labor lawAdivision of labor law center

It’s important for Nevada employers to be aware of changes to the FMLA regulations.

On April 11, 2008, employers will face several changes due to new FMLA (Family and Medical Leave Act) regulations.

The U. S. Department of Labor proposed these changes on February 11, 2008. Until the changes go into effect employers have a chance to review them and to make comments.

To post comments, employers can simply click this link and type in the keywords “Family and Medical Leave Act” (complete with quotes). Employers should understand, however, that their comments will be viewable by the public.

The use of paid time off (PTO) while on FMLA leave is one of the major changes detailed among the new regulations. FMLA leave is unpaid leave, and employers are required only to provide up to 12 weeks and protect the employee’s job. To continue receiving paychecks, a worker can currently use accrued sick time while on FMLA leave.

The new regulations will allow employees to use accrued sick time, accrued vacation time and accrued personal leave.

For instance, Bob requires heart surgery and will take 12 weeks of FMLA leave for surgery and recovery. His accrued PTO comes to 5 weeks of vacation, 3 weeks of personal and 2 weeks of sick leave. Under the new regulations, he can use all 10 weeks of his PTO while on FMLA leave. The remaining two weeks will be unpaid leave. Bob has effectively substituted paid leave for FMLA leave, which is termed “substitution of paid leave.”

Prior to the new regulations, Bob could only use the accrued sick leave, and would then be on unpaid FMLA leave for the remainder of his time off.

The new regulations will also change how FMLA leave is charged to employee absences. Currently, a worker on FMLA isn’t considered “absent”. Employers and coworkers complained about this policy, because workers who’d been gone for 12 weeks were receiving “perfect attendance” awards, including bonuses.

The new regulations state that FMLA leave will be counted toward a worker’s absences just like any other leave. Employees who take FMLA, then, will no longer be eligible for attendance awards.

More Nevada FMLA Changes

Victoria Lipnic of the U.S. Department of Labor recently commented on the proposed changes to the FMLA (Family and Medical Leave Act). “It’s time to update these regulations — to reflect court decisions, clear up ambiguities and address issues that weren’t contemplated when the regulations were first issued in 1995.”

The Labor Department proposed several changes on February 11, 2008, including the definition of how often an employee on FMLA needs to see a healthcare provider, permission for employers to disqualify employees on FMLA from “Perfect Attendance Awards” and amendments to the medical certification process.

These proposed changes are scheduled to go into effect on April 11, 2008. Until that time, employers have the opportunity to review and comment on the changes.

Ms. Lipnic described the new proposal. “This proposal is the result of a thoughtful, careful process that included a Request for Information with 15,000 public comments in 2006, many conversations with stakeholders, and the department’s experience in administering and enforcing the law.”

In addition to the amendments listed, several changes target the issue of “serious medical condition” and how that condition is certified by medical personnel.

FMLA allows workers to take 12 weeks of unpaid leave per 12 month period to care for themselves or for a parent, child or spouse with a “serious medical condition.” To prevent abuse of the leave, the U. S. Department of Labor permits companies to require the worker’s healthcare professional to certify the “serious medical condition”.

In the new regulations, six of the definitions of “serious medical condition” have been retained. Two terms have received further clarification.

For instance, one definition of “serious medical condition” requires the worker to be incapacitated for three consecutive calendar days and visit the healthcare provider twice. Yet, no parameters were defined for those two visits. Did they need to be two visits per week, per month, or even per year?

The U.S. Department of Labor in the new regulations will amend the rule to require the two visits to occur within 30 days of the period of incapacity.

Nevada employers need to be aware that many changes in labor laws occurred during 2007, and will occur in 2008. As a result, these employers will need to update their labor law posters. The coming New Year is a good time to ensure posters are current.

One of the major changes during 2007 related to minimum wage. The federal minimum wage, as a result of the Fair Minimum Wage Act of 2007, went from $5.15 to $5.58 per hour. Nearly a dozen states increased their minimum wage on the same day.

Also, during the 2007, several other states, including Utah, Washington, Oregon, and West Virginia increased their state minimum wage.

