Guest Article, New HR Competencies

By Larry Bourgerie, MA-IR, SPHR

The need to understand the business and build business acumen is clear to most human resource professionals.  I have had a number of discussions with senior managers, and the one constant that I frequently hear is that HR professionals do not “think like a business person” and don’t think strategically.  The perception is that HR knows people but not business, specifically the business drivers that are important to senior management.

In the last decade, HR professionals have made great strides toward the goal of becoming strategic business partners in their organizations.   However, I believe most HR professionals fall short of their potential to have maximum impact on their organizations. One new crucial competency that would give HR more impact and credibility is a thorough understanding of, and involvement in, the legislative process.

Many HR professionals understand and effectively implement current laws.  We are also known to complain about the cumbersomeness of these laws; “FMLA is poorly written,” “FLSA is outdated,” we say.  And what is our response to these poorly written laws?  More grumbling, and continuing efforts to comply with the law.  We are reacting to legislation, not shaping it.  This is operational thinking, not strategic thinking.

For HR professionals to be effective in the current HR world, we must move past the reactive mindset and become proactive.  We must stay on top of current legislative initiatives, and use our collective voices to work for legislation that benefits the employees and employers with whom we partner.  If we don’t, we will continue down the path as reactive implementers of the law, not proactive players in the legislative process.

Let’s take the FMLA – Family Medical Leave Act – as an example of what happens when HR professionals are not involved in crafting legislation.  The consensus of many people who have worked on implementation or administration of the FMLA is that it is a poorly constructed piece of legislation.  The intent of having legislation to insure families can protect their jobs in case of a personal or family emergency is something that almost everyone would agree is well intentioned.  Therein lies the conundrum. It is not the intent but the legislation specifics that go south.

Three frequent HR concerns with the FMLA involve the Act’s regulations: the definitions of “serious health condition”, “intermittent leave” and the basic one year qualification for eligibility.

With regard to the definition of serious health condition, several years after passage of the FMLA, the DOL issued a statement stating that conditions such as the common cold, the flu, and non-migraine headaches are not considered as serious health conditions. The following year, the DOL reversed itself, issuing a statement that each of these conditions could be considered a “serious health condition.”  This ruling did not reflect the original intent of the law.  In February 2008, when the DOL issued updated regulations, there were no changes to the existing rules regarding serious health condition despite the concerns of the HR community.  The DOL regulations retained the list of conditions that generally do not qualify as serious health conditions. These vague and nebulous definitions have long been a concern for HR professionals and stray from the original intent of the legislation.

HR professionals also have numerous challenges in administering intermittent leave.  It is frequently difficult to track an employee’s intermittent leave, especially in situations when an employee takes FMLA leave in small increments. In addition, unscheduled, intermittent leave causes staffing problems for employers. In a 2007 SHRM survey, 88 percent of HR professionals responding to the survey indicated that during an employee’s FMLA leave, the employee’s workload is assigned to other employees because it is not cost-effective to use temporary staff due to the fact that the training period for a temporary employee is sometimes longer than the leave itself. In addition, employers often do not receive enough advance notice from employees to obtain temporary help on short notice.

“Intermittent leave” (as defined in the FMLA regulations) has resulted in problems related to the management of absenteeism in the workplace. FMLA certification in effect grants an employee open-ended leave, allowing leave to be taken in unpredictable, unscheduled, small increments of time. The ability of employees to take unscheduled intermittent leave in the smallest time units that the employer uses, often one-tenth of an hour or six minutes, means that employees can rely on this provision to cover habitual tardiness.  While serious health conditions may well require leave to be taken on an intermittent basis, limited tools are available to employers to determine when the leave is in fact legitimate.  Thirty-nine percent of HR professionals responding to the 2007 SHRM FMLA survey indicated that they granted FMLA leave for requests that they perceived to be illegitimate.

Finally, one seemingly simple qualification for the FMLA leave is that the employee have one year service with the company.  However, one often overlooked fact is that this provision includes those employees with a break in service.  Employees that have left and returned, may qualify for a FMLA leave, much to the surprise of the HR professional, who may mistakenly overlook this provision and deny a qualified employee, thus finding themselves out of compliance.  This is another example of how difficult this piece of legislation is to administer.

Numerous people have wonderful ideas for improving the workplace, but HR professionals are in a unique postion to help with the specifics.  It is said is that “The Devil is in the details.”  I would say that the Devil has developed the details, but that would be mean spirited!

Most legislative intent is positive.  I would venture to say that the vast majority of business people want to maintain a positive working environment for their employees.  It is the disconnect of the legislative community from mainstreet that is part of the problem.  Let’s review two other examples of poorly crafted legislative initiatives that are currently on the table.

Two current examples of where the involvement and insight of HR professionals and managers will be needed are the Employee Free Choice Act and the Family Flexibility Act.

The first one I would like to highlight is the Employee Free Choice Act (EFCA), which is anything but Free Choice.  Most would agree that supervised private ballot elections are the best method to protect the privacy rights of individual employees in choosing whether to join a union.  By effectively eliminating the private ballot, EFCA would actually take away an employee’s private and “free choice,” expose employees to coercion, and encourage a threatening workplace for employees. The goal of good legislation should be to protect the individual rights of workers.  Mandatory binding arbitration would impose unwanted employment conditions on both employees and employers. Under EFCA, employees would simultaneously lose their rights to vote on union representation and to approve workplace contracts.  This type of legislation makes no sense and benefits no one.  So I must ask the question, why would Congress want to pass legislation that benefits neither the employees nor the employers, the two key stakeholders in the employment process?

Let’s also look at the proposed Workplace Flexibility Act.  The basic components of this act are as follows:

Applies to employers with 15 or more employees working 20 or more calendar workweeks in the current or preceding year. (Will this mandate be a burden for small business?)

Provides up to seven days of paid sick leave for full-time employees working more than 30 hours per week; part-time employees working more than 20 hours per week receive pro rata share of paid leave. (Why 30 hours?  Anyone in HR would be confused by why this    number is chosen when 30 hours is considered full time.)

Leave may be used on an hour-by-hour basis or in the smallest increment that the employer’s payroll system uses to account for absences or use of leave. (Like FMLA this will be a wonderful exercise in lost productivity through increased paperwork for 15-minute leaves.)

Prohibits employers from eliminating existing leave coverage. (In their infinite wisdom, not only will there be a government mandate, but it will penalize those employers who already offer a competitive or first class plan by preventing them from modifying their leave plan even if necessitated by adverse economic circumstances.)

These examples should illustrate the point that we, as HR professionals, are uniquely qualified to shape legislation based on our unique perspective that includes multiple constituencies – management, employees, families, and society.  Currently, legislation is shaped by Capitol Hill staffers and legislators who are far removed from the impact on everyday individuals and the unintended consequences of the laws they are creating.  The legislative process has become much too complex to be left in the hands of amateurs and rookies who are poorly informed.  We are at a unique time in American business, with many critical issues facing our country, economy, employers and employees.  In these times, more than ever, we need to get informed, get involved and help shape future legislation.  It is said there are three types of people: those who make things happen, those who watch things happen, and those who say, “What happened?”

To be effectively engaged HR professionals today, we must be in the first category and make it happen!

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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