labor lawAdivision of labor law center

On February 11, 2008, the U.S. Department of Labor proposed updates to the FMLA regulations for all families that Alaska employers should be aware of.

The FMLA (Family and Medical Leave Act) of 1993 provides unpaid, job-protected leave for Alaska employees to care for a sick child, parent or spouse, or for their own serious illness. FMLA also allows workers to take leave for childbirth, and after adoption or fostering of a new child.

The NDAA, or National Defense Authorization Act of 2008 expands FMLA leave to 26 weeks for families of certain military members. The law went into effect immediately, providing leave to since January 28, 2008. For non-military families, the current FMLA rules remain in effect until April 11, 2008.

Assistant Secretary of Employment Standards Administration, Victoria A. Lipnic, said, “This proposal preserves workers’ family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace. It also implements a law President Bush recently signed to extend family and medical leave to families of America’s soldiers who are suffering serious illness or injury.”

The expanded FMLA rules consist of several changes. The most important are employer notice obligations, employee notice obligations and updated rules for Military Family Leave.

Previous to the implementation of the new rules, employees could take unscheduled days off and had up to two days to report the absence as FMLA leave. The lack of notice caused problems for employers by disrupting normal operations. Under the new rules, workers must follow the “usual and customary” procedures for reporting absences.

The second major change imposes increased notice requirements for companies to ensure that workers understand their FMLA rights. Instead of two business days, employers will now have five business days to send eligibility notices to their employees.

If the employee’s medical certification is insufficient or incomplete, companies must inform the employee in writing exactly what information is lacking. The worker has seven days to respond. The rule helps prevent denial of FMLA leave because of a technicality.

Change number three allows, under the NDAA, military families to take up to 26 weeks of unpaid job-protected leave.

More Alaska FMLA Changes

On February 11, 2008, the U. S. Department of Labor published several suggested changes to the regulations for FMLA (Family and Medical Leave Act).

The U. S. Department of Labor states that the proposed changes will better facilitate communication between workers, healthcare providers and employers. In addition, these changes take into account several rulings by the U. S. Supreme Court and lower courts that affect the FMLA.

One of these court rulings is the Ragsdale Decision. In Ragsdale, a worker who had already taken 30 weeks of paid leave was denied additional unpaid FMLA leave. The U.S. Department of Labor sued the employer and sought a penalty for not awarding the FMLA leave. The U. S. Supreme Court ruled in Ragsdale vs. Wolverine World Wide, Inc. that in some cases, workers who had already taken more than 12 weeks of paid leave may not be eligible for an additional 12 weeks of FMLA leave. The ruling further explained that employees are entitled to a total of 12 weeks of unpaid leave, and those who’ve already taken 12 or more weeks of leave, paid or unpaid, are not entitled to penalties.

The changes to FMLA will go into final effect on April 11, 2008. Until that time, employers are encouraged to comment on the recommended changes by visiting http://www.regulations.gov. Once on the site, type the keywords “Family and Medical Leave Act” (in quotes) and post the comment. Note that the comments will be viewable by the public.

It’s important that employers order their 2008 Alaska labor law posters soon. Both state and federal law require that the updated posters be displayed.

During 2007 many changes occurred to labor laws. As 2007 comes to an end, employers will need to update their labor law posters. Alaska employers are affected by these changes, and need to be aware of them.

Under state law, the officially required 2008 Alaska labor law posters are:

• Minimum Wage
• OSHA - Health and Safety Protection
• Unemployment Insurance
• Workers’ Compensation Insurance
• Sexual Harassment
• Emergency Information
• Child Labor

By law every Alaska employer is required to display these posters.

