labor lawAdivision of labor law center

The U.S. Department of Labor proposed updates to the regulations for the Family and Medical Leave Act of 1993 (FMLA) on February 11, 2008. The FMLA allows workers to take unpaid, job-protected leave to care for a newborn child, to care for a seriously ill family member, or to care for themselves when seriously ill.

Under the NDAA of 2008 (National Defense Authorization Act), certain military families became eligible for up to 26 weeks FMLA leave. The law went into effect immediately, providing leave for these families effective January 28, 2008.

Nebraska employers should be aware that current FMLA rules will remain in effect for non-military families until April 11, 2008.

In addition to the detailing specific procedures for taking Military Family Leave, the expanded FMLA regulations include two changes regarding employer and employee notice obligations.

Before the enactment of the changes, employees could take time off without giving notice and had two days to report the leave as FMLA. This rule caused problems for many employers, because workers taking time off without advance notification often interfered with daily operations. Under the new rule, employees must follow the company’s “usual and customary” procedure for reporting an absence.

The third major change involves the employer’s notice obligations. Instead of the current two business days, companies will now have five business days to send out eligibility and designation notices and to ensure that employees understand their FMLA leave rights. Also when an employee’s medical certification lacks information or doesn’t meet the FMLA criteria, the company must inform the employee, in writing, of what information is lacking.

Several technical changes that resulted from lower court and Supreme Court decisions over the last 15 years are included in the new FMLA changes, too.

Victoria A. Lipnic, the Assistant Secretary for the Employment Standards Administration, states, “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.”

More Nebraska FMLA Changes

Several changes have been proposed to the FMLA (Family and Medical Leave Act) regulations.

The U. S. Department of Labor states that these changes, which they proposed on February 11, 2008, will help improve communication among employers, healthcare providers and employees.

The proposed changes include a clarification of the long-standing U. S. Department of Labor practice of allowing employees to settle FMLA claims out of court. Normally, this requires the employee to waive their FMLA rights, retroactively.

A Fourth Circuit Court ruling misinterpreted the law and prohibited employees from waiving FMLA rights in any way. The new FMLA rule updates the wording to be clear. Waiving FMLA rights retroactively when settling a claim is permitted, waiving FMLA rights in advance is prohibited.

Two major changes are also the result of court rulings.

The rules for “light duty” assignments have been clarified in the updated FMLA regulations. “Light duty” can not be counted as FMLA leave. If a worker is injured and put on “light duty” for 6 weeks, that worker is still eligible for 12 weeks of unpaid FMLA leave.

The new FMLA regulations with go into effect on April 11, 2008. Comments on the proposed changes are welcomed and encouraged. Employers and interested persons can visit www.regulations.gov, type in “Family and Medical Leave Act” (with the quote marks) and post a comment. Be aware, however, that all comments are viewable by the public.

FMLA regulations come under the jurisdiction of the U. S. Department of Labor’s Wage and Hour Division.

As 2008 approaches, businesses need to check their labor law posters to make sure the information is up to date.

The 2008 Nebraska labor law posters have gone through several changes and companies need to take appropriate action. As a result of the Fair Minimum Wage Act of 2007, the federal minimum wage rose for the first time in about 10 years from $5.15 per hour to $5.85 per hour. Several states raised their minimum wages at the same time.

During 2007, many other states, including Texas, Maine, Utah, and North Carolina established higher state minimum wages, too.

Other changes occurred to labor laws in 2007 that required companies to modernize their posters. For example, a new tough ban on smoking at work was established in Ohio. Businesses there had to post no-smoking signs at every entrance.

The 2008 Nebraska labor law posters that every employer must display are:

• OSHA-Health and Safety Protection
• Emergency Numbers
• Minimum Wage
• Discrimination Notice
• Child Labor Law

In addition, under federal law, every Nebraska employer must display the following posters that cover U.S. labor law:

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

In other changes to labor law in 2007, Illinois also enacted a tough law regarding smoking. Almost every work environment, even restaurants bars and casinos are now non-smoking. Labor law posters will need to be updated as a result of these changes.

Until October, teens in Alaska could be employed by a gas station or convenience store that sold cigarettes. And though it was already illegal in Alaska for anyone under the age of 19 to buy cigarettes, people were concerned that these teens could be selling cigarettes to friends who might be underage. The Child Labor Laws, therefore, were amended to prohibit anyone under the age of 19 from selling cigarettes.

In addition to the changes in 2007, more changes are scheduled to occur in 2008.On January 1 and July 1, 2008, over 20 states will increase their state minimum wage.

Forklifts may look simple to operate. But they can be extremely unstable. An unbalanced load or a special attachment or extension can add to the hazard.

