labor lawAdivision of labor law center

Despite a recent ruling in the 9^th U.S. Circuit Court of Appeals, the U.S. Department of Labor is targeting employers who violate wage and hour laws.

The federal Department of Labor has filed several class action suits in recent months against employers who require – or permit – employees to work “off the clock.” Violations include permitting employees to work while on unpaid meal breaks, or permitting employees to “volunteer” after hours and on weekends.

The FLSA or Fair Labor Standards Act permits the government to file collective actions on behalf of a group of employees in a similar situation. Employers are generally liable for 2 years of back pay, and 3 years in the case of willful violations.

In a recent ruling limiting membership in such class action suits, the 9^th Circuit Court of appeals ruled that an employee can join a collective action only if he or she files written consent with the court at the time the action is brought.

In Smith v. T-Mobile USA, two employees in California voluntarily settled their claims for working during unpaid breaks. Later, the two filed motions to be included in the collective action suit against T-Mobile USA, Inc. The 9^th Circuit denied the employees’ motions, ruling that because they had opted out of the suit at the beginning, they could not join it at a later time.

Colleen F. O’Keefe, an employment lawyer (more…)

Reversing a recent trend to extend broader coverage to employees under FMLA, the 8^th Circuit Court of Appeals recently ruled that while treatment for alcoholism is covered by FMLA, a five-day drinking binge is not.

In Scobey v. Nucor Steel-Arkansas, a steel mill employee was no-call, no-show on April 10. The following day the employee, Talmadge Scobey, spoke briefly to his supervisor on the phone. Scobey sounded intoxicated, and told the supervisor he was not coming to work because he had suffered a nervous breakdown. However, when the supervisor tried to get more information, Scobey hung up.

The employee was also absent on April 12, 13 and 14. On April 14, the employee again phoned the supervisor, saying that he wanted to get help. The employee was referred to the HR manager, but did not contact her until April 19. At that point, the employee was referred to Nucor Steel’s employee assistance program, and entered an inpatient alcohol treatment program.

The employee argued that the employer should have known that his absence was for an FMLA-related reason due to his statements on April 11 that he had “a nervous breakdown” and the very colorful expression he used to mean that he was intoxicated at the time.

While employers should still err on the side of caution when providing (more…)

A new law signed by President Barack Obama on October 28, 2009 expands FMLA for military families even more than the NDAA or National Defense Authorization Act of 2008.

This change in the law will require every employer to update the Military Caregiver poster, even if they do not have any employees who qualify.

The  National Defense Authorization Act for 2010 provides for two  major changes to current FMLA regulations: 

• Families of Armed Forces members on active duty are covered, not just family members of the National Guard and Reserve
•  Military caregiver leave is expanded to cover the families of some veterans 

It appears that these changes are retroactive, according to Matthew Effland, an Indianapolis attorney specializing in FMLA issues.

Active Duty Included

Under the new law, when a member of the Armed Forces is deployed to a foreign country, his or her spouse, son, daughter, parent, step-child, or step-parent can take up to 12 weeks of unpaid, job-protected FMLA leave for any “qualifying exigency.”

Many employers have already been granting this leave to military families, and not just the families of Reserve or National Guard members who are called to active duty. In fact, it is unclear why the U.S. Department of Labor interpreted the original law so narrowly in the final days of the second Bush administration.

Under the current regulations, qualifying exigencies include attending military-sponsored functions, making appropriate financial and legal arrangements, handling details of a short-notice deployment, attending counseling, and making alternate childcare arrangements. In addition, an employee can take up to 5 days of FMLA for rest and recreation or R&R under the law. The employee can also use FMLA up to 90 days following deployment for arrival ceremonies, post-deployment ceremonies and other military events.

Military Caregiver Leave Expanded to Veterans

The NDAA also permits an employee who is the son, daughter, spouse, or parent to take up to 26 weeks of unpaid, job-protected FMLA during a 12-month period to provide care for a service member who has been injured or contracted a disease in the line of duty.

This extended FMLA leave also applies to the injured soldier’s next-of-kin, regardless of the relationship. This means in some cases that an in-law, grandparent, sibling, aunt, uncle or cousin could qualify for military caregiver leave.

The new law permits the (more…)

Effective November 21, 2009 employers are required to display a new federal poster. Employers must display a GINA poster in an area where all employees can see it.

This new federal posting requirement applies to virtually every employer, even if they never engage in genetic testing.

GINA, of course, is the Genetic Information Nondisclosure Act of 2008. Under GINA, employers are prohibited from gathering information on an employee’s genetic makeup. Employers are also prohibited from considering an employee’s genetic information in making employment decisions.

Health insurance providers cannot discriminate against consumers, based on genetic information under GINA. For example, a health insurance company could not refuse to cover an individual, simply because her mother, grandmother and aunt all had breast cancer. Even if genetic testing showed that the consumer had a gene for breast cancer, that alone would not be sufficient cause for the health insurance company to deny her coverage.

The GINA prohibition on gathering genetic information also includes taking information on an employee’s family medical history – especially hereditary illnesses like heart disease, breast cancer, diabetes, arthritis, Alzheimer’s, and other inherited conditions.

GINA covers a wide variety of mental health conditions including depression, (more…)

 Massachusetts recently increased the penalties for employers who misclassify employees as independent contractors.

Many states are imposing stricter penalties for employers who illegally avoid paying unemployment insurance and workers’ comp by misclassifying workers as independent contractors.

In Somers v. Converged Access, the Massachusetts Supreme Judicial Court ruled that the independent contractor law is a strict liability  statute. This means that the employer’s intent in misclassifying a worker is irrelevant. Therefore, the worker was entitled to compensation for wages, overtime and benefits that he would have received, if he had been correctly classified as an employee. In addition, the employee was permitted to keep the $65 per hour that the company paid him as an independent contractor – an amount far in excess of an employee’s wage in the same job.

The Massachusetts company was required to pay the employee for benefits including vacation and holiday pay. In addition, the company was ordered to pay the employee overtime at a rate of $97.50 per hour – 1.5 times the worker’s $65-per-hour wage.  

The Massachusetts definition of independent contractor is even more strict than federal independent contractor regulations. A worker is an employee unless he or she is: (more…)