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Untapped Labor Abounds in Hungary

Although Corporate America is wooing prospective employees as never before,these intensive efforts to recruit and retain qualified professionals often fallflat.


    Even as companies wave such carrots as staggering salaries, bonuses,incentives and a growing list of creative “perks” in the faces of adwindling supply of available workers, they are still scrambling to find new andbetter ways to attract and retain the best and brightest professionals.


    Too often management must suffice by filling key positions with employeeslacking the technical skills, innate capabilities, experience and training to dothe work at an appropriate level. The loudest and most frequent refrain that isheard in corporate boardrooms is the enormous shortage of qualified labor – andhow to find these elusive workers.


    In the past few years many U.S. companies have filled technology positionswith raw talent from India and a handful of other countries – but that oncegushing pipeline now produces only a trickle.


    Fortunately, despite today’s intensely tight labor market, there stillremains a rich and untapped pool of highly educated and trained software,telecommunications and biotechnology engineers that are capable of spear-headingand managing leading-edge projects – in Hungary.


    This formidable Hungarian labor force offers a unique opportunity forenterprising U.S. companies seeking to exploit an as yet undiscovered wealth oftop-tier talent. For the Hungarians, the U.S. labor shortage presents anunequalled opportunity to align with highly desirable American firms whileperforming meaningful and fulfilling work. Filling the many gaps in our currentlabor crisis with Hungarian professionals is a win-win situation.


    A fact that suggests a serious and growing interest in the high-techcapabilities of the Hungarian workforce is that U.S. Hungarian Ambassador PeterTufo has joined in the IT development affairs of Hungarian Prime Minister VictorOrban. In so doing, Mr. Tufo is relying on the advice of several Americansoftware gurus for guidance.


The Advantages

  • For decades, the Hungarian culture has assigned great importance to thestudy and mastery of mathematics, biology, chemistry and the sciences ingeneral. This emphasis has led to the development of a highly educatedgeneration of young men and women with advanced degrees in these areas.

  • Since the fall of Communism ten years ago, the demand and subsequentremuneration for these technical workers has decreased dramatically in Hungary.Instead, non-techies working in the business sector – the banking industry,manufacturers and services businesses – are in demand. Although highly qualifiedand educated, Hungarian technology professionals are not yet highly compensatedor appreciated.


    This trend will not continue, however. In less than five years Hungary willcatch up with the U.S. and its technical pros will be in demand – andcompensated for their expertise. Now is the time for U.S. companies to takeadvantage of the current situation.

  • Hungarian engineers earn approximately 20%-25% of what a worker with anequivalent U.S. position earns. As an economical benefit, a U.S. company canfill a position with a Hungarian worker for a fraction of the cost of a U.S.worker, while still paying the Hungarian much more than he or she could earn inHungary.

  • A U.S. company can retain a Hungarian worker without the added overheadexpenses such as facilities, rent, security, benefits, tax and immigrationimplications that are incurred when hiring an employee here. The worker issimply treated as any other contractual employee.

  • Hungarian workers speak English and are willing and eager to work forAmerican companies. These professionals – most in their 20s and 30s – want to beinvolved in the development of leading-edge products and look to CorporateAmerica as the global model to follow. American companies are seen as exciting,enterprising and full of professional, personal and financial promise.

  • Tech professionals in Hungary producerésumés with valuable and high-levelwork experience. Some work for U.S., German and Japanese companies such as DelcoRemy, Delfi, Tredegar and GE.

The Challenge
    Managing the process of successfully bringing the Hungarian professionaltogether with Corporate America presents a challenge on cultural and managerialfronts. Finding and working with a Hungarian-American intermediary who is wellversed in the culture of Hungarian business and U.S. management issues is key tosuccessfully tapping into this labor pool.


    Since most Hungarian workers lack ameaningful understanding of the needs of U.S. corporations from a managementstandpoint, they must be managed by someone that is steeped in Americanmanagement principals to make the right fit. With the right intermediary, thehighly qualified Hungarian labor force can be a goldmine for Corporate America.

