labor lawAdivision of labor law center

Under state law, the Delaware minimum wage increases automatically if the federal minimum wage is higher. On July 24, 2009 when the federal minimum wage increased, the Delaware minimum wage went from $7.15 per hour to $7.25 per hour.

This makes it critical for Delaware employers to display an updated minimum wage poster.

According to the Delaware Department of Labor, many employers in the state are covered by federal minimum wage law. Many employers in Delaware were affected by the July 24, 2009 increase of the federal minimum wage.

The FLSA or Fair Labor Standards Act of 1938 is the law relevant to the federal minimum and applies to businesses with annual revenue of $500,000 or more, and to companies and individual employees engaged in interstate commerce.

Interstate commerce includes:

·         Accepting or sorting mail from out-of-state

·         Receiving goods from out-of-state vendors

·         Buying from out-of-state vendors

·         Accepting long-distance phone calls

·         Accepting credit card or debit card payments

·         Accepting out-of-state checks

·         Using the Internet, a website or email

A company that does not buy or sell goods out-of-state can still have several workers who engage in interstate commerce on a regular basis. Consider a small hair salon with annual revenue of less than $500,000. This salon serves local customers and buys its supplies locally. (more…)

Recent incidents of workplace violence in Illinois, Washington, Florida and New York just underscore the fact that every employer needs a plan in place to address this issue.

In the early 1990s, over 200 people were murdered in the workplace. According to the Bureau of Labor Statistics, that number dropped to 94 in 2006. Violence in the workplace in Delaware and across the nation is a concern for Occupational Safety and Health Administration (OSHA), particularly homicides. Though the number of people killed has dropped over the years, it is still a major factor.

OSHA urges all employers to establish a policy of zero tolerance toward violence on the job. Safety programs and violence prevention programs should be set up and provided in writing to all employees. Workers should also understand how to prevent violence, and how to react in violent scenarios.

The National Institute for Occupational Safety and Health (NIOSH) provides videos and downloads on preventing workplace violence.

The statistics regarding workplace violence are staggering. Over 2 million Americans are victimized every year. All occupations and social levels are included. Blue collar workers and professionals are each as likely to be involved.

To help prevent workplace violence, OSHA recommends that all companies install video surveillance, alarm systems and extra lighting. All workers should be issued an I. D. badge to limit access, along with cell phones and hand-held alarms. For those workers handling a lot of cash, especially at night, companies should provide a drop safe.

Several occupations, simply due to the nature of the job, are at an increased risk for workplace violence. Included in this group are workers with extensive public contact, such as employees dealing with the public regarding money, or healthcare or social services. Workers who deliver packages, goods and services are at higher risk. Utility workers (i.e. phone, gas, water and cable), cab drivers, postal carriers, cab drivers psychiatric evaluators and visiting nurses are also at greater risk.

For their safety, all employees who work away from an office should provide their employer with their work plan, and check in during the day. Plus, companies should have a policy where a worker clearly facing a dangerous situation can refuse that situation.

OSHA Delaware Worker Safety

According to the Occupational Safety and Health Administration’s (OSHA) General Duty Clause, all Delaware employers (and employers across the country) are required to provide a workplace that is safe and healthy. While it isn’t possible to prevent all accidents, there are several steps employees and employers can take to abate the risk to workers.

First, the employer needs to establish a procedure for handling any incidents of violence related to the job. All workers should be informed of this procedure in writing (usually via the employee handbook) and should be required to practice it, just as they would practice any other safety drill.

One of the goals of this procedure is to train employees how to recognize, avoid or diffuse potentially violent situations. Another goal is to explain the process for reporting these incidents. In many cases of violence, incidents have occurred previously that serve at warnings, such as verbal abuse, destroying property, threats to other workers and minor assaults.

Employees on travel or away from the office can take preventative steps as well.
A worker out in public should carry required identification and only minimal amounts of cash. Employees traveling alone to a new location or scenario should never do so in the middle of the night. All workers out in the community should refrain from wearing expensive items, particularly jewelry.

Safety from violence doesn’t just include behaviors, but also the security of the physical workplace. Simple things like a door with a broken lock, or a cracked window are just as important to report to a supervisor as a coworker behaving suspiciously.

Employers are required to keep track of all violent incidents by type and to immediately correct them. When a violent incident occurs, workers should report the offense immediately, get the victim first aid and medical treatment, advise the police of the incident, inform victims of the right to prosecute, offer counseling to all workers, and discuss how to prevent similar attacks.

Failure of an employer to address hazards in the workplace can result in severe penalties from OSHA.

Changes are coming to the Family and Medical Leave Act (FMLA) rules that apply to the process of medical certification. Among other things, the streamlined regulations will permit employers to “request” recertification of ongoing conditions every 6 months, provided it is in combination with an absence.

