Rick Bell – Page 33

August 7, 2019June 29, 2023

NLRB Streamlines Process for Employers to Withdraw Union Recognition

The National Labor Relations Board has relaxed its test for determining the legality of an employer’s anticipatory withdrawal of union recognition prior to the expiration of the collective bargaining agreement.

In the July 3 Johnson Controls Inc. decision, the NLRB upheld an employer’s right to suspend bargaining and serve notice within 90 days prior to CBA expiration of its desire to withdraw recognition from an incumbent union thereafter, upon receiving objective evidence that the union has actually lost majority support.

The 3-1 decision found that such actions would not form the basis of unfair labor practice charges even if the union were to subsequently reestablish majority support through the filing of a new representation petition (within 45 days thereafter).

In so holding, the NLRB overruled conflicting aspects of prior precedent in 2001’s Levitz v. Furniture Co. of the Pacific, which evaluated an employer’s “anticipatory withdrawal” by application of a “last in time” rule that relied extensively on union evidence establishing that it had regained majority support. A NLRB majority also suggested that it remained open to reexamining other forms of existing precedent governing the decertification process.

The Levitz Standard for Anticipatory Withdrawal

Under Levitz, the receipt of objective evidence prior to CBA expiration that a majority of unit employees no longer desired union representation allowed an employer to withdraw recognition and refuse to bargain, but only “at its peril.” If the union subsequently produced evidence (typically in the form of recent signatures) that a majority had either changed their minds or otherwise wished to retain representation, however, then the employer was subject to unfair labor practice charges for refusing to bargain in the interim.

In the recent Johnson Controls Inc., decision, the NLRB found this back-and-forth test to be unworkable. It opined that the test failed to properly safeguard employee free choice, while undermining labor relations stability by subjecting employers to legal exposure for circumstances that arose after a good faith decision to withdraw.

The New Standard

Under the NLRB’s new test as articulated in Johnson Controls, you will now be privileged to withdraw recognition from an incumbent union and refuse to bargain commencing within 90 days of CBA expiration upon receiving evidence that the union has in fact lost majority support.

Although the union may still respond with unfair labor practice charges, the NLRB will no longer evaluate the merits of those charges by considering evidence that it has reacquired majority status. Instead, the union may present such evidence by filing for a new representation election within 45 days from the date on which you first gave notice of your anticipatory withdrawal.

Under those circumstances, you may lawfully continue recognizing the union without exposure to additional unfair labor practices charges in the absence of another representation petition from an intervening union. As the NLRB pointed out, “such issues will be resolved as they should be: through an election, the preferred method for determining employees’ representational preferences.”

What Does This Mean for Employers?

Johnson Controls provides employers with a road map for lawfully withdrawing union recognition before CBA expiration. While the NLRB has removed some impediments to the “at your peril” nature of the Levitz anticipatory withdrawal standard, you will want to at least take the following considerations into account if you are exploring such a strategy:

The NLRB left other aspects of the Levitz standard in place, including a requirement that employers rely upon objective evidence (as opposed to good faith subjective belief) that the union has actually lost majority support. Such evidence has traditionally derived from a proper disaffection petition containing validated signatures (and dates) from a majority of bargaining unit employees; although employee polls or other objective evidence may suffice in limited circumstances.
Unilateral changes in wages or working conditions implemented during the intervening period between CBA expiration and an ensuing representation election conducted under the Johnson Controlsstandard could still subject you to additional unfair labor practice exposure.

Any withdrawal of recognition implemented during the pendency of bad faith bargaining or other unfair labor practice charges deemed to have caused the underlying employee disaffection will likely taint (and therefore invalidate) the withdrawal itself.

August 6, 2019June 29, 2023

It’s Inexcusable for an Employer NOT to Have an Anti-discrimination Policy

There are some employment policies that you can get away with not having. An anti-discrimination policy is not one of them.

In Hubbell v. FedEx SmartPost (decided Aug. 5 by the 6th Circuit), FedEx learned this lesson the hard way.

Sheryl Hubbell worked for Defendant FedEx SmartPost as a parcel sorter. A jury concluded that it retaliated against her after she filed an EEOC charge alleging that her manager demoted her and ultimately fired her after telling her that “females are better suited to administrative roles and males are better suited to leadership roles.” A jury awarded her $519,550, reduced by the trial court to $415,60 (plus an additional $157,733.75 in attorneys’ fees).

This employer made a lot of mistakes that caused this large judgment, but one of the biggest was that it did not have an anti-discrimination policy until 2013, one year after Hubbell claims she started suffering retaliation.