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Good Union Relationships Are Best

For more than twenty years, I havenegotiated labor contracts for hotels, distributors, sports stadiums, and othercompanies located in various regions of the country. In most of thesenegotiations, I have attempted to have my management clients and their unionslearn how to work together to solve their respective problems rather thanconfront each other to see who is stronger or craftier.


    In labornegotiations, and in counseling unionized companies between negotiations, I havemet some great Human Resource Directors (“HRDs”), some weak ones, andsome in the middle. The best were those who built a good relationship with theirunions. The worst were those who viewed their role as fighting with their unionsand teaching the rest of the management team how to do the same. The ones in themiddle played little leadership role either way.


    Every three years orso in a unionized company, the collective bargaining contract expires and has tobe renegotiated. The HRD is usually a member of the negotiating team. Betweencontracts, grievances have to be handled, contracts have to be interpreted andadministered, and employee and union questions have to be answered. How HRDsapproach such union responsibilities and what philosophy of labor relations theyfollow is, in my opinion, critical to their success in handling suchresponsibilities.

Employees are usually incloser contact with the customers than is management.

    Unfortunately, thenorm in most unionized American companies continues to be confrontation. Theconventional wisdom is still that unions are an adversary to be held at bay,opposed, outsmarted, defeated, or ignored. More often than not, unions areviewed as the villainous Indians and management is viewed as the white-hattedcowboys in a simplistic cowboy and Indian movie.


    Too many managersstill let their emotions or political beliefs dictate their labor relationspolicies, even though they use logical, result-oriented decision-making in everyother area of their business. Sometimes outside labor advisors encourage thisconfrontational approval and profit from the prolonged fights that result fromit. The problem with this cowboys and Indians picture of union relations is thatit does not reflect the reality of a unionized workplace today.


    Unionized workplacestoday, like all workplaces, require higher morale, productivity, participation,and adaptability to be successful. HRDs need to educate management to follow acooperative approach to unions if they want to achieve a successful workplace.


    The history ofAmerican labor relations shows that unions have been very good at holding on towhat they have, even when they have not been effective in organizing newemployers. As a result, a union relationship for most companies is like amarriage for which there is no divorce. It can either be a good marriage or abad one, but it is unlikely to end any time soon. In view of that, one wouldthink that the rationale approach would be that a good marriage is both moreproductive and more peaceful than a bad one and worth pursuing.

More often than not, unionsare viewed as the villainous Indians and management is viewed as the white-hattedcowboys in a simplistic cowboy and Indian movie.

    Companies existtoday in an environment where they need to be able to adapt rapidly to theircustomer’s changing needs. Employees are usually in closer contact with thecustomers than is management. As a result, companies need to capture theiremployees’ perceptions about customers and their ideas for improvement andincorporate them into continuously improving their service and products. To dothat requires effective employee participation and empowerment programs. It isboth legally and practically difficult to obtain such participation andempowerment in a unionized company without the active involvement of the union.


    The unionizedcompanies that are most successful in harnessing their employees’ ideas havefound that the only effective way of making employee participation work isthrough a cooperative relationship with their unions.


    Another importantreason HRDs should lead the effort to develop a partnership with unionizedemployees and their representatives is the need to increase productivity. Unionworkers in a confrontational environment often perform well below theirpotential. When unionized workers face a contract fight every three years overwage, benefit, and work rules, and an ego contest over which side is craftier andmore powerful, why would their loyalty and their desire to be productive be anymore than average?


    When unionizedemployees face a cowboys and Indians environment at work, they often focus theirattention on more rewarding activities away from the workplace. When, on theother hand, workers are accorded a voice on the job and high levels ofparticipation and respect at work, they often develop the committed attitudenecessary to achieve a maximum effort at work.


