*By Michele L. Jakubs
Daylight savings time began yesterday, March 10th, with clocks “springing” forward an hour at 2:00 a.m. across the country (not including Arizona, Hawaii, and a few other places that do not observe the practice). This spring forward resulted in many third shift non-exempt hourly employees “losing” an hour of time if their shift occurred during this time. Employers need not pay employees for this phantom hour and need not consider it for purposes of overtime calculations under the Fair Labor Standards Act (“FLSA”).
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in wage and hour compliance and consulting. For more information concerning this time change and its impact on any state/federal wage and hour law, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
Monday, March 11, 2013
Form I-9 Gets Some Serious Work Done
*By Helena Oroz
Form I-9…even if you don’t know much about immigration law, you know that this one-page form is deceptively simple on the surface. Its purpose is relatively simple: it documents that you, as an employer, have verified each new employee’s identity and authorization to work in the United States. Unfortunately, complications often arise due to a variety of factors, among them a lack of understanding of the rules governing I-9 employer obligations and the variety of documents available to establish identify, employment authorization, or both.
The form itself never helped matters. Squished onto one page, a maze of lines and bold-faced smallish font with some boxes thrown in for variety, the old Forms I-9 (all of them), including their accompanying directions, could have used a serious makeover years ago.
Enter Form I-9 (03/08/13)N. Notably, the “Lists of Acceptable Documents” remain the same – only formatting changes were made to the actual text of the “Lists” page. So what’s new?
The U.S. Citizenship and Immigration Services’ “Handbook for Employers” has also been updated to include information about the revised Form I-9. Go to http://www.uscis.gov/I-9Central for more information and to download the revised Form I-9 and Employer Handbook.
*Helena Oroz regularly counsels employers on employment law compliance, including Form I-9 compliance, auditing, and best practices. For more information about recent changes to the Form I-9 or related questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Form I-9…even if you don’t know much about immigration law, you know that this one-page form is deceptively simple on the surface. Its purpose is relatively simple: it documents that you, as an employer, have verified each new employee’s identity and authorization to work in the United States. Unfortunately, complications often arise due to a variety of factors, among them a lack of understanding of the rules governing I-9 employer obligations and the variety of documents available to establish identify, employment authorization, or both.
The form itself never helped matters. Squished onto one page, a maze of lines and bold-faced smallish font with some boxes thrown in for variety, the old Forms I-9 (all of them), including their accompanying directions, could have used a serious makeover years ago.
Enter Form I-9 (03/08/13)N. Notably, the “Lists of Acceptable Documents” remain the same – only formatting changes were made to the actual text of the “Lists” page. So what’s new?
- Format
The form itself is now two pages instead of one, and includes clearer instructions on the form itself. Page one includes just Section 1 for the employee’s information and attestation of their work authorization (as well as the preparer’s or translator’s, if applicable). Page two is solely for the employer: Section 2 for review and verification of the employee’s documents, and Section 3 for reverification and rehires.
- Layout
Overall, the form looks cleaner: sections and fields are more readily distinguishable, more room is provided to fill in the information, and even the font got an update.
- Detailed Instructions
The old Form I-9 included just over two pages of introductory instructions, set up in columns. The new Form I-9 includes six pages of not just section-by-section, but detailed box-by-box instructions, without columns.
- New Fields
The new Form I-9 includes fields for an employee’s email address, telephone number, and foreign passport information (if applicable). Additionally, the previously designated “Maiden Name” box is now “Other Names Used.”
The U.S. Citizenship and Immigration Services’ “Handbook for Employers” has also been updated to include information about the revised Form I-9. Go to http://www.uscis.gov/I-9Central for more information and to download the revised Form I-9 and Employer Handbook.
*Helena Oroz regularly counsels employers on employment law compliance, including Form I-9 compliance, auditing, and best practices. For more information about recent changes to the Form I-9 or related questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Tuesday, February 26, 2013
The FMLA May Be Turning 20, But It’s Still Growing
*By Helena Oroz
Now that the FMLA has been around for two decades, one would think that, statutorily speaking, it’s all grown up. Apparently, the DOL thinks there is room for growth, and it has been busy.
As we previously reported in a Z&R Employment Law Alert (“When is a Child a Child? Department of Labor Issues New Guidance Concerning FMLA Leave for Children 18 Years and Older,” January 25, 2013), the Department of Labor (“DOL”) issued an Administrator Interpretation Letter in January that addressed when parents may take leave under the Family and Medical Leave Act (“FMLA”) to care for their adult children with serious health conditions. The clarifying interpretation and examples seemed to indicate greatly expanded circumstances under which a parent could take protected leave to care for an adult child with a serious health condition.
This month, the DOL issued a Final Rule revising certain FMLA regulations to reflect statutory amendments related to military family leave and airline flight crew employees, as well as clarifying provisions related to calculating intermittent leave, minimum increments of leave, and compliance with USERRA (Uniformed Services Employment and Reemployment Rights Act) and GINA (Genetic Information Nondiscrimination Act of 2008). Some of the highlights include:
*Helena Oroz regularly counsels employers on leave of absence including FMLA issues. For more information about recent changes to the FMLA or other leave questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Now that the FMLA has been around for two decades, one would think that, statutorily speaking, it’s all grown up. Apparently, the DOL thinks there is room for growth, and it has been busy.
As we previously reported in a Z&R Employment Law Alert (“When is a Child a Child? Department of Labor Issues New Guidance Concerning FMLA Leave for Children 18 Years and Older,” January 25, 2013), the Department of Labor (“DOL”) issued an Administrator Interpretation Letter in January that addressed when parents may take leave under the Family and Medical Leave Act (“FMLA”) to care for their adult children with serious health conditions. The clarifying interpretation and examples seemed to indicate greatly expanded circumstances under which a parent could take protected leave to care for an adult child with a serious health condition.
This month, the DOL issued a Final Rule revising certain FMLA regulations to reflect statutory amendments related to military family leave and airline flight crew employees, as well as clarifying provisions related to calculating intermittent leave, minimum increments of leave, and compliance with USERRA (Uniformed Services Employment and Reemployment Rights Act) and GINA (Genetic Information Nondiscrimination Act of 2008). Some of the highlights include:
- Qualifying exigency leave now includes leave for eligible employees with family members serving in both the National Guard and Reserves and Regular Armed Forces. Additionally, a new qualifying exigency leave category, parental care leave, provides for leave to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty.
- Military Caregiver leave now includes leave to care for covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness, in addition to current service members. The definition of “serious injury or illness” has also been expanded to include pre-existing injuries or illnesses of current service members that were aggravated in the line of duty.
- The effect of USERRA-covered service on FMLA eligibility has been clarified: Employers must count all periods of absence from work due to USERRA-covered service, for all military members (active duty and reserve), in determining an employee’s eligibility for FMLA leave.
- Calculation of Intermittent Leave/Increments of Leave: New language clarifies that an employer cannot require an employee to take more leave than necessary to address the circumstances that precipitated the need for leave; that FMLA leave may only be counted against an employee’s FMLA entitlement for leave taken and not for time that is worked for the employer; and that employers must track FMLA leave using the smallest increment of time used for other forms of leave, subject to a one hour maximum.
