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The Retail Employer

The Retail EmployerFebruary 2008

FMLA Amendments Extend Leave To Families Of Servicemembers

by Joe McCluskey

Congress overwhelming passed a bill that included provisions to amend the Family and Medical Leave Act to provide leave, under certain circumstances, for family members of servicemembers who are called to active duty, and to provide leave for family members of servicemembers who are injured while on active duty. President Bush signed the amendments into law on January 28, 2008 and they became effective that date. What follows is a summary of the expansion of the FMLA.

The amendments provide that eligible employees are entitled to unpaid leave for one or a combination of the following reasons: a “qualifying exigency” arising out of a covered family servicemember’s active duty in the Armed Forces; and/or, to care for a covered family servicemember who has incurred an injury or illness, in the line of duty while on active duty in the Armed Forces, if the injury or illness renders the family servicemember medically unfit to perform duties of the his or her job.

The maximum amount of leave depends on the qualifying event. When the leave is because of a “qualifying exigency,” an eligible employee may take up to 12 workweeks of leave during any 12-month period.

When the leave is to care for an injured or ill servicemember, an eligible employee may take up to 26 workweeks of leave during a single 12-month period to care for the servicemember. Leave to care for an injured or ill servicemember, when combined with any other FMLA-qualifying leave, may not exceed a total of 26 workweeks in a single 12-month period.

Servicemember FMLA runs concurrent with other leave entitlements provided under any local, state, and federal law.

Because the amendments amend the original 1993 FMLA statute, other existing FMLA requirements (such as the requirement that returning employees be restored to the same position as when their leave started and the requirement to continue group health plan coverage) will apply to the servicemember types of leave. Employers are to provide employees with notice of these new leave entitlements and to amend their FMLA policies when the new provisions are enacted into law.

Joe McCluskey has advised and represented employers with respect to legal issues in the workplace for 23 years. Joe works with David Nagle in the Richmond office of Jackson Lewis. Jackson Lewis has over 400 attorneys in 32 cities across the country, representing management exclusively in workplace law and related litigation. He may be reached at (804) 212-2851, or by email at mccluskj@jacksonlewis.com.

David E. Nagle has advised employers with respect to legal issues in the workplace for over 25 years. He is a partner in the Richmond office of Jackson Lewis, a law firm devoted exclusively to the representation of employers in labor, employment, employee benefits and immigration law matters. Jackson Lewis has 400 attorneys in 32 cities across the nation. David may be contacted at (804) 648-4077, or at nagled@jacksonlewis.com.

Calls requesting information on the Employment Law Information Program should be directed to Preston Perrin with the Retail Merchants Association at 804-662-5500. Back to top

Managing the Generation Gap—In the Workplace, Age is More than a Number

The topic of generations in the workplace has generated a lot of discussion in recent years. With Baby Boomers entering the retirement stage and the first throngs of Millennials entering the workplace and bringing with them different demands, ideas and values regarding work and life, it’s no wonder the topic of generations is covered so widely.

And in the workplace, it’s quickly becoming apparent that it’s not just a matter of age that makes generational differences so vast. Each of the generations has a different world view, diverse values, different skill levels, expectations, and even work ethics. They are also all at different stages in their lives. This is important to understand because it offers insights into vastly differing personal needs, which impact the benefits needs of each generation, ranging from educational assistance to childcare to healthcare to retirement.

That’s why it’s critical for managers to understand the makeup of each generation so they can better understand how they view work, what they value and the best ways to manage them. Check out this overview of each generation: Traditionalists, Baby Boomers, Generation X and Millennials.

Generations in the Workplace

Traditionalists

Most traditionalists are past retirement age, but some have chosen to remain in or return to the workforce at least part time. Their lives were influenced by economic hardship and world war, experiences which united them and caused many to rise to positions of great responsibility, such as military service, at a young age.

They are patriotic, value command and control, seek security, trust hierarchy, and are very loyal. Many worked for one company throughout their career and have developed well-honed skills and strengths. They offer a wide range of knowledge and experience. They are courteous, self-sacrificing, and characterized by a strong work ethic.

Baby Boomers

This group currently makes up the largest portion of the workforce, but they are quickly approaching retirement age. At one point, they were leaving the workforce faster than young workers were entering it, causing predictions of a massive worker shortage.

However, experts now note that their serious work ethic and workaholic tendencies may lead a vast number of Baby Boomers to remain in the workforce for an extended period of time. This created tension between Boomers and the younger generations who at one point expected to quickly be called to fill the shoes of this experienced, hard-working generation. Boomers are competitive, known as the “Me” generation, and place a strong value on self-sufficiency. They are also optimistic, and they hope to redefine the idea of retirement, with over a third of them planning to work at least part time—mainly to support hobbies and interests outside their original career paths.

