Outten & Golden: Empowering Employees in the Workplace

Archive for April, 2008

Moonlighting -- Not Just a Bruce Willis TV Show

Tuesday, April 15th, 2008

One of the shows I liked when I was a kid was Moonlighting, featuring Bruce Willis when he had hair, and the great chemistry he had with Cybill Shepherd. We can forget that album that he released (The Return of Bruno), and especially the fact that I purchased it. But the days when Moonlighting evoked the Blue Moon Detective Agency are long gone, and instead it’s all about the people working second and third jobs.

It used to be that one job was enough. If you worked 40 hours a week, you spent the rest of your time with your family and friends, engaged in your community, and were able to have a balanced life. And if you had to work more than 40 hours, you were either paid handsomely for your level of commitment, or at the very least, expected to be loyal to your employer. But it just doesn’t work like that anymore — more and more people are working extra jobs, not because they want to, but out of necessity. But all that moonlighting has consequences that nobody is really talking about.

A recent news article explores the phenomenon of moonlighting, recognizing that

Moonlighting appears to be back in vogue. But it’s not because people want to expand their job horizons and try new careers. It’s because they need money.

(See MSNBC.com article.) According to Department of Labor statistics, the number of people with a full-time job plus a second part-time job increased five percent between 2006 and 2007 alone, which is a considerable jump in one year.

Moonlighting was something that people who wanted to make career changes did, but it was always a little surreptitious. Some employers banned the practice entirely, fearing that their employees would help the competition, miss work more often, or be unable to give their all to their primary employer. And some employees just didn’t tell their employers, fearing that their employers would mind, even if it didn’t technically violate any bans. Rarely did you have a situation where moonlighting was conducted openly, with the employer’s blessing.

But times have changed. Employees often can no longer get by on just one salary, whether it’s because, as former Labor Secretary Robert Reich points out, “wages are falling, adjusted for inflation,” or there aren’t enough good jobs that allow people to support themselves and their families. Forget about mobility or career changes — people have to hang onto the jobs they have, in order to survive. And if something bad happens, like sickness or divorce, workers find they will never catch up on one paycheck.

So moonlighting is proliferating, whether employers (or employees, for that matter) like it or not. Employees are out late at night tending bar, and away from their kids doing homework in the early evenings. This also has a trickle-down effect, in that some lower-paying entry-level jobs are now taken by over-qualified people as a second job, which makes it more difficult for teenagers and workers with less education and skill to find jobs. People don’t take vacations, because they can’t get away from both jobs at once, and they can’t afford to anyway. They’re tired, stretched to the max, and on a treadmill they can’t step off.

Wages aren’t going to increase right away, as we have some pretty serious economic problems happening right now in this country. This means that moonlighting is a phenomenon we’re going to have to get used to. Employers are going to have to be realistic about the needs of their employees, and be flexible enough to permit moonlighting. Child care options must expand to include hours outside the standard work day.

While every employee hopes that the need to work a second job won’t last for very long, until we start electing politicians and enacting policies that ensure we have good jobs and a sound economy, significant numbers of moonlighting employees are likely to be around for the long haul.

Changes Proposed to FMLA Would Hurt Workers

Friday, April 11th, 2008

As discussed in a prior post, the Department of Labor has proposed changes to the FMLA in a last-ditch effort to satisfy business interests before there is a change in administrations, which could, depending on who is elected, stall business-friendly changes for a considerable period of time. Here’s a look at some of the specific changes proposed.


Limiting a workers’ ability to use their accrued paid leave to cover their unpaid FMLA leave.

Because FMLA leave is unpaid, many workers who otherwise could not afford to take leave rely on the ability to use their paid leave, such as sick leave, vacation leave, and paid time off (PTO). Being unable to afford to take unpaid leave is the most common reason that workers who qualify for and need FMLA leave do not take it. Some workers are already encountering problems utilizing accumulated leave to maintain their family’s financial stability during a time of need, with employers forcing their employees to jump through all the hoops to qualify for FMLA leave, or attempting to impose notice restrictions not required by the FMLA. Employee advocates oppose changes that would make it even more difficult for employees to use accumulated paid leave while simultaneously qualifying for FMLA leave.