- post the updated FMLA poster, which is available here: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf
- use the updated FMLA certification forms, including a new form for certification of a serious injury or illness for a veteran, available here: http://www.dol.gov/whd/fmla/2013rule/militaryForms.html
*Helena Oroz regularly counsels employers on leave of absence including FMLA issues. For more information about recent changes to the FMLA or other leave questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Monday, January 28, 2013
NLRB on the Ropes: D.C. Circuit Holds Obama "Recess" Appointments to the NLRB Are Unconstitutional
*By Patrick J. Hoban
Today, the United States Court of Appeals for the D.C. Circuit ruled that President Obama’s recess appointments of three members to the National Labor Relations Board (“NLRB”) in January 2012 violated the United States Constitution. The Court, in Noel Canning v. NLRB, No. 12-1153 (January 25, 2013), ruled that the President unconstitutionally circumvented the Senate when he appointed Sharon Block, Terence Flynn, and Richard Griffin to the Board. As a result, every NLRB decision issued since January 4, 2012, is likely to be vacated because the NLRB did not have the three member quorum required to operate.
The President appointed Block, Flynn, and Griffin to the NLRB on January 4, 2012, as “recess appointments.” Because NLRB members are officers of the U.S. Government, the Constitution requires that the President submit nominations for the NLRB to the U.S. Senate for confirmation. The Constitution allows the President to make appointments during “the Recess” of the Senate, which has historically been understood as times when the Senate is unavailable to consider the nominee. On January 4, 2012, the Senate was operating pursuant to a unanimous consent agreement which provided that it would meet in sessions every three business days from December 2011 through January 2012. During this time, the Senate conducted some limited business, including convening the second session of the 122nd Congress on January 3, 2012.
In February 2012, an NLRB panel including two members appointed during “the recess” without Senate approval ruled that employer Noel Canning, a bottler and distributor, violated the National Labor Relations Act. Noel Canning appealed the decision and asserted that the NLRB’s decision must be vacated as it did not have a lawful, constitutionally legitimate quorum.
The D.C. Circuit agreed, held that the President’s recess appointments were unconstitutional, and vacated the NLRB’s decision. The Court noted that, “Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.” The Court further found that, under the Constitution, “recess” refers to the intercession recesses - or the period between sessions of the Senate when the Senate is, by definition, not in session and is unavailable to consider presidential nominations. As the Court explained, the President made the “recess” appointments on January 4, 2012, the day after Congress began a new session and not when the Senate was in “the recess.” The Court vacated the NLRB’s decision against Noel Canning because the Board did not have the minimum of three members needed for a quorum when the decision issued.
The implications of this decision are enormous. The Obama Administration will almost certainly appeal to the United States Supreme Court. If the decision stands, then hundreds of decisions which the Board has issued over the past year would become invalid. It also would leave the Board with just one validly appointed member out of five, essentially shutting it down until a legitimate quorum of three members exists.
Among the Board decisions which are subject to challenge under today’s ruling are:
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
Today, the United States Court of Appeals for the D.C. Circuit ruled that President Obama’s recess appointments of three members to the National Labor Relations Board (“NLRB”) in January 2012 violated the United States Constitution. The Court, in Noel Canning v. NLRB, No. 12-1153 (January 25, 2013), ruled that the President unconstitutionally circumvented the Senate when he appointed Sharon Block, Terence Flynn, and Richard Griffin to the Board. As a result, every NLRB decision issued since January 4, 2012, is likely to be vacated because the NLRB did not have the three member quorum required to operate.
The President appointed Block, Flynn, and Griffin to the NLRB on January 4, 2012, as “recess appointments.” Because NLRB members are officers of the U.S. Government, the Constitution requires that the President submit nominations for the NLRB to the U.S. Senate for confirmation. The Constitution allows the President to make appointments during “the Recess” of the Senate, which has historically been understood as times when the Senate is unavailable to consider the nominee. On January 4, 2012, the Senate was operating pursuant to a unanimous consent agreement which provided that it would meet in sessions every three business days from December 2011 through January 2012. During this time, the Senate conducted some limited business, including convening the second session of the 122nd Congress on January 3, 2012.
In February 2012, an NLRB panel including two members appointed during “the recess” without Senate approval ruled that employer Noel Canning, a bottler and distributor, violated the National Labor Relations Act. Noel Canning appealed the decision and asserted that the NLRB’s decision must be vacated as it did not have a lawful, constitutionally legitimate quorum.
The D.C. Circuit agreed, held that the President’s recess appointments were unconstitutional, and vacated the NLRB’s decision. The Court noted that, “Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.” The Court further found that, under the Constitution, “recess” refers to the intercession recesses - or the period between sessions of the Senate when the Senate is, by definition, not in session and is unavailable to consider presidential nominations. As the Court explained, the President made the “recess” appointments on January 4, 2012, the day after Congress began a new session and not when the Senate was in “the recess.” The Court vacated the NLRB’s decision against Noel Canning because the Board did not have the minimum of three members needed for a quorum when the decision issued.
The implications of this decision are enormous. The Obama Administration will almost certainly appeal to the United States Supreme Court. If the decision stands, then hundreds of decisions which the Board has issued over the past year would become invalid. It also would leave the Board with just one validly appointed member out of five, essentially shutting it down until a legitimate quorum of three members exists.
Among the Board decisions which are subject to challenge under today’s ruling are:
- Costco Wholesale Corp., 358 NLRB No. 106 (September 7, 2012) (employer policy which prohibits employees from making statements on social media that could damage the company or other employees’ reputations unlawful);
- Knauz BMW, Case No. 13-CA-046562 (September 28, 2012) (employer policy proscribing employee messages and communications potentially critical of the company deemed unlawful);
- WKYC-TV, Inc., 359 NLRB No. 30 (December 12, 2012) (contractual dues deduction provisions continue after the expiration of a collective bargaining agreement);
- Alan Ritchey, Inc., 359 N.L.R.B. No. 40 (2012)(December 14, 2012) (employers must give notice and offer to bargain before enforcing discretionary discipline on employees of a newly-certified union);
- Supply Technologies, LLC, 359 N.L.R.B. No. 38 (2012) (December 14, 2012) (mandatory dispute resolution program that does not expressly state that employees retain the right to file NLRB charges unlawful.)
- Piedmont Gardens, 359 NLRB No. 46 (December 15, 2012) (employer blanket policies protecting confidential employee investigation statements unlawful).
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
When is a Child a Child? Department of Labor Issues New Guidance Concerning FMLA Leave for Children 18 Years and Older
*By Stephen S. Zashin, Esq.
The Department of Labor (“DOL”) recently issued an Administrator Interpretation Letter that addressed when parents may take leave under the Family Medical Leave Act (“FMLA”) to care for their adult children who have a serious health condition. Under the FMLA, parents of adult children may take FMLA leave to care for an adult child when the adult child suffers from a serious health condition and is also incapable of self-care because of a physical or mental disability. Previously, the DOL issued two Opinion Letters regarding this issue which led to some confusion. As a result, the DOL received several inquiries concerning whether the timing of the onset of the adult child’s disability was relevant to determining the parent’s entitlement to FMLA leave to care for the adult child. Ultimately, the DOL concluded that the timing of the onset of a disability was not relevant to determining the parent’s entitlement to take FMLA leave.
The Family Medical Leave Act (“FMLA”) provides that an employee may take FMLA leave to care for certain family members, including a “son” or “daughter,” who has a “serious health condition.” Under the FMLA, a son or daughter is defined as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is – (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental of physical disability.” Based on this definition, employees who meet all of the requirements of the FMLA are entitled to care for their adult children who are 18 years or older when the child is also “incapable of self-care because of a physical or mental disability.”