Several of Hubbell’s managers testified that FedEx had an anti-discrimination policy and that they had been trained on this policy. Jessica Benjamins, FedEx’s corporate Human Resources manager, also testified as to FedEx’s anti-discrimination policy. She testified that FedEx conducts annual online “diversity inclusion training” for managers. And she testified that it has long been FedEx’s policy not to discriminate. But FedEx only promulgated a specific policy on non-discriminatory hiring and promotion on November 26, 2013—after Hubbell was demoted and filed her first EEOC complaint.

So here’s your homework assignment. Open your employee handbook. Turn to the table of contents. Look for the policy that says, “Discrimination.” If you can’t find it, call me.

August 5, 2019June 29, 2023

Workplaces Becoming a Stage for Corporate and Social Movements

In an era in which making your voice heard is more possible than ever, employees are empowering themselves and one another to incite real change in their workplaces.

A recent study conducted by global communications firm Weber Shandwick, in partnership with United Minds and KRC Research, delved into the recent phenomena of employee activism and how it is shaping workplaces and relationships between employees and their companies.

The genesis of the study, according to Leslie Gaines-Ross, chief reputation strategist at Weber Shandwick, is tied to recent activist movements by employees at Amazon and Wayfair.

“We firmly believe this is a movement that’s going to capture people’s imagination and their voices going forward, especially amongst the next generation who believe that they can make a difference,” Gaines-Ross said.

The study explores various facets of employee activism, identifying which demographics of the workforce are most likely to participate in social movements and gauging the impact that employees see their actions having.

One of the more significant findings was that millennials were the most likely to be employee activists at 48 percent, as opposed to Gen Xers at 33 percent and baby boomers at 27 percent.

Leslie Gaines-Ross, chief reputation strategist, Weber Shandwick

“[Millennials] have grown up with technology. [They] see that when you connect and are a part of a network that you can create change [and] that you can make a difference,” Gaines-Ross said. “They’ve seen that in their lifetime.

“I also believe that they are very passionate about the role of institutions in society. The rewarding thing to me was to see that many of these millennial employees who are speaking out want to work for companies that have a purpose. That’s what they’re looking for, and employee activism fits right in there.”

The idea that employees want their companies to be purpose-driven comes through in how they view their own activism, too — 38 percent of employees replied that they were speaking up about company-related and social issues, indicating a sense that their impact can be widespread.

“In the study we asked them who they were hoping to influence, and I think there’s a cynical sort of attitude like, ‘Oh, they’re just trying to get media attention or something.’ But that’s not the case,” Gaines-Ross said.

The study also indicated that the end goal of many of these employee-led movements is to create more equitable, sustainable workplaces across policy areas.

Prominent workplaces issues today include income disparity, gender equity, climate change and racism, Gaines-Ross said. “All of these things that are on people’s minds — they’re trying to change their own organizations where they spend so much time to reflect properly what’s happening in the greater world,” she added.

And for human resources leaders, this means keeping an ear to the ground and adopting more nuanced ways to communicate between employees and leadership.

“It takes a different kind of approach than a traditional employee engagement survey that goes on every year,” said Kate Bullinger, president of management consultancy UnitedMinds. “We need to start prepping leaders for how to be more proactive and transparent in their thinking. That’s the job of HR to start coaching leaders in how to think differently about it.”

Bullinger again cited the employee activist movement at Wayfair, where approximately 10 percent of the company walked out in protest of the company’s decision to sell $200,000 worth of furniture to immigration detention camps at the United States southern border. She noted that feelings of resentment for that decision were likely percolating for a while among employees, and both HR and communications teams could have been more in tune with those sentiments earlier.

“It’s really got to be a close partnership between HR and communications,” Bullinger said. “It’s sort of a multi-pronged issue. You’ve got to have the right stakeholders involved.”

People and ideas are becoming more widely connected every day, and so employee activism is projected to be a phenomenon that only keeps growing.

“The number one thing that [employees] wanted to influence was their employer’s policies and actions,” Gaines-Ross said. “They are aiming to influence the culture, the structure and purpose of their organization.”

August 1, 2019June 29, 2023

When an Employee’s Religion Clashes With an Employer’s Dress Code

A Muslim woman is suing the hospital at which she works as medical assistant, claiming she was told she needed a “note from the Quran” when she asked for an exception to the hospital’s dress code to wear a face covering during Ramadan.

