Worker's Bring Economic Stress into the Office

For new on this story - see this Washington Post article on the progress of the legal case so far.

And, what were they thinking???

The announcement of the rule is available here in the Federal Register.  Comments must be made on or before May 30, 2008.

National Defense Authorization Act / FMLA Poster

Here's a good point raised by John Hyman of the Ohio Employer's Law Blog:

"My problem with this ruling is that Fed Ex never had any meaningful way to respond to the Intake Questionnaire. That form was never sent to it, and it had no notice that a proceeding had even been initiated until after the actual charge was filed 6 months hence. Thus, an employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit."

Moral of the story - if your employees work overtime without permission, pay them and then address the matter as a discipline issue.

Thanks to the Connecticut Employment Law Blog for a comprehensive summary of the case.

For more commentary by fellow Lexbloggers see:

• Michael Moore's commentary on the Pennsylvania Employment Law Blog
• Christopher Onstott's commentary on the California Labor & Employment Law Blog

-          Serious Health Condition - Where leave involves more than three consecutive days plus two health care provider visits, the two visits must occur within 30 days of the beginning of the period of incapacity (subject to certain exceptions). 

-           ‘Periodic treatment’ is defined as requiring treatment two of more times a year.

-          Includes separate regulations for leaves as a result of treatment for pregnancy, substance abuse and adoption/foster care. 

-          Eligibility - The DOL is looking to further define a break in service to determine the eligibility for FMLA.

-          Health Care Providers - Adds Physician Assistants as recognized health care providers.

-          Amount of Leave - Addresses how an employer should handle the situation when a holiday falls during the employee’s leave.

-          Paid Leave Substitution –Proposes  two substantive changes to the current regulations regarding paid leave:

o   The DOL clarifies that "substitute" means to run concurrently with respect to Paid time off. 

o   The proposed regulations seek to remove any distinction between sick leave and vacation leave in connection with an employer policy requiring substitution.

-          Return to Work & Bonuses - Under the new regulations, an employee must meet a specific “goal” in order to be provided a bonus.  If he fails to meet that goal due to FMLA leave, he can be denied the bonus as long as individuals who were on non-FMLA leave were also denied the bonus.

-          Notice Requirements - We should be expecting a new poster soon.

-          Employer Notice to Employee – in order to designate leave as qualifying for FMLA, the employer would now have 5 days instead of two.

-          Foreseeable Leave – Employers can require employees to explain why they failed to give notice at least 30 days in advance.  And, if not an emergency, if the need for the leave is foreseeable leave, the employee should provide notice of the need the same or next day.  With respect to unforeseen leave, the regulations indicate a narrowing of this exception.

-          Medical Certification - Employee consent to contact the health care provider to verify medical certification would no longer be required and the regulations would permit an employer to contact the employee's health care provider directly without having to use a health care provider. 

-     

• A new law requiring employers with 25+ employees to grant unpaid leave to spouses or domestic partners of combatants on leave from deployment in a combat zone.
• The new San Francisco paid sick leave requirement.
• Work hours are now regulated for pharmacists
• A crackdown on Workers Compensation “Deadbeats”
• And amendments to California law dealing with discrimination.

Follow this link to the California Labor & Employment Law Blog for more information and details on this and more legislation.

FMLA-eligible employees will now be entitled to the following:

Caregiver Leave for an Injured Servicemember:  This benefit permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

Family Leave Due to a Call to Active Duty:   This benefit provides 12 weeks of FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”

The Department of Labor has the revised Family & Medical Leave Act available on its website.

To make matters even more interesting, it is estimated that use of technoloy bandwith will surge as employees (well, at least those that actually go to work) look for game related coverage on the web.

So the next study should be this:  Let's calculate all of the people who will talk about the game on Monday, all of those who will surf the net to look for web coverage and those who will call in sick.  Then will add a calculation for lost productivity for discussions, football pools and the like which will take place prior to the game and tally that all up.  Gee, with all this loss of productivity - why don't just make it a Federal Holiday?!

Some of the assessments that employers use include cognitive tests, physical ability tests, sample job tasks, medical inquiries, personality and integrity tests, criminal background checks, credit checks performance appraisals and language fluency tests.

The EEOC makes several recommendations with regard to tests and assessments, some of which are more obvious that others. Here are a few that I often see overlooked:

• Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used.

• If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. Many employers don't even know if this is the case.

• To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly. When was the last time you reviewed your job descriptions?

• Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. I am sure your managers know very little about the legal implications of all of this and my be implementing assessments or tests with good intentions. However, they should seek guidance before doing so.

• Stock plans
• Equity-based plans
• Short- and long-term incentive plans
• Executive perquisites
• Executive benefits
• Deferred compensation plans
• Employment agreements
• Severance agreements

Hat tip to Compensation Force for bringing this to our attention.