In addition, under federal law, employers must display these posters:

• USERRA - Uniformed Services Employment and Reemployment Rights Act
• Equal Employment Opportunity is the Law
• Federal Minimum Wage
• Employee Polygraph Protection Act
• Family and Medical Leave Act
• OSHA-Job Safety & Health Protection

A large number of changes over the year influenced the poster requirements. The Fair Minimum Wage Act of 2007 increased the federal minimum wage for the first time in close to a decade. Seventy cents was added to $5.15 to raise the minimum to $5.85 per hour. A number of states that connect their minimum wages to the federal minimum raised their minimum wages on that day, too.

These states will increase their minimum wage again in 2008 when the federal minimum gets another 70 cent boost. On July 24, 2008, the federal minimum will go from $5.85 to $6.55. The states that bumped their minimum wage with the previous federal increase will bump their minimum wage again.

Other states across the country enacted an increase to their state minimum wage during 2007. Maine, North Dakota, South Dakota and New Hampshire are among them.

Minimum wage wasn’t the only law that changed during 2007. Two states established new no-smoking bans.

Illinois’s new law banned smoking in almost every work environment, including casinos, restaurants and bars. In Ohio, a tough new ban on smoking at work was also enacted. Businesses were then required to post new no-smoking signs at all entrances.

Alaska amended its Child Labor Laws regarding the buying and selling of cigarettes. The law already prohibited anyone under the age of 19 from buying cigarettes, but concern arose regarding teens working in gas stations and convenience stores that sell cigarettes. Part of the concern was that these teens when unsupervised might sell cigarettes to friends who were underage. The law was changed, therefore, to also prohibit anyone under the age of 19 from selling cigarettes.

All of the changes that occurred during 2007, and those slated to occur in 2008 will require employers to update their labor law posters. If the posters are not updated, the employer could be fined.

More than a dozen states will increase their minimum wages on January 1, 2008. These include Delaware, Oregon, Washington, California, Florida, Iowa, New Mexico, Massachusetts, Vermont, Colorado, Arizona, Missouri, Montanan and Ohio. The lowest rate to be increased is in Montana, where the state minimum wage will increase from $6.15 per hour to $6.26. In Missouri and New Mexico, the state rate will go to $6.50.

After the increase, the nation’s highest minimum wage will be in Washington state, where the minimum wage will be $8.07 per hour. Both California and Massachusetts plan increases to $8.00 per hour, while the state rate in Oregon goes to $7.95.

Both state and federal law require that every employer prominently display the posters in an area where they can been seen by every employee. Popular locations are a bulletin board, near the time clock or in the break room.

The most common reason for employers to update posters includes statute changes, especially to minimum wage laws. In just the past few months, employers in New Hampshire, Nevada and Maine have updated their labor law posters as the state minimum wages changed. The most recent increase was on October 1, 2007 when the New Hampshire minimum wage increased to $6.50 per hour.

The dangers of working in oil refineries have become a major priority of the Occupational Safety and Health Administration, or OSHA. 

Policy changes going along with that new emphasis will benefit Alaska worker safety, and should also be good news for Alaska residents. Hazardous conditions at oil refineries have caused numerous deaths during the past few years.

OSHA is wrapping up its investigation into one such accident at a refinery near Houston, TX, that killed 15 workers and injured more than 100. The plant is owned and operated by BP.

Some of the measures that OSHA has taken in the wake of that tragedy include:

• Hiring more refinery  inspectors
• Inspecting refineries more often
• Enforcing stricter standards for safety

The Occupational Safety and Health Administration has added new refinery inspectors and has embarked on a training program. So far, according to Edwin G. Foulke Jr., Assistant Secretary of Labor for OSHA, the agency has trained more than 160 OSHA staff to conduct what are called Process Safety Management inspections, or PSMs. “By August of this year we will have 280 PSM-trained inspectors,” he said

That way, OSHA should be assured of inspecting every refinery in the U.S. under its authority, through the new National Emphasis Program.

All of the inspections are conducted not only by OSHA, but also by its state affiliates.

The Chemical Safety and Hazard Investigation Board (CSB) held a hearing recently on the Houston refinery tragedy of the spring of 2005.

