labor lawAdivision of labor law center

Every Massachusetts employer needs to be aware of changes to the FMLA, and of new regulations granting leave to military families.

The FMLA or Family and Medical Leave Act of 1993 provides workers unpaid, job-protected leave to care for their own serious illness, a family member illness or to care for a new child.

The National Defense Authorization Act of 2008 (NDAA), expands FMLA to provide up to 26 weeks of leave to military families. The bill went into effect immediately, providing leave since January 28, 2008.

For non-military families the current rules remain in effect until April 11, 2008.

Several changes to the FMLA were proposed by the U.S. Department of Labor on February 11, 2008. These changes include three significant updates: notice obligations for employers, for employees, and new regulations for Military Family Leave.

According to Victoria Lipnic, the Assistant Secretary for the Employment Standards Administration, “This proposal preserves workers’ family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace.”

With the changes, specific rules are outlined for military families to take up to 26 weeks of Military Family Leave.

Also changed under the new rules are the notice obligations for employers. All notice requirements are consolidated with the new regulations, and employers have five business days instead of two business days to inform and to ensure employees understand their FMLA leave rights. Employers will also be required to inform employees in writing exactly what data is lacking when medical certification is incomplete or insufficient.

The changes for employee notice obligations pertain to the previous rule of allowing workers to take time off without notice, then take up to two days to report it as FMLA leave. The new regulations will require workers to follow their company’s “usual and customary” rules for absences. This gives employers a break. Prior to the changes, employers often suffered disruptions to daily operations when employees suddenly took leave.

Technical changes from decisions by the Supreme Court and lower courts during the 15 years since FMLA was enacted are also included in the updated regulations.

More Massachusetts FMLA Changes

The Family and Medical Leave Act of 1993 (FMLA) provides employees with up to 12 weeks of unpaid, job-protected leave. On February 11, 2008, the U. S. Department of Labor recommended several changes to the regulations governing FMLA leave, stating that the changes will aid communication between employers, healthcare providers and workers.

On April 11, 2008, the finalized rules will be published, but until that time all interested parties are encouraged to comment on the proposed changes. Visit www.regulations.gov, type the keywords “Family and Medical Leave Act”, including the quote marks, and post a comment. Note that all the comments are public.

Several lower court and Supreme Court rulings pertaining to FMLA over the past 15 years will be assimilated into the new regulations. Two of theses rulings reverse the trend of court cases.

For example, “light duty” rules have been clarified preventing “light duty” assignments from being charged to FMLA leave. At least two lower court cases, however, have ruled that “light duty” could legally be counted as FMLA leave.

In the U. S. Supreme Court case, Ragsdale vs. Wolverine World Wide, Inc, the court ruled that workers who have already taken more than 12 weeks of paid time off may not be entitled to 12 additional weeks of leave under FMLA. In Ragsdale, an employee was denied unpaid FMLA leave after already taking 30 weeks of paid leave. The U. S. Department of Labor sued the employer and sought a penalty for the denied leave. The court ruled that employees who have already taken 12 weeks of leave, paid or unpaid, are not entitled to a penalty.

Additional changes include clarifying an employee’s right to waive FMLA rights. A Fourth Circuit Court decision interpreted the law to mean a worker is prohibited from waiving their FMLA rights. The change will clarify the U. S. Department of Labor’s longstanding practice that allows an employee to waive their rights retroactively when settling an FMLA claim out of court. Waiving FMLA rights in advance is still prohibited.

The state minimum wage in Massachusetts will increase by 50 cents from $7.50 to $8.00 on January 1, 2008. This change puts the state’s minimum wage on a par with California, tied at second highest in the nation, after the Washington state minimum wage.

Under significant exceptions to the minimum wage, however, tipped employees can be paid just 2.63 per hour, as long as they earn an average of $5.37 per hour in tips over the shift. Workers in the agricultural industry can be paid just $1.60 per hour.

The Massachusetts minimum wage statue does not require employers to pay a premium for weekends, holidays or night work. However, the state Blue Laws do require that some retailers pay a premium for Sundays and holidays.

Massachusetts is one of a handful of states that requires employers to compensate employees for any accrued vacation time upon termination. However, the state does not mandate any paid sick days or severance pay.

Most workers are entitled to overtime at 1.5 times the usual rate of pay after 40 hours in one week under Massachusetts minimum wage law. However, a number of employees are excluded from the state’s overtime provision, including:

• Residential Janitors who are furnished with living quarters
• Golf Caddies
• Newsboys
• Child Actors
• Outside Salespeople
• Apprentice
• Handicapped person under special license
• Fishermen
• Switchboard Operator for the Phone Company
• Truck Driver or Helper covered by ICC
• Seamen

The state also exempts employees of a seasonal business from overtime payments, provided that business operates less than 120 days per year.

