December 16, 2011

HR Fact Friday: FLSA Updates

Filed under: FLSA — Tags: , , , — Paul @ 6:00 am

There are some interesting things happening in the world of the federal Fair Labor Standards Act (FLSA), which requires overtime pay and a minimum wage for nonexempt workers and regulates when minors can work and what they can do. First, the Act got some recent news attention when GOP presidential candidate Newt Gingrich made some comments on whether the law unwisely limits work opportunities for minors. Second, the United States Senate is considering a bill (S. 1747) that would revise/update the requirements of the computer professional exemption. Finally, the United States Department of Labor (DOL), which enforces the law, is expected to soon issue new regulations regarding employer recordkeeping.

There is speculation that the anticipated regulations will require employers to classify their independent contractors as exempt or nonexempt. DOL has estimated that some 30% of workers are misclassified as independent contractors. The issue is creating a lot of litigation right now, even in some unexpected places. For example, a group of exotic dancers who have worked in various strip clubs in New England recently filed a lawsuit alleging they should be classified as employees instead of independent contractors. Imagine trying to figure out which white collar FLSA exemption might apply to them!

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August 30, 2010

What Are Clothes? The Department of Labor Weighs in and It’s More Complicated Than You Think

Filed under: Genetic — Tags: , , — Jane @ 1:52 pm

The Department of Labor’s Wage and Hour Division recently issued Administrator’s Interpretation 2010-2 which addresses the issue of what’s considered “clothes” for determining compensable (paid) time under the Fair Labor Standards Act (FLSA).   I bet that you never thought this was an issue?  But then again all bets are off when dealing with the FLSA. The definition of “clothes” (i.e., does it include protective equipment?) has changed over the years, often depending upon which political party is in office.    The DOL’s new interpretation states that protective equipment (e.g., rubber gloves, boots,  arm guards, etc.) is not considered clothing and time spent putting it on and taking it off may be considered work time, even if under a collective bargaining agreement, or customary practices, changing clothes is not.  Note, however, that while changing clothes (in contrast to protective equipment) may not be compensable under some union contracts, subsequent activities, like walking and waiting, could be.

Bottom Line:   If your workplace requires that employees change clothes or use protective equipment, it’s a good time to review your policies and ensure that your people are being paid appropriately.   If this isn’t part of your workplace, be thankful….because yes, it is as messy as it sounds.   See the Administrator’s Interpretation No. 2010-2, on the DOL web site at:

http://www.dol.gov/whd/opinion/adminIntrprtn/FLSA/2010/FLSAAI2010

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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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April 9, 2010

HR Fact Friday: Special HR Alert for Financial Institutions

Filed under: Employment Law — Tags: , , , , — Paul @ 7:09 am

Mortgage Loan Officer Doesn’t Meet Administrative Exemption 

Your World Just Got More Confusing

As if your HR world isn’t perplexing enough, the Department of Labor (DOL) has abandoned its former position (Opinion Letter, FLSA 2006-31) that mortgage loan officers could potentially qualify as exempt employees under the Administrative test of the Fair Labor Standards Act.  In a new “Administrator’s Interpretation” the DOL concludes that the earlier Opinion was based on an inappropriate assumption, that mortgage loan officers provide work directly related to an organization’s business operations.  The consequence for employers is that mortgage loan officers will generally be required to be treated as nonexempt and paid overtime.

(more…)

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March 19, 2009

DOL Publishes Model Notices for COBRA Subsidy

Filed under: COBRA — Tags: , , — Jane @ 2:43 pm

The Department of Labor has just published Model Notices that can be used to help comply with the new COBRA subsidy requirements.  They can be found at:  http://www.dol.gov/ebsa/COBRAmodelnotice.html.    You’ll notice that there are several notices available to be used depending upon the circumstances.  Good luck navigating through them and figuring out what to do.

You’ll remember that the American Recovery and Reinvestment Act, signed on February 17th, has increased  employers’ COBRA obligations  significantly.  Additionally, very small employers not subject to the federal law, but who have comparable state “mini-COBRAs,” are also in for some big changes.  The Act of 2009 requires immediate attention by most employers.

