January 31, 2012

DOL Proposed Amendments to FMLA to Affect Military and Airline Crews

Filed under: Employment Law,FMLA — Olivia @ 3:38 pm

The Family and Medical Leave Act of 1993 (FMLA) has undergone several amendments over the years intended to expand its reach and simplify administration.  From the Department of Labor:

“The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to twelve workweeks of FMLA leave in a 12-month period for the birth, adoption or placement of a child, to care for a family member with a serious health condition, or because they are unable to work due to their own serious health condition. The FMLA was amended in 2008 to provide an expanded leave entitlement to permit eligible employees who are the spouse, son, daughter, parent, or next of kin of a servicemember (National Guard, Reserves, or Regular Armed Forces) with a serious injury or illness incurred in the line of duty to take up to twenty-six workweeks of FMLA leave during a single 12-month period to care for their family member (military caregiver leave), and to add a special military family leave entitlement to allow eligible employees whose spouse, child, or parent is called up for active duty in the National Guard or Reserves to take up to twelve workweeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member (qualifying exigency leave). The Department issued an earlier set of regulations implementing and interpreting these amendments.”

This week, the DOL announced its intention to publish a Notice of Proposed Rulemaking that would implement and interpret some statutory amendments to the FMLA.  This NPRM is now available for public comment.  The major provisions of the NPRM include:

  • the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
  • a flexible, three-part definition for serious injury or illness of a veteran;
  • the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
  • the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
  • inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
  • the addition of a special hours of service eligibility requirement for airline flight crew employees; and
  • the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

Once available, the public is invited to submit comments via Regulations.gov.

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October 28, 2011

HR Fact Friday: Employment Law News Briefs

Filed under: Employment Law,FMLA,General HR Buzz — Paul @ 6:00 am

Here are a few interesting employment law news briefs:

First, the Judiciary Committee of the United States House of Representatives recently approved a bill (HR 2885) to reform the employment verification system. Among other things, the bill would preempt state verification laws, create a voluntary biometric verification pilot program, phase out the use of paper I-9 forms and replace them with a modernized E-Verify system.

Second, a Pennsylvania federal court has found that an employer’s failure to return the calls of an employee while she was out on leave under the Family and Medical Leave Act (FMLA) could possibly be illegal retaliation for taking such leave. According to the lawsuit, the employer repeatedly failed to communicate with the employee regarding the details and logistics of the leave.

Third, in October of 2011 the Equal Employment Opportunity Commission (EEOC) filed three lawsuits against Utah employers alleging they had committed national origin, pregnancy and/or race discrimination or harassment. Finally, maybe it is time to double check and make sure that you are retaining employment records for the right amount of time.

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October 18, 2011

Proposed Amendment: FMLA Coverage For Domestic Violence Victims

Filed under: Employment Law,FMLA — Tags: — Olivia @ 6:30 am

Tragically, domestic violence is far-reaching and affects so many that it is unlikely any of us could say we have not been touched by it – either directly or someone we know.  In recognition of National Domestic Violence Awareness Month, Rep. Lynn Woolsey (D-CA) reintroduced the Domestic Violence Leave Act (H.R. 3151), which would expand the Family and Medical Leave Act (FMLA) to include victims of domestic violence.

According to the Safe@Work Coalition:

  • 96% of domestic violence victims who are employed have experienced problems at work resulting from the abuse or the abuser directly.
  • Among women, 50-85% of those abused have missed work because of it; more than 60% reported being late to work.

Individuals who are attempting to recover from the effects of abuse could require medical attention, legal consultation, counseling, or other related activities that occur during their work hours.  Currently, FMLA allows employees to take unpaid leave for their own (or a family member’s) medical condition, but does not provide for the expanded needs of domestic violence victims and their families.  Several states currently have provisions that include domestic violence as part of their FMLA coverage.

Under the proposed bill, victims of domestic violence, sexual assault, or stalking – or the employee’s family member (including domestic partner, same-sex spouse, or adult children) – may use leave in a variety of ways.  Some examples include: medical attention for injuries; legal assistance; participating in support groups; and any other activity necessitated by the abuse.

Employers must keep all evidence of the abuse in strict confidence, except when necessary to protect the victim or family or assist with documentation of the abuse.  In the absence of third party documentation, a worker can meet FMLA’s certification requirements by providing a written statement.

“Our primary goal must be to stamp out domestic violence altogether.  But until then, we need to help those who need time off to deal with its effects,” said Rep. Woolsey, a former human resources executive. “By providing this kind of workplace flexibility, we can create a healthy, supportive workplace environment that fosters a productive and successful business.”

