labor lawAdivision of labor law center

The Family and Medical Leave Act of 1993 (FMLA) guarantees workers unpaid job-protected leave in the event of their own or an immediate family member’s serious illness, or to care for a new child.

The U.S. Department of Labor published proposed changes to the FMLA rules on February 11, 2008.

There are three major changes. One involves employee notice obligations, another covers employer notice obligations, and the third expands FMLA leave to 26 weeks for some military families.

The military leave expansion, under the National Defense Authorization Act (NDAA) of 2008, went into effect January 28, 2008. The rest are due to take effect on April 11, 2008.

Assistant Secretary for the Employment Standards Administration Victoria A. Lipnic said the set of proposal “preserves workers’ family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace.” She also noted the expansion in military leave “to families of America’s soldiers who are suffering serious illness or injury.”

Under the new rules, North Carolina employees would have to follow company policy for notifying an employer then they plan to use FMLA leave. Employers have noted that under the old regulations workers had two businesses days after an absence in which to notify the company that the absence was in fact FMLA leave. The lack of notice was a serious disruption in operations.

Employees are also protected. The regulations help assure that workers will not be denied FMLA under a technicality. If an employee’s medical certification is lacking something or is incorrect, employers must notify the worker in writing. The employee then has seven days to correct the problem. All employer notice requirements are now consolidated, and the new rules are designed to assure that employees know their rights to FMLA leave. Employers also have five business days rather than two to send designation and eligibility notices to employees.

Some technical changes are also included in the proposal. They reflect Supreme Court and lower court decisions since the FMLA was passed.

More North Carolina FMLA Changes

Employers and others have until April 11, 2008 to comment on new proposed changes to the Family and Medical Leave Act (FMLA) rules, first published by the U.S. Labor Department on Feb. 11, 2008. The rules will go into effect around the April 11 date.

Post comments at http://www.regulations.gov under the keywords “Family and Medical Leave Act,” including the quotes as shown. All comments will be published in their complete form, including whatever contact information is provided.

The changes, according to the U.S. Department of Labor, should result in better communication with three key groups, employers, workers, and healthcare providers.

The FMLA rules are enforced by the Labor Department’s Wage and Hour Division.

One of the tentative changes strengthens a Labor Department stand that employees may settle FMLA claims out of court, but must waive their FMLA rights retroactively in order to do so. FMLA rights may still not be waived in advance, ruling out the possibility of a union contract denying entitlement to FMLA leave.

Another addresses the issue of “light duty,” stressing that it may not be counted toward an employee’s FMLA leave time. A worker may receive “light duty” worker for 10 weeks, for example, and still be entitled to the full 12 weeks or more of FMLA time. “Light duty” would not affect an employee’s FMLA reinstatement guarantee. In short, if a warehouse worker were given a “light duty” assignment in the parts department because of a back injury, she or he would be reinstated to the warehouse job after FMLA leave. The position reverses court case trends. Two lower courts have ruled that “light duty” time may be part of FMLA leave.

A third proposal takes into account a U.S. Supreme Court case known as Ragsdale vs. Wolverine World Wide, Inc. The Court ruled that under some conditions employees who have taken more than 12 weeks of paid leave may not have the right to the 12 weeks or more of unpaid FMLA leave. An employee was denied FMLA leave after 30 weeks of unpaid leave. The Labor Department took the matter to court.

Every North Carolina employer needs to understand that in 2007 a number of changes to the labor laws were made. In 2007, for the first time in ten years, the federal minimum wage was increased from $5.15 to $5.85 per hour as a result of the Fair Minimum Wage Act of 2007. At least ten states increased their state minimum wage on the same day.

These changes mean that employers must update their 2008 North Carolina Labor law posters.

The North Carolina Labor Law Posters that every employer is required to display are:

• Unemployment Insurance 
• OSHA – Safety and Health Protection 
• Wage and Hour Act 
• Workers’ Compensation

In addition, North Carolina employers are required to display the following posters by federal law:

• 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

Another increase will occur on July 24, 2008, raising the federal minimum wage from $5.85 to $6.55 per hour. Again, the states that tie their minimum wage to the federal rate will bump their state minimum wages, too.

The 2008 Connecticut labor law posters required by state law are:

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 New Year will bring more changes which will require employers to change labor law posters. Restaurants, bars and casinos and practically every other work environment in Illinois will enact a tough new law banning smoking.

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

2007 also saw other changes that required employers to update their labor law posters. Employers in Ohio had to post new no-smoking signs at all entrances as a result of the establishment of tough new ban on smoking in the workplace.

Washington, Oregon, Texas and several other states raised their state minimum wages in 2007.

A change was enacted in Alaska to the state Child Labor Laws regarding the selling of cigarettes. It was already illegal for anyone under the age of 19 to buy cigarettes. This change in the law also made it illegal for anyone under the age of 19 to sell cigarettes. The change resulted from the fear that teens working in gas stations or convenience stores were selling cigarettes to their underage friends.

