labor lawAdivision of labor law center

 On July 24, 2008, when the federal minimum wage increased to $6.55 per hour, the Oklahoma state minimum wage increased, too. The state law for the Oklahoma minimum wage doesn’t even contain a dollar amount, but merely requires the state to match the federal minimum wage.

The increase in the federal minimum wage was the second in a series of three 70-cent increased mandated by the Fair Minimum Wage Act of 2007. The next increase in the federal minimum wage will occur on July 24, 2009, so the Oklahoma state minimum wage will increase on that date, as well.

The state minimum wage, according to the Oklahoma Department of Labor, (more…)

On July 24, 2008 when the federal minimum wage increase to $6.55 per hour, the Oklahoma state minimum wage will, as well. This is the second in a series of 3 70-cent increases in the federal minimum wage introduced by the Fair Minimum Wage Act of 2007. The federal minimum wage will increase from $5.85 to $6.55 per hour.

By state statute, the Oklahoma minimum wage increases when the federal minimum wage does. In fact, according to the US Department of Labor, the Oklahoma state minimum wage statute doesn’t even contain a dollar amount. It simply adopts the federal minimum wage rate by reference.

The state minimum wage excludes (more…)

On February 11, 2008, the U. S. Department of Labor proposed new FMLA (Family and Medical Leave Act) regulations.

Theses regulations include many changes for employers in Oklahoma and throughout the nation. Until April 11, 2008, when the regulations go into effect, employers have the option to make comments on them.

To make comments, employers can click this link. Once on the site, enter the words “Family and Medical Leave Act” encased in quotes. Before adding comments, employers need to be aware that this site is public.

“Substitution of paid leave” is one of the changes in the new regulations. The law doesn’t require employers to pay workers who are on FMLA leave, but it does allow employees to take FMLA and any accrued sick leave at the same time. This substitution of paid leave includes all PTO (paid time off); including vacation time and personal leave. To take PTO, however, the worker must meet all the company’s requirements regarding leave usage.

To illustrate, consider James who has a total of 10 weeks paid time off. Two weeks are sick time, three are personal and the remaining five are vacation. Before the implementation of the new FMLA, James would only be able to use the two weeks of sick time while on FMLA leave. When the new regulations go into effect, James can utilize all 10 weeks of accrued leave.

Once his PTO is used, