labor lawAdivision of labor law center

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…)

The California Labor Agency recently issued an opinion allowing employers to reduce an exempt employee’s salary and hours worked, at the same time, without endangering the worker’s status as a salaried exempt employee.

In the example used, the state labor agency permitted an employer faced with economic difficulties to reduce the work schedule of exempt employees from five days to four days. The state DLSE or Department of Labor Standards Enforcement ruled in a recent opinion letter that simultaneously reducing the employee’s salary by 20%  “did not violate the ‘salary basis’ for the workers’ overtime exemption under the state Labor code and wage orders” as long as the employer’s action is a temporary measure.

This is a radical change, since the DLSE took the opposite position in 2002. In an opinion letter issued in that year, the California agency ruled that the employer could reduce an employee’s salary. However, if the employee’s work hours were also reduced, that change the employee from exempt to non-exempt status.

This is a primary concern for California employers, since non-exempt employees are entitled to overtime under state law. California has the strictest (more…)

Illinois Governor Pat Quinn recently signed three new employment bills into law. The laws address wage discrimination at the state level, and increase the rights of victims of domestic abuse.

Expanded Leave Rights

Every Illinois employer needs to be aware of an amendment to the Illinois Victims Economic Security and Safety Act. The new law requires employers to extend unpaid, job-protected leave to victims of domestic violence or sexual violence.

Under the new law, effective August 24, 2009, employers with 50 or more workers must provide up to 12 weeks of FMLA-type leave to employees who are victims of rape, sexual assault or another type of sexual violence. The law requires employers with 15 to 49 employees to provide  8 weeks of unpaid leave.

Employers must also extend the same benefits to victims of domestic violence of any kind.

This new law is notable because Illinois has no family leave law at the state level – so this is the state’s first intrusion into expanding FMLA to smaller employers. Currently, there is no Illinois law that requires an employer with 15 to 49 workers to provide leave for any reasons other than sexual violence or domestic violence.

New Illinois Discrimination Law

Under a new Illinois discrimination law, victims of stalkers, domestic violence and other crimes are protected from employment discrimination. The amendment to the Illinois Human Rights Act prohibits the employer from discriminating against an employee who is protected by an order of protection or a similar order issued in anther state.

Under the law, which goes into effect on January 1, 2010, the employer cannot make employment decisions based entirely or in part on whether a worker is shielded by an order of protection.  For example, the employer could not refuse to hire Jane, a teacher, simply because she has an order of protection against her ex-husband Ted. (more…)

The federal EEOC just published new regulations that redefine disability under the Americans with Disabilities Act.

The new regulations specifically address the definition of disability within the ADAAA of 2008, which has been in effect since January 1, 2009.

Under the new rule, certain impairments will create a presumption of disability. These impairments include epilepsy, diabetes, multiple sclerosis, developmental disabilities, deafness, blindness, use of a wheelchair due to mobility problems, autism, cerebral palsy, HIV/AIDS, muscular dystrophy, major depression, bipolar disorder, partial or complete amputations, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.

The new ADA rules mean that an employee who has been diagnosed with any of those conditions is presumed to be disabled and entitled to reasonable accommodation.

This may seem to be a common-sense approach to disabilities, but it has not always been so.

Under the old rules, each employee claiming a disability had to individually demonstrate that the condition limited one or more major life activities. A very large company might have 10 blind employees. Each blind employee would have to individually prove that blindness impaired their performance at one or more major life activities like reading, walking, using a phone book, using public transportation, cooking, shopping, personal grooming, etc.

An individualized assessment of whether a substantial limitation exists should still be done, according to the EEOC. However, the federal agency claims this “can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”

Employers should note that the list of impairments is not exhaustive. Other conditions (more…)

 After more than 15 months  of debate, the E-Verify mandate for federal contractors went into effect on September 8, 2009. The regulation also applies to most sub-contractors working on federal projects.

The new regulations apply to any business that signs or renews a federal contract worth $100,000 or more, on or after September 8, 2009. Federal contractors are also required to ensure that any sub-contractor they hire complies with the E-Verify regulations, which adds another layer of administration for many employers.

Employers may think they are covered because they already use E-Verify for all new hires, but they will be mistaken. The new regulations require employers to enroll anew in E-Verify, designating their business as a federal contractor.

A unique feature of the system is that employers must verify the work authorization of existing employees working on federal projects, as well as new hire. This means that even an employee who has been with the company for 50 years must prove that he or she is legally authorized to work in the U.S.

In a business where a single employee may handle varied tasks, it can be difficult to determine who is and is not working on a particular federal contract. In that case, the employer can verify the work authorization status of all existing employees.

However, if an employer chose to verify the work authorization status of only Hispanic employees, or only those who were non-citizens, that would be illegal discrimination based on race, color or national ancestry. The employer must re-verify all employees, or only those working on federal projects.

As part of the DHS E-Verify system, an employer can require that an employee or new hire who is a citizen use a Social Security card as one of the identity documents required on the I-9. Employers who do not use E-Verify still cannot dictate which identity documents an employee chooses to use, from the list provided on the I-9 form.