4/20/2015. How Do You Spell Ethics? F-M-L-A FMLA FMLA. Bill Wright A microcosm of U.S.

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1 How Do You Spell Ethics? F-M-L-A Bill Wright FMLA A microcosm of U.S. labor law Congressional purposes for the FMLA include balancing work and family life. [T]o balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity;... FMLA The legal justification for the statute is a moral judgment. What (if anything) does professional ethics require in light of the moral dimension of labor law? Attorneys (Colorado Rules of Prof. Conduct) HR Professionals ( Code of Ethics) 1

2 Workplace Issues Privacy & Paternalism: Constructive Notice; The Stalwart Employee. Extensions of Altruistic Principle: Relief Care. Balance with Employer Interests: Abuse of Leave Privileges. Core Principles; Intent; Guidelines. Core Principle: Professional Responsibility. Intent: To encourage social responsibility. Guidelines: 3. Comply with the law. 6. Advocate for the appropriate use and appreciation of human beings as employees. 2

3 Core Principle: Fairness and Justice. Intent: To create and sustain an environment that encourages all individuals and the organization to reach their fullest potential in a positive and productive manner. Guideline: 2. Treat people with dignity, respect and compassion to foster a trusting work environment free of harassment, intimidation, and unlawful discrimination. Core Principle: Fairness and Justice. Intent: To create and sustain an environment that encourages all individuals and the organization to reach their fullest potential in a positive and productive manner. Guideline: 2. Treat people with dignity, respect and compassion (to foster a trusting work environment free of harassment, intimidation, and unlawful discrimination). Colorado Rules of Professional Conduct: Rule One (point one): Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 3

4 Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant.... It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. 4

5 3. A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations. 4. Matters that go beyond strictly legal questions may also be in the domain of another profession.... Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts. vs Advocate for the appropriate use and appreciation of human beings as employees. Treat people with dignity, respect and compassion. Legal terms to justify HR policies. Obey the law. Competence. Use moral terms to explain. Unless the client limits your role to technical advice. Open to deferring to HR, but often required to cast the deciding vote between conflicting compliance and other HR concerns. 5

6 Constructive Notice When unexpected performance issues arise, consider whether the employee s circumstances have changed and investigate root cause. Barriers: Employee privacy and concern for an effective workforce. When unexpected performance issues arise, follow usual procedure for investigation, discipline. Decision-maker should conduct investigation. Constructive notice is an additional extra-statutory imposition by activist courts. Abuse of Leave When an employee, on LOA for medical condition that prevents work, moonlights in a second job, investigate and, if proven, terminate employment for fraud. Barriers: compiling appropriate evidence. Leave considerations are based on certifications employee provides, not on actual employee s health. Limit availability of pay for employees on LOA. Identify the occurrence from employee perspective. E.g. Employee is injured, poor performance, asks for accommodation. Triage the situation with common sense. Use ambulance or police if necessary. (Justify the expense as risk management in light of possible jury trials.) Consider whether employee had notice. Collect information from the employee. 6

7 Respect employee privacy. Apply counterweight of company interests only at this stage (and when writing policy). Provide forms to collect needed information. Communicate over missing information. Use the law as How-to manual. Apply time limits and limits on LOA mechanically, and then turn to personal leave. Over-communicate. When in doubt, communicate again. Approach fraud claims with caution. Why shouldn t the employee recuperate on the beach? See the tri-fold checklist in the materials. 7