labor lawAdivision of labor law center

The U.S. Department of Labor recently announced a $250,000 Regional Innovation Grant to northern Idaho, The funds will be used  to establish a strategic plan to expand the local economy.

The grant will train workers and develop the regional economy in Benewah, Bonner, Boundary, Kootenai and Shoshone counties, in Idaho.

This area of Idaho has long depended upon wood, paper and other forest products for its economic security. However, in today’s market, those industries (more…)

The new NDAA (National Defense Authorization Act) expands FMLA (Family and Medical Leave Act) from 12 weeks to 26 weeks for eligible military families.

Every employer in Idaho and across the nation should be aware that the NDAA requires them to post the new Military Family Leave notice.

President George W. Bush signed the NDAA into effect on January 28, 2008, which allowed families to take leave as of that date. The final NDAA regulations have yet to be issued, but until the Secretary of Labor publishes the final ones, employers are asked to “act in good faith” and grant leave to eligible military families.

The extended FMLA allows family members of active military, National Guard and Reserve personnel who are called to active duty, to take leave to care for that person when ill or injured. Included within the NDAA definitions of treatment are mental and physical therapy, outpatient treatments and care for military personnel temporarily disabled due to illness or injury.

The new NDAA also amends the definition of family. Prior to the signing of the 2008 NDAA, “family” was defined as parent, spouse or child. The extended FMLA adds in-laws, cousins, aunts and uncle to that definition in some cases, as the “next-of-kin.”

A second benefit of the extended FMLA is to allow these family members to stand in for military personnel on active duty. For instance, Reservist Joe is called to active duty, but has no one to take care of his kids. His wife could take FMLA leave to care for Joe’s children. Another example is Dave, an Army tank driver. His wife is ill. While he’s on active duty, his cousin Janice could take FMLA leave to care for Dave’s wife.

Enforcement of this new NDAA law comes under the U. S. Department of Labor, specifically the Wage and Hour Division. A poster of this new NDAA Military Family Leave must be permanently posted in a spot visible to all workers. This new poster is in addition to state and federal posters already required. Companies who do not immediately comply with this law will face penalties.

In January of 2008, President Bush signed the National Defense Authorization Act (NDAA) which will expand the FMLA (Family and Medical Leave Act). The FMLA was enacted in 1993 and has not been updated until the NDAA.

The FMLA was a groundbreaking federal law providing employees with a serious illness up to 12 weeks of job-protected, unpaid leave. When the worker returned, the employer had to provide the worker with the same job, or one with similar wages, working atmosphere, duties and benefits.

FMLA could be used for personal illness and so the employee could care for a seriously ill parent, spouse or child. Also, FMLA could be taken to care for a newborn, a newly fostered child (under age 18) or for a newly adopted child.

Prior to FMLA, an employee that grew ill and had to miss a lot of work often got fired. Company policies regarding extended absences for illness (heart attack, surgery, etc.) varied widely. Most situations were handled on a case by case basis. More often than not, if an employee missed more than a couple weeks of work, he or she was simply fired.

FMLA has some eligibility requirements. Businesses must employ 50 or more workers within 75 miles of the work site. Workers must have been with the company for the previous 12 consecutive months, and worked at least 1,250 hours.

According to the U. S. Department of Labor, the NDAA will expand FMLA leave, but the regulations are not yet finalized. Publication of the expanded FMLA regulations should occur in the near future.

Two changes were published on February 11, 2008. The Labor Department issued revisions in the FMLA certification process and in the time frame for employers to notify workers of their FMLA rights.

In addition, a major change has been made to the process of reporting absences. Prior to the revisions, employees did not have to report an FMLA absence in advance. The new changes will require workers to follow standard procedure for taking leave, which usually means notifying the employer prior to the beginning of a shift.

On April 11, 2008, Idaho 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, for some purposes. Employees who take FMLA, then, will no longer be eligible for attendance awards.

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.

A number of workers laid off by Micron Technology, Inc. in Boise will receive assistance through a U.S. Department of Labor grant of more than $2 million.

The DOL will immediately release $847,538 of the grant to assist about 400 workers dislocated by the layoffs. The total grant is for $2,010,277.

“This $2 million grant will provide these Idaho workers with skills training, career counseling and other employment services to help them find and succeed in new jobs,” said U.S. Secretary of Labor Elaine L. Chao.