Washington DC Employment Law Update Blog

Congresswoman Lynn Woolsey’s Press Release

HR News & Views: Proposed Amendment Would Expand FMLA Coverage to Grieving Parents

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August 31, 2011

Weekly Wednesday Acronym – FMLA

Filed under: Employment Law,FMLA,General HR Buzz — Joyce @ 11:46 am

The Family and Medical Leave Act (FMLA) is difficult for even the most experienced HR person to administer.  There are many pitfalls and opportunities to make mistakes.  One of the most confusing items is understanding eligibility – both for the company and the employee.   Below are some Q&A’s which define eligibility requirements.

1)       Do you really have 50 or more employees or 50 or more employees within a 75 mile radius?

  • You must have had 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.  Therefore employees aren’t eligible for FMLA leave the day you “hit” 50 employees.
  • Employees on paid or unpaid leave are counted toward the “50” as long as they are expected to return.  Part time employees are also counted.

2)       Has the employee been working for at least 12 months (not necessarily consecutive)?

  • If he’s been on the payroll for any part of a week, including during paid or unpaid leave during which other benefits have been provided (e.g., worker’s comp or group health) then the week counts.  Time spent in active duty military service counts toward eligibility.

3)       Has the employee worked at least 1250 hours during the 12 month period immediately before the leave?

  • Whether 1250 hours have been worked is determined according to “compensable hours” standards of the Fair Labor Standards Act (FLSA).
  • If accurate records aren’t available or if exempt employees are involved, then the employer has the burden to show that the employee hasn’t worked the 1250.

4)       Has the employee already exhausted the amount of leave available?

  • An eligible employee is entitled to a total of 12 workweeks of leave during a 12 month period or 26 weeks for Servicemember (Caregiver) leave.  How do you define your leave period?  Is it the best definition for the company?

By answering these questions, you should have a good understanding if your company falls under FMLA guidelines, along with individual employees.  The DOL has a great fact sheet that you may find useful:    http://www.dol.gov/whd/regs/compliance/whdfs28.htm.

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August 25, 2011

Proposed Amendment Would Expand FMLA Coverage to Grieving Parents

Filed under: Employment Law,FMLA — Olivia @ 11:13 am

Most of us are familiar with the Family and Medical Leave Act, which provides up to 12 weeks of unpaid leave to employees of covered employers. Since its inception, FMLA has expanded to include care for military service members. I can remember the relief I felt when I learned that I would be eligible to take time off to spend with my newborn daughter in 2001. The existence of FMLA has provided a measure of security for many Americans.

In 2004, Kelly Farley was a grieving father who realized his employer would not allow him to take protected FMLA leave due to the death of his daughter. Instead, he applied for leave to care for his severely depressed wife. Out of his sorrow, the Grieving Dads Project was born.

Together with Barry Kluger, a fellow grieving father, Farley began a petition calling for an amendment to FMLA that would allow a parent to qualify for leave after the death of a son or daughter. The petition now has a total of over 12,000 signatures.

Senator John Tester (MT) introduced S1358, the Parental Bereavement Leave Act of 2011 in July. The bill has been referred to committee at this point.

This amendment would give grieving parents an option to take time off work without fear of losing the security of knowing the job will be there when they are ready to return. If you support this amendment, take a moment to sign the petition and contact your state senators.

More Information:

The Grieving Dads Project

Petition for the Parental Bereavement Amendment

Family and Medical Leave Act

Contact Your Senators!

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April 6, 2011

Weekly Wednesday Acronym – DOL

Filed under: Compliance,Employment Law,FMLA,General HR Buzz,OSHA — Joyce @ 10:39 am

This week’s weekly acronym is one we are most likely very familiar with – DOL – the (dreaded) Department of Labor.  In fact, you may have their website bookmarked on your computer for quick reference. 

As you know, the DOL is the federal agency responsible for administering and enforcing a large quantity of federal labor laws.  Below is a partial list of agencies and labor laws the DOL is responsible for (which you will note contains even more acronyms):

  • Employee Benefits Security Administration (EBSA)
    • Continuation rights for benefits (COBRA), privacy rights for benefits (HIPAA)
  • Wage & Hour Division (WHD)
    • Fair Labor Standards Act (FLSA) – overtime pay, child labor
    • Family Medical Leave Act (FMLA)
  • Bureau of Labor Statistics (BLS)
  •  Occupational Safety & Health Administration (OSHA)
    • Workplace health and safety, whistleblower protection
  • Office of Federal Contract Compliance Programs (OFCCP)
  • Office of Workers’ Compensation Programs (OWCP)
  • Veterans’ Employment and Training Services (VETS)
    • Veterans’ rights to reemployment (USERRA)

It is obvious there isn’t much in our human resources world that doesn’t involve the DOL in some way, shape or form.  The DOL has issued a number of “Fact Sheets” which are very helpful in understanding and interpreting the various labor laws.  I would encourage you to visit their website, as it is a great resource for human resource professionals.  Their homepage is http://www.dol.gov, and for a complete summary of the DOL’s areas of responsibility, please visit http://www.dol.gov/opa/aboutdol/lawsprog.htm.