The term “request” as used by the U.S. Labor Department actually has more force than it sounds. If an employee does not comply with a “request,” the employer may legally deny him or her an FMLA leave.

In addition, the new regulations have a formal stipulation that employers are permitted to require a new medical certification yearly if an employee has an ongoing health condition. If a worker had migraine headaches requiring periodic days off under FMLA, the employer could require recertification of the condition annually.

FMLA guarantees workers up to 12 weeks of unpaid, job-protected leave every year for their serious health condition or that of a member of their immediate families. Employers have had the right traditionally to require that a healthcare professional certify the condition. Second or third opinions about the condition may be required, provided the employer pay for them.

Current regulations allow employers to request recertification in two cases.

In one, recertification may be requested after 30 days but only in connection with an absence. Employee John, for example, has surgery and takes more than one month of FMLA. His employer may request recertification after 30 days, provided John is still absent from work.

In the other, employers may seek recertification if a healthcare professional specified a time limit on a certification. If employee Mary’s provider, for example, says she must be absent 6 weeks because of carpal tunnel syndrome, Mary’s employer may seek a recertification after 6 weeks – if she is still absent. However, problems arose when providers described a condition as “lifetime” or of “unknown” duration. Employers were left without the ability to seek recertification.

Another change permits employers to clarify a certification form with a healthcare provider, as long as neither party violates HIPAA medical privacy regulations. No information beyond the medical form may be sought.

More Delaware FMLA Changes

Revisions of the “fitness-for-duty” certification process are included in the proposed new changes to the FMLA regulations.

The changes and updates, which affect employers across the U.S., were recently released by the U.S. Department of Labor. Employers (and others who may be interested) may comment on the changes until April 11, 2008, when they are published in the National Register. At that time, they become law.

The current regulations allow an employer to require that before workers on FMLA leave return to the job they must provide a healthcare professional’s certificate that they are capable of returning to work.

The new changes refine the certification process.

One change is aimed at eliminating abuse by employees, and addresses those workers who take intermittent FMLA leave. If there is a reasonable job safety concern, the employer may require the “fitness-for-duty” certificate each time the employee wishes to return from FMLA leave. If truck driver Carl, for example, has vision problems caused by migraine headaches, his employer can require a certificate each time he comes back. This is obviously because a driver who cannot see properly would be a valid safety issue. If a safety issue does not exist, say for a pregnancy resulting in morning sickness, the employer cannot seek a certification.

Another change would permit employers to require that the “fitness-for-duty” certificate specifically speak to the issue of an employee’s ability to conduct essential parts of his or her work. A warehouse worker, for example, who lifts heavy containers regularly would have to show that he or she is again capable of lifting heavy objects.

Employers must always apply policies like the “fitness-for-duty” certificate consistently and uniformly to situations that are similar. All employees who take FMLA leave, then, may be required to present a certificate, but the same employer may choose not to demand such a certificate from someone returning from leave after caring for an adopted child.

Title VII of the Civil Rights Act of 1964 makes it illegal to use this or any policy to discriminate based on race, religion, color, sex, or national origin.

Employers in Delaware should take note that the state’s minimum wage is now $7.15 per hour.

Governor Ruth Ann Minner signed a Delaware state bill into law in 2006 to raise the state minimum wage.

On January 1, 2007, the first step of the increase went into effect, raising the minimum a full 50 cents from $6.15 to $6.65 per her hour. The second and final step of that increase took effect on January 1, 2008 and raised the minimum from $.6.65 per hour to $7.15 per hour.

Delaware’s state website says the new minimum wage law will affect about 1.6% of the state’s workers or 6,700 people, the majority of whom are employed by the food service industry.

Though the Delaware minimum wage applies to businesses with over 10 employees, a number of industries are exempt from the state minimum wage law.

Delaware workers in the fishing industry are exempt from the state minimum wage, as are workers who process fish at sea. Domestic service employees who work in or “about” private homes are exempt, so are junior camp counselors working for a non-profit organization and inmates in a Department of Corrections program.

Outside sales people who are paid by commission are exempt from Delaware state minimum wage. Employees who receive tips as part of their earnings can be paid a lot less than minimum wage, as low as $2.23 per hour. The employee can only be paid such a low wage, however, if she or she averages at least $4.92 per hour in tips.

In addition to types of industries being exempt, several types of employees are exempt from Delaware state minimum wage law, too. For a wage less than minimum to be legal, the employer and/or employee must be certified by the Delaware Department of Labor. Disabled employees (both mentally and physically) who work in sheltered workshops may earn less than minimum wage, as may some disabled workers in competitive employment.

Workers in formal apprenticeship programs and student-learners are covered by a special minimum wage.