    Yet another reasonHRDs should strive for a partnership with their unions is the need for moreeffective training programs because of the requirement for higher skilledemployees. Employees today have to be able to read and use computers and toadapt to rapidly changing technology in order to meet customers’ needs, to workin offices and warehouses, to sell products in the field, or even to drivetrucks.


    Those companies thathave engaged in active partnerships with their unions have found that suchpartnerships are a significant advantage in establishing effective trainingprograms for their unionized workers.

The Los Angeles Dodgers andtheir unions worked together to reduce wage levels by as much as 25 percent toregain parity with their competition.

    Employees quiteoften perceive management’s unilaterally established training programs as thelatest “fad of the month” by someone in the corporate office. Theytypically believe that such training has little relevance to their work, orworse, is a disguised way to set them up for termination in order to bring inyounger, cheaper workers. On the other hand, training programs that are jointlydeveloped and implemented with unionized employees make the employees takeownership of the training. In addition, joint training programs between unionsand management are more successful in attracting government training grants thanare individual company’s training programs.


    HRDs should alsostrive for union cooperation because it is a more effective strategy for findingreal solutions to complicated problems. Resolving problems with both sides’ needsin mind is more effective in finding solutions that works than attempting toforce solutions either side unilaterally creates in a vacuum. To put it anotherway, interest-based bargaining works better today with companies’ complexproblems and more educated workforces than does traditional power bargaining.


    Using aninterest-based partnership approach to bargaining, the San Francisco hotels andtheir unions created training programs to attract and retain the best workers.The Los Angeles hotels and their union cooperatively “privatized” theunion hiring hall and improved its quality. The Los Angeles Dodgers and theirunions worked together to reduce wage levels by as much as 25 percent to regainparity with their competition. Toyota and its unions at the NUMMI plantdeveloped superb employee participation systems for continually improving theirautomobiles. Ford Motor Company and its unions worked together to make Fordprobably the most productive and profitable automobile company in America.


    None of this couldhave happened using power bargaining. The problems in each instance were toocomplex to resolve through confrontation. Unless both sides’ needs can beanalyzed and addressed, complex problems like those listed above are seldomreally solved in negotiations and usually result in last minute, unworkablebargaining table compromises or a strike and the resulting poor morale anddesire to retaliate by the losing party.


    Are unionizedemployees and their representatives open to the cooperative approach advocatedhere? In my experience, I have found that they are. When approached honestly andasked to form a partnership with management to improve the workers’ skills,ability, and participation, and to improve the company’s viability, myexperience has been that unions are willing participants..


    The AFL-CIO has formany years actively promoted labor-management partnerships between unions andmanagement as the best way to satisfy both sides’ needs and to build strongunionized companies. The AFL-CIO and many of its affiliated unions take theposition today that organized labor should present management with two, and onlytwo alternatives. These are (1) an “open hand of cooperation” for realpartnerships or (2) a “closed fist” for a fight in a confrontationalrelationship. Given these two alternatives, which is more likely in a unionizedcompany to result in high morale and productivity, the ability to solve complexproblems, and adaptability to changes in the economy?


    In sum, the bestHRDs strive to have their companies work cooperatively with their unions becauseit increases productivity, service, quality and morale, not because they fearunions. If HRDs want to be effective and make a difference, they should educatesenior management that this is the best way to work with unions and they shouldtrain junior management how to do so.


    HRDs may have tofight an uphill battle to accomplish this, since most American companies stillfollow a confrontational and emotional approach to unions instead of a rationalone. However, I have seen many HRDs accept that challenge and successfullyeducate management to move in the partnership direction, and they have uniformlyachieved better results for their companies by doing so.

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Dear Workforce What Policies Should We Have for Outside Salespeople?

QDearWorkforce: 

 

   We are recruiting heavily in the sales and service areas. This involves people whoare on the road 4-5 days of the week. As we grow in this area, where should I belooking for concerns? What should I be looking out for? We are presently using acouple of recruiters for this; therefore my involvement has been minimal. 

