labor lawAdivision of labor law center

The new Oregon Smokefree Workplace Law goes into effect on January 1, 2009. The law prohibits smoking in most public place and workplaces, with a very few exceptions.

Employers are responsible for enforcing the new law. The new law replaces Oregon’s previous non-smoking law, which permitted smoking in many businesses.

Under the new law, employers must prominently post “No Smoking” signs and must prohibit smoking within 10 feet of doors, windows and air intake vents. Employers must also ensure that ashtrays are at least 10 feet from entrances, and train all employees on how to ask patrons to refrain from smoking.

Employers must also (more…)

Important changes are afoot regarding the federal FMLA regulations for employers nationwide, including those in Oregon.

Recently, several changes were proposed to for the Family and Medical Leave Act(FMLA) . Included in these changes are procedures to streamline the medical certification process.

The new regulations allow companies to request recertification of an employee’s “serious health condition” at least once every six months.

The FMLA allows workers to take up to 12 weeks of unpaid, job-protected leave for this “serious health condition” and the employer can require a statement from a physician certifying the condition. Before granting the leave, a company may ask for a second and even a third opinion, but must pay for these opinions.

The U. S. Department of Labor provides an optional medical certification form, WH-380. The form has been updated, and allows physicians to specify the worker’s “serious health condition”, but doesn’t legally require them to do so. The new regulations prohibit employers from asking the healthcare provider about anything that is not on this form. Also, when an employer contacts healthcare personnel, both parties must comply with HIPAA regulations regarding the patient’s privacy.

The changes to the certification process are a welcome change for employers. Currently, FMLA regulations only allow employers to request recertification for two reasons. If the “serious health condition” has a time limit on it, and the worker doesn’t return to work when that time limit is up, the employer can request recertification. Or, if the employee takes more than 30 days of FMLA leave and is still absent, the company can require recertification.

Under the updated FMLA, the employer can request recertification for ongoing conditions once a year. For instance, Keri suffers from migraine headaches and needs to take unscheduled FMLA leave periodically throughout the year. Under the new regulations, the company can request that Keri get the condition recertified by her healthcare provider on an annual basis.

This particular change helps employers clarify some of the vague terms previously used by healthcare personnel. “Lifetime” or duration “unknown” classifications of a “serious health condition” gave employers no avenue to request recertification.

More Oregon FMLA Changes

Current FMLA (Family and Medical Leave Act) regulations allow employers to require a “fitness-for-duty” certification before employees return to work. For instance, a company may require a worker with a “serious health condition” to provide a fitness certification, but may not do so for an employee returning from FMLA leave after adopting a child.

Recently, the U. S. Department of Labor proposed several changes to the FMLA regulations, including two amendments to the process for “fitness-for-duty” certification.

First, employers will be allowed to require the “fitness-for-duty” certification to specifically address the employee’s job functions. For instance, Jake operates an industrial crane and breaks his hand. His employer is completely within his or her rights to require a “fitness-for-duty” certification before Jake returns to work, to ensure he can safely perform his job.

Second, employers will be able to require medical certification each time a worker returns from intermittent FMLA leave. Molly drives a delivery van, but often suffers from migraines which blur her vision. Each time she takes FMLA, her supervisor can request certification that her vision is back to normal. The supervisor can demand this certification because Molly’s ability to see is a safety concern.

If safety on the job isn’t a valid concern, employers are not legally allowed to require “fitness-for-duty” certification. For example, Sandra is pregnant and takes intermittent FMLA leave because of severe morning sickness, which has been certified by her physician. Her condition isn’t a valid safety concern, so her employer can not demand fitness certification upon her return.

These changes go into effect on April 11, 2008. Until that time employers and all interested parties are welcome to make comments. Once the finalized regulations are published on the National Register, they become law.

These new changes, as with all company policies must be applied fairly to all workers in similar situations. Several federal laws protect employees from discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination due to color, race, national origin, sex or religion. Additional laws protect workers from age (over 40), pregnancy and disability discrimination.

Oregon employers should be aware that the new National Defense Authorization Act (NDAA) of 2008 provides for an expansion of FMLA leave to up to 26 weeks in a year.

The new provision applies to families of military personnel, specifically to those of an injured solider in active military service, or on deployment with the National Guard or Reserve. According to the new NDAA, a parent, spouse, son or daughter can take expanded FMLA leave to care for a family member who is an injured soldier. Under this provision, aunts, uncles and cousins, may also be allowed expanded FMLA in some cases as “next of kin”.

Oregon FMLA Expansion

It was almost certain that the Family Medical and Leave Act (FMLA) would be expanded at some point in 2008.

The proposed new bill provides up to 26 weeks of unpaid, job-protected leave for family of National Guard and Reserve personnel who have been called to active duty. This leave is meant to allow spouses and relatives to take over for those active duty personnel in matters of caring for an ill parent or child and in taking care of healthy children.

A bill proposing these terms was vetoed by President George W. Bush on December 28, 2007. The expanded FMLA, however, was not the reason for the veto. Instead, the bill was attached to the National Defense Authorization Act, which President Bush felt would “risk imposing financially devastating hardship on Iraq that will unacceptably interfere with the political and economic progress everyone agrees is critically important to bringing our troops home.”

Proponents of the FMLA expansion were not happy. They want FMLA expanded, arguing that the extended tours of duty in Iraq for Reserve and National Guard personnel have strained the families of these soldiers.

Critics of the FMLA expansion approve the veto, explaining that enacting such a measure would strain the country’s employers. These critics suggest that if the government wishes workers to have more leave, then the government should pay for it.