(more…)

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March 10, 2009

A New OFCCP Record for Recovery of $$$ From Affirmative Action Contractors

Filed under: Affirmative Action — Tags: , , , , — Jane @ 1:40 pm

In 2008 the Office of Federal Contract and Compliance recovered a record $67 million dollars from Affirmative Action contractors who had allegedly discriminated against employees and applicants based upon minority or gender status.  This is a 133% increase over what was recovered in 2001 and was up from $51 million in 2007.  Nearly 25,000 individuals shared in the back pay and other damages collected.  The damages, bad publicity, and increased federal activity in this area should prompt those contractors and subcontractors required to develop Affirmative Action plans to do so.

(more…)

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February 25, 2009

President Obama Revises Labor Executive Orders

Filed under: Employment Law — Tags: , , , , , , — Paul @ 10:39 am

A recent national SHRM article describes how President Obama has revised some federal labor orders. Here are excerpts from the article:  Two of the orders signed by Obama directly contravene directives signed by [former President George] Bush.

One of Obama’s new directives revokes Executive Order 13201, which required federal contractors to post a notice of nonunion employee rights concerning payment of union dues—also known as the Beck Poster. According to Obama’s order, federal contractors will no longer use the Beck Poster and will be required to post another notice that the U.S. Department of Labor (DOL) will develop.

(more…)

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January 22, 2009

ADA & FMLA Expansion

Filed under: ADA & Disability — Tags: , — Paul @ 7:54 am
The arrival of January marks the effective date of major changes to the Americans with Disability Act (ADA) and the Family and Medical Leave Act (FMLA).

The ADA Amendments, effective January 1, 2009, make it easier for employees to show a disability. Before the amendments, many ADA claims were thrown out of court on this issue. From now on, the focus instead will be on how well the employer assisted the possibly disabled employee. HR persons now must “re-learn” parts of the ADA. You can read a summary of the ADA changes here.

Effective January 16, 2009, the FMLA also has been expanded. It now covers leave to care for family members injured in active military duty or to assist a family member preparing to go on active military duty.

New FMLA regulations from the United States Department of Labor (DOL) expand employer notice obligations and otherwise significantly revise the details of FMLA compliance. It is time for your FMLA specialist to go back to FMLA school. You can read a summary of the FMLA changes here.

Here is a summary from the DOL

New FMLA forms are available here

You can see the new, required FMLA poster here

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November 17, 2008

If You Can’t Sleep…The New FMLA Regulations Are Available

Filed under: FMLA — Tags: , , , , — Jane @ 3:20 pm

After two years the Department of Labor has just released its final regulatory updates to the Family Leave Act. These new regulations we be effective on January 16, 2009.

While attorneys and other “interested” observers are pouring over the 201 page document published in the Federal Registry, it doesn’t appear, at first glance, to have any significant surprises or differences  from the proposed rules.

New guidance and “clarification” includes those involving the two new forms of FMLA leave…military caregiver and active duty leave, modifications regarding employer and employee notice requirements, and changes regarding medical certifications.

New guidance has also been added to implement the Supreme Court’s decision in Ragsdale v. Wolverine Worldwide (i.e., regarding penalties where employers fail to give proper notice), light duty, perfect attendance, and waiver of rights in settling FMLA claims. More details on these changes can be found at the Department of Labor website  www.dol.gov.

They will require changes in your FMLA policy.  As important as these new regulations are they may be overshadowed by what could happen in the next Congress.  With Democrats controlling the White House and Congress, look for more proposals to make substantive FMLA changes in the future. This will probably include lowering the coverage threshold from 50 to 25 employees and allowing workers to take leave for elder care, school-parental leave and domestic violence situations.  You will probably also see the new Administration support efforts to make FMLA leave paid, rather than unpaid.  Finally, efforts to require most businesses to provide employees with a certain amount of paid sick leave will also gain momentum.

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