   Themanager is basically meeting with the applicant first and then I get them afterthey have passed their okay. What pitfalls should I watch out for inestablishing policies/procedures for outside sales people. Which ones should Ilook into first? 

   Also,do you require your employees toget a cell phone for company business or do you let them use their personal cellphone for business purposes and thenreimburse them?  

   Finally,are monthly expensereports really appropriate or should it be a “bank” of money they canpull from and then when that’s gone they have to submit expense reports. 

 -Denise 

ADear Denise: 

Recruiting:
    Thefirst question a manager should always ask is, ‘Why are you looking to leaveyour current position?’  Many goodsales people are motivated to leave because their current compensation plan isnot adequate, the products are not top notch, or they may want to switch to adifferent industry. 

   Havethe manager ask the applicant what has attracted them to your company and whatthey know about your products. If the applicant has not done their homework onyour company, then that is a major red flag (especially for a sales candidate).Also probe deeply into the applicant’s knowledge of your company’s industry(competitors, market, etc.)  Thisshould show the applicant’s preparation skills, which they will have to exhibitto your customers. 

   Anotherimportant question is whether they’ll travel, since your job requires a lot oftravel. You need to dig deep here to make sure that the applicant understandsyour job requirements. 

   Haveyour managers ask the applicant to describe an example of one of theirsuccessful sales. Also then give an example of one of the failures. 

   Oneof the biggest pitfalls with sales personnel is the compensation plan. Make surethat you have a well-defined plan and that all parties understand it. Your salescandidates will also want to know about a draw, car allowance or company car,etc. You need to have solid policies in these areas. Since you may have remotesales personnel, you need to have a strong policy on home offices and remotecommunications. 

Cellphones:
   Thiscan be handled either way. First, I believe that your sales people do need acell phone. My suggestion is to have the company issue the cell phone (bettercost control) and reimburse the employee for all business related calls. Cellphone would be the property of the company and would be required to be turned inat termination. 

   Thepolicies on cell phone use while driving are very hot today. It is very wise for a company to ban cell phone use except with ahands-free unit. In fact, it is law in manyareas already. 

Expenses:
   Monthlyexpense reports are the way to go (with receipts required). This way costs canbe controlled better and you will only reimburse legitimate business expenses.You may want to set the policy that receipts are required for expenses over $25(i.e. business lunches) only.

 

SOURCE:Mike Sweeny, T. Williams Consulting, Collegeville, PA. 

E-mailyour Dear Workforce questions toOnline Editor Todd Raphael at raphaelt@workforce.com,along with your name, title, organization and location. Unless you stateotherwise, your identifying information  maybe used on Workforce.com and in Workforcemagazine. We can’t guarantee we’ll be able to answer every question.

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Dear Workforce How Do You Improve Communication Between Department Heads

QDearWorkforce:


   Ihave been asked to submit ideas on how to improve and develop communicationsand working relationships between department heads. Our city manager reallywants problems in the city solved (i.e. crime, rundown properties, juveniledelinquency, traffic congestion, accident rates, etc) by using allresources and experiences of his management staff.


   However,many of us are separated by distance and job functionssuch as being in different buildings, little day-to-daycontact and working together. As a result, we do not communicateor work well together. In my opinion, after we got voice mailand e-mail, the communication got worse and professionalrelationships ceased. 


    The City Manager is looking to bring his entiremanagement staff together so that we can accomplish projects and services moreeffectively and efficiently. Any ideas you may have would begreatly appreciated.


-Deborah, New York


A Dear Deborah:


   To be truly effective and lasting, any possiblesolution will need to contain both change management and strategic communicationcomponents.


ChangeManagement:
   The management teammust first be convinced that working together is the only way to achieve thegoals set by the City Manager. This could be achieved by conducting teambuildingmeetings to build respect and camaraderie, targeted focus groups to determinetheir exact concerns (compared to the City Manager’s perceptions) andbrainstorming sessions to elicit suggestions from the team.