In that tragedy, flames shot into the air thousands of feet, and ash rained down on the area neighboring the plant. The refinery had employed 1,800 workers. And it processed 433,000 barrels of crude oil every day. That represents 3% of the country’s total processing capacity. Gas prices went up sharply in the summer of 2006. The loss of production as a result of the Houston explosion was partly responsible for those higher prices.

The U.S. Department of Labor has concluded that oil companies will not voluntarily institute protections of their refinery workers, regardless of the Houston tragedy. Six months after the explosion, OSHA inspected another plant owned and operated by BP, this one in Ohio. It found that BP had not corrected any of the problems.

Wetting asbestos is one of the best ways to minimize its toxic dust, according to a recent Alaska OSHA alert. The tiny particles of asbestos can be inhaled, and are a severe health risk. Another acceptable system is storing any parts containing asbestos in sealed and labeled plastic bags.

A recent Alaska worker safety alert details the best methods of reducing the risks associated with asbestos in auto repair shops. Two recommended procedures to control asbestos fibers include the negative pressure enclosure/HEPA vacuum system and the low pressure/wet cleaning.

The worker safety alert warns that asbestos still poses a danger in the workplace. Some older models of trucks and cars have asbestos in the brakes and clutches. Asbestos can break into tiny particles that threaten the health of mechanics and other workers. New cars do not contain asbestos in the clutches and brakes.

OSHA strongly recommends that consumers avoid making any repairs to clutch and brake systems themselves. Instead, the work should be entrusted to a professional who can handle the asbestos safely.

Asbestos is so dangerous because it disintegrates into tiny, invisible particles that spread in the air. Once inhaled, the particles remain in the lungs forever. Workers can develop asbestos-related diseases, even years later. Some common illnesses caused by asbestos include gastrointestinal cancer, lung cancer, and mesothelioma. About 10,000 people die in the US each year because of asbestos-related illnesses. 

An alternative system to control asbestos, according to OSHA, is the spray can/solvent method. Both the wet method and the spray can/solvent method are acceptable only in shops that do few repairs on brakes and clutches. OSHA has approved these methods only for auto shops where 5 or fewer brake and clutch jobs are done each week.

The recent Alaska worker safety alert reminds employers, especially in auto repair shops, that they are responsible for creating a written plan for handling asbestos in the workplace. Employers must train workers to handle asbestos safely. Failure to establish such procedures, or not following them, is a violation of state and federal regulations. In addition, it can pose a serious health risk for everyone in the shop – not just the workers.

A current issue of an Alaska worker safety publication discusses the importance of following regulations when operating fork trucks, also called forklifts.  In this country, there are 1.5 million people who use fork trucks on a regular basis.  All types of businesses use them, and there is no question about the fact that they can be dangerous.

The Alaska OSHA would like all employers and employees to be aware that improper fork truck use can lead to severe injury and casualty.  Safety when operating heavy machinery is absolutely crucial. It should be taken very seriously.  Each individual who needs to use a fork truck as part of their job should be thoroughly trained and informed about all the safety precautions.

A common misconception about fork trucks is that you can balance a load by adding weight to the back of the truck.  This is not true.  The fork truck’s center of gravity will be shifted to the rear axel and pivot point.  Adding weight to the rear will only create more instability.  Lighter loads need to be properly centered onto the truck.  Each fork should have the same amount of weight on it.  The load center of gravity on an average sized fork truck should be less than 24’’ higher than the forks and less than 24’’ from the base of the forks.  It is not a good idea to place a light load too far forward on the forks.  The fork truck’s maximum capacity should be indicated on a data plate somewhere on the truck.  Make sure the load does not exceed this weight.

Attachments or modifications to a fork truck should also be indicated on the data plate.  If a drum gripper, cylinder caddy or hopper is added, it can affect the safety rating.  The maximum capacity of the machine is also changed when an attachment is put on.  Make sure the information decal on the fork truck is updated with this information.