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December 14, 2010

“Access to Justice” Gives Employees New Avenue to Sue Employers

Filed under: Employment Law,FMLA,General HR Buzz,Legal Issues — Mike @ 6:58 am

Here’s some interesting news: If the Department of Labor is too overloaded to handle your employee’s FLSA or FMLA complaint, a new federal program will help that worker get in touch with a lawyer who can pursue the matter.

The collaboration between the Department of Labor and the American Bar Association is the product of President Obama’s Middle Class Task Force.

A recent press release from the White House reads:

“The Department of Labor and the American Bar Association (ABA) (have) announced a collaboration to help workers resolve complaints received by DOL’s Wage and Hour Division (for) not getting paid the minimum wage or not being paid overtime, or being denied family medical leave.

“Beginning on December 13, 2010, complainants whose cases cannot be resolved by DOL because of limited capacity will be given a toll-free number to a newly created system where they are connected to an ABA-approved attorney referral provider if there are participating attorneys in their area.

“In addition, if DOL has conducted an investigation, the complainant will be given information about the findings to provide to an attorney who may take the case, including the violations at issue and any back wages owed.

“DOL has also developed a special process for complainants and representing attorneys to obtain relevant case information and documents when available.”

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August 11, 2010

DOL Expands Definition of “Son or Daughter” for FMLA and Includes Non-traditional Parents

Filed under: FMLA — Jane @ 3:01 pm

The U.S. Department of Labor (DOL), in Administrative Interpretation No. 2010-3, has expanded the definition of son/daughter for the purposes of childcare leave under the Family and Medical Leave Act.  Under the FMLA, eligible employees are entitled to take up to 12 weeks of leave for the birth, adoption, or placement of a child or to care for a child with a “serious health condition.”   FMLA regulations state that “son or daughter” includes a “biological, adopted or foster child, stepchild, legal ward, or a child of a person standing “in loco parentis” (in place of a parent).   “In loco parentis” includes those with no biological or legal relationship with a child.   According to the Administrative Interpretation, an employee qualifies under the “in loco parentis” test if: 1) S/he provides day to day care for the child OR  2.) S/he is financially responsible for the child.  Additionally, an employee need only provide a statement, that day to day care or financial support is provided, to qualify for the leave.  The DOL’s Interpretation can be found at: 

http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm

The Interpretation expressly mentions same sex couples as qualifying for this leave.  It could also include grandparents, siblings, aunts, uncles and other family members or friends. 

Note, however, that the FMLA still does not require leave for unmarried employees to care for their seriously ill partners.

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July 30, 2010

HR Fact Friday: Department of Labor to Conduct FMLA Study

Filed under: FMLA — Tags: , , , — Paul @ 12:09 pm

The Department of Labor next year will conduct a survey on how employees are using the Family and Medical Leave Act, Labor Secretary Hilda Solis announced Tuesday, July 20.

The survey, to be done by the department’s Wage and Hour Division, is intended to “provide insight into how families” use FMLA leave, as well as information on regulatory changes, among other things, the Labor Department said.

The Department of Labor has done several surveys on the FMLA since 1993, when the FMLA legislation was approved—the Clinton administration’s first major domestic initiative to pass Congress.

The most recent survey, released in 2007, estimated that 8 to 17.1 percent of employees took FMLA leave in 2005.

The FMLA gives employees the right to take up to 12 weeks of job-protected unpaid leave a year because of certain family situations, such as the birth or adoption of a child, to take care of a sick child, or to care for their own medical problems.  

Source: Workforce.com

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July 12, 2010

Around the States

Filed under: FMLA — Jane @ 1:48 pm

New Connecticut legislation has expanded the state’s “mini-COBRA law”.  Both large and small employers will be affected as the law extends the health continuation coverage from 18 months to 30 months.

Another new Connecticut law, effective October 1, 2010, entitles employees who are family violence victims to take leave from work.

The Connecticut Superior Court has ruled that both in-state and out-of-state employees are included in determining whether an organization must comply with the state FMLA [ Velez v. Mayfield].

Effective July 5, 2010, in accordance with a state indoor smoking ban, virtually all Wisconsin workplaces must be smoke free.  Wisconsin has become the latest state to address worker misclassification (i.e., incorrectly treating employees as independent contractors) with passage of SB 672 and Assembly Bill 929.  The new laws increase monitoring and penalties for such misclassifications.  The federal government and many states around the country are addressing the “independent contractor issue.”

Another new Wisconsin law (SB 585) prohibits discrimination against workers who decline to attend political or religious meetings held by their employers.

Nevada’s minimum wage is increasing on July 1, 2010.  Minimum wage for employers offering qualified health benefits to their employees will be $7.25 per hour (the current federal rate) and $8.25 for those not offering benefits.

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