labor lawAdivision of labor law center

A North Dakota community college beat out hundreds of competitors recently to win a highly coveted $1,758,224 worker training grant from the federal government.

The award goes to Turtle Mountain Community College, to train workers in the healthcare industry.

The Belcourt, ND school was awarded the grant in part because area employers had indicated that there was a shortage of well-qualified employees in the burgeoning industry.

Officials at the U. S. Department of Labor strongly believe these grants help boost local economies, and help the country’s ability to compete in the world marketplace by providing Americans with work. A national model for the development of a demand-driven workforce, the President’s High Growth Job Training Initiative, implements programs through partnerships with business, industry and educators.

High growth is occurring and will occur in nearly 15 areas of the world market, including Advanced Manufacturing, Aerospace, Automotive, Biotechnology, Construction, Energy, Financial Services, Geospatial Technology, Health Care, Homeland Security, Hospitality, Information Technology, Retail and Transportation. New technology has brought new jobs and new industries to the market, all of which require workers with new skills.

Employers receive benefits from these programs beyond skilled workers. Companies that add the Workforce Investment System to their Human Resources department are eligible for incentives such as government training assistance and tax credits. Plus, with the local colleges training these workers, the industry has a built-in method for screening and referral of skilled applicants. The employer reduces recruiting costs as a result, and increases the quality of its workforce.

These benefits allow the employer to bring the company into the 21st century, increase profits and become more competitive in the global market.

Working within the Initiative are the Community Based Job Training Grants. These grants focus on employers and provide funds to community college located near those employers in dire need of skilled workers. The funds are awarded to increase the community colleges’ capacity to train workers for these growing industries, both to fill the industry needs and to provide high-paying, career advancing jobs for America’s workers.

Community colleges utilize the money to hire qualified faculty, set up training experiences like internships, and to upgrade equipment needed to aid in the training process. The colleges work closely with local industries to develop a training curriculum to meet that industry’s needs. The goal of the Grants is not only to provide skilled workers for these industries, but also to meet the needs of the employees with increased wages and increased options for advancement.

According to the U. S. Department of Labor, 69 institutions in 38 states were awarded $125 million in grants.

These grants are available due to the President’s Community Based Job Training Grants Initiative, which awards money to community colleges and training facilities in areas where industries need skilled workers. The program was established in 2005 and awarded 72 grants. The second round of awards in 2006 gave out 70 grants.

Because of globalization, technology, innovation and an aging workforce, many industries are in dire need of skilled employees. Industries across the county, including advanced manufacturing and construction are seeking skilled employees. Regional industries, too, are in need of qualified workers.

The focus of the Community-Based Job Training Grants is to provide community colleges with programs to train people in areas where industries need workers with a particular set of skills. For example, a grant for training in the energy industry may be awarded to a community college in New Mexico near a cluster of nuclear power plants that require workers that are more skilled.

Acting Assistant Secretary of Labor for Employment and Training, Brent R. Orrell said, “Preparing local residents for careers in growing hometown industries is critical to improving the quality of life of thousands of Americans. These programs will provide participants not only with the skills needed to gain employment, but the change to enter into careers that offer opportunities for advancement.”

New changes to the FMLA regulations issued by the U.S. Department of Labor would permit North Dakota employers to “request” recertification of an employee’s ongoing condition at least one per 6-month period during an absence.

While the term “request” is used, actually an employer can deny a worker FMLA leave if the employee refuses the “request.”

North Dakota employers, under the new rules, could require new medical certification annually for a continuing serious health condition. If the employee suffers from migraine headaches, for example, and must as a consequence take a day off through FMLA, the employer can require yearly recertification.

The new rules would generally improve the recertification process in 2 ways.

First, employers may currently ask for a recertification after 30 days, but only in connection with a concurrent FMLA absence. If, for example, employee John’s surgery requires that he take more than 30 days off through FMLA, the employer has the right to request recertification after 30 days, but only if John is still absent.

Second, an employer may currently request recertification as long as a healthcare provider specified a time limit on a previous certificate. If employee Mary’s doctor, for example, said she must be on leave for 6 weeks because of her condition, then her employer may request recertification after that length of time if she has not gone back to work.

Problems arose when healthcare providers said a worker’s condition was “lifetime” or its duration was “unknown.” As a result, under those conditions employers did not have the clear right to require recertification.

Also under the new regulation, employers have the right to contact a healthcare provider for clarification of a medical certification. Both the employer and the provider, however, must stick to medical privacy regulations.

An employer, under the new rules, is not allowed to ask for information from a healthcare provider which is not already on the certification form. An optional U.S. Department of labor WH-380 form for medical certification has been updated. The form permits a provider to list a worker’s serious health condition of diagnosis on the form, if that provider wishes. They are not required to do so, however.

More North Dakota FMLA Changes

Two major changes to the “fitness-for-duty” certifications are offered in proposed new updates to the Family and Medical Leave Act (FMLA).

The series of changes, released by the U.S. Department of Labor, will be published in the National Register on April 11, 2008. At that time they officially go into effect as law.

Until that date, employers and other interested people may comment. The changes will affect employers throughout the nation.

FMLA regulations currently allow employers to require employees taking FMLA leave to provide a certification from a healthcare professional showing they care capable of returning to work and performing their usual functions. If an employee takes time for his or her own serious health condition, the employer would require a “fitness-for-duty” certification in order to return.

The first of the two major changes allows employers to require that the certification specifically address the subject of a worker’s ability to perform the significant functions of the job. If the employee is a warehouse worker, for example, the certification should show that he or she is capable of lifting heavy objects.

