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.
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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.
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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.
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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.
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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
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.
