The U.S. Department of Labor (DOL) published a final rule that implements two major statuary expansions to the Family and Medical Leave Act (FMLA). The amended FMLA broadens military caregiver and qualifying exigency leave provisions set by the National Defense Authorization Act (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA), covering service members and their families. Employers with 50 or more employees are required to comply with the extended provisions as well as post the new FMLA poster and use the new Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave Form.
New Jersey employers awaiting the release of the Pay Equality and Notice will have to wait a little while longer. On January 7th, a notice of proposal containing a proposed version of the new poster was published by the New Jersey Register; but an error was discovered on the notification. The notice is currently undergoing revisions and will be reviewed again later this month.
The induction of the Patient Protection and Affordable Care Act brings forth new guidelines for employers including those participating in a Professional Employer Organization (PEO) relationship. The Patient Protection and Affordable Care Act requires certain employers to report the aggregate value of employer-sponsored eligible health plans on Form W-2 (in Box 12, Code DD) starting January 2013. The aggregate value of an employer-sponsored plan includes both employer and employee contributions made during the year. Costs incurred by Long- Term Care, Stand-alone Dental and Vision Plans and Archer Medical Savings Accounts are excluded from the new reporting requirement.
A surge in class-action lawsuits for inadequate employee meal and rest periods has sparked debate and questions for the past few years. Confusion about whether an employer is required to make meal periods available to employees or whether the employer is required to ensure employees actually take breaks has created a sense of ambiguity for employers and employees . For employers in California the answers to these questions came in the form of a ruling in the case Brinker Restaurant Corporation v. Superior Court. According to the Brinker case, Employers have a duty to provide meal and rest periods but are not required to ensure work is not performed during that time.
As of July 1st 2012, the Department of labor (DOL) requires service providers to disclose all direct and indirect fees associated with the management of 401 (K) retirement plans. The DOL’s intent for the implementation of the fee disclosure rules is to provide investors (employees) with a breakdown of fees as well as to encourage employers who sponsor these plans to “shop” around for service providers and compare costs.
Many employers use background checks to combat theft and fraud as well as prevent workplace violence and negligent hiring lawsuits. About 92% of companies run criminal background checks on some or all employment applicants. Although the use of background checks serves a practical purpose in locating the “right” employee for the job, the EEOC warns that using of an individual’s criminal history when making employment decisions may be discriminatory under Title VII of the Civil Rights Act of 1964.
The U.S. Equal Employment Opportunity Commission (EEOC) announced an increase in complaints of retaliation for a second year in a row. In the 2011 Fiscal Year, the EEOC received a record 99,947 charges of employment discrimination, which trumps the 99,922 claims filed in 2010. Specifically, statistics show claims of retaliation accounted for 37.4 percent of the charges, surpassing complaints regarding violations of Title VII (discrimination on the basis of sex, race, color, religion and national origin).
Retaliation occurs when an employer takes adverse action against an individual because the individual partakes in a legally protected activity or participates in a complaint against the employer. Most retaliation suits are filed by employees who claim their bosses fired or mistreated them after they filed a discrimination claim or participated in a “whistleblowing” activity. For an employee to assert a retaliation claim the following must be present: (1) the employee participated in a protected activity (i.e. opposing an unlawful activity); (2) there was an adverse employment action present (i.e. denial of raise or termination); and (3) there is a connection between the employees’ involvement in the protected activity and the adverse action.
As of December 31 2011, the Family and Medical Leave Act (FMLA) Certification forms expired, leaving many employers wondering what forms to use in attempts to remain in compliance and when new forms will be released. The Department of Labor (DOL) announced that the outdated forms could still be used although these forms lack mention of important regulations, including 2010 Amendments for Military Family Leave and the Genetic Information Nondiscrimination Act of 2008 (GINA).
The forms were initially approved in late 2008 by the Office of Management and Budget (OMB) with a three (3) year expiration date (the maximum time frame allowed). The DOL has released different versions of the forms with temporary expiration dates during the past few months in anticipation that the OMB would approve the final version soon.