The current FMLA allows up to 12 weeks of leave for an employee to care for a sick child or parent, or for a newborn baby, newly adopted child or a child that’s newly fostered. It can not be used for an employee to take care of healthy children. For example, a woman has three sons and is diagnosed with cancer. Her husband can take FMLA to care for her, but not to take charge of their sons.

Since President Bush’s reasons for vetoing the bill weren’t tied to the FMLA expansion, it’s possible it may be added to another bill later in 2008.

Currently, under traditional FMLA (Family Medical and Leave Act) leave, an employee can take unpaid, job-protected leave for up to 12 weeks per year for certain personal reasons. These reasons include caring for an ill spouse, child or parent, and for the care of a newborn child, a newly adopted child and a newly fostered child.

In addition to caring for injured military personnel, the new NDAA permits parents, spouses, sons and daughters to take expanded FMLA leave to stand in for a family member who is a solder called to active duty. This provision allows a family member to not only take care of an ill person in that soldier’s charge, but also to care for his or her healthy children, too.

The new NDAA went into effect immediately, allowing families of soldiers to start taking extended FMLA leave as of January 28, 2008.

The U.S. Department of Labor is scrambling to finalize the details of the NDAA, which could take several weeks. Interim regulations allow companies to charge paid leave to the 26 weeks of unpaid FMLA, as long as the employee is informed in advance. Until the finalized regulations are published, the U. S. Department of Labor expects companies to comply with the expanded FMLA to the best of their ability.

Every Oregon employer should update their labor law posters before New Year’s Day.

The 2008 Oregon labor law posters contain some important changes. Naturally, the state minimum wage increases on January 1, 2008. This year’s increase of 15 cents will bring the state minimum wage from $7.80 to $7.95 per hour.

In 2008, by state law, every Oregon employer is required to display the following posters:

• Unemployment Insurance 
• Workers’ Compensation 
• Minimum Wage 
• OSHA - Health and Safety Protection 
• Family/Medical Leave Act

Popular locations for posters include break rooms, beside the employee time clock or in other employees-only areas.

In addition, Oregon employers are required to display a number of federal labor law posters including:

• 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

For the past two years, the Oregon minimum wage has been the second highest in the nation. In 2008, it will go to the fourth highest, when California and Massachusetts increase their state rates from $7.50 per hour to $8.00 per hour. This is just one of the changes that will be reflected in the new labor law posters for the year.

Oregon labor law posters serve as a handy reference on a wide range of topics, from unemployment benefits to child labor laws.

Labor law posters provide important information for employees and supervisors alike. For example, from state to state, the laws controlling minimum wage for tipped workers and overtime pay show a wide variation. Complete updates are available on each state’s labor law posters.

States either have no overtime law, in which case they follow the federal law, or they pass laws building on or mirroring the federal law.

Federal law offers a premium of 1.5 times the normal hourly rate for any time over 40 hours. States without their own laws include Delaware, Arizona, Idaho, Georgia, and Florida. Workers not normally covered by federal overtime law are not entitled to overtime in these states.

Nebraska mirrors the federal law but extends coverage to all businesses with 4 or more employees. Illinois, Massachusetts, and Michigan also mirror federal law – 1.5 times normal after 40 hours. But Kansas’ overtime does not kick in until 46 hours, and Minnesota’s not until 48.

Kentucky provides overtime after 40 hours or on the 7^th consecutive workday regardless of number of hours. In Colorado, it kicks in after 12 hours in a day or 40 hours in a week. Only restaurant and hotel workers may collect overtime on the 7^th consecutive day of work in Connecticut.

California has the most generous plan. Employees get overtime after working 8 hours in a day or 40 hours in a week. Anyone working 7 consecutive days gets overtime on the 7^th day. Double-time is paid after an employee works 12 hours in a day, or after 8 hours on the 7^th consecutive work day.

The federal minimum wage for tipped employees is $2.13 an hour. Kentucky, Indiana, and Nebraska among others follow the federal law. Some offer slightly higher rates – North Carolina at $2.43, Wisconsin at $2.33, Michigan at $2.65, and Massachusetts at $2.63.

Kansas’ rate is only $1.59 an hour for tipped employees.

Washington State offers no tip credit. There, tipped employees will get $8.07 an hour starting January 1. Hawaii’s tip credit is 25 cents. In other words, tipped employees get $7 an hour instead of the usual $7.25. Colorado tipped workers will get $4.02 in 2008.

All of these changes will be reflected in the labor law posters for the appropriate states.

Labor laws across the nation saw a lot of changes during 2007. As the New Year approaches, businesses should take the time to ensure that their labor law posters reflect these changes.

Oklahoma employers need to understand that many of the changes apply to them as well, and that their posters need to be updated.

The updated list of 2008 Oklahoma labor law posters include:

• Unemployment Insurance
• Workers’ Compensation
• Minimum Wage
• OSHA - Health and Safety Protection
• Family/Medical Leave Act

These posters must be displayed by every employer in the state of Michigan. In addition, federal law requires that employers display a number of posters related to nationwide statutes.

The 2008 labor law posters required by federal law are:

• OSHA-Job Safety & Health Protection
• 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

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 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, Montana and Ohio. The lowest rate to be increased is in Montana, where the state minimum wage will increase from $6.15 per hour to $6.25. 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.

Employers are required by law to ensure that all labor law posters for 2008 are up to date. Failure to comply with the law can result in a fine for the business.

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.

Both state and federal law require that every employer prominently display the posters in an area where they can be 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.