    Of course, if distance is truly a concern,Webcasting is a viable alternative to in-person meetings. It has been Unifi’sexperience that if employees are involved in a decision process from thebeginning, they are more likely to adopt the solution as their own. In addition,the City Manager may want to consider adding communications as a measurement inthe management team’s performance reviews.


    Another approach is to involve all members ofthe management team in a “SWAT team,” which could be called upon to addressimmediate concerns. By rotating the membership, each member of the managementteam will have direct interaction with the other – building rapport and sharingresources and experiences.


StrategicCommunications: 
    The CityManager’s Office may want to implement a technical solution in the form of anon-line “global workplace” or “team room.” Similar to a chat room, ateam room enables all participants to share ideas in real time and to provideinput to each other. Many companies and municipalities use this technology toovercome the restraints of distance and to create a resource for “bestpractices.”


    The City Manager could also coordinate withother cities to share similar information via this on-line vehicle. Whilebuilding and implementing a full-blown intranet site might also be a solution, ateam room is simpler to create and maintain and it is more accessible to thosewho are not fully comfortable with this sort of e-communication solution.



SOURCE:Joe Donner, director, PricewaterhouseCoopers’ Unifi Network communicationspractice, Teaneck, NJ.


E-mailyour Dear Workforce questions toOnline Editor Todd Raphael at raphaelt@workforce.com,along with your name, title, organization and location. Unless you stateotherwise, your identifying information maybe used on Workforce.com and in Workforcemagazine. We can’t guarantee we’ll be able to answer every question.

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Laptop Theft New Technology Can Help Prevent a Costly Problem

Over319,000 laptop computers were stolen in 1999 alone, reports a study by SafewareInsurance. Those are just the thefts that are reported as claims to insurancecompanies; many stolen notebooks aren’t insured.


In the office
    Four out of ten laptop thefts happen at the office. Employees have had theirnotebooks stolen after leaving them unattended on their desks for less than fiveminutes. They run out to the reception area to pay a pizza delivery person onlyto find their computers gone when they return. Sometimes the thieves are evenfellow employees. In one San Francisco PR firm, the IT manager was found guiltyof systematically stealing computers and selling them hot on the street.


    Laptop theft cost businesses a staggering $1.6 million dollars last year,reports Computer Security Institute, which annually surveys 500 to 600companies. Some of the problem is the fact that employees using company-ownednotebooks simply aren’t careful enough about keeping them secure.


    “There’s a prevailing attitude that, ‘If it’s stolen, the company will justpay for it,'” says Courtney Celi, computer security channel manager forKryptonite Corporation, a manfacturer of bicycle and computer locks.


Loss-preventiontechnology
    Most employees are not held liable for the cost involved in replacing a laptopif it is stolen, notes Scott Anderson, sales manager for Computer SecurityProducts, a reseller of high-tech anti-theft devices. “When it’s your ownmoney involved, you tend to take better care of things than if someone else isfooting the bill.”


    What’s ironic is that for as little as $40, laptop users can easily protect aninvestment worth thousands. Kryptonite,creator of the famous “U” bike lock, has come out with a line oflaptop security devices at prices starting at $39.99. Styles range from braidedsteel cable locks and motion sensor alarms, which are recommended for travelingprofessionals, to the KryptoVault ,which locks the laptop down to the surface where it’s used most.


    However, some employees are lazy about using such physical deterrents – despitethe fact that most can be applied in seconds.”The biggest problem of all is getting people to actually use asecurity device, even if they are given one,” notes Anderson.


    Once a laptop is stolen, recovering it is virtually impossible unless it isinstalled with a high-tech tracing system.One such solution is Absolute Software’s Computrace, which is acombination of software and a monitoring service. Another is Caveo Anti-Theft™,available in early 2001, which features a tiny “micro-machinedtilt-motion” sensor that enables location-awareness in computer hardware.


