labor lawAdivision of labor law center

The US Department of Labor recently announced community-based worker training grants for Arkansas totaling just under $3.5 million. The President’s Community-Based Job Training Grants Initiative awarded $125 million to 69 community colleges across the United States.

The competition was announced in August of 2007, and received 341 applications. The funds go to training facilities and community colleges to aid workers in competing for high-growth industry jobs.

The two Arkansas grants go to (more…)

New FMLA (Family and Medical Leave Act) regulations were proposed by the U. S. Department of Labor on February 11, 2008. The new regulations go into effect on April 11, 2008, which gives employers several weeks to review the changes.

After they review the new regulations, employers can post comments on a website. Simply click this link and type in “Family and Medical Leave Act” in quotes. All comments posted to this site are viewable by the public.

One of the major changes is the policy regarding using paid time off while on FMLA leave. Currently, employees can utilize accrued sick time while on FMLA leave. The new regulations will allow employees to not only use accrued sick time, but personal leave and vacation leave, too. To use paid time off (PTO), though, the worker must meet all requirements for taking leave. The term for this is “substitution of paid leave”.

Consider Mary, an employee in Arkansas who will be taking FMLA after the birth of her baby. She currently has 2 weeks of sick leave, 5 weeks of vacation time and 3 weeks of personal leave. Under the new regulations FMLA, Mary will be able to utilize all 10 weeks of her PTO. Once that leave is exhausted, she is still eligible for 2 weeks of unpaid leave. Under this plan, Mary has substituted PTO for a portion of unpaid FMLA.

Under the previous policy, Mary would only have been able to use the 2 weeks of sick leave, requiring then 10 weeks of unpaid leave.

Another change to the FMLA, though minor, stands to make a lot of employers and workers happy. Previously, FMLA was not counted toward an employee’s absences. Supervisors and coworkers alike considered this unfair as some of these employees gained “perfect attendance” awards and bonuses–even after being away from work for 12 weeks.

Under the new policies, FMLA leave will count toward a worker’s absences just like any other leave, thereby disqualifying those workers from perfect attendance” accolades.

More Arkansas FMLA Changes

On or about April 11, 2008, several additional changes to the FMLA (Family and Medical Leave Act) will go into effect. The U. S. Department of Labor proposed these changes on February 11, 2008 and is providing the interim weeks as an opportunity for employers to comment on the changes.

Victoria Lipnic of the U. S. Department of Labor stated “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 issues being amended include the “Ragsdale” decision on employer penalties, the substitution of paid leave if the worker meets requirements and adjustment of the process for “fitness-for-duty” certification.

Ms. Lipnic further stated, “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.”

The concept of “serious health condition” for an employee is a main focus of the new FMLA regulations.

The purpose of FMLA is to provide employees with up to 12 weeks of unpaid leave for their own “serious medical condition” or for that of a child, parent or spouse. To obtain that leave, companies normally require medical certification of the “serious medical condition” by a healthcare provider. The U. S. Department of Labor permits this practice to help prevent abuse of the leave.

The rules regarding FMLA leave provide several different acceptable definitions of “serious medical condition”. For example, one definition states “two visits to a health care provider” and 3 consecutive calendar days of incapacity, qualifies as “serious medical condition”.

The new regulations retain six definitions, plus provide a clarification of the rather vague “two visits to a health care provider”. Before the proposed amendments, no time frame was given for these two visits. One court, (the Tenth Circuit Court) ruled that the visits had to occur within the incapacitation period.

With the new regulations, the U. S. Department of Labor will set the time frame as within 30 days of the period of incapacity.

Relatives of soldiers are now entitled to 26 weeks of unpaid leave in many circumstances.

The National Defense Authorization Act more than doubles the amount of unpaid FMLA leave to allow relatives to care for injured soldiers or to help care for a child.

FMLA, the Family and Medical Leave Act of 1993, normally allows up to 12 weeks for spouses, parents, sons or daughters. The new federal NDAA law expands that leave to 26 weeks, in Arkansas and other states. Under some circumstances a soldier’s aunts, uncles, or cousins may qualify as well. That’s because NDAA applies to an injured soldier’s “next of kin” regardless of the relationship.

The NDAA also allows spouses, sons, daughters, and parents to take the expanded leave when a family member is called for active military duty or will be deployed soon. This provision, which does not extend to more distant relatives, is likely to be used most by spouses of members of the Reserve or National Guard. However, it also applies to spouses and family members of soldiers in the active military.

The law is very new and went into effect immediately. Families were eligible to begin taking the leave as of January 28, 2008. The U.S. Labor Department is rushing to complete regulations, and more information will be released when it is available. Until then, the Labor Department expects employers to make what it calls a “good faith” effort to comply with the law.

Unlike the traditional FMLA, the new expanded FMLA allows qualifying employees to take the leave to care for healthy children. FMLA normally allows leave to care for sick children, newborns, newly adopted children, or newly added foster children. The expanded FMLA essentially allows spouses and relatives to act on behalf of a National Guard or Reserve member and care for a sick child or parent, or to take care of a healthy child.