Employees in several industries are also exempt from the state overtime provisions, such as those who work in hotels, restaurants, hospitals, gas stations, nursing homes, and amusement parks. Employees in non-profit schools or colleges are also exempt from overtime, as are workers at non-profit summer camps.

Some of the workers named above may be entitled to overtime under federal regulations.

When labor laws change, employers are required to post the updated information with new labor law posters. In 2008, several changes will occur so that employers will need to update their information. Complete listings are available at www.laborlawcenter.com.

Most of the states in the country have enacted state minimum wage laws. Over a dozen of these states will introduce increases in these minimums on January 1, 2008. 

In Arizona, Florida and Montana, the minimum will see a small raise of just a few cents per hour. Arizona’s minimum will go from $6.75 to $6.90. Florida will add 14 cents to its current rate of $6.65 to get $6.79. Only nine cents will be added to Montana’s minimum wage to go from $6.15 to $6.26 per hour.

Conversely, Iowa will add over a dollar to raise their minimum from $6.20 to $7.25 per hour. New Mexico, too will add more than a $1 per hour, from $5.15 to $6.50 per hour.

Later in the year several more states will up their minimum wages, too. July 1, 2008, Kentucky will go up almost a dollar per hour from $5.58 to $6.55. Ninety cents will be added to the minimum wage in Pennsylvania of $6.25 to reach $7.15 per hour.

The federal minimum wage will go into effect on July 24, 2008 at $6.55 per hour. Many states have legislation that connects their minimum wages to the federal minimum, including Virginia, Indiana and Nebraska. On July 24, 2008, then, these states will increase their minimum wages, too. Washington D. C. has tied its minimum to the federal at exactly one dollar more, so when the new federal minimum debuts on July 24, D.C.’s minimum will go up to $7.55 per hour.

If, as an employer, the changes are not clear, or more information is needed regarding how and what to update, businesses can get information on all 50 states online at www.laborlawcenter.com.

When it comes to protecting the safety of employees, the Massachusetts Drug Free Workplace Alliance can help. This alliance consists of members from unions and construction organizations along with the Occupational Safety and Health Administration. Together, these organizations want to help employers protect both employees and their businesses from problems related to employee drug and alcohol abuse. 

Abuse problems in the workplace cost American businesses in many ways. For instance, employees may experience higher rates of illness or have lower morale. In addition, employees may miss more work, have more accidents, and make more errors. In fact, workplace auto accidents that result in fatalities are often the result of drug or alcohol abuse. 

One way employers can protect their businesses is by creating a comprehensive approach to having a drug-free workforce. The first component of this program is to create a policy regarding drug and alcohol abuse. After that, employers should train all supervisors on handling the problem of abuse. Educating employees about the hazards of alcohol and drug abuse is the next step. Employers also need to offer those employees who have abuse problems assistance. The final step is to implement drug testing. Employers need to consider the privacy rights of employees when developing their program. 

Employers do not have to create programs to establish a drug-free workplace, but doing so helps businesses create a healthy and safe workplace. In addition, having drug-free workplaces enhances the worth of American communities and businesses in general. 

When employees come to work impaired by alcohol or drugs, they create a hazard in the workplace. OSHA feels this hazard is avoidable, and therefore encourages businesses to create a program to establish a drug-free work environment for employees. To that end, some businesses utilize random drug testing along with pre-employment drug screenings as one way to ensure the safety of employees.

We all know that it is the employer’s duty to report whenever an incident happens at the work site, whether that involves a minor scratch or a serious injury to one of your workers. And we always pass that information on to the proper state authorities as well as to the federal authorities in the form of OSHA Form 300 and OSHA Form 300As.

But we do expect that, when we are passing that confidential data on to these government officials, that our information and our employee’s information will be kept safe and private. Such was not the case in Massachusetts recently. The Department of Industrial Accidents there announced early last month that they had a former contract employer with them who illegally accessed and took workers’ comp claims information, such as the personal info on claimants, like Social Security numbers and other otherwise very important and confidential info.

The info was taken from a Massachusetts Department of Industrial Accidents database, and from what the authorities could tell, the person taking the info had all intentions of using the info for criminal behavior and fraudulent activity.

However, the person at the heart of the crime has been caught, but not after compromising more than 1200 persons’ personal and confidential information. Three of these people at last count had their personal info used by the criminal to get false credit under their name. The Massachusetts DIA though has been sure to notify all of the people who they believe have been affected. They have also posted info on the crime on the Massachusetts DIA Web site.

If you still feel that perhaps one of your workers could have been affected and not know it yet, of if you fell that you could be affected, you could contact the DIA hot line immediately at 800-323-3249, extension 560.