The case, Boyd v. Cooper University Hospital, is pending in federal court in New Jersey. While it’s just filed and years from resolution, we can use it to learn how an employer should react when a employee dons religious garb in the workplace.

Title VII requires that an employer reasonably accommodate an employee’s sincerely held religious belief. This accommodation includes exceptions to an employer’s dress code or grooming policy.

According to the EEOC, an employer may not “automatically refuse to accommodate an applicant’s or employee’s religious garb or grooming practice if it would violate the employer’s policy.”

Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business. … For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business.

There are limits, however, and an employer may “bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns … but only if the practice actually poses an undue hardship on the operation of the business.”

The employer should not assume that the accommodation would pose an undue hardship. While safety, security, or health may justify denying accommodation in a given situation, the employer may do so only if the accommodation would actually pose an undue hardship. In many instances, there may be an available accommodation that will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.

While we have no idea how the Boyd case will play out, it nevertheless serves as a great illustration of the need for employers to consider exceptions to dress codes as reasonable accommodations for employees’ sincerely held religious beliefs, and the risks that occur when employers skirt this obligation.

July 31, 2019June 29, 2023

A Blog to Change the Game

Hey, Game Changers!

Yeah, I’m talking to you, Pritika Padhi (Game Changers Class of 2019), and you, Jason Hite (Class of ’16) and you too, Monica Sauls (Class of ’13) and Tiffani Murray, who was among the 11 recipients in our inaugural class of Game Changers in 2011.

We are launching a blog specifically dedicated to you, for you and by you! It will be a community blog that all Game Changers can post to. And it can be on any topic under the people management umbrella.

We now head into a decade of Game Changers, our awards program recognizing workforce management professionals under 40 who are pushing the field forward with innovative people-management practices.

For the first time in the program’s history, our judges selected 40 Game Changers in 2019. While the majority works in the United States, numerous winners also span the globe, from Nigeria to Norway to Bahrain, as well as several winners from across India.

The thread that ties this year’s winners with all past recipients is that their efforts engage employees and help their respective companies succeed.

And while Game Changers is a 40-under-40 program, our first couple of classes are pushing 50 years old now. Crazy to think how time flies.

No matter what year you were named, consider your area of game-changing expertise as a starting point. Think broadly about how HR affects the workplace, and how the workplace affects HR. What is unique to HR practices in your geographical area? Are there news issues affecting HR? Are there big-picture workplace issues you’d like to address? These are all topics to blog about.

Now, we have lost touch with a number of our past winners. Job changes, shifting from one content management system to another, lost Excel docs(who uses Excel anymore right? All about Google docs in 2019!). Whatever the reason we want to reconnect and maintain you as a Workforce thought leader.

We want to ask you, our vast audience, to help. If you have a colleague who was recognized as a Game Changer please let them and us know! Our contact information is below.

You Game Changers can blog up to once a week if you’d like, or as often as time allows, or even never. It’s just that as young, up and coming thought leaders in your field, this is an opportunity to engage and enlighten our readership (and do a bit of personal brand-building, as well!). As of right now we’re planning to title the blog simply “The Game Changers.”

international HR Game Changers Pritika Padhi and Dharshana Ramachandran, India — Pritika Padhi, left, and Dharshana Ramachandran, 2019 Workforce Game Changers.

The parameters are simple. Word count is between 450 and 850 words (if you have an amazing idea worth more words, just ask; we’re pretty lenient); no outright promotion of a company or product; write in a persuasive, op-ed style (first person is fine if you’d like); and have fun with it! Blogs are supposed to be engaging and spur discussion, so engage and spur some discussion!

When you file your blog, please send it to me, Rick Bell (rbell@humancapitalmedia.com), and my Workforce colleague Andie Burjek (aburjek@humancapitalmedia.com). In the email subject line please use: Game Changer blog post: (your name) and a 4-6 word descriptor of the content (i.e., mentoring can be beneficial to recruiting). Andie or I will edit and post as quickly as we can.

Oh, and please include tagline similar to this: Jennifer Benz leads Segal Benz, a national leader in HR and employee benefits communications. She was honored as one of Workforce’s Game Changers in 2013. Contact her at jbenz@segalbenz.com or follow her on Twitter at @jenbenz. Yes indeed, our esteemed “Benefits Beat” columnist is a member of the Class of 2013.

And by all means, we ask that you please share it on all of your social media channels once it posts.

We are planning to launch the blog the week of Aug. 10. Feel free to contribute in the next couple of weeks so we have a well of content going into the launch.