There are about 1.5 million forklift operators in the U.S., and the device is a common cause of bad injuries or deaths.

An Nebraska worker safety article has been released stressing the need for improved training for forklift operators.

OSHA regulations require training and retraining for forklift operators. There are standards that determine that training:

• The operator’s previous skill and knowledge.
• The “demonstrated” or visible skill of the operator.
• The type of forklift
• Other hazards in the workplace

Retraining is crucial. For example, whenever a forklift driver is in an accident (or even a near-accident), retraining is required. Whenever a driver operates in an unsafe manner, he or she must be retrained. And periodic re-evaluation and retraining is required in any case.

Attachments and operation both affect the stability of forklift – sometimes called a Powered Industrial Truck (PIT) or just a fork truck.

Whenever an attachment or extension is added, it could change the truck’s safety rating. Attachments are part of the load and must be taken into account. The addition or modification must be approved in advance, in writing, by the manufacturer. Once the modification is made, the truck’s plates, tags, or decals should show the change. Those plates or decals demonstrate the forklift’s capacity, operation, and maintenance instructions.

There are all sorts of attachments available for forklifts. They include rug rams, drum carriers, hoppers, cylinder caddies, drum rotators, and drum grippers. Most are typically found in the manufacturing industry.

Operation is also a key factor. Forklift operators are advised to keep a load as low as possible. If the steering feels somehow light, the truck is instable. The driver is losing control of the load. Adding more weight will not help. It moves the center of gravity to the rear – a recipe for instability. Even light loads that are sitting up forward on the tips of the forks are hazardous.

Workers need to be trained to operate ATVs on the job. The All Terrain Vehicle is being used with greater frequency in the workplace, and on-the-job ATV accidents have claimed 100 lives in the past 10 years.

A Nebraska worker safety alert provides a guide to operation of the sporty vehicles sometimes perceived as little more than a recreational toy. The recent bulletin outlines what the operation guidelines should be and what training employees need to avoid potentially deadly accidents.

Those guidelines are meant for any vehicle that meets this definition: a motorized off-road vehicle that is made to run on low-pressure tires, with a seat straddled by the driver, and with handlebars rather than a steering wheel. The guidelines point out that these machines are meant for a lone operator without a passenger.

The Nebraska worker safety alert also points out that the risks of workplace ATV accidents can be cut back by wearing helmets, as well.

It’s important for workplace operators to remember that ATVs don’t handle like a car. In fact, handling one is entirely different.

The Nebraska worker safety alert stresses that ATV drivers are exposed to the same risks as recreational operators.

One problem is that there is a general perception that, because ATVs are used recreationally, and children drive them, the machines must be easy to operate. That’s not the case. The ATV is prone to rollovers and other accidents, and some of those accidents are fatal – or at least cause serious injuries.

The figures are grim and the trend is disturbing. In statistics for recreational users, deaths by ATV hit 470 in 2004, compared to 29 a little more than 20 years earlier, in 1982. Injuries reached 800,000 in the last decade.

Meanwhile, according to the Nebraska Department of Labor and Nebraska OSHA, the use of the ATV in the workplace is increasing, and many workers are just not receiving the training they need to operate the machines safely.

Have you heard of the latest Voluntary Protection Program the Nebraska drug free workplace program put in place?  It is the Mobile Workforce Demonstration for Construction.  This Voluntary Protection Program (VPP) is geared for traveling construction sites and the needed worker safety.  Having a drug free work environment is crucial in improving worker safety.

Substance abuse is nothing to take lightly.  Drugs can have various impacts on a person’s thinking, coherence, and mobility.  Aside from judgment being clouded, memory and the ability to respond to the demands a work day may entail can be greatly hindered by irresponsible or illegal drug use.  Arriving to work under the influence of drugs is a safety risk for not only that person, but for the people around them. 

Careless errors and hazardous mistakes are often related to drug use.  A significant number of job-related accidents are related to poor drug use.  The Nebraska drug free workplace program decided to pay special attention to mobile construction sites, because they are one of the types of jobs that create the most hazards, even without the influence of drugs. 

Voluntary Protection Programs are some of the efforts that are recognized by the OSHA, Occupational Safety and Health Administration.  Since 1982, OSHA has implemented or approved many VPPs.  Each proposed safety plan or program is carefully investigated by the OSHA before approval.  An onsite inspection is done to ensure that the safety plans are appropriate and efficient.  Any outstanding efforts to improve workplace safety and health are commended by the Occupational Safety and Health Administration.  Employers and employees involved in such efforts will receive official recognition. 

Even though VPPs are optional, it is strongly encouraged that every company in the industry gets involved.  It is extremely beneficial.  Encouraging workers with drug problems to get help is a great service to them, the work environment and the community.