1. Wage and hour issues
2. WARN issues
3. Leave issues
4. Benefits continuation issues
5. The Americans With Disabilities Act
6. OSHA
7. Unemployment
8. 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

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.

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

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.

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.

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.

Presumably this interpretation falls in line with the letter of the law - specifically, the statute is somewhat narrowly written. It does, however, put employers and employees in a precarious position.

For more information, follow this link to an article on this subject.

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!

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

Generally under the Faragher-Ellerth Defense employers an employer may avoid liability for sexual harassment claims under Title VII of the Civil Rights Act of 1964 for acts committed by a supervisory employee if it can demonstrate the following:  1) that there was no tangible employment action taken against the individual, 2) that the employer acted promptly and responsibly to correct any harassing behavior, and that the employee failed to avoid harm otherwise.

Employers have long relied on this defense to minimize their exposure. However, in Zakrzewska, interpreting the New York City Human Rights Law, the Court of Appeals asserted that the clear language of the statue precludes the availability of the Faragher-Ellerth defense.  Specifically, an employer "...shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of [the statute] where: (1) the employee or agent exercised managerial or supervisory responsibility...

I say don't throw out your training and policies yet.  Avoidance of lawsuits is the best defense!

Follow this link to:  Zakrzewska v. The New School

P.S. Did you ever notice that in theses landmark cases, the names of the parties are often so difficult that you can't pronounce or spell them?

It is not at all unusual for employers to obtain a credit checks part of their hiring practices.  The EEOC reminds us, however, if it's position on this subject.  Specifically, 

"If an employer’s use of credit information disproportionately excludes African-American and Hispanic candidates, the practice would be unlawful unless the employer could establish that the practice is needed for it to operate safely or efficiently. At an EEOC meeting in May 2007 on employment testing and screening, attorney Adam Klein testified that credit checks have not been shown to be a valid measure of job performance. Testimony of Adam T. Klein, Esq., EEOC Commission Meeting (May 17, 2007), http://www.eeoc.gov/eeoc/meetings/archive/5-16-07/klein.html. Some courts, however, have determined that credit checks are appropriate for certain positions, such as where an employee handles large amounts of cash. See EEOC v. United Virginia Bank/Seaboard Nat’l, 1977 WL 15340, 21 FEP Cases 1392 (E.D. Va. 1977) (even if the defendant bank’s credit check policy disproportionately screened out African-American job applicants, the bank had a business need to conduct pre-employment credit checks because employees handle large amounts of cash)."

Forewarned is forearmed.

The following is the test used by the US DOL when evaluating interns in the private sector.  The following six criteria must be applied when making this determination:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.  

If ALL of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern. In other words, if the intern is intended to perform work over the summer that employees on vacation would otherwise be doing, it’s not an internship!

Follow this link to:  United States Department of Labor - Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act

Here are the details:

1.  Notice must be provided to those who experienced a qualifying event (termination of employment) on or after April 1 (The Defense Act and TEA amended ARRA, extending the benefit to March 31).

2  Notice must be provided by June 14th.

3.  Those who did not elect COBRA must be be given 60 days to elect after the new, retroactive notice is provided.

So, yet again, we now have to go back and see whose jobs were lost and renotify them of these new benefits.  While I am not at all opposed to making these benefits available for a longer period of time, I am concerned about two things: (1) the impact that this continued "back and forth" retroactively compliance mandate has on employers.  Enough already.  This is unbelievably burdensome and complex; and (2) If we need to provide government subsidies to our former employees to continue their health care on the tax payer dime, isn't there something wrong with the entire picture in the first place?

Lastly, as I have previously mentioned in my tweets, unemployment benefits have been extended as well.  This, on top of the fact that over 30 states are, well, broke when it comes to unemployment funds.

We all know that we will be experiencing a flurry of regulations and resulting internal policy changes that will affect every area of HR.

So, in an effort to provide FREE and USEFUL information to my colleagues and the public at large on this important topic, I have created THE HEALTH CARE REFORM BLOG.  Yes, I know, such a stunning title.  I will be focusing on the impact of the new law on employers and the workplace.  I've already begun loading it up with resources and posts started last week.  Please add it to your feeds....  I appreciate the follow.  As always this blog, which has been around for over 6 years, will continue to focus on HR and employment law.

Follow this link to:  The Health Care Reform Blog

www.thehealthcarereformblog.com