net of leave time and benefits for employees to recharge and address issues personal to them and their families, and empowering employees to manage their time accordingly.

As I recounted in the synopses above, the organizations that want to be employers of choice recoil at policy language that implies they would be anything but generous and responsive to employees’ accommodation and leave requests.  They are striving for a friendly tone, not legalistic language.  Increasingly they are experimenting with various versions of unlimited time off.  “Take whatever you need, and we trust you to get the work done,” is the message they seek to send to their employees.

But prescriptive policies do not easily allow for that.  Mandates regarding carryover, approval processes, notice and usage often necessitate that the policies in the handbook take a tone quite different from and more complex than the generous message that these employers wish to project.

Considerations for Legislators and Regulators

Legal mandates need to recognize and consider both realities – ensuring a safety net of protections for more vulnerable workers, and empowering more generous organizations to create the supportive culture to which they aspire.  This means not only authorizing organizations to offer benefits and protections that are greater than those required by the law, but giving those organizations flexibility in their policy language, provided they can demonstrate in their implementation that the benefits employees receive meet or exceed that which the laws require.

By Tracey I. Levy

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