Hurricane Preparedness for Employers
As everyone watches the coming of Earl, HR professionals should be considering the impact on their employees and businesses. A recent article on hurricane preparedness for employers provides a brief overview of the regulatory issues that often arise in such situations. These include, for example:
- Wage and hour issues
- WARN issues
- Leave issues
- Benefits continuation issues
- The Americans With Disabilities Act
- OSHA
- Unemployment
- Federal Relief
If you recall, after Hurricane Katrina the Federal Government implemented regulations governing benefit plan reporting as an accommodation to employers. In addition, many employers had great difficulty locating relocated employees to address pay issues and other employees had difficultly dealing with, for example, renewing prescriptions in distant locations far from home without the proper records.
Follow this Link: Guidance for Employers’ Hurricane and Disaster Preparation
Posted By Diane Pfadenhauer In Resources | Permalink
NY State SHRM Annual Conference
I'm getting ready for the upcoming New York State SHRM Annual Conference in Saratoga on September 12 - 14 . I'll be presenting on a panel about twittering/social media and presenting a workshop on Workplace Investigations which will dovetail with my book on workplace investigations.
The conference looks to to be packed with resources and information - and, if nothing else, it will be an opportunity to get away from the stifling heat down here! Also, it will be nice to connect with my SHRM buddies around the state that I don't see too often.
Posted By Diane Pfadenhauer In Miscellaneous | Permalink
Final Rule On Electronic Storage of I-9's
The final rule regarding the electronic storage of I-9s has recently been issued. Separate and apart from the E-Verify system that some employers use, these new rules address only how records are prepared and stored. While employers have been able to store these records electronically since 2006, the new rules seek to make a few changes.
1. It clarifies how “within three business days of hire” is calculated, confirming that they are counted based on business, not calendar days.
2. It requires certain audit trails when an I-9 in the system is accesses as well as the creation and further modifications to the form.
3. It requires that the employer, provide a hard copy of the form to the employee if he/she requests one.
For more information: USCIS Employment Eligibility Verification
Posted By Diane Pfadenhauer In Immigration | Permalink
Break Time for Nursing Mothers Under the FLSA
The Health Care reform legislation everyone has been talking about has a provision which affects the rights of nursing mothers. While we have related legislation in New York, the federal Wage and Hour Division has recently issued a FACT SHEET with its interpretation of the new nationwide requirements. Here are the basic requirements:
1. Generally, employers are required to provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time, in a private place other than a bathroom.
2. Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.
3. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.
4. Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk.
5. Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.
6. Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.
Posted By Diane Pfadenhauer In Wage & Hour | Permalink
Interns, Volunteers or Unpaid Workers?
Yes, this is somewhat related to workplace issues! A week or so ago, the crew of Extreme Makeover Home Edition converged on Long Island and Alure Home Improvements ran the demolition and rebuilding of a house here on Long Island. A slew of St. Joseph's College students, alumni, faculty and staff (along with a few pfamily members) volunteered over the course of the week. On this day, it was a mere 95 degrees at 10:00 am. So where do we sign up for our pay checks?
Expanded Definition of Son or Daughter Under FMLA
The Wage and Hour Division of the US DOL has provided an interesting twist in its interpretation of how the Family and Medical Leave Act applies when there is no legal or biological parent-child relationship.
Generally, the FMLA defines a “son or daughter” 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 or physical disability.” And, according to the DOL, there has been confusion about whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child.
The DOL now takes the position that in drafting the FMLA, Congress intended the definition of “son or daughter” to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.”
In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.” Whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors including the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised.
Thus, employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.
Specifically, the DOL provides the following examples:
“Where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement. For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child. Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.”
In addition:
“It should be noted that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.”
So, what’s an employer to do? The DOL advises:
"Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship
We may find that this interpretation is reversed in future, perhaps more conservative administrations.
For more information follow this link to: USDOL Wage & Hour Division Administrator's Interpretation 2010-3: Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child.