Any questions, comments or thoughts just drop a note to Andie and me.

Thanks, good luck and happy blogging!

— Rick Bell and Andie Burjek

July 31, 2019June 29, 2023

Do Workplace Bullies Violate OSHA?

According to a study recently published in the Journal of Applied Psychology, bullying bosses make workplaces less safe.

Poor treatment from a boss can make employees feel that they’re not valued by a group. As a result, they can become more self-centered, leading them to occasionally forget to comply with safety rules or overlook opportunities to promote a safer work environment.

The headline made me think that if bullying contributes to an unsafe workplace, can it also violate OSHA? The answer is quite possibly yes.

While OSHA does not have a specific standard on workplace bullying, it does have a General Duty Clause. It requires that employers provide a workplace free from conditions that cause, or are likely to cause, death or serious physical harm to employees. It’s not a stretch to imagine bullying, or permitting the continued employment of a bully, to violate this duty.

Moreover, if bullying violates OSHA, then failing to have a policy against it, and properly training employees on that policy, also violates OSHA. It’s a potential triple whammy.

Arguing that OSHA covers bullying is not novel. At last year’s American Bar Association’s Labor and Employment Law Section annual conference, for example, one panel argued for OSHA coverage for sexual harassment. OSHA already covers workplace violence and the hazards that cause it, potentially including intimidation and verbal abuse. And, in 2011 OSHA adopted an anti-bullying policy for its own employees.

I’m not saying this is a clear-cut issue. In fact, I think it’s more likely than not that OSHA does not cover workplace bullying. But the fact that we’re having this conversation shows that this is an ongoing problem that employers need to address.

What can employers do? The Journal of Applied Psychology study offers three suggestions.

Implement training programs that can improve leaders’ skills in interacting with their employees, so as to provide feedback and discipline in ways that are neither offensive nor threatening.
Promote a more civil and engaged work environment that strengthens social bonds between employees and creates a buffer against the negative consequences of their boss’ bad behaviors
Implement transparent performance evaluation processes so employees have less uncertainty about their social status in the workplace.

Or, you can just adopt my four-word workplace civility policy. Either way, tolerating and condoning abuse in the workplace, or worse yet, perpetrating it, cannot and should not continue, OSHA violation or no OSHA violation.

July 30, 2019June 29, 2023

Labor and Employment Lessons From the World’s Most Combative Stripper

Meet Brandi Campbell, a stripper and self-proclaimed labor activist for other strippers nationwide.

She maintains stripperlaborrights.com, where she provides dancers with information about their legal rights, including their rights under the National Labor Relations Act. She’s filed (and won) unfair labor practice charges against clubs in Nevada, Minnesota, and Wisconsin, alleging that they discriminated/retaliated against her for engaging in statutorily protected activities and deprived dancers of their statutory rights by misclassifying them as independent contractors.

Her latest target is the Centerfold Club in Columbus, Ohio. A few weeks into her stint leasing space as an independent contractor to perform at club, she started sending letters to club management complaining that the club was violating her and other dancers’ rights by misclassifying them as 1099 contractors instead of as employees.

During that same time period, the club discovered Campbell’s website, and decided that it would likely be her next lawsuit target. Rather than wait around for that shoe to drop, the club terminated her lease after it discovered that she was touching customers in violation of Ohio’s “no-touching” law, which prohibits dancers from touching patrons while performing.

In Nolan Enterprises, Inc. d/b/a Centerfold Club, an NLRB administrative law judge concluded that the club violated Campbell’s section 7 rights by terminating her.

What lessons can we draw from this termination?

1. If it looks like discrimination, and smells like discrimination, then it’s probably discrimination.

According to the ALJ, there was “ample evidence of employer animus.” The club knew all about Campbell’s website and her prior Board charges and management discussed among themselves concern that was trying to set them up and planning to do to them the same as she had done to other clubs. To compound matters, the club admitted as much in its termination letter to Campbell.

You told people … that they could find “the Truth” about clubs and how to challenge the club on Dancers Stripper Labor Rights, your blog. We then found out your motives and read your web site that showed that your pattern and practice is to sue, destroy and lash out at people as I’m sure you will do to me and others when you read this letter. Please think before you act here. … We wish our lives to go our own directions and hopefully, not cross again. I know this is doubtful, since you invested time and effort to get a lawsuit out of something here for your blog, future newspaper articles or book.

If you tell someone you’re firing them for an illegal reason, then it’s probably the reason your firing them. A pretty easy call for the ALJ.