Howtheywork
    Computrace uses “invisible stealth technology” to recover stolennotebooks. After it is installed, it works like this:

  • Thecomputer automatically logs into a “monitoring station” once aweek.
  • Ifthe laptop is stolen, Computrace can track the physical address of where thecomputer is being kept through either a telephone line or an InternetProtocol address.
  • Atheft recovery officer works with the local police authorities, usingtracking information to get your laptop back.

    Computrace’s recovery rate for stolen laptops is “higher than 95percent,” claims Anderson, whose firm sells the product. Often, it is theemployee himself who is the culprit. Oneman, not realizing that Computrace had been installed, reported to his boss thathis laptop had been stolen. The computer subsequently “called in” andrevealed its whereabouts – the employee’s home.


    One current client is 3Com Corporation, which has been using Computrace forthree years on the company’s more than 4000 laptop PCs. “The system is simple, affordable and very reliable. As the personresponsible for hundreds of thousands of dollars in PC inventory, I can’t affordnot to protect that investment — and I won’t trust anything but the best,”says Brad Minnis, 3Com director of business compliance/worldwide salesoperations.


    The other solution, Caveo Anti-Theft™,can actually distinguish between threatening and non-threatening situations,says Caveo vice president Gail Greenwald.

  • Itis integrated into the computer, operates independently of the operatingsystem, and functions whether the computer is on or off.
  • Theuser sets his or her “work zone,” which defines the range ofmotion that Caveo Anti-Theft interprets as “non-threatening.”
  • Whenthe armed laptop is carried beyond that zone, the device sounds audiblewarning signals, which increase in intensity.
  • Asit’s carried beyond the “theft perimeter” (set beforehand by theuser), the system goes into “alarm state.” This includes soundinga louder alarm, shutting down the system, preventing the computer from beingbooted up by the thief, and securing the keys to encrypted information, thusprotecting confidential information stored on the computer.

Protectingyour investment
    A full 57 percent of all companies suffered losses from laptop theft in 1999,reports Computer Security Institute. The loss of expensive computer hardware -as well as any intellectual property and confidential business informationstored on those laptops – can, over time, be devastating to a company’s bottomline. These high tech solutions can help.


Formore information

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Dear Workforce Where’s HR Headed

QDearWorkforce: 


   Isthe Human Resources occupation going to develop in the next 10 years?


–Chanvibol 


A Dear Chanvibol: 


   Thehuman resources profession will grow in size and importance throughout the nextten years. HR leaders will sit at the corporate strategic table, taking anincreasingly important role in planning, design, and direction of wherecompanies are going and how they’ll get there. 


   Competency-basedstaffing and workforce stability will become critical competitive advantagessought by savvy employers. The field will need more generalists, but alsospecialists. One specialty area will be employee retention, a vital aspect ofHR. The Workforce Stability Institute (www.employee.org)anticipates an emerging position of Employee Retention Specialist. HR willbecome more accountable and tuned-in to corporate profitability. 


SOURCE:Roger Herman, CEO of the Herman Group and author of “KeepingGood People,” “Lean& Meaningful,” and “Howto Become an Employer of Choice.” 


E-mailyour Dear Workforce questions toOnline Editor Todd Raphael at raphaelt@workforceonline.com,along with your name, title, organization and location. Unless you stateotherwise, your identifying information  maybe used on Workforce.com and in Workforcemagazine. We can’t guarantee we’ll be able to answer every question.

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Harassment How Far We’ve Come

I

can remember exactly what I was wearing when I was assaulted the first time:hiking boots with thick wool socks over navy-blue knee-socks, underclothes, andmy father’s very old 3/4-length light-blue plaid wool bathrobe, wrapped tightly.I was doing my laundry. My hair was still up, but the hours I’d spent in theairstream of the huge ventilation ducts had made it scraggly. 


    It was the first week of the first job, other thanbabysitting, I’d had. I was 20 years old. 