The DOL issued an Opinion Letter in 1994 and concluded that “the age on which the child became disabled is not a factor for determining an eligible employee’s entitlement to leave.” See Wage and Hour Opinion Letter FMLA 51. Later, the DOL issued an Opinion Letter in 2003 and emphasized that a child with a disability has a continued need for care in adulthood. See Wage and Hour Opinion Letter FMLA 2003-2. This Opinion Letter suggested that the child must have been disabled prior to turning 18 years of age in order to trigger the entitlement to FMLA leave under this provision. Within its recent Administrator Interpretation Letter, the DOL clarified that “It is the Administrator’s interpretation that the age of the onset of the disability is irrelevant….” Instead, there are four requirements a parent must meet in order to take leave to care for an adult child: (1) the adult child has a disability as defined by the Americans with Disabilities Act (ADA); (2) the adult child is incapable of self-care due to that disability; (3) the adult child has a serious health condition; and, (4) the adult child is in need of care due to a serious health condition.
The DOL also took the opportunity to address the meaning of the term “disability.” The DOL cited to the language of the ADA and noted that the definition of the term disability “shall be construed in favor of broad coverage.” The DOL noted that there is not minimum duration required for an impairment to be considered a disability. Indeed, the DOL, citing to the ADA, noted that even an impairment expected to last less than 6 months can constitute a disability.
The DOL illustrated these principles in a two hypothetical examples. First, the DOL considered a 37-year old daughter who suffered a shattered pelvis in a car accident. The daughter required hospital care for two weeks and then was unable to walk long distances for 6 months and needed help bathing, dressing and maintaining her residence. The daughter developed the condition well after she turned 18 years of age. The DOL noted that, assuming all the other requirements of the FMLA were met, the parent could take FMLA leave to care for the daughter because the daughter: (1) had a disability, (2) was incapable of self-care, (3) had a serious health condition, and (4) needed care due to the serious health condition. In another hypothetical example the DOL considered a 25-year old son who has diabetes, lives independently and does not need assistance caring for himself. The DOL concluded that the son had a disability, but that the parent was not entitled to FMLA leave because the son could care for himself. Although, the DOL noted that if the son was unable to walk and care for his own hygiene due to complications related to his diabetes, then the parent would be entitled to FMLA leave.
These examples illustrate that the new clarifying interpretation by the DOL has expanded greatly the circumstances upon which a parent can take leave for the serious health condition of an adult child. As a result, employers must reevaluate their policies and the application of their policies to comply with this new clarification.
* Stephen Zashin, an OSBA Certified Specialist in Labor and Employment Law and the head of the firm’s Employment and Labor group, regularly counsels employers on leave of absence and FMLA issues and defends employers in FMLA litigation. For questions about employee leaves of absence or the FMLA, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
The Department of Labor (“DOL”) recently issued an Administrator Interpretation Letter that addressed when parents may take leave under the Family Medical Leave Act (“FMLA”) to care for their adult children who have a serious health condition. Under the FMLA, parents of adult children may take FMLA leave to care for an adult child when the adult child suffers from a serious health condition and is also incapable of self-care because of a physical or mental disability. Previously, the DOL issued two Opinion Letters regarding this issue which led to some confusion. As a result, the DOL received several inquiries concerning whether the timing of the onset of the adult child’s disability was relevant to determining the parent’s entitlement to FMLA leave to care for the adult child. Ultimately, the DOL concluded that the timing of the onset of a disability was not relevant to determining the parent’s entitlement to take FMLA leave.
The Family Medical Leave Act (“FMLA”) provides that an employee may take FMLA leave to care for certain family members, including a “son” or “daughter,” who has a “serious health condition.” Under the FMLA, a son or daughter is defined as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is – (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental of physical disability.” Based on this definition, employees who meet all of the requirements of the FMLA are entitled to care for their adult children who are 18 years or older when the child is also “incapable of self-care because of a physical or mental disability.”
The DOL issued an Opinion Letter in 1994 and concluded that “the age on which the child became disabled is not a factor for determining an eligible employee’s entitlement to leave.” See Wage and Hour Opinion Letter FMLA 51. Later, the DOL issued an Opinion Letter in 2003 and emphasized that a child with a disability has a continued need for care in adulthood. See Wage and Hour Opinion Letter FMLA 2003-2. This Opinion Letter suggested that the child must have been disabled prior to turning 18 years of age in order to trigger the entitlement to FMLA leave under this provision. Within its recent Administrator Interpretation Letter, the DOL clarified that “It is the Administrator’s interpretation that the age of the onset of the disability is irrelevant….” Instead, there are four requirements a parent must meet in order to take leave to care for an adult child: (1) the adult child has a disability as defined by the Americans with Disabilities Act (ADA); (2) the adult child is incapable of self-care due to that disability; (3) the adult child has a serious health condition; and, (4) the adult child is in need of care due to a serious health condition.
The DOL also took the opportunity to address the meaning of the term “disability.” The DOL cited to the language of the ADA and noted that the definition of the term disability “shall be construed in favor of broad coverage.” The DOL noted that there is not minimum duration required for an impairment to be considered a disability. Indeed, the DOL, citing to the ADA, noted that even an impairment expected to last less than 6 months can constitute a disability.
The DOL illustrated these principles in a two hypothetical examples. First, the DOL considered a 37-year old daughter who suffered a shattered pelvis in a car accident. The daughter required hospital care for two weeks and then was unable to walk long distances for 6 months and needed help bathing, dressing and maintaining her residence. The daughter developed the condition well after she turned 18 years of age. The DOL noted that, assuming all the other requirements of the FMLA were met, the parent could take FMLA leave to care for the daughter because the daughter: (1) had a disability, (2) was incapable of self-care, (3) had a serious health condition, and (4) needed care due to the serious health condition. In another hypothetical example the DOL considered a 25-year old son who has diabetes, lives independently and does not need assistance caring for himself. The DOL concluded that the son had a disability, but that the parent was not entitled to FMLA leave because the son could care for himself. Although, the DOL noted that if the son was unable to walk and care for his own hygiene due to complications related to his diabetes, then the parent would be entitled to FMLA leave.
These examples illustrate that the new clarifying interpretation by the DOL has expanded greatly the circumstances upon which a parent can take leave for the serious health condition of an adult child. As a result, employers must reevaluate their policies and the application of their policies to comply with this new clarification.
* Stephen Zashin, an OSBA Certified Specialist in Labor and Employment Law and the head of the firm’s Employment and Labor group, regularly counsels employers on leave of absence and FMLA issues and defends employers in FMLA litigation. For questions about employee leaves of absence or the FMLA, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
Wednesday, December 12, 2012
What Happens in Vegas… Is FMLA-Protected
*By Helena Oroz
The beginning of that tag-line is perfectly obnoxious and overly worn, but the ending is new, and, interestingly enough, true—at least according to the Illinois federal court that recently handed down its decision in Ballard v. Chicago Park District. In Ballard, the U.S. District Court for the Northern District of Illinois held that an employee who provided care to her terminally-ill mother during a Las Vegas vacation “cared for” her mother within the meaning of the FMLA.