2. When trying to defend a termination, “show me” always trumps “tell me.”

The club had ample video of Campbell violating the no-touching law. What it did not have, however, was a documented track record of terminating other dancers for similar violations.

As its defense, Respondent contends that even if Campbell was engaged in statutorily protected activities, it still would have terminated her lease for violating Ohio’s no-touching law. … Based on my review of the evidence, I find Respondent falls well short of meeting its burden. … [C]onclusory testimony that other dancers were terminated for “illegal touching” does not satisfy Respondent’s burden, particularly considering all the evidence of animus that exists in this case.

In other words, show me, don’t tell me. It’s not enough to tell a judge or a jury that you don’t discriminate and treat all the same for the same misconduct. Without documentation to back it up, your explanation is likely worthless.

July 30, 2019June 29, 2023

Pack Mentality: How Dog-Friendly Policies Might Improve Company Culture and Engagement

Imagine it’s a typical, hurried, tired Monday morning.

You rush out the door, coffee in hand, and by the grace of green traffic lights, make it to the office just in time. The ride up the elevator is a familiar feeling — to-do lists and meeting agendas already running through your mind.

Upon opening the office doors, you’re greeted by your coworkers and their smiling, tail-wagging dogs.

This is a reality in a steadily increasing amount of workplaces across the country. According to a 2019 benefits survey by Society for Human Resource Management, 11 percent of workplaces allow dogs, a 3 percent increase from 2015.

In June, Rover, an in-home dog-walking and pet care company, released a list of the 100 Best Dog-Friendly Offices in the United States, which was topped by the likes of widely known organizations such as Amazon, Airbnb and Uber. In forming the list, Rover considered dog-related benefits such as dogs being allowed in the office, pet stipends, paid time-off for pet bereavement and other pet-related amenities, such as green spaces to walk your dog and treats.

For many, the idea of having a furry friend tag along from nine to five is ideal. However, creating a space that is both dog-friendly and people-friendly takes time and thoughtful planning, said Jovana Teodorovic, head of people and culture at Rover, where people can bring their dogs to work every day.

dogs in the workplace — Jovana Teodorovic, head of people and culture at Rover, and Riley.

“That doesn’t work in every environment. It depends on what building you’re in, how dog-friendly they are and how much space you have,” she said. “We have been very proactive in how we design our spaces, and that allows a large number of dogs in the office every day.”

Teodorovic said that allowing dogs in the office has positively impacted company culture at Rover as well as the productivity and happiness of individual employees. Dogs often serve as a point of conversation and connection between employees.

“Taking a break during the day to play with your dog is a great way to feel better throughout the day and to feel more engaged with the work you’re doing,” she said.

However, introducing dogs into the office requires proactive planning and open communication between all levels of an organization’s structure.

“The first thing is to have employee buy-in regarding these policies,” Teodorovic said. “[Make] sure that the majority is comfortable with being pet-friendly and then having mechanisms in place around the folks who have allergies or have a fear of dogs.”

Rover also has thought out policies regarding all the “what ifs” that come with being a pet-friendly office, from potential altercations between dogs to the inevitable need for “doggy bags.”

“We offer free dog-walking for our employees so that the dogs are walked and quiet and satisfied,” Teodorovic said. “The dogs are in a safe space every day and we have dog gates as well.”

Creating a safe, regulated and familiar environment for dogs also helps reduce any incidents.

“Of course our employees being very dog-oriented and great dog owners and training their dogs from the beginning creates a really great workplace,” Teodorovic said. “But it’s different for any company and it really should be an evolving process.”

Ultimately, Teodorovic said, an organization may determine that dogs-in-the-office policies simply aren’t for them, whether that’s due to allergies, building policies or the wants of employees.

There are other ways for employers to be dog-friendly without actually having dogs in the office. Many of the companies on Rover’s list as well as Rover have benefits that support pet-owners. These benefits range from “pawternity” leave (an extra week of paid time off after getting a new dog), providing $500-$1,000 toward adoption fees, and free dog-sitting services.

Teodorovic said that dog-friendly policies and benefits can not only be a tool in increasing retention and recruiting, but improving employee’s everyday experience at work.

“If a company is struggling to create their culture or having a positive culture, it’s a really great way — without having a ton of policies and meetings and work — to accelerate the quality of their interactions and the quality of their company culture,” she said.

July 29, 2019June 29, 2023

#MeToo Hasn’t Killed the Office Romance, Just the Inappropriate Ones

According to the National Review, #MeToo killed the office romance.