   I didn’t see him until I turned from the washing machine to leave. He blockedthe door of the small space, then pushed me back against the dryer. He was 35,maybe 40 years older than I, and it took me a moment to imagine what he had inmind; it was way beyond my everyday comprehension. 


   His hands moved like a fighter — while I was watching his left, his right camearound the other side. In my boots, I was as tall as he was, and I pushed himoff to one side so I could make it out the door. 


   I was sailing as an auxiliary Third Assistant Engineer on an oil tanker runningbetween Baytown, Texas, and the Eastern Seaboard. The man who assaulted me wasthe Chief Engineer. My cabin was just around the corner from his and I had toeat three meals a day at the same table with him in the officers’ mess. He alsohad the keys to every single compartment of the vessel, including my room. 


   There was no place to run — we were at sea — and no place to hide. I sleptevery night with a metal chair shoved at an angle under the doorknob. 


   I didn’t sleep well. 

Alot of people felt I had it coming when I took the job.

 As it turned out, that was only my first assault: There was a physical one onthe same vessel about a month later, by the Second Assistant Engineer, and athird, an attempted rape, about five years later, by a First Assistant onanother vessel. Those two were in the presence of witnesses. A few years afterthat, a grossly overweight captain chased me around his desk a few times when Iwent in to sign for my pay, and just before I quit for good, another chiefengineer almost dislocated my arm. 


   So what happened to these men? Did they lose their jobs? Were they demoted? DidI sue my employer, a major-league oil company? 


   No, no, no, and no. 


   This happened 20, 25 years ago, back when there were no laws against sexualharassment or creating a hostile work environment. A lot of people felt I had itcoming when I took the job; I don’t know how many times I was told that womendon’t belong on ships. 


   Times have changed. 


   Though things like this still happen, it’s been a long time since I talked toanybody who was experiencing anything like what I went through for so manyyears. Large companies have developed extensive training programs to make surethat all employees are aware of both the letter and the spirit of lawsprotecting employees from sexual harassment and hostile work environments. Hugelawsuits have been filed and won on behalf of employees, and upper-levelmanagers are well aware of the dangers of ignoring complaints — both to theircompanies’ bottom lines, and to their own careers. 


   Occasionally, people, usually men, have been wrongfully accused of violatingthese laws, which is a travesty that damages innocent employees while it weakensjustified claims. 


   But given the acceptance and prevalence of this type of bad-boy behavior not somany years ago, and how vastly improved the work environment has become for mostemployees, I think it’s a price that had to be paid.

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What You Should Know About Medical Leave

F

irst,a brief overview of the law.


Whenthe FMLA applies


   Any company or organizations with 50 or more employees within a 75-mile radiusis subject to the provisions of the Family and Medical Leave Act (FMLA). TheFMLA provides eligible employees with up to 12 weeks of unpaid leave during a12-month period so that employees can attend to serious medical conditions, beavailable for the births or child adoptions, or to care for a parent, spouse orchild who requires serious medial attention.


   It is important to note that not all employees are eligible for FMLAleave. For example, only employees who have worked for a company for at least 12months, and have worked for at least 1,250 hours with that employer during theprevious 12-month period, may request leave.


   An important provision of the FMLA is that it guarantees that — after takingFMLA leave — an employee will be able to return to his or her position, or anequivalent one. Also significant is that FMLA may be taken intermittently,instead of all at once, in some circumstances.


   These issues present a real challenge to employers who must determine when leaveis appropriate. Intermittent leave may, for example, make it more difficult foran employer to track employee attendance and enforce disciplinary measures ifabuse is suspected.


   In order to appropriately assess whether an absence is FMLA-related, HR musttake steps to understand the reasons for an employee’s medically-relatedabsence. The issue becomes increasingly complicated if the “serious healthcondition” that is the basis for the leave evolves into a disability. Underthose circumstance, an employer may be required, under the Americans withDisabilities Act (ADA) to provide, as an accommodation, time off in excess ofthe 12-week FMLA leave. The question then becomes whether or not the leaverequested presents an undue hardship to the company.