Increasing workers’ requirements for providing notice when they need to take leave.

Under the proposed regulations, workers will have less time to provide notice and will be required to provide their employer more information than previously required when requesting leave. Workers who fail to meet these requirements could have their FMLA leave delayed or denied.

The current notice requirements ensure that employees in a situation where their first priority is their own health or a family member’s health can still benefit from FMLA protection. In some situations, it is simply not realistic to expect an employee to provide notice in advance of their absence. The current requirements reflect this reality, while the proposed changes would cause employees with a legitimate FMLA-qualifying need to be denied leave and even face disciplinary action, due to a failure to comply with the notice requirements.

Changing communications provisions which would allow employers to speak directly to workers’ health care providers and allowing them to do so in some circumstances without a release of confidentiality from the worker.

Employers now must follow a two-step process to clarify information that is part of the workers’ FMLA medical certification. Employers first must obtain the employee’s permission to talk to his or her doctor, then must have a medical professional talk directly with the employee’s doctor. The proposed guidelines would allow an employer to contact an employee’s health care provider directly after obtaining permission from the employee. Permission from the employee is not required if the employer is attempting to verify that the employee actually had the doctor fill out the medical certification.

The proposed change that would allow employers without medical training to directly contact an employee’s health care provider is one that provoked significant outrage among workers. In a number of instances, employers have tried to breach the current requirement that communication occur only between medical providers, or have used impermissible means to try to obtain medical information. The proposed changes would further facilitate direct employer contact without permission.

Workers are also very concerned about the consequences of allowing their employers access to sensitive and confidential medical information. Those with mental illnesses and medical conditions which carry a social stigma and/or raise questions about an employee’s ability to do the job fear even more difficulty with their employers and coworkers if this provision is altered. Some employees are already using personal leave, rather than attempting to qualify for FMLA leave, in order to prevent their employers from delving into their medical history.

The current requirement should stand, as allowing non-medical personnel to make inquiries of an employee’s doctor will lead to widespread violation of employee privacy, and even more disputes between employees and employers over whether leave is medically necessary.

Requiring more frequent medical visits for workers and/or additional medical certifications from their health care providers.

It is already burdensome in some cases for employees to obtain the required medical certification, especially for employees with chronic, lifelong illnesses where the diagnosis and severity do not significantly change from year to year. Increasing the frequency with which employees must visit their doctors and provide medical certification will only make it more costly and burdensome for employees to comply with the requirements to obtain FMLA leave. Instances where a worker’s condition doesn’t change from year to year, yet the FMLA-required certifications are rejected, are relatively common, as are instances where additional medical visits are already being required, due to a dispute over the language used in the employee’s medical certification.

We live in an era of skyrocketing medical costs, increased co-pays, and a growing number of employees without health insurance. Making employees visit their doctors twice a year, when such visits may not be medically necessary nor logically required, will make it even harder for employees entitled to FMLA leave to actually use it.

Altering current rules about FMLA leave and employers’ attendance policies to count FMLA leave against perfect attendance awards.

This proposed change would penalize employees for FMLA-related absences which are not any fault of their own, and cost employees money in those workplaces which provide a financial incentive for attendance awards. Some are already reporting conflicts with attendance policies when they use approved FMLA leave. However, those employees whose employers follow current law can rest assured their absences will not be used against them.


The comment period has now ended, as of April 11, with thousands of organizations and individual employees submitting comments. Now the ball is in the Department of Labor’s court, with the rights of employees hanging in the balance. Will the scale tip to favor employers’ interests? It would hardly be a surprise. However, thus far in this Administration, no significant changes have been successful, so it will be interesting to see whether the internal and external forces which have staved off changes over the last several years will be strong enough to prevail before the November election.