In Ballard, the employee filed suit under the Family and Medical Leave Act (“FMLA”) after she was terminated for unauthorized absences from work. She alleged that her former employer interfered with her rights by denying her request for leave to care for a sick parent. The employee was the primary caretaker for her terminally ill mother and did almost everything for her: prepared her meals; administered medicine; operating a pump to remove fluids from her mother’s heart; bathed her; provided her with transportation; and provided comfort and support, among other responsibilities. Why would her employer deny her leave under such seemingly clear-cut circumstances?
Vegas, baby.
Yes, the employee in this case requested leave to accompany her sick mother to that adult playground in the desert, Las Vegas, Nevada; and this detail, probably more than any other in this case, has captured the hearts and minds of employers (and their lawyers) everywhere. Vegas? Vegas?! Why would a super fun trip to Vegas be FMLA-protected?
The court closely reviewed the (pre-2009 amendment) FMLA regulations to make just that determination: whether the employee was entitled to leave under the FMLA to “care for” her mother on the Vegas trip, as the employee argued. The employer argued that the trip was not FMLA-protected because the “care” has to have some connection with the family member’s need for treatment, and the mother did not seek treatment during the trip. The court disagreed, finding that the FMLA includes no such limitation.
Under the FMLA, an eligible employee is entitled to leave to “care for” a parent with a “serious health condition.” The Court noted that FMLA’s implementing regulations explain that “to care for” encompasses both physical and psychological care; but such care does not depend on a particular location or on participation in medical treatment itself.
There was no question in the case that the employee’s mother suffered from a “serious health condition” (end-stage congestive heart failure); that she was unable to care for her own basic needs; and that the employee provided physical care for her mother at home. The court reasoned that because her mother’s needs did not change during the trip, the employee also “cared for” her mother while traveling to and vacationing in Las Vegas.
The court also gave short shrift to the employer’s argument that the employee did not “care for” her mother because there were no plans for the mother to seek medical care or treatment in Las Vegas. The court found “no statutory or regulatory text stating something to the effect that ‘care’ must involve some level of participation in the ongoing treatment of the family member’s condition under the FMLA” as the regulations cover “terminal illnesses for which there is no active treatment at all.”
The court opined that at base, the text of the FMLA requires only that the employee sought leave to “care for” her mother who had a “serious health condition.” “So long as the employee provides ‘care’ to the family member, where the care takes place has no bearing on whether the employee receives FMLA protections.”
Fiji, anyone?
Whether or not such a decision actually “broadens” the FMLA is debatable. While not relevant to the legal analysis, it should be noted that the Vegas trip here was a gift, a charitable grant from an organization that grants wishes to persons with terminal illnesses. The employee asked for leave to take the trip so that her dying mother could take the trip. This is not a common situation for most employers (and arguably, considering the circumstances, one that the employer could have met with less scrutiny and more compassion).
It does, however, seem to open the door to abuse, a la “I need two weeks off to travel to (fill in fun destination) to care for my ill (family member)!” But at the end of the day, the same rules would apply to such a request as to any regular FMLA-leave request, and the same tools would be available to the employer to determine its legitimacy.
*Helena Oroz practices in all areas of labor and employment law. For more information about FMLA leave, please contact Helena (hot@zrlaw.com) at 216.696.4441.
The beginning of that tag-line is perfectly obnoxious and overly worn, but the ending is new, and, interestingly enough, true—at least according to the Illinois federal court that recently handed down its decision in Ballard v. Chicago Park District. In Ballard, the U.S. District Court for the Northern District of Illinois held that an employee who provided care to her terminally-ill mother during a Las Vegas vacation “cared for” her mother within the meaning of the FMLA.
In Ballard, the employee filed suit under the Family and Medical Leave Act (“FMLA”) after she was terminated for unauthorized absences from work. She alleged that her former employer interfered with her rights by denying her request for leave to care for a sick parent. The employee was the primary caretaker for her terminally ill mother and did almost everything for her: prepared her meals; administered medicine; operating a pump to remove fluids from her mother’s heart; bathed her; provided her with transportation; and provided comfort and support, among other responsibilities. Why would her employer deny her leave under such seemingly clear-cut circumstances?
Vegas, baby.
Yes, the employee in this case requested leave to accompany her sick mother to that adult playground in the desert, Las Vegas, Nevada; and this detail, probably more than any other in this case, has captured the hearts and minds of employers (and their lawyers) everywhere. Vegas? Vegas?! Why would a super fun trip to Vegas be FMLA-protected?
The court closely reviewed the (pre-2009 amendment) FMLA regulations to make just that determination: whether the employee was entitled to leave under the FMLA to “care for” her mother on the Vegas trip, as the employee argued. The employer argued that the trip was not FMLA-protected because the “care” has to have some connection with the family member’s need for treatment, and the mother did not seek treatment during the trip. The court disagreed, finding that the FMLA includes no such limitation.
Under the FMLA, an eligible employee is entitled to leave to “care for” a parent with a “serious health condition.” The Court noted that FMLA’s implementing regulations explain that “to care for” encompasses both physical and psychological care; but such care does not depend on a particular location or on participation in medical treatment itself.
There was no question in the case that the employee’s mother suffered from a “serious health condition” (end-stage congestive heart failure); that she was unable to care for her own basic needs; and that the employee provided physical care for her mother at home. The court reasoned that because her mother’s needs did not change during the trip, the employee also “cared for” her mother while traveling to and vacationing in Las Vegas.
The court also gave short shrift to the employer’s argument that the employee did not “care for” her mother because there were no plans for the mother to seek medical care or treatment in Las Vegas. The court found “no statutory or regulatory text stating something to the effect that ‘care’ must involve some level of participation in the ongoing treatment of the family member’s condition under the FMLA” as the regulations cover “terminal illnesses for which there is no active treatment at all.”
The court opined that at base, the text of the FMLA requires only that the employee sought leave to “care for” her mother who had a “serious health condition.” “So long as the employee provides ‘care’ to the family member, where the care takes place has no bearing on whether the employee receives FMLA protections.”
Fiji, anyone?
Whether or not such a decision actually “broadens” the FMLA is debatable. While not relevant to the legal analysis, it should be noted that the Vegas trip here was a gift, a charitable grant from an organization that grants wishes to persons with terminal illnesses. The employee asked for leave to take the trip so that her dying mother could take the trip. This is not a common situation for most employers (and arguably, considering the circumstances, one that the employer could have met with less scrutiny and more compassion).
It does, however, seem to open the door to abuse, a la “I need two weeks off to travel to (fill in fun destination) to care for my ill (family member)!” But at the end of the day, the same rules would apply to such a request as to any regular FMLA-leave request, and the same tools would be available to the employer to determine its legitimacy.
*Helena Oroz practices in all areas of labor and employment law. For more information about FMLA leave, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Friday, December 7, 2012
EMPLOYMENT LAW QUARTERLY | Winter 2012, Volume XIV, Issue i
Download PDF
Paid Time Off programs (“PTO”) allow employees to earn leave that they later can use for vacations, sicknesses and personal holidays. Under such programs, employees typically earn leave in accordance with factors such as years of service, position, and full or part-time status. PTO programs generally require employees to obtain approval from their employers prior to using their leave (except when advance notice is not possible, as in the case of an illness) and do not permit employees to carry a negative leave balance. Many employers believe PTO programs are less burdensome to administer because the employer does not have to track both “vacation” and “sick” time. However, employers must evaluate their PTO programs to ensure they comply with all applicable state and federal regulations.