DOLregulations and the FMLA


   The Department of Labor (DOL) issues “guidelines” to employers on howto properly comply with FMLA. Though these guidelines do not have the force oflaw, they are generally referenced by courts interpreting and enforcing thatAct.  However, a number of recentlegal decisions have criticized the DOL for issuing guidelines that revise theotherwise clear language of the FMLA and that, in effect, extend theentitlements granted under the FMLA.


   The regulations addressed by federal appeals courts both deal with employersnotifying employees once the employees have requested leave. The firstregulation automatically entitles employees to 12 additional weeks of leave iftheir employer fails to designate requested leave as FMLA leave. The secondregulation entitles any employee who requests leave and is not informedof ineligibility for FMLA leave to automatic eligibility under the FMLA.


Theinformation contained in this article is intended to provide useful informationon the topic covered, but should not be construed as legal advice or a legalopinion. Also remember that state laws may differ from the federal law.

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What Youre Allowed to Do Under the FMLA

E

mployersshould not be tempted to disregard the DOL’s guidances and regulations,especially since the courts rely upon these guidances to help interpret the FMLA.


 


   Theyshould instead remember that the regulations do not have the power to change oramend the existing language of the Act. This is important because many of theDOL’s regulations remain unchallenged, rendering them viable and instructive. Further, many DOL regulations have withstoodchallenges in court. The regulations include three actions that employers arespecifically  permitted to take when reviewing leave requests:


 


1.  Medical certification may be requested. Claims of “seriousmedical conditions” must be documented and certified. The certificationshould include relevant medical facts that support the health care provider’sdesignation of the condition as “serious” for purposes of the FMLA.


 


2.  Second and third opinions are permissible. If employers havereason to doubt a medical certification, they may require employees to getsecond and even third opinions, at the employer’s expense. The health careprovider who will offer the second opinion may be designated by the employer solong as the provider is not employed in the company’s medical department. Untilthe second opinion is provided, the employee is provisionally entitled tobenefits under the FMLA.


 


3.  Requests for recertification are permitted. If there is a chronicor long-term medical condition, if absences change significantly, or there isreason to doubt the employee’s stated reasons for leave, an employer may requesta re-certification. However, second or third opinions on re-certification arenot permissible. 


   Notonly are these actions prudent, but may support an employer’s defense in an FMLAmatter. 3d U.S. District Court of Appeals, in fact, specifically cited anemployer’s failure to take these actions as an inadequacy in the administrationof an employee’s request for FMLA leave. In Victorelli v. Shadyside Hospital,128 F.3d 184 (3d Cir. 1997). In that case, the Circuit Court, which coversPennsylvania, New Jersey, Delaware, and the Virgin Islands, chided the Hospitalfor not taking the actions that were clearly available, as doing so might havehelped the hospital deliver a prompt and appropriate determination regarding anemployee’s request for FMLA leave. 


Whatemployers should do
   Ifan employee requests a medical leave, it is imperative that to review therequest carefully, and to examine all supporting information and documentation,in order to determine all obligations under the FMLA. Because the provisions ofthe Act are complex, it helps to approach each request carefully, taking care torequire medical certification, get additional medical opinions and requirere-certification for chronic illnesses. It is also important to apply theprocedures uniformly to all requests so that it is clear to your employees thatthere is a procedure for processing FMLA requests. 


   Institutingthese precautions helps to effectively verify and respond promptly to requests,and should help to prevent FMLA violation claims. Further, by attending torequests immediately, employees can be provided with accurate informationregarding their eligibility and the appropriateness of their requests. Failureto act quickly and in accordance with DOL regulations leaves employers at riskof costly and time-consuming lawsuits, and the attendant business disruption anddamages that may result. 


Theinformation contained in this article is intended to provide useful informationon the topic covered, but should not be construed as legal advice or a legalopinion. Also remember that state laws may differ from the federal law.