[Please note: some of this post was excerpted from comments I prepared on behalf of Working America that were submitted to the Department of Labor. However, any opinions represented in this blog posting are my own, and do not represent Working America, my current employer.]

Will FMLA Changes Squeak By in this Administration?

Thursday, April 10th, 2008

One of the workplace priorities for the business community during the Bush Administration has been to scale back the Family and Medical Leave Act (FMLA). However, in the waning days of the administration, there still have not been significant changes, which has been a source of frustration to some. There is now a last-ditch effort to move forward some business-friendly changes to the FMLA, while there is still the ability to do so, should a Democratic candidate be elected President in November. As you can imagine, most of the “clarifying” changes attempt to tilt the balance in the employer’s direction. Pro-worker groups are mobilizing to stop the worst of the changes from taking effect, by soliciting comments by the end of the comment period on April 11.

After over ten years of intensive lobbying, the FMLA was the first bill signed by the Clinton Administration in 1993. It was hailed as a significant advancement for workers, and has been relied upon by many thousands of workers each year since its enactment. Although the leave permitted by the FMLA is unpaid, which means that many workers who would qualify are not able to take it for financial reasons, having the FMLA in place has protected an untold number of jobs where employers otherwise would have fired workers who prioritize their family over their jobs, or who exhaust the sick leave they have been given.

However, the business community has long resisted what they consider some of the more burdensome aspects of administering FMLA leave. Consistently high on their target list has been what is known as “intermittent leave.” The 12 consecutive weeks of leave permitted by the FMLA is in some cases not necessary, and indeed not adequate, to protect workers with chronic illnesses or complicated family care needs.

For example, some workers need a high number of doctors’ appointments to monitor their condition, while others have ongoing treatments such as chemotherapy or physical therapy. Aside from the time these appointments take during the work day, they are able to work, and quickly exhausting their leave in 12 weeks would leave them unprotected. Therefore, the FMLA currently permits leave to be taken in smaller increments.

Although workers who need intermittent leave have found that provision incredibly helpful in preventing their leave from being quickly exhausted and in preserving their job status over the long haul, the business community has frequently claimed that this provision is the most ripe for abuse by employees. They claim that workers who use intermittent leave make scheduling difficult, and sometimes use the intermittent leave provision to avoid discipline for unscheduled absences. They also claim that it is difficult and burdensome for payroll administrators to track
accurately.

Another area where employers claim difficulty has been in ascertaining from an employee’s doctor the nature of the illness that triggers the leave request, and whether it qualifies as a serious health condition. The law currently limits employers from communicating directly with an employee’s doctor, to prevent an invasion of the employee’s privacy, and also because employers are not medical professionals, and therefore not competent to make diagnostic conclusions based upon the information provided by the patient’s doctor. That has not prevented some employers from trying to get information more directly than the law allows, and from pushing to relax the standard that prohibits direct communication.

Over the last several years, pro-worker advocates have been waiting for the other shoe to drop. It has been rumored for a long time that there would be significant changes to the FMLA that would make it less employee-friendly, and tilt the law more in the employer’s direction. However, it has taken a long time for changes to be proposed. In December 2007, the Department of Labor, without actually proposing any changes, solicited comments about how the law was working, and received a wide range of comments from employer and employee groups.

Since the intermittent leave and medical privacy provisions were high on the business community’s list, many of the comments focused specifically on those provisions. However, after the comments were received, a final report issued in June 2007 reflected the Labor Department’s decision not to propose major changes at that time. Employee advocates had dodged a bullet, but not for long.

On February 11, 2008, in a Notice of Proposed Rulemaking, the Department of Labor published its intentions to make changes to the FMLA, triggering a 60-day comment period ending April 11. As expected, provisions regarding intermittent leave and communication between doctors and employers were on the list of proposed changes. In my next post, I will cover some of the proposed changes in more detail.

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