It must be a brave soul who dares to strike up a flirtatious conversation at the workplace microwave these days. Only ten percent of Americans report having met their mate at the office, a level that is half what it was in the 1990s.

The article goes on to quote Ella Whalen, writing for Spiked.

But in the post-#MeToo office, unless you send a memo to the guy you fancy, signed with your consent at the bottom, it is understandable that he wouldn’t want to make the first move for fear of being hauled before human resources. While most normal guys are able to tell whether a woman likes them or not, the erasure of any ‘grey area’ in workplace interactions means more and more people are feeling nervous about taking the first step.

At Spiked, Ella adds

Companies are responding to the sexual-harassment panic by banning alcohol from office parties and instituting policies on how long and how close personal interactions should be. Bosses who hug their employees are even making headline news. …

It’s time to rebel against these attacks on workplace romance. So wear your lowest top to your next board meeting and linger too long by your colleague’s desk. We need to make the workplace a humane environment where sparks can once again fly.

Clickbait headlines aside, #MeToo hasn’t killed the office romance; it’s just killed the inappropriate office romance. The boss dating his (or her) subordinate. The co-worker that won’t take “no” for an answer. The improper or otherwise improper texter or emailer.

There’s nothing inherently illegal about co-workers dating each other. In fact, according to a recent survey, 31 percent of people who met and started dating while working together ended up getting married (to each other).

Still, there’s a lot that can (and sometimes does) go wrong when employees get romantically involved.

Conflicts of interest.
Extortion and blackmail attempts.
Uncomfortable conversations with HR and company attorneys explaining your love life.
Have to describing your employee’s private affairs in a deposition or, worse, to a jury.
Office gossip.
Love contracts.
The loss of respect from co-workers and management.
Facing termination for not disclosing a romance.
Harassment and retaliation lawsuits when someone other than an employee’s paramour gets passed over for a promotion, fired, or otherwise thinks you are playing favorites.
Harassment or retaliation lawsuits by a jilted partner when the relationship goes south.

Which doesn’t mean that employees shouldn’t date; it just means that employers need to understand that permitting office romances amplifies the risk of claims of discrimination, harassment, and retaliation, especially when the parties involved are a manager or supervisor and his or her subordinate.

The question, then, isn’t whether these relationship are illegal (they’re not), but how much risk you, as an employer, want to assume in the event a relationships sours, or other employees feels shunned or mistreated as a result.

Ban them outright?
Ban them only between a manager/supervisor and his/her subordinate?
Permit them with a signed agreement (the “love contract”)?
Do nothing and permit them across-the-board?

I recommend avoiding the first option and not banning them outright because of a knee-jerk reaction to #MeToo. That’s just lazy employee management. Not all workplace relationships are toxic or unlawful, and if you’re diligent in your anti-harassment training and other efforts, you’ll be able to spot, catch, and handle the ones that are.

July 25, 2019June 29, 2023

Which Mental Health Service Does the FMLA Not Cover?

Recently I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need.

Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.

An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker or a licensed professional counselor.

Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”

I won’t leave you in suspense. The answer is licensed professional counselors (unless an employer’s group health plan covers licensed professional counselors). The FMLA’s regulations specifically itemize all of the other categories of mental health professionals as “health care providers,” and specifically omits licensed professional counselors from its list. This omission is important, because an employee’s mental condition cannot qualify for FMLA leave as a “serious health condition” if, for outpatient treatment, the employee is not under “continuing treatment by a health care provider.”

As a matter of policy, however, the FMLA absolutely should cover licensed professional counselors as health care providers. According to a recent study by the National Council for Behavioral Health, the leading cause of our country’s mental health crisis is a lack of access to mental health services. We should not be erecting any barriers to mental health services, let alone one ingrained in the federal law that protects employees’ jobs when they take time off for health reasons, including their mental health. By refusing to recognize licensed professional counselors as FMLA-covered health care providers, the FMLA is deterring employees from seeking critical mental health treatment, or at least forcing them to choose between treatment and their jobs if a licensed professional counselor is the only available help. Many who can’t afford to live without their jobs will choose their paycheck over their health, exacerbating their mental health issues.

Gene Scalia has been nominated to replace Alex Acosta as Secretary of Labor. I implore him to close this dangerous loophole by amending the FMLA’s regulations to make it clear and explicit that licensed professional counselors qualify as health care providers in all cases, and not just those in which an employer has made the choice that its group health plan covers their services.