When an employee separates from service, the employee often receives his or her unused leave balance in a single lump-sum payment. However, most employers may not know that amounts paid to an employee for unused leave upon separation constitute wages subject to income tax withholding and employment taxes. Employers must treat such payments accordingly.
Allowing employees to sell unused PTO back to the company at the end of the year is also another practice that can create tax problems for the employer and employee. If the employee has the option to either cash-out the PTO or roll it over to the next year, the employer must immediately tax the employee on the entire amount even if the employee actually elects to roll over the unused PTO. Under the federal income tax “constructive receipt” doctrine, the IRS considers the roll over amount received and taxable at the time the PTO is available for a taxpayer to cash out, even if the taxpayer elects to defer his or her receipt of the amount. To avoid this situation, employers should not give employees a choice to cash out or roll over their PTO. The IRS stated that mandatory cash outs do not create a “constructive receipt problem.”
To avoid these and other unintended tax consequences, employers should discuss the design of their PTO plans with a knowledgeable attorney.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment law and has experience designing employee PTO plans. For more information about paid time off plans and the potential tax consequences, please contact Michele at mlj@zrlaw.com or 216-696-4441.
The Eleventh Circuit recently held that the Family & Medical Leave Act (“FMLA”) protects a pre-eligibility request for post-eligibility leave. Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723 (11th Cir. Jan. 10, 2012).
Brookdale Senior Living Communities (“Brookdale”) operates numerous senior living facilities. Brookdale hired Kathryn Pereda (“Pereda”) in October 2008. Pereda informed management in June 2009 that she was pregnant and would need leave under the FMLA after the birth of her child in November 2009. At the time Pereda requested leave, she was not eligible for FMLA protection because she had not worked the requisite hours (1,250 hours during the previous 12-month period) and had not yet experienced a triggering event, the birth of her child.
Pereda alleged she was a top performer but that Brookdale began harassing her after they learned of her pregnancy. She claimed Brookdale criticized her job performance and placed her on a performance improvement plan with “unattainable goals.” Moreover, Pereda alleged that Brookdale had given her permission to attend pregnancy-related doctors’ appointments but then subsequently disciplined her for attending those appointments. Brookdale terminated Pereda’s employment when she took time off in September 2009.
Pereda filed suit in the United States Court for the Southern District of Florida, alleging FMLA interference and retaliation. The Southern District held that Brookdale did not interfere with Pereda’s FMLA rights because she was not entitled to leave at the time she requested it, and that because she was not eligible for leave she could not have engaged in “protected activity” under the FMLA. Thus, according to the Southern District, Brookdale could not have retaliated against Pereda.
Pereda appealed to the Eleventh Circuit Court of Appeals. The Eleventh Circuit reversed and found for Pereda on both counts. As part of its decision, the Court resolved a question it had left open in a previous case, Walker v. Elmore County Bd. of Educ., 379 F.3d 1249 (11th Cir. 2004). The Walker court held that the FMLA did not protect a pregnant teacher who requested leave which would begin several days prior to her eligibility.
The Pereda court first found that, because the FMLA requires advance notice of a need for future leave, the FMLA protects employees from interference before a triggering event occurs. The Court reasoned that any other outcome would be illogical and “becom[e] a trap for newer employees and exten[d] to employers a significant exemption from liability.” After examining the various elements of the FMLA regulatory scheme, the court concluded that allowing the district court’s ruling to stand would frustrate the purpose of the FMLA.
The court then examined Pereda’s FMLA retaliation claim. The court held that a pre-eligible request for post-eligible leave is “protected activity” because the FMLA “aims to support both employees in the process of exercising their FMLA rights and employers for the absence of employees on FMLA leave.” Thus, Pereda also had stated a potential claim for FMLA retaliation.
The Court narrowed its finding to state that a pre-eligible discussion of post-eligible FMLA leave is protected activity and stated that an employer could still terminate an employee for legitimate reasons. While this case arose in the Eleventh Circuit, all employers must be mindful of employee eligibility for FMLA leave and evaluate all FMLA requests carefully – especially if the employee will become FMLA-eligible in the future.
by Lois A. Gruhin
The Occupational Safety and Health Administration (“OSHA”) recently issued an interim final rule amending its whistleblower regulations under the Sarbanes-Oxley Act of 2002 (“SOX”). OSHA published its interim rule in the Federal Register on November 3, 2011, and it became effective upon publication.
The Dodd-Frank Wall Street Reform and Consumer Protection Act amended SOX, making significant changes to SOX whistleblower procedures. The new regulations classify subsidiaries of publicly-traded companies as covered employers. Additionally, the regulations protect employees from retaliation, extend the statute of limitations for retaliation complaints from 90 days to 180 days, provide those who complain with the right to a jury trial in some instances, and restrict the ability of individuals to waive or arbitrate whistleblower claims under SOX. The regulations improve OSHA’s procedures for handling SOX whistleblower complaints and make the procedures consistent with OSHA’s procedures for handling other OSHA-administered statutes.
Another significant change pertains to the filing of whistleblower claims. The new regulations permit oral SOX whistleblower complaints. Upon receipt of an oral complaint OSHA prepares a written complaint. OSHA intended this change to be consistent with the Supreme Court’s recent decision in Kasten v. Saint-Gobain Perf. Plastics Corp., 131 S. Ct. 1325 (2011). OSHA will also now accept a complaint filed in any language. Finally, any person can file a complaint so long as the person has the consent of the affected employee.
Perhaps the most significant change for employers is that OSHA may order a company to provide a SOX whistleblower complainant with the same pay and benefits that he or she received prior to termination of employment, or what is referred to as “economic reinstatement.” This “economic reinstatement” differs from “preliminary reinstatement” in that the whistleblower is not obligated to return to work before the complaint is resolved, as he or she could have been under prior SOX regulations. Furthermore, employers do not have the option to choose between economic reinstatement and actual reinstatement. Instead, the interim rule allows OSHA to make the decision as to whether to allow for economic reinstatement, as opposed to decide on a case-by-case basis. The stated purpose for this rule change is to accommodate situations where the evidence indicates that reinstatement prior to the conclusion of administrative adjudication is inadvisable for some reason, such as where the company demonstrates the complainant to be a security risk.
If you would like further information about the whistleblower provisions of SOX and how they may affect your company, please contact us.
Change is a-comin’ to California’s employment laws. Employers who operate in California should be aware of these important changes.
Gender Expression
Gender expression is now a protected class under California’s Fair Employment & Housing Act (“FEHA”). Gender expression refers to a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth. “Sex” is now defined in several anti-discrimination statutes, including the FEHA, to include gender expression. The redefinition aims to protect the rights of transgender people. With this change, employers must allow employees to appear or dress consistently with his or her gender expression.
Wage-and-Hour Related Changes
The following wage and hour changes, a result of the Wage Theft Protection Act of 2011, went into effect January 1, 2012. The new changes require immediate employer action as employers must keep a signed, written acknowledgement for each employee. A template of the notice and acknowledgement is available via the Department of Industrial Relation’s website:
http://www.dir.ca.gov/dlse/Governor_signs_Wage_Theft_Protection_Act_of_2011.html.