Generation X

This generation has been described as rebellious and skeptical of authority, having grown up amidst great social change. As the first latchkey kids, they were instilled with a great sense of independence and confidence. Their parents’ work-to-live mentality caused this generation to value work/life balance. Their entrance into the workforce inspired many to interject new ways of thinking into the business world. Now, unafraid of taking risks, many have become entrepreneurs. They are technologically savvy and crave challenging, exciting projects.

Smaller than the generations before and after them, Gen Xers can feel lost in the midst of the great workplace shift taking place as Boomers exit and Millennials enter the workforce. But, many see it as an exciting time to be a part of important organizational change and welcome the opportunity to have a role in transitioning the workplace to a new way of operating.

Millennials

Millennials are the youngest generation in the workforce. They are predominately well-educated, hopeful to create change in the workplace, determined to succeed, and highly ambitious. But, their youth and optimism causes many to label them as narcissistic, and many have high expectations for what the workplace should offer them in terms of benefits, projects, and satisfaction. They value work/life balance, flexible work schedules, and challenging work.

Also labeled the “Internet” generation, they are the most tech-savvy generation to date, and they value cutting-edge technology. They are also very close to their family and value teamwork and collaboration. Many of this generation move back home after college to save money or in order to explore the workplace to find their ideal job. They tend to job hop more than any preceding generation, seeking to find meaningful work that will take advantage of their education and fulfill their expectations. They also value community service and volunteerism, truly believing they can affect change.

Understanding each of the generations is an important foundation for understanding how to manage different generations in the workplace. This series will explore how to handle different management issues keeping each of the generations in mind.

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Ms. Lorraine Alexander at 804-550-0200 or lorraine.alexander@expresspersonnel.com if you would like to be added to their distribution list. Express Personnel now offers RMA members a Retail Staffing Program. More information is available online through www.retailmerchants.com.

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Right-to-Work State vs. Employment-at-Will

“I can fire him whenever I want. This is a right-to-work state.”

I hear this almost everywhere I go, yet there’s very little truth to the statement. Being able to fire someone whenever you want and being a right-to-work state are two different legal concepts that have nothing to do with each other.

First, a quick comment on being a right-to-work state. The idea behind right-to-work is that the “right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization” (Virginia Code 40.1-58). Twenty-two states, including Virginia, have such laws. There are exceptions, and the laws vary by state, but the gist of the right-to-work concept is that individual employees have the right to decide whether or not to join or financially support a union.

Now, for the real issue. When you think “I can fire this guy whenever I want”, the concept is employment-at-will. This legal term says that as an employer, you can terminate an employee at any time, with or without cause, reason, or notice. An employee may also quit under these same premises. That’s right – an employee giving two-weeks notice is a professional courtesy, not a requirement.

Despite how the doctrine of employment-at-will reads, it does not mean that employers can just declare open season on terminating employees. There are exceptions to when an employer can terminate under the umbrella of at-will, as noted below.

Public Policy Exception. Employees cannot be terminated for exercising their legal rights, such as filing workers compensation claims, making OSHA complaints, sitting on a jury, refusing to break the law, etc.

Implied Contract Exception. If an employer makes oral or written representations to an employee that suggest their employment is secure or for a defined period of time, an implied contract may exist. Common mistakes employers make are promises of a long, bright future or making salary offers in annual terms only. Publishing progressive discipline policies or referencing a practice of terminating for cause can also create an implied contract.

Covenant of Good Faith Exception. This exception says that employees have a right to expect fair and consistent treatment and not be treated arbitrarily or with malice. Termination that appears to be arbitrary or vindictive may violate this concept.

It is extremely important to note that while every state recognizes the general concept of employment-at-will, each state determines which of the above exceptions it recognizes and to what extent. Additionally, even a well-intentioned “it’s just not working out” attempt at terminating at-will can easily backfire depending on the appearance of various circumstances surrounding the employee. For these reasons, you should always seek legal guidance before choosing to terminate an employee under the premise of at-will.

So, can you fire Johnny Employee whenever you want to? Maybe, maybe not.

This article is reprinted with permission of Charlotte Jensen, a Human Resources Consultant for small businesses (2-75 employees). As President of Cole James Associates, Ms. Jensen provides her clients guidance and resources on their employment and workplace issues. She can be reached at (804) 339-5576 or cjensen@colejamesassociates.com or www.colejameshr.com.

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