A couple of weeks ago the Department of Labor issued a few new opinion letters, and a couple of them I found interesting. The takeaway from both: being too generous with your employees might actually backfire and result in a violation of the law. One of the letters discussed the Family and Medical Leave Act, while the other discussed employer-coordinated volunteer work.
Don’t Provide Extra Unpaid Leave
According to the DOL, providing employees with more leave than the 12 weeks required by the FMLA is a violation of that law. This is true even if the delay in designating the leave is to allow the employee to exhaust sick or vacation days. As we have explained, FMLA-leave may be taken concurrently with other paid leave, but this is the first time I have heard that employers must require FMLA leave to be taken concurrently with other paid leave. I am not sure a court will agree with the Department of Labor on this one, but it is nonetheless worth keeping this in mind when drafting FMLA-leave policies.
Be Careful Encouraging Volunteer Work
In this letter, the DOL warned that too much generosity to the community might cause a violation of the Fair Labor Standards Act. The DOL warned employers that encouraging employees to participate in employer-sponsored volunteer activities may require them to pay employees for that time spent engaging in employer-sponsored volunteer activities. If the employer requires the employee to come to the volunteer activity or engages in direct control over how the employee performs the volunteer work, the employee must be paid for this time. The letter also warns employers not to guarantee a bonus for volunteering, or to threaten them with adverse consequences if they do not attend.
I think this letter is a correct summation with the law is in consistent with recent trends towards limiting the amount of control that an employer can have over volunteer programs, like unpaid internships.
No good deed goes unpunished, apparently.