Employers who misclassify employees as independent contractors face increased sanctions, including:
*Jason Rossiter practices in all areas of labor and employment law and has extensive compliance experience. He is licensed to practice law in California, Pennsylvania and Ohio. For more information about these and other changes to California law contact Zashin & Rich at 216-696-4441.
Governor Mitch Daniels signed Indiana’s “Right-to-Work” (“RTW”) law on February 2, 2012 – making Indiana the first state in over a decade to do so. The law prohibits companies and unions from negotiating a contract requiring non-members to pay fees for union representation.
Indiana’s contentious RTW law came after much-heated debate. In February, 2011, Democratic representatives left the state for five weeks to deny a quorum prohibiting their Republican colleagues from moving forward on RTW legislation. However, Governor Daniels succeeded in signing the RTW law, making Indiana the 23rd state with RTW laws on its books.
The National Right to Work Legal Defense Foundation launched a task force to defend the law and announced that it will give free legal advice to workers who wish to exercise their new rights. Current union members will not be able to stop paying dues immediately as the law only applies to contracts enteredinto after March 14, 2012.
For or Against Right-to-Work Laws
Supporters of the law emphasize that it will attract business and create jobs pointing to research showing employers favor states with RTW laws. They also lodge ideological arguments against compulsory payment for an unwanted service. Specifically, they argue that forcing employees to pay union dues violates their Constitutional right to freedom of association.
Critics argue that Indiana’s new law will fail to provide the benefits promised by legislators. In addition, critics believe that RTW laws harm workers by encouraging freeloading. The National Labor Relations Act forces unions to intervene on behalf of members when their employers take illegal action, regardless of whether the member pays dues. Critics fear this costly and time-consuming burden will significantly weaken union power.
What Can We Learn from Oklahoma
Oklahoma was the last state to sign a RTW law. Proponents of the law expected it to bring new companies to Oklahoma and increase job growth. On the ten-year anniversary of its signing, the National Right to Work Committee celebrated what it claimed was a 12.2% growth in employee compensation since 2001 and a 3.2% increase in private sector employment between 2003 and 2010.
However, the Economic Policy Institute (“Institute”) tells a different story. According to the Institute, the number of new companies coming to Oklahoma has decreased by one-third as has the number of manufacturing jobs. The Oklahoma Department of Commerce admits the latter, but emphasizes that the law has increased productivity. However, the Institute points out that this means fewer workers are producing more, an outcome it does not applaud.
On the National Level
President Barack Obama made his stand on RTW laws clear during a Labor Day Speech last year stating “when I hear of these folks trying to take collective bargaining rights away, trying to pass so-called ‘right-to-work’ laws for private sector workers, that really means the right to work for less and less.” It comes as no surprise that the Republican presidential candidates have a much different attitude. After the Indiana House passed its RTW law, presidential candidate Ron Paul wrote a congratulatory letter to the National Right to Work Committee stating, “every American owes you a debt of gratitude for your leadership and dedication.” According to his official website, Paul has made passing a national RTW act a “centerpiece” of his campaign. While Paul has been the most enthusiastic RTW supporter, Newt Gingrich, Rick Santorum and Mitt Romney have all spoken approvingly of a national RTW law.
What Can Indiana Expect
Organizations disagree as to what the citizens of Indiana can expect. The Indiana Chamber of Commerce estimates that “personal income per capita in 2021 [will] be $968 higher, or $3,872 higher for a family of four, than if a RTW law [had] not [been] enacted.” However, The Economic Policy Institute found that in Oklahoma, wages and benefits are approximately $1,500 lower than comparable (union and non-union) workers in non-RTW states. Additionally, Oklahoma workers are less likely to get health care or retirement benefits. The Institute also warns that RTW laws have no effect on job growth.
Union members went to federal court on February 22, 2012 asking that Indiana's new right-to-work law not be enforced. This is the first lawsuit and latest conflict over the divisive legislation. The long-term impact of Indiana’s RTW legislation remains to be seen.
As the map shows, Indiana was the first in the generally union-friendly “Rust Belt” to pass RTW legislation, and the first nationally to do so in a decade. The highlighted states represent “Right-to-Work” states:
*Patrick J. Hoban, an OSBA Certified Specialist in Labor & Employment law, practices in all areas of labor & employment law and has extensive experience representing management in labor disputes. For more information about right-to-work laws, please contact Pat at pjh@zrlaw.com or 216-696-4441.
The New Jersey Department of Labor and Workforce Development (“NJDLWD”) recently issued new regulations concerning employer posting and notice requirements. These changes come on the heels of New Jersey’s 2010 law requiring employers to maintain and report records under state wage, benefit, and tax laws.
These newly-implemented regulations require an employer to “conspicuously post” a notice of its obligations in an accessible place. Employers can access a sample notice online at the NJDLWD’s website (http://lwd.state.nj.us/labor/forms_pdfs/EmployerPosterPacket/MW-400.pdf). Employers can comply either by posting the notice where other employment-related notices are posted or by posting the notice on the employer's Internet/intranet site, provided the employer has an Internet/intranet site for exclusive use by its employees and to which all employees have access. Along with the posting requirement, employers must also provide every employee a copy of the notification.
Additionally, New Jersey employers must provide employees hired after November 7, 2011 with written copies of the notification upon hire, and all current employees should have received written copies by December 7, 2011. New Jersey employers can comply with the notice requirement by sending copies of the notice via e-mail.
The required postings address employers’ obligation to maintain payroll records, temporary disability insurance records, workers’ compensation records, and Employer’s Quarterly Reports pursuant to the New Jersey Gross Income Tax Act. New Jersey employers should assess whether they are in compliance with these new regulations. Failure to comply with the posting and distribution requirements could lead to a fine of up to $1,000, as well as criminal penalties.
- Good Intentions, Unintended Consequences: Paid Time Off Can Lead to Tax Liability
- Family & Medical Leave Act Protects a Pre-Eligibility Request for Post-Eligibility Leave
- Blowing the Whistle - OSHA Issues New Regulations and Revises Its Whistleblower Complaint Procedure
- California Dreamin' – Employers Need to Be Aware of Important Changes to California Employment Law
- Indiana Becomes First State in Over Ten Years to Pass "Right-to-Work" Law
- Writing on the Wall: New Jersey Employers Subject to New Posting and Notice Requirements
- Z&R Shorts
Good Intentions, Unintended Consequences: Paid Time Off Can Lead to Tax Liability
by Michele L. Jakubs*Paid Time Off programs (“PTO”) allow employees to earn leave that they later can use for vacations, sicknesses and personal holidays. Under such programs, employees typically earn leave in accordance with factors such as years of service, position, and full or part-time status. PTO programs generally require employees to obtain approval from their employers prior to using their leave (except when advance notice is not possible, as in the case of an illness) and do not permit employees to carry a negative leave balance. Many employers believe PTO programs are less burdensome to administer because the employer does not have to track both “vacation” and “sick” time. However, employers must evaluate their PTO programs to ensure they comply with all applicable state and federal regulations.
When an employee separates from service, the employee often receives his or her unused leave balance in a single lump-sum payment. However, most employers may not know that amounts paid to an employee for unused leave upon separation constitute wages subject to income tax withholding and employment taxes. Employers must treat such payments accordingly.