Many employers find it difficult to accurately calculate overtime due to complex calculations and changing regulations. The burden falls on the employer to properly classify an employee (as exempt or non-exempt) and provide compensation in compliance with the Fair Labor Standards Act (FLSA).
New York Employers, are you prepared to comply with the Wage Theft Prevention Act? The New York Wage Theft Prevention Act outlines an employer’s responsibility to communicate an employee’s terms of employment in a written notice. Effective February 1st, 2012, employers must present the written notice to employees at the time of hire and annually thereafter (on or before February 1st of each subsequent year).
The Department of Transportation (DOT) published a Final Rule restricting the use of hand-held mobile phones for drivers of Commercial Motor Vehicles (CMV). Effective January 2012, CMV drivers (as defined in Part 390) - are prohibited from using hand–held mobile devices while driving. This rule prohibits all push-to-talk functional phones, but hand–free devices such as mobile phones with a speaker phone option and one-touch dialing are permissible.
The Rule also prohibits motor carriers (employers) from allowing or requiring drivers to use a hand-held mobile device while driving. The employer is held responsible for employee violations if the employee is acting on behalf of the employer and/or under the employer’s direction.
Changes to the Illinois Workers’ Compensation System will go into effect on September 1st 2011 to decrease costs and alleged fraud associated with claims. The Illinois Workers’ Compensation System was designed to settle cases between employers and injured employees through a state–run process that eliminates the need for litigation.
California Governor Jerry Brown recently signed bills enacting several new employment statutes that will impact the way employers conduct business. One Statue in particular, Section 2810.5, outlines an employer’s responsibility to communicate an employee’s terms of employment in a written notice. Effective January 1, 2012, employers must present the written notice to non-exempt employees at the time of hire and communicate the content in a manner that is deemed understandable by a “reasonable” person.
UPDATE: The National Labor Relations Board (NLRB) poster requirement was postponed due to a pending lawsuit challenging the legality of the new rule.
On April 17th 2012, the U.S. Court of Appeals for the District of Columbia placed a temporary hold on the implementation of the NLRB poster requirement, which was slated for launch on April 30th , 2012. The delay will remain in effect until the court resolves the pending appeal in NAM v. NLRB.
Many organizations provide their employees with mobile devices including laptops, PDAs and cell phones to help facilitate a work-life balance culture. Although providing mobile devices to employees can simplify work processes and provide real-time connectivity, employers are vulnerable to Fair Labor Standard Act (FLSA) violations when these devices are given to nonexempt employees.
Many States have enacted Unemployment Insurance (UI) reform in attempts to restore solvency to their system. At a time when many Americans depend on UI as their primary source of income, several States passed legislation to reduce benefits and restrict eligibility to obtain resources.
A report by the National Employment Law Project, an advocacy organization for employment rights of lower-wage workers, indicated that ten States enacted stricter unemployment laws in 2011. Notable changes include reducing the average check amount, implementing budget cuts to unemployment benefits, and enacting stringent UI eligibility requirements. According to the report, six States shortened the maximum duration of UI to less than 26 weeks; this regulation decreases the amount of weeks individuals can receive extended benefits.
According to the American with Disabilities Act (amended to American with Disabilities Act Amendments Act (ADAAA)), employees who request an extension for leave due to medical reasons cannot be terminated regardless of the length of leave. The Equal Employment Opportunity Commission (EEOC) prohibits leave policies that terminate employees who exhaust leave benefits because it is a violation the ADAAA reasonable accommodation clause.
A growing number of States recently passed legislation regarding the use of employment eligibility verification. At least six States passed new employment-related immigration bills including Alabama, Georgia, Indiana, Tennessee, Utah and Virginia. According to the National Conference of State Legislatures, State Legislators introduced 279 employment-related immigration measures during the first quarter of 2011. The surge in employment eligibility legislation has created a sense of ambiguity for employers attempting to navigate through changes and maintain compliance.