The second address employees who take intermittent FMLA leave, and it is designed to ward off abuse by workers. According to the change, an employer is permitted to require a worker to submit a “fitness-for-duty” certificate each time when returning to work from some FMLA leave, provided there are reasonable job safety concerns.

As an example, a driver who cannot see clearly would be a reasonable safety concern. If truck driver “Carl” takes leave time for a migraine headache, and those headaches cause vision problems, then Carl’s employer may require a certification on each occasion proving his vision has stabilized at normal again.

If there is no valid or reasonable safety concern, then employers may not request a certification on every occasion. As another example, “Maria” is pregnant and suffers from a serious morning sickness, requiring that she take intermittent time off – a few hours or a day at a time. Because there is no safety concern, her employer cannot require a “fitness-for-duty” certification each time.

What do you get when you take a federal agency designed to help disabled workers find employment, and add the largest human resource managers’ association in the world?

You get a dynamic duo that will bring their combined talents to bear to help find more jobs for North Dakota workers with disabilities.

And it should open up a nationwide discussion about hiring people with disabilities. Look to this partnership to improve recruiting and hiring of disabled workers through the enhanced resources of access, research and education.

The two groups in the alliance go by the names of SHRM and ODEP.

A wide range of resources is being brought together through the teamwork between the Labor Department and the human resources managers.  SHRM, founded in 1948, has more than 550 chapters, and counts members in more than 100 countries around the world. With its 205,000 members, it is the largest human resource professionals’ association in the world. ODEP is relatively new, dating back to 2001. Under Labor Secretary Elaine L. Chao, authority was delegated and responsibility assigned to the assistant secretary for disability employment policy. It remains part of the U.S. Department of Labor.

The new private-public team takes as its mission the promotion of training, outreach, education, technical assistance and communication for potential employees with disabilities. Recruiting will be a part of the goal, along with education, access, and research, all aimed at hiring more disabled workers.

ODEP is the federal Office of Disability Employment Policy. Created in 2001, its goal is to guarantee that the talents of persons with disabilities – including North Dakota workers with disabilities – are integrated into the workforce of the new century. It was formed when the assistant secretary for disability employment policy received the authority and responsibility from U.S. Secretary of Labor Elaine Chao.

Both SHRM and ODEP should benefit from the teamwork.

“This alliance formalizes the relationship we have had with SHRM,” according to Roy Grizzard, Assistant Secretary of Labor for Disability Employment Policy, “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.”

A recent case raises the topic of past overtime transgressions by companies. In the past, some companies have had the practice of hiring employees as management staff to avoid paying overtime. Howard Johnson’s, the hospitality giant, applied this practice in the early 1980’s. The company was found responsible for hiring people with the positions of “assistant managers” when they worked as dishwashers, waiters and waitresses. The managers were considered “salaried” and exempt from overtime pay. Many of them worked 80 hours or more per week, with no pay for the extra hours. Howard Johnson’s lost a class-action suit and eventually had to pay back wages to all the employees.

These practices are violations of federal and North Dakota minimum wage laws. They didn’t work in the 80’s and they don’t work today. That conclusion is reinforced by a recent case involving retail giant Wal-Mart Inc. The company recently agreed to compensate 87,000 employees throughout the country, including North Dakota. The amount of the total compensation is $33 million and it will be earmarked to pay back wages and interest.

It is widely accepted that “salaried” employees are managers who often work 10 or 12 hours a day, at the office, at home or on the weekends. That’s because they receive a good salary and other compensation, like commissions or bonuses. Many salaried managers are considered exempt from overtime payment.

However, many employers and employees alike are unaware that not all salaried employees are exempt from overtime. The guidelines of the US Department of Labor say that an overtime-exempt employee must have significant decision-making power. Usually this includes the authority to fire or hire 3 or more people on his or her staff. In addition, overtime exempt employees must earn at least $23,660 or more per year.

In the suit with Wal- Mart, the US Department of Labor ruled that some employees, whose positions were manager trainees, programmer trainees, and salaried interns, were entitled to overtime pay.  In these cases, the employees were “non-exempt salaried” and have the right to be paid time-and-one-half after 40 hours.  Under one test, a manager trainee must earn more than $23,660 per year to be considered “salaried-exempt.” 
 

Technology is always improving. Many banks and credit card companies are offering paperless statements, and companies are always looking for ways to use technology to save money. One of the ways that companies can save money is by using electronic forms for their necessary documents instead of printing on paper.

Employers are now able to send out the North Dakota W-2 forms electronically. That is good news, especially for smaller businesses that handle payroll and tax documentation in house. Printing out W-2 forms for each employee can be a significant cost for some businesses. Companies that take over payroll responsibilities can especially benefit for this allowance. Although this may alleviate some cost by saving paper and postage, it won’t eliminate it completely. All employees are entitled to hard copies of their form, if they don’t feel comfortable receiving it online. To insure that an employee is comfortable with having their form emailed, they must sign a consent form.

By January 31, the previous year’s W-2 should be in the hands of all employees. With the ability to send either a PDF form or post W-2s on a secure website, this deadline should be easy to reach for most. The IRS wants any employee who does not receive their W-2 form by February 15^th to contact them and fill them in on their employer’s information. They are serious about making sure the forms are distributed on time.

Another benefit to the electronic distribution of North Dakota W-2 forms is the speed. When the form is sent to an email address or is posted on a website for access, it is instantly available. The only issue that could arise is a returned message for an invalid address, or a spam filter deleting the message. No system can ever be perfect, I suppose.