20% of U.S. Employers Violate Leave Act, Study Says

By Katherine Reynolds Lewis
c.2008 Newhouse News Service

WASHINGTON -- One in five U.S. employers violates federal law by offering workers less than the required unpaid leave to care for a sick family member, new child or their own serious illness, according to a new report by the Families and Work Institute.

About 18 percent of large employers and 21 percent of smaller employers surveyed said they provide fewer than 12 weeks, the report said.

"There are so many reasons you could imagine an employer not complying," said Kate Kahan, director of work and family programs for the National Partnership for Women and Families. "The bottom line is the same, which is the employee loses out. This is such basic protection that it's horrible."

But the U.S. Labor Department questioned the report's conclusion.

"We know of no independent verification of their number," spokeswoman Dolline Hatchett said. "Compliance rates are hard to verify without sophisticated sampling techniques, and there is insufficient data in their analysis to allow one to assess an employer's compliance with the law."

When employees are shortchanged, researchers and employment lawyers said, a combination of factors is usually to blame.

The troubled economy may discourage workers from challenging policies that deny them the full leave, said Ellen Galinsky, president of the Families and Work Institute. It's rare that the Labor Department independently investigates leave compliance; usually an employee must file a complaint or lawsuit.

Employers may not know about the 15-year-old Family and Medical Leave Act, or they may not properly understand it, Galinsky and others said. The law applies to any employer with 50 or more workers in one area.

"I really don't think there's a law out there that is more confusing and causes more problems for employers than family leave," said Richard Meneghello, a partner in the Portland, Ore., office of Fisher & Phillips, a national employment law firm. He expressed surprise that the noncompliance rate wasn't higher than the report's 20 percent.

More than 60 million workers have taken family or medical leave since the law's passage, according to the National Partnership. It's especially important to Americans without paid sick leave nearly half the private-sector work force and the 94 million who can't use sick leave to care for children, according to the group.

Alison Avalos, practice leader for WorldatWork, an association of personnel professionals based in Scottsdale, Ariz., said employers "are doing everything in their power to understand the law and correctly implement it."

But it gets tricky.

Companies must follow multiple layers of rules when a worker takes unpaid FMLA leave at the same time as disability or worker's compensation leave, which are paid. It only gets more confusing when you add state laws requiring paid sick leave, such as in California and New Jersey.

Smaller employers may not have a dedicated human resource professional who understands all the ins and outs, so they make mistakes when adapting an HR manual for their own use, said Linda Hollinshead, a partner in the employment practice at WolfBlock in Philadelphia.

"They see 12 weeks and say, `That seems a lot, let's make it eight,"' Hollinshead said. "I see mistakes made a lot. ... It comes down to lack of training."

Another common error is when line managers deny leave requests that they don't realize are justified under FMLA because either the manager or the employee doesn't fully understand the law, she said. Organizations that have a centralized HR department reviewing all leave requests are less likely to run into this problem.

Or, in the year or two after a company crosses the 50-employee threshold, managers may not realize the firm is subject to the law, Hollinshead said.

All this potential for confusion highlights the need for proposed changes to the FMLA rules, now pending at the Labor Department, said Lisa Horn, manager of health care for the Society for Human Resource Management in Alexandria, Va.

"Our members have told us for years how often confusing and inconsistent they can be," Horn said. "It's not surprising that employers may, while making a good faith compliance effort, in fact find themselves out of compliance."

Your rights under the Family and Medical Leave Act:

-- You may take up to 12 weeks of unpaid leave each year, all at once or intermittently, in order to:

-- care for a newborn child

-- bond with a foster child or newly adopted son or daughter

-- care for a spouse, child or parent with a serious health condition

-- treat or recover from your own major illness

As long as you:

-- have worked for the organization at least 12 months

-- worked 1,250 hours or more in the previous year

-- work in an employment site that has at least 50 employees within a 75-mile radius

This article was originally published by Newhouse News Service on Thursday, May 22, 2008.