The grant, which is awarded to the Idaho Department of Labor, will help provide affected workers with a full array of services, including skills assessment, individual career counseling, career and occupational skills training, and relocation assistance.

Employees lost their jobs after the semiconductor maker reported hundreds of millions of dollars in lost profit earlier this year. Micron Technology fired a total of 1,100 workers in southwest Idaho after reporting a loss of $225 million in the three months ending June 1, 2007. Many of the workers were in Ada, Elmore and Canyon counties.

On July 12, Micron Technology issued a Worker Adjustment and Retraining Notification  or WARN notice announcing plans to begin layoffs. Under federal law, employers have to issue WARN notices when shutting down a plant, laying off more than 100 people, or laying off more than 50% of the workforce for 6 months or more. WARN notices give the employees 60 days notice that their jobs will be eliminated. They also permit state and local agencies to marshal resources to aid the workers.

According to the U.S. Department of Labor, “National Emergency Grants are part of the secretary of labor’s discretionary fund and are awarded based on a state’s ability to meet specific guidelines.”  NEG grants have also been issued to Minnesota and Rhode Island recently.

According to the U.S. Department of Labor, National Emergency Grants (NEGs) are discretionary awards by the Secretary of Labor. The grants temporarily expand service capacity at the state and local levels through time-limited funding assistance in response to “significant dislocation events.” When a layoff, plant closing or other event creates a need beyond what the state can reasonably be expected to meet, the state may apply for an Emergency Grant.  In order for a state to qualify, any discretionary funds available at the state level must be included in the state’s resources.

A number of resources are available to inform the state and local employment agencies of the policies that govern grant awards. Communities are urged to initiate the grant process early, to ensure that funds are available when needed.

Regular NEG grants may be available when a single or multiple company layoff affects 50 or more workers. NEG grants are also appropriate when layoffs are industry-wide within a region, or when small or rural communities are severely affected by layoffs of fewer than 50 people.

According to the U.S. Department of Labor, “National Emergency Grants are part of the secretary of labor’s discretionary fund and are awarded based on a state’s ability to meet specific guidelines.”

Grants are given for different purposes. Disaster grants benefit areas afflicted by floods, wildfires, blizzards, hurricanes, earthquakes and other natural disasters. Other grants include Trade-WIA Dual Enrollment grants and Trade-Health Coverage Infrastructure grants.

Trade-WIA Dual Enrollment grants are available for single or multiple-company projects that include layoffs of 50 workers or more. These grants are given only in areas where the U.S. Department of Labor determines that workers are affected by federal trade policies.

Trade-Health Coverage Infrastructure grants provide states with funds to help workers eligible for TAA (Trade Adjustment Assistance) or TRA (Trade Realignment Assistance) keep their healthcare insurance. 

An Idaho Unemployment grant would be welcome news for workers in who live in areas of relatively high unemployment. Recently the Dept. of Labor has announced the third generation of the highly competitive WIRED grants.

In the past, regions such as the Delaware Valley, northern Alabama, the Mississippi/Arkansas Delta area, northern California and northern Indiana. There has been $260 million invested in 26 regions. The program has made possible cooperation between 10 federal agencies, resulting in the creation of high wage job opportunities for American workers.

One of the aims of the WIRED initiative is to keep job skills competitive and current in an increasing global job market and economy. When the second generation of WIRED grants was announced, Elaine Chao (Secretary of Labor) said, “Investing in area workforces through this collaborative approach will boost entire regions’ economic vitality.” She added, “This regional economic development strategy transcends political boundaries to better leverage a region’s assets to help workers succeed in the 21^st century worldwide economy.”

Competition for the Workforce Innovation in Regional Economic Development grants is expected to be intense. Letters have been sent out to each state governor by the Secretary of Labor. Each proposal needs the state governor’s approval, and can be for grants of up to $5 million each. Each state governor is able to submit up to 2 proposals. Regions must show that they can source other funding to complement the investment from the Dept. of Labor.

Speaking about the recent announcement from the Dept. of Labor, the Assistant Secretary of Labor for Employment and Training, Emily Stover DeRocco said, “The Third Generation of WIRED is designed to position local Workforce Investment Boards as leaders of a strategic regional partnership.” She went on to say, “Through talent development strategies and integration with regional economic development, this partnership can drive economic transformation in regions across the country and improve employment and advancement opportunities for workers.”