Posted By Diane Pfadenhauer In FMLA | Permalink
Section 193 of the NY Labor Law and Deductions From Pay
There has been a lot of discussion of late on the subject of payroll advances, recouping employee loans and such from employee pay in New York. And, not surprisingly, the NYS Department of Labor has changed its position on permissible deductions.
So, generally, here is the rule: New York State Labor Law, Section 193, generally prohibits deductions from wages with few exceptions. What would arguably apply here is the exception for a deduction “authorized in writing by the employee” and “for the benefit of the employee.” These deductions are generally limited to: insurance premium, benefits, labor dues and “similar payments for the benefit of the employee.”
Prior to January of 2010, the NYS Department of Labor took a broad view of this rule and permitted certain deductions – for example loans and other advances of payroll. In the past several years there have been court cases in NY which have narrowed the permissible interpretation of the statute and in January of 2010, the NYS DOL reversed its previous position and now takes the following position:
- Deductions for overpayments to employees are NOT permitted, even with the employee’s written consent.
- Deductions to recoup salary or benefit advances to employees are NOT permitted, even with the employee’s written consent.
- Deductions for tuition payments are NOT permitted.
- Requiring the employee to pay back money owed to an employer in a separate transaction or be subject to discipline is NOT permitted.
This is my general interpretation and your particular situations will likely be fact-specific. Thus, I suggest that if you are considering ANY of these types of deductions from an employee's pay that you seek the advice of your attorney before proceeding.
Posted By Diane Pfadenhauer In New York Law | Permalink
Revised Federal Tax Bill Does NOT Include COBRA Subsidy Extension
For those who are still wondering about the ongoing COBRA subsidy, it looks as though it has finally reached its end (so far, anyway). The recent tax bill proposed in Congress does not include an extension and the subsidy therefore will not be applicable to those laid off after May 31, 2010. Note, however, that those currently eligible for the subsidy will likely remain eligible for the reduced premium through the end of the year.
For more information, follow this link to an article on this subject.
Posted By Diane Pfadenhauer In Compensation & Benefits | Permalink
Social Networking Sites and Employment: Watch Out for GINA
There has been quite a buzz of late on the use of information found on social networking sites in employment. Often the concern arises when information that may become the basis of an adverse employment decision is found and relates to a protected characteristic. In other words, the employer didn't mean to stumble upon certain protected information when "google-ing" the applicant but did so. And the next question usually relates to how the employer might demonstrate that this newly found information concerning a protected characteristic did NOT play into the employment decision.
The Genetic Nondiscrimination in Employment Act makes the mere collection of the information illegal. In other words, and ably explained by Megan Erickson in her Social Networking Law Blog,
"With respect to social media issues specifically, GINA makes the mere acquisition of genetic information illegal. Because the Act broadly defines the term “genetic information” (including even medical conditions of family members), checking out an employee’s or applicant’s Facebook profile could easily result in a violation. For example, if an employer found an employee’s status update saying he is raising money for multiple sclerosis in honor of his father who is suffering from it – just getting that information could be a violation."
We are still awaiting the final regulations under GINA. In the mean time, be careful!
Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Staffing, Recruitment, Selection | Permalink
Executive Order 13496 Requires Notice to Employees of Right to Organize
Make room on your corporate bulletin boards. Federal contractors and subcontractors are now required to inform employees of their rights under the National Labor Relations Act (NLRA). The notice, prescribed in the Department of Labor's regulations, informs employees of Federal contractors and subcontractors of their rights under the NLRA to organize and bargain collectively with their employers and to engage in other protected concerted activity. Additionally, the notice provides examples of illegal conduct by employers and unions, and it provides contact information to the National Labor Relations Board. Federal contractors and subcontractors are required to post the prescribed employee notice conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity, including all places where notices to employees are customarily posted both physically and electronically.
The notice must be posted by June 21, 2010.
Follow this link to the poster: Employee Rights Under the National Labor Relations Act
Follow this link to: USDOL Fact Sheet on Obligation of Federal Contractors to Notify Employees of Their Rights Under Federal Labor Laws
Posted By Diane Pfadenhauer In Federal Contractors , Labor Relations , Policies & Procedures | Permalink