Allowing employees to sell unused PTO back to the company at the end of the year is also another practice that can create tax problems for the employer and employee. If the employee has the option to either cash-out the PTO or roll it over to the next year, the employer must immediately tax the employee on the entire amount even if the employee actually elects to roll over the unused PTO. Under the federal income tax “constructive receipt” doctrine, the IRS considers the roll over amount received and taxable at the time the PTO is available for a taxpayer to cash out, even if the taxpayer elects to defer his or her receipt of the amount. To avoid this situation, employers should not give employees a choice to cash out or roll over their PTO. The IRS stated that mandatory cash outs do not create a “constructive receipt problem.”
To avoid these and other unintended tax consequences, employers should discuss the design of their PTO plans with a knowledgeable attorney.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment law and has experience designing employee PTO plans. For more information about paid time off plans and the potential tax consequences, please contact Michele at mlj@zrlaw.com or 216-696-4441.
Family & Medical Leave Act Protects a Pre-Eligibility Request for Post-Eligibility Leave
by Patrick M. WattsThe Eleventh Circuit recently held that the Family & Medical Leave Act (“FMLA”) protects a pre-eligibility request for post-eligibility leave. Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723 (11th Cir. Jan. 10, 2012).
Brookdale Senior Living Communities (“Brookdale”) operates numerous senior living facilities. Brookdale hired Kathryn Pereda (“Pereda”) in October 2008. Pereda informed management in June 2009 that she was pregnant and would need leave under the FMLA after the birth of her child in November 2009. At the time Pereda requested leave, she was not eligible for FMLA protection because she had not worked the requisite hours (1,250 hours during the previous 12-month period) and had not yet experienced a triggering event, the birth of her child.
Pereda alleged she was a top performer but that Brookdale began harassing her after they learned of her pregnancy. She claimed Brookdale criticized her job performance and placed her on a performance improvement plan with “unattainable goals.” Moreover, Pereda alleged that Brookdale had given her permission to attend pregnancy-related doctors’ appointments but then subsequently disciplined her for attending those appointments. Brookdale terminated Pereda’s employment when she took time off in September 2009.
Pereda filed suit in the United States Court for the Southern District of Florida, alleging FMLA interference and retaliation. The Southern District held that Brookdale did not interfere with Pereda’s FMLA rights because she was not entitled to leave at the time she requested it, and that because she was not eligible for leave she could not have engaged in “protected activity” under the FMLA. Thus, according to the Southern District, Brookdale could not have retaliated against Pereda.
Pereda appealed to the Eleventh Circuit Court of Appeals. The Eleventh Circuit reversed and found for Pereda on both counts. As part of its decision, the Court resolved a question it had left open in a previous case, Walker v. Elmore County Bd. of Educ., 379 F.3d 1249 (11th Cir. 2004). The Walker court held that the FMLA did not protect a pregnant teacher who requested leave which would begin several days prior to her eligibility.
The Pereda court first found that, because the FMLA requires advance notice of a need for future leave, the FMLA protects employees from interference before a triggering event occurs. The Court reasoned that any other outcome would be illogical and “becom[e] a trap for newer employees and exten[d] to employers a significant exemption from liability.” After examining the various elements of the FMLA regulatory scheme, the court concluded that allowing the district court’s ruling to stand would frustrate the purpose of the FMLA.
The court then examined Pereda’s FMLA retaliation claim. The court held that a pre-eligible request for post-eligible leave is “protected activity” because the FMLA “aims to support both employees in the process of exercising their FMLA rights and employers for the absence of employees on FMLA leave.” Thus, Pereda also had stated a potential claim for FMLA retaliation.
The Court narrowed its finding to state that a pre-eligible discussion of post-eligible FMLA leave is protected activity and stated that an employer could still terminate an employee for legitimate reasons. While this case arose in the Eleventh Circuit, all employers must be mindful of employee eligibility for FMLA leave and evaluate all FMLA requests carefully – especially if the employee will become FMLA-eligible in the future.
Blowing the Whistle - OSHA Issues New Regulations and Revises Its Whistleblower Complaint Procedure
by Lois A. Gruhin
The Occupational Safety and Health Administration (“OSHA”) recently issued an interim final rule amending its whistleblower regulations under the Sarbanes-Oxley Act of 2002 (“SOX”). OSHA published its interim rule in the Federal Register on November 3, 2011, and it became effective upon publication.
The Dodd-Frank Wall Street Reform and Consumer Protection Act amended SOX, making significant changes to SOX whistleblower procedures. The new regulations classify subsidiaries of publicly-traded companies as covered employers. Additionally, the regulations protect employees from retaliation, extend the statute of limitations for retaliation complaints from 90 days to 180 days, provide those who complain with the right to a jury trial in some instances, and restrict the ability of individuals to waive or arbitrate whistleblower claims under SOX. The regulations improve OSHA’s procedures for handling SOX whistleblower complaints and make the procedures consistent with OSHA’s procedures for handling other OSHA-administered statutes.
Another significant change pertains to the filing of whistleblower claims. The new regulations permit oral SOX whistleblower complaints. Upon receipt of an oral complaint OSHA prepares a written complaint. OSHA intended this change to be consistent with the Supreme Court’s recent decision in Kasten v. Saint-Gobain Perf. Plastics Corp., 131 S. Ct. 1325 (2011). OSHA will also now accept a complaint filed in any language. Finally, any person can file a complaint so long as the person has the consent of the affected employee.
Perhaps the most significant change for employers is that OSHA may order a company to provide a SOX whistleblower complainant with the same pay and benefits that he or she received prior to termination of employment, or what is referred to as “economic reinstatement.” This “economic reinstatement” differs from “preliminary reinstatement” in that the whistleblower is not obligated to return to work before the complaint is resolved, as he or she could have been under prior SOX regulations. Furthermore, employers do not have the option to choose between economic reinstatement and actual reinstatement. Instead, the interim rule allows OSHA to make the decision as to whether to allow for economic reinstatement, as opposed to decide on a case-by-case basis. The stated purpose for this rule change is to accommodate situations where the evidence indicates that reinstatement prior to the conclusion of administrative adjudication is inadvisable for some reason, such as where the company demonstrates the complainant to be a security risk.
If you would like further information about the whistleblower provisions of SOX and how they may affect your company, please contact us.
California Dreamin’ – Employers Need to Be Aware of Important Changes to California Employment Law
by Jason Rossiter*Change is a-comin’ to California’s employment laws. Employers who operate in California should be aware of these important changes.
Gender Expression
Gender expression is now a protected class under California’s Fair Employment & Housing Act (“FEHA”). Gender expression refers to a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth. “Sex” is now defined in several anti-discrimination statutes, including the FEHA, to include gender expression. The redefinition aims to protect the rights of transgender people. With this change, employers must allow employees to appear or dress consistently with his or her gender expression.
Wage-and-Hour Related Changes
The following wage and hour changes, a result of the Wage Theft Protection Act of 2011, went into effect January 1, 2012. The new changes require immediate employer action as employers must keep a signed, written acknowledgement for each employee. A template of the notice and acknowledgement is available via the Department of Industrial Relation’s website:
http://www.dir.ca.gov/dlse/Governor_signs_Wage_Theft_Protection_Act_of_2011.html.
- Employer must provide all employees with:
- The rate(s) of pay and basis for such rate(s); allowances including meal or lodging, and the regular payday as designated by the employer.