As a result of these changes, companies need to take the time to update their labor law posters by the end of this year. Failure to update the posters with the new information can result in a fine for the employer.

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.

Asbestos is an ancient material with modern hazards. Used by the Egyptians and the 9th-century Emperor Charlemagne, asbestos was prevalent as a fire-retardant through most of the 20th century.

Today, it lingers in the brakes and clutches of older-model cars and trucks, continuing to pose a danger to auto mechanics and the people who work around them.

A North Carolina Worker Safety advisory distributed recently points out the specific hazards of the presence of asbestos in the auto repair industry. The material was used in brakes and clutches to prevent fires.

One problem is that a mechanic cannot tell in advance whether or not a brake shoe or clutch contains asbestos. The only way to know is to open it. Handling it unsafely can put not only the mechanic at risk, but also the other workers in the auto repair shop.

Most new cars, according to OSHA, don’t contain asbestos. But because the risks continue to show up in older vehicles being worked on in repair shops, employers of those shops are required by regulations to train workers in safe handling of asbestos. Asbestos should be controlled by wetting it, which limits the numbers of airborne particles. The material should be stored in labeled and firmly sealed bags.

Asbestos breaks up readily into particles invisible to the naked eye. The particles become airborne and are inhaled. The result is a danger of several kinds of cancer as well as asbestosis.

One of the cancers is a rare form called mesothelioma, named for the mesothelium, or protective lining of internal organs. It is there that the cancer develops. Most of the sufferers of mesothelioma have had exposure to asbestos.

The chronic inflammatory disease asbestosis is another risk. Workers who are exposed over a long term to heavy amounts, such as workers in the mining industry, are often sufferers of this disease. Asbestosis results in shortness of breath and an increased risk of lung cancer. It is regarded as an occupational lung disease.

Some 10,000 people die of asbestos-related ailments yearly.

Five unions and five contractors’ associations sent representatives to a ceremony expanding the North Carolina Drug Free Workplace Alliance. The participation demonstrates the costs of drug and alcohol abuse in the workplace and the need for a cooperative effort to deal with it.

Contractors included the Associated General Contractors, the American Road and Transportation Builders Association, the National Asphalt Pavement Association, NEA – The Association of Union Constructors, and the Specialized Carriers and Rigging Association.

Unions on hand were the International Association of Heat and Frost Insulators and Asbestos Workers, the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, the International Union of Operating Engineers, the Laborers’ International Union of North America, and the International Union of Painters and Allied Trades.

Secretary of Labor Elaine Chao attended the signing ceremony to demonstrate her commitment to working with both unions and contractors’ associations on the issue of the safety and health of workers.

The alliance was originally created by the U.S. Labor Department in 2004, the Department’s first push to develop cooperation in order to curb drug and alcohol abuse and improve the safety of workers, particularly in the construction and mining industries. It offers information about developing drug free workplace programs. Workforce development professionals are helped through the alliance in assisting workers with alcohol and drug use and abuse problems.

“Only by addressing drug and alcohol abuse among the entire workforce – those currently employed and those preparing to enter employment – can a drug-free American workforce be achieved,” said a spokesperson for the Labor Department.

Drug and alcohol abuse has workplace costs – some obvious and some not. The costs include accidents, errors, and absenteeism, as well as the less obvious low worker morale and increased rates of illness.

Employers can educate workers about the dangers of drug and alcohol use, and can urge employees with problems to get help. Companies in the alliance also use random drug testing and the screening of applicants.

If you’re a worker with a disability, you may wonder how something as abstract as the alliance of a public-sector agency and a private-sector organization can be relevant to your working life.

But as remote from your concerns as the ODEP/SHRM partnership may sound, it actually has potential for some concrete changes in your life.

North Carolina workers with disabilities should actually see more jobs coming their way as a result of the alliance. Look for more recruiting and hiring in the future. Expect more training, technical help, and education, as well as more communication about what’s available. The services already available through the North Carolina Department of Labor will still be there. But an extra portion of access and services should result.

ODEP is the Office of Disability Employment Policy. SHRM is the Society of Human Resource Managers. Together they should create a symbiotic relationship that will come down to more services for you. Because of the alliance, the federal agency will benefit from all of the valuable contact with human resources professionals. Meanwhile those professionals will reap the benefits of all of the resources of the federal government. In short, it will generally improve access to resources, promote research, create communication between public and private groups, and produce a common pool of information. The bottom line is that the underused talents of workers with disabilities will be tapped into more efficiently.

The cooperative effort formalizes a relationship that already existed between the private and public organizations, according to Roy Grizzard, Assistant Secretary of Labor for Disability Employment Policy, who noted that it is “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.”

ODEP is a relatively new agency. It was created in 2001 as a breakaway from the U.S. Department of Labor, in hopes of making services for workers with disabilities more response and efficient.

SHRM was created in 1948, and now has 200,000 members of 550 chapters in more than 100 countries worldwide.