The complete list of 2008 Nevada labor law posters that every employer should have includes:

• Discrimination Notice
• Minimum Wage
• Lie Detector Tests
• Workers’ Compensation
• Workers Compensation Part 2
• Emergency Numbers
• OSHA – Safety and Health Protection on the Job
• Unemployment Insurance

In addition, federal law requires all employers in Nevada to display up-to-date copies of the following 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

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.

A number of changes in 2008 will require employers to update their posters during the year.  The federal minimum wage will jump from $5.85 to $6.55 on July 24, 2008. On the same day, the states that raised their minimum with the last bump in the federal minimum wage will enact increases again.

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.

The year 2007 saw more changes to labor laws than most years do. Some of the changes during 2007 had to do with smoking and the sale of cigarettes.

Two states enacted strict bans on smoking in the workplace. In Illinois, almost every employment venue, including restaurants, bars and casinos went non-smoking. Ohio, too, banned smoking and posted no-smoking signs at all entrances at all workplaces.

The other changes during 2007 had to do with increases in the minimum wage. The federal minimum wage went up from $5.15 to $5.85 per hour in 2007 as a result of the Fair Minimum Wage Act of 2007. Several states across the country also raised their minimum wage at the same time.

At other times in 2007, many other states enacted raises for their minimum wage, too. West Virginia, Maine, Washington, Oregon and Oklahoma did so, along with a number of other states.

Also, during the 2007, several other states, including Utah, Washington, Oregon, and West Virginia increased their state minimum wage.

A Las Vegas construction company was forced to pay back wages amounting to nearly $1.2 million to workers following an investigation by the Wage and Hour Division of the U.S. Department of Labor.

Investigators revealed the fact that lathers, finishers, plasterers and estimators who worked up to 58 hours per week were not paid overtime by the company. Under the federal Fair Labor Standards Act, employees who work more than 40 hours per week must be paid 1.5 times their usual hourly rate.

Desert Plastering, owned by two Las Vegas brothers, was ordered to pay 1,060 construction workers a total of $1,147,921 in unpaid overtime wages for work between April 2005 and March 2007.

The company was founded in 1998, and the two owners tout their “more than 35 years” of combined experience in installing and repairing lathe and stucco. The company website extols the high-quality work delivered by “a wonderful group of team players and highly qualified personnel.” Apparently Desert Plastering defined being a team player  as “being willing to work overtime without pay,” at least for a thousand of its employees.   

According to sources in Las Vegas, the company worked with a number of developers on the construction of new homes in several subdivisions.

The violations of federal and state overtime law were severe enough that Secretary of Labor Elaine Chao weighed in on the issue. In a news conference, Chao said, “Employers have a fundamental obligation to pay workers all the wages they have earned and they can count on hearing from this department when they fail to do so.”

Secretary of Labor Chao added,” In this case, we are recovering nearly $1.2 million dollars for more than 1,000 workers and the employer is on notice to properly compensate workers in the future.”

In addition, the investigation revealed that Desert Plastering failed to keep accurate records of the time employees actually worked. This, too, is a violation of the Fair Labor Standards Act.

There are speculations that in this case, the company tried to pay some employees a flat salary, rather than paying them for overtime. Under federal law, salaried employees may qualify for overtime, depending upon their job duties. In general, an employee must have significant administrative duties, authority to make business decisions, or must supervise 3 or more employees, to qualify as “salary-exempt.” That designation means the employee is not entitled to overtime pay, regardless of the number of hours worked. These employees were found to be “salaried non-exempt” meaning although they were paid a weekly salary, they were still entitled to overtime compensation.

In other cases, employers including those in the construction industry have attempted to miss-classify workers as “independent contractors” to avoid paying overtime. Because the company controlled how, when or where work was performed, the “independent contractor” designation doesn’t apply.

This action is part of the U.S. Department of Labor’s continuing battle against employers who violate federal minimum wage and overtime laws. Just days ago, the Department of Labor forced a Connecticut healthcare firm, Stonington Behavioral Health, Inc. and its parent corporations to pay more than $1 million in overtime to 143 employees of the Stonington Institute, a residential rehab clinic.