- The full legal name of the employer, including any “doing business as” names used by the employer, as well as the address of the employer’s main office and the telephone number of the employer;
- The name, address, and telephone number of the employer’s workers’ compensation insurance carrier;
- The new regulations also require the employer to furnish new employees with “any other information the Labor Commissioner deems material and necessary;” and,
- If the above-mentioned information ever changes, all
affected employees must receive notice of the change within seven days
of the effective date of the change.
- If an employer has non-California employees working in the
state of California, including temporary or daily employees, these
employees are entitled to overtime under California’s laws.
- Additionally, any agreements between employers and employees who receive commissions must be in writing and signed by the employee in question.
- This writing must “set forth the method by which the commissions shall be computed and paid,” and the employee must receive a copy of his or her signed writing.
- California employees are also now entitled to up to six weeks of paid leave each year to donate organs and bone marrow.
- This is more expansive than federal and prior California law.
- The new law, California Labor Code sections 1508 through 1512, applies to employers with 15 or more employees.
- Pregnancy leave policies in California must also now allow for continuation of medical insurance benefits for pregnancy-related disabilities.
- Employers may no longer use credit checks in the employment application process.
Employers who misclassify employees as independent contractors face increased sanctions, including:
- criminal sanctions;
- joint-and-several liability for those who advise employers to misclassify; and,
- civil penalties of up to $25,000 for each infraction.
*Jason Rossiter practices in all areas of labor and employment law and has extensive compliance experience. He is licensed to practice law in California, Pennsylvania and Ohio. For more information about these and other changes to California law contact Zashin & Rich at 216-696-4441.
Indiana Becomes First State in Over Ten Years to Pass “Right-to-Work” Law
by Patrick J. Hoban*Governor Mitch Daniels signed Indiana’s “Right-to-Work” (“RTW”) law on February 2, 2012 – making Indiana the first state in over a decade to do so. The law prohibits companies and unions from negotiating a contract requiring non-members to pay fees for union representation.
Indiana’s contentious RTW law came after much-heated debate. In February, 2011, Democratic representatives left the state for five weeks to deny a quorum prohibiting their Republican colleagues from moving forward on RTW legislation. However, Governor Daniels succeeded in signing the RTW law, making Indiana the 23rd state with RTW laws on its books.
The National Right to Work Legal Defense Foundation launched a task force to defend the law and announced that it will give free legal advice to workers who wish to exercise their new rights. Current union members will not be able to stop paying dues immediately as the law only applies to contracts enteredinto after March 14, 2012.
For or Against Right-to-Work Laws
Supporters of the law emphasize that it will attract business and create jobs pointing to research showing employers favor states with RTW laws. They also lodge ideological arguments against compulsory payment for an unwanted service. Specifically, they argue that forcing employees to pay union dues violates their Constitutional right to freedom of association.
Critics argue that Indiana’s new law will fail to provide the benefits promised by legislators. In addition, critics believe that RTW laws harm workers by encouraging freeloading. The National Labor Relations Act forces unions to intervene on behalf of members when their employers take illegal action, regardless of whether the member pays dues. Critics fear this costly and time-consuming burden will significantly weaken union power.
What Can We Learn from Oklahoma
Oklahoma was the last state to sign a RTW law. Proponents of the law expected it to bring new companies to Oklahoma and increase job growth. On the ten-year anniversary of its signing, the National Right to Work Committee celebrated what it claimed was a 12.2% growth in employee compensation since 2001 and a 3.2% increase in private sector employment between 2003 and 2010.
However, the Economic Policy Institute (“Institute”) tells a different story. According to the Institute, the number of new companies coming to Oklahoma has decreased by one-third as has the number of manufacturing jobs. The Oklahoma Department of Commerce admits the latter, but emphasizes that the law has increased productivity. However, the Institute points out that this means fewer workers are producing more, an outcome it does not applaud.
On the National Level
President Barack Obama made his stand on RTW laws clear during a Labor Day Speech last year stating “when I hear of these folks trying to take collective bargaining rights away, trying to pass so-called ‘right-to-work’ laws for private sector workers, that really means the right to work for less and less.” It comes as no surprise that the Republican presidential candidates have a much different attitude. After the Indiana House passed its RTW law, presidential candidate Ron Paul wrote a congratulatory letter to the National Right to Work Committee stating, “every American owes you a debt of gratitude for your leadership and dedication.” According to his official website, Paul has made passing a national RTW act a “centerpiece” of his campaign. While Paul has been the most enthusiastic RTW supporter, Newt Gingrich, Rick Santorum and Mitt Romney have all spoken approvingly of a national RTW law.
What Can Indiana Expect
Organizations disagree as to what the citizens of Indiana can expect. The Indiana Chamber of Commerce estimates that “personal income per capita in 2021 [will] be $968 higher, or $3,872 higher for a family of four, than if a RTW law [had] not [been] enacted.” However, The Economic Policy Institute found that in Oklahoma, wages and benefits are approximately $1,500 lower than comparable (union and non-union) workers in non-RTW states. Additionally, Oklahoma workers are less likely to get health care or retirement benefits. The Institute also warns that RTW laws have no effect on job growth.
Union members went to federal court on February 22, 2012 asking that Indiana's new right-to-work law not be enforced. This is the first lawsuit and latest conflict over the divisive legislation. The long-term impact of Indiana’s RTW legislation remains to be seen.
As the map shows, Indiana was the first in the generally union-friendly “Rust Belt” to pass RTW legislation, and the first nationally to do so in a decade. The highlighted states represent “Right-to-Work” states:
*Patrick J. Hoban, an OSBA Certified Specialist in Labor & Employment law, practices in all areas of labor & employment law and has extensive experience representing management in labor disputes. For more information about right-to-work laws, please contact Pat at pjh@zrlaw.com or 216-696-4441.
Writing on the Wall: New Jersey Employers Subject to New Posting and Notice Requirements
by Stefanie L. BakerThe New Jersey Department of Labor and Workforce Development (“NJDLWD”) recently issued new regulations concerning employer posting and notice requirements. These changes come on the heels of New Jersey’s 2010 law requiring employers to maintain and report records under state wage, benefit, and tax laws.
These newly-implemented regulations require an employer to “conspicuously post” a notice of its obligations in an accessible place. Employers can access a sample notice online at the NJDLWD’s website (http://lwd.state.nj.us/labor/forms_pdfs/EmployerPosterPacket/MW-400.pdf). Employers can comply either by posting the notice where other employment-related notices are posted or by posting the notice on the employer's Internet/intranet site, provided the employer has an Internet/intranet site for exclusive use by its employees and to which all employees have access. Along with the posting requirement, employers must also provide every employee a copy of the notification.
Additionally, New Jersey employers must provide employees hired after November 7, 2011 with written copies of the notification upon hire, and all current employees should have received written copies by December 7, 2011. New Jersey employers can comply with the notice requirement by sending copies of the notice via e-mail.
The required postings address employers’ obligation to maintain payroll records, temporary disability insurance records, workers’ compensation records, and Employer’s Quarterly Reports pursuant to the New Jersey Gross Income Tax Act. New Jersey employers should assess whether they are in compliance with these new regulations. Failure to comply with the posting and distribution requirements could lead to a fine of up to $1,000, as well as criminal penalties.
Z&R Shorts
George S. Crisci will present “Social Media in the Workplace” on May 17, 2012, at the Ohio State Bar Association and NLRB Region 8 Annual Labor Law Seminar beginning at 9 AM at Ritz Carlton Hotel in Cleveland, Ohio. To register, go to www.ohiobar.org.
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