Delaware is not the only state changing its minimum wage in 2008.

January 1, 2008 saw an increase in state minimum wage for fourteen states, including Montana, Arizona, Iowa and Delaware and ten others. These raises, however, are just the first of many increases slated for 2008.

The first of these increases will occur on July 1, 2008. Three states will enjoy a substantial raise at this time. Kentucky will add 70 cents to its minimum resulting in a new rate of $6.55. West Virginia will also see a 70 cent bump, from $6.55 to $7.25 per hour. Employees in Pennsylvania, however, will see the biggest boost, a 90 cent jump from $6.25 to $7.15

On May 24, 2006, President George W. Bush signed the Fair Minimum Wage Act of 2007 into law. This law set up increases in the federal minimum wage as a three-step system. On July 24, 2008, the second step of the Fair Minimum Wage Act’s system goes into effect. The federal minimum wage will go up from $5.85 to $6.55 per hour.

Texas, Oklahoma, Utah and several other states connect the increases in their state minimum wage rates to when the federal minimum wage goes up. So, when the federal minimum wage increases on July 24, 2008, the minimum wage rates in these states will be increased, too.

These changes in the minimum wage law require employers to update their labor law posters, both for their own state laws, and for the federal law changes. Companies seeking updated information can visit www.laborlawcenter.com.

With so many minimum wage changes on the way, many employers will want to contract with a poster service that automatically delivers quality, laminated posters each time there is an update.

A new Delaware law requires that employers maintain workers’ compensation insurance for contractors, independent contractors’ partners and sole proprietors in the construction industry. Senate Substitute 1 for Senate Bill 68, mandates that companies provide workers’ compensation insurance for almost every independent contractor.

The measure was signed into law by Governor Ruth Ann Minner on May 23, 2007. Part of the bill clarifies the requirement that partners and sole proprietors must maintain workers’ compensation insurance in the construction industry. This requirement went into effect on July 17, 2007.

There are some exceptions for executives under the new law. A total of four executive officers of a corporation may be exempt from workers’ compensation coverage, if they are shareholders. In addition, four members of a limited liability corporation may elect to be exempt from coverage under workers’ compensation insurance, as long as this is in writing.

According to the Delaware Division of Industrial Affairs, workers’ compensation is a system created by the Delaware legislature, that provides benefits to workers who are injured at work. Benefits are also paid to workers who contract a work-related illness.

Benefits under the Delaware workers’ comp program include medical care, temporary disability payments and compensation for any permanent impairment.

If a worker suffers a fatal work-related accident, benefits are paid to the family of the worker. In many cases, benefits are paid voluntarily. In other cases, the worker or the worker’s survivors must petition the Office of Workers’ Compensation for benefits.

Under state law, employers with one or more employees are required to carry workers’ compensation insurance. Employers may not charge an employee any portion of the premium or expense of carrying workers’ compensation insurance. Employers in the agricultural industry are not required to carry workers’ compensation insurance on employees, however, these employers may elect to provide coverage if they like.

In most cases, workers’ comp pays benefits even if the employee was at fault in the accident. However, in some cases, if the employee was under the influence of drugs or alcohol, and that caused the accident, benefits may be denied.

Certain requirements must be met in order to qualify for workers’ Compensation benefits.  The requirements are established by law in Title 19, Delaware Code and are administered by the Delaware Department of Labor, Division of Industrial Affairs, and Office of Workers’ Compensation.

In many industries, workers considered to be independent contractors, rather than employees, are not covered. However, under this new law, virtually every independent contractor in the construction industry must be covered.

An employee who is injured should immediately notify the employer in writing of the injury or occupational disease, and request medical treatment. Failure to notify an employer or to accept medical treatment may prevent the employee from collecting benefits under workers’ comp.

Generally, workers may collect their salary or usual compensation if they must be out of work for more than 3 days due to a work-related injury or accident. At that time, the employer or a supervisor should be notified, in writing, by the employee that he/she is requesting payment of workers’ comp benefits.

In the case of work-related fatalities, one or more of the employee’s survivors, or another person acting on their behalf, must notify the employer.

If there is a disputed claim under workers’ comp, and the employer and employee cannot resolve it, they must file an application with the Delaware Office of Workers’ Compensation for a hearing before the Industrial Accident Board. The application must be filed within 2 years of the accident or within one year of the diagnosis of an occupational disease.

Workers’ comp benefits are generally paid by an insurance company. By law, every employer is required to file a First Report of Occupational Injury or Disease within 10 days after he or she learns of a work-related injury. One copy goes to the3 state Office of Workers’ Compensation and the second goes to the insurance carrier. This is true, no matter how minor the injury is. An employer may be fined $100 to $250 for failure to report an injury.