Earlier in the month, the U.S. Department of Labor forced 107 subcontractors of KBR, Inc. of Virginia to pay some $1.5 million in back wages and benefits for up to 2,600 workers who participated in the Hurricane Katrina recovery project. The construction workers were involved in repairs to the Naval Construction Battalion Center in Gulfport Mississippi or the Naval Air Station/Joint Reserve Base in Belle Chasse, Louisiana. The U.S. Department of Labor is still searching for some of the workers involved in that case. Anyone who believes that they are owed back wages for these projects can contact the nearest U.S. Department of Labor office. The average payment per worker in that case was $616.

Earlier this year, under a voluntary agreement to prevent a federal suit, Wal-Mart, Inc. agreed to pay $33 million in unpaid overtime wages to 86,680 employees throughout the nation. An internal audit revealed that the company had incorrectly classified some employees as “salary-exempt” when in fact they were entitled to overtime pay. In other cases, the company admitted that it had based overtime pay on the employee’s base hourly rate, not including incentives and bonuses in the employee’s average rate as required by law.

Do you have questions about how the Nevada Drug Free Workplace Alliance can help employers in the battle against alcohol and drug abuse in the workplace? OSHA has the answers. 

What is the Nevada Drug Free Workplace Alliance? 

This alliance consists of OSHA along with union and contractor organizations. The focus is to help protect employees from the dangers of drug and alcohol abuse in the workplace. 

Is abuse a big problem in the workplace? 

Abuse problems cost American businesses in several ways. Employees may miss more work, causing a high rate of absenteeism. They also may make more errors and have more accidents. Abuse problems also may impact employee morale, which may be low. Also, workplace automobile accidents that result in fatalities are often caused by either drug or alcohol abuse. OSHA feels that abuse problems are a preventable workplace hazard. 

What does OSHA recommend that employers do to combat this problem? 

To create a comprehensive plan for creating a workforce that is drug-free, employers should take five steps. First, they should develop a policy concerning abuse issues in their workplace. Next, they need to train all supervisors on the problem and the policy. This step is followed by training and educating employees about the dangers alcohol and drug abuse pose. Employers also need to offer assistance to employees who do experience abuse problems. Finally, employers need to perform drug testing. Of course, the privacy rights of employees should be considered when employers have drug testing as part of their program. 

Do employers have to create a drug-free workplace? 

No, it is not required, but employers can improve the health and safety of their employees by doing so. Although this program is good to have in all businesses, OSHA urges workplaces that utilize machinery where impairment issues could lead to injuries to create a drug-free workplace environment. By doing so, employers can do a great deal to help protect their employees.

A streamlined federal agency dedicated to workers with disabilities and a human resources organization with 200,000 members are teaming up.

The link should provide more jobs and more services to Nevada workers with disabilities.

On the government side is the U.S. Office of Disability Employment Policy – ODEP, for short. On the private side, the Society of Human Resource Mangers, or SHRM.

“This alliance formalizes the relationship we have had with SHRM,” said Roy Grizzard, Assistant Secretary of Labor for Disability Employment Policy, “benefiting SHRM as it serves its membership with the resources ODEP brings to the table and offering ODEP the opportunity for broader contact with human resource professionals.”

For Nevada workers with disabilities, the alliance should result in better access to resources. They will still benefit from all the services they received through the Nevada Department of Labor, but enjoy as well the resources made possible only by this partnership. They’ll gain from new research, the trading of information and guidance between the sectors, the provision of new resources to state agencies, and enhanced communication between all the parties involved.

Specifically, the new team-up will focus on outreach for disabled workers. It will encourage communication on the subject of employing workers with disabilities. And it should lead to recruiting and hiring more of the workers, whose talents are still being underused in the work world.

ODEP was formed in 2001 as a spin-off from the U.S. Department of Labor U.S. Secretary of Labor Elaine Chao hoped that by separating it from the larger Labor Department it would allow for a more timely and flexible response to the needs of workers with disabilities. SHRM dates back to 1948 and has 550 chapters. It’s represented in more than 100 countries worldwide. Its stated goal is to serve human resource professionals’ needs “by providing the most essential and comprehensive resources available.”