The regulations as they stand allow employers to count any part of an employee’s paid leave toward the 12 weeks of FMLA leave, provided the employee is notified in advance of this policy. Presumably this will also be true of the new expanded leave for military families.

President Bush vetoed a similar bill on December 28, 2007, but at the time he said the FMLA portion did not affect his decision to veto. That left the way open to attach the extended FMLA legislation to another bill, and it passed successfully.

Arkansas workers, like workers throughout the U.S., are covered by the Family and Medical Leave Act of 1993, or FMLA.

A new measure called the National Defense Authorization Act (NDAA) of 2008 expands the FMLA for military personnel. Otherwise, the law has not changed since it was first passed. Regulations about the new NDAA have not been finished by the U.S. Labor Department, so details are not clear yet.

The FMLA provides as much as 12 weeks of unpaid leave in a 12-month period. The time can be used not only if the employee is seriously ill, but if a member of his or her immediate family has serious health problems. Workers can take the time to care for a son, daughter, spouse, or parent, but not a grandparent, in-law, or sibling.

An employee may also take the time off to care for or bond with a newborn child, a newly adopted child, or a new foster child who is under 18 years old. FMLA has become the most common form of “maternity” or “paternity” leave in the country.

Under some conditions employers may count paid leave, including sick time and so-called Paid Time Off, toward a worker’s FMLA time, but only if the employee receives notice before the leave begins, in writing, that the time will be applied.

FMLA leave is “job protected.” That means an employee is entitled to the same job when he or she returns to work. Barring that, workers must be given a job with similar pay, working conditions, benefits, and duties.

The FMLA is limited to firms with 50 workers or more within a 75-mile radius, but 11 states in the U.S. have enlarged FMLA to include smaller companies. They have also increased the range of coverage. In Arkansas, employees may take their time off to care for a seriously ill in-law or grandparent.

Before the Family and Medical Leave Act passed in 1993, it was up to an employer whether to allow a worker to job-protected leave if the employee was seriously ill.

Veterans who are returning from serving their country will find their former jobs protected for them, even if they have been gone for 5 years. They may even receive the benefits, promotions, and pay hikes they would have gotten through “seniority.”

That protection is thanks to an act known as USERRA, which stands for the Uniformed Services Employment and Reemployment Act of 1994. The final USERRA regulations have recently been released through the U.S. Labor Department.

Employers should update their Arkansas USERRA posters now, so that all the latest information is on display for returning veterans and other workers.

The regulations protect returning veterans’ jobs for up to 5 years while they are fulfilling their military duty. The 5-year limit is described as cumulative. That means a returning veteran is eligible even if that duty was not served consecutively. For example, a veteran who served in 3-year and 2-year blocks would still be eligible. The new USERRA regulations say that the timing, frequency, nature, or duration of the service is irrelevant.

The regulations also guarantee that the returning veteran receives the same position, pay, and benefits he or she would have been entitled to if the military time had not interrupted the time on the civilian job. Test cases have backed this. Veterans returning to work have in some instances been granted promotions they would have gotten as time in the job, had they not served in the military. Many workers returning from duty are entitled to the same cost-of-living pay hikes or regular yearly wage increases they would have gotten for staying with the civilian job.

Veterans looking for help working on claims through USERRA’s job protection are urged to contact the Veterans’ Employment and Training Service, or VETS. Federal government workers are included among those eligible for this Labor Department service thanks to the newly updated regulations.

Since 1999, more than 200 people have been killed in mine-related accidents.

Arkansas worker safety has been endangered. Children and outdoor enthusiasts have died.

A new safety campaign known as “Stay Out – Stay Alive” is attempting to curb tragedies of this type by warning both workers and people involved in outdoor activities about the risks of being on mine property.

Workers in all kinds of labor besides mining are hurt every year when they fall into mineshafts. Outdoors people and children have died when they have trespassed on the property of old, abandoned mines. Occasionally, workers in other industries fall into shafts or have other accidents.

The “Stay Out – Stay Alive” program involves trips by mine safety and health experts to schools, scout organizations, and other groups. The visits are designed to talk to children about all of the dangers that can face them if they trespass or accidentally wander onto abandoned mining property. It also involves public service announcements warning against accidental trespassing.

A wide range of dangers face anyone on abandoned mine property:

• Hidden shafts may be hundreds of feet deep.
• Rotted or decayed boards over the openings may give way under one’s weight.
• Tunnels may cave in.
• Tunnels may also contain water-filled sections, poisonous insects and snakes, and harmful gases.
• Mineshafts may contain unused or improperly fired explosives. Blasting caps are unstable. They can go off as the result of a slight touch.

“There are about 500,000 abandoned mines and another 14,000 active operations throughout the United States,” says Richard E. Stickler, Assistant Secretary of Labor for Mine Safety and Health. “Many of them contain hidden hazards and, for those not trained to work in mines, the outcome can be deadly. That’s why we urge workers, hikers, bikers, rock hounds and swimmers to ‘Stay Out – Stay Alive.’”