I write a lot of policies. They come with the advisory work that I do, and I also gravitate toward those types of projects. In doing that work, one of my frustrations has been the increasing degree to which legislatures are imposing new legal obligations on employers – particularly, but not exclusively, with regard to paid and unpaid time off benefits – and mandating specific language be included in employer policies.
Today I want to focus on the wording requirements, because they can be so particular and such an affront to well-intentioned employers. Pet peeves, because they cause me so much pushback from my clients – are provisions like the New York City lactation accommodation law and the New York State paid sick leave law.
Specificity Feels Like Mandating Minutia
New York City requires employers to have a lactation policy with very specific provisions, the granularity of which can produce surprise or dismay from employers. Under the city’s law, the employer’s policy must include language that the employer will respond to a request for a lactation room within no more than five business days. The policy also must outline a procedure to follow when two or more individuals need to use the lactation room at the same time. New York State recently adopted its own lactation accommodation requirement applicable to private employers, and that law similarly requires a written policy that incorporates language about the five business day response time.
I draft the appropriate language, and then the conversations with my clients go something like this:
Client: Five days?!
Me: Yes, five business days.
Client: Of course we are going to be responsive. Why would it take us five business days to get back to our employee, and why does it have to be spelled out in the policy?
Me: I understand you will get back to people promptly, but New York City law says that language has to be there.
Client: And why do we have to spell out what happens if two people need the room at the same time? We’ll just work it out.
Me: I know you will, but again, the city requires it.
Some Provisions Are Effectively Meaningless
Another requirement that I have had to explain numerous times to clients is the provision under the New York State paid sick leave law that mandates employees be allowed to carry over any unused days from one year to the next, but allows the employer to cap the number of days used in any given year at the annual legal entitlement (i.e.: 40 hours or 56 hours, depending on the size of the employer). That conversation generally proceeds like this:
Client: What is this part about carrying over days but then not being able to use more than one year’s allotment? What is the point of that?
Me: It is intended to ensure that, for example, an employee who gets sick or injured early in the calendar year will have paid sick days available, carried over from the prior year.
Client: Okay, I get that. But we front-load the days at the start of each calendar year. Everyone starts with a fresh bank with no accrual time.
Me: I understand, and under New York City’s earlier version of this law, the city excused you from the carryover requirement if you front-loaded the days. Employers asked New York State to do the same, but when the state issued its regulations, it expressly rejected that exception.
Client: So we have to let employees carryover unused days, but we don’t ever have to allow them to actually use them?!
Me: Exactly.
My client comes away bewildered, and I am frustrated that legislators and regulators have so little confidence in employers that they feel the need to be this prescriptive.
Two Universes of Employers
New York City and New York State in particular, but a trend I see repeating itself throughout the country, are continuously proposing and to a lesser degree adopting new employment law mandates, especially with regard to protecting employees’ time away from work. Certainly there are employers that will only provide that which is legally required, and only when they feel they have no choice but to do so. Often in my experience those organizations employ mainly hourly workers, for positions at the lower rungs of the pay scale. The specificity written into the time off laws is intended to dictate obligations for those employers and thereby assure protections for their employees.
The challenge is that prescriptive legal mandates do not consider the other universe of employers – those that are vying to be an “employer of choice” and that tend to err on the generous side when it comes to leave and benefit policies. Those employers often want their handbook policies to reflect the organization’s commitment to the welfare of their employees by outlining expectations for appropriate behavior, offering a generous safety net of leave time and benefits for employees to recharge and address issues personal to them and their families, and empowering employees to manage their time accordingly.
As I recounted in the synopses above, the organizations that want to be employers of choice recoil at policy language that implies they would be anything but generous and responsive to employees’ accommodation and leave requests. They are striving for a friendly tone, not legalistic language. Increasingly they are experimenting with various versions of unlimited time off. “Take whatever you need, and we trust you to get the work done,” is the message they seek to send to their employees.
But prescriptive policies do not easily allow for that. Mandates regarding carryover, approval processes, notice and usage often necessitate that the policies in the handbook take a tone quite different from and more complex than the generous message that these employers wish to project.
Considerations for Legislators and Regulators
Legal mandates need to recognize and consider both realities – ensuring a safety net of protections for more vulnerable workers, and empowering more generous organizations to create the supportive culture to which they aspire. This means not only authorizing organizations to offer benefits and protections that are greater than those required by the law, but giving those organizations flexibility in their policy language, provided they can demonstrate in their implementation that the benefits employees receive meet or exceed that which the laws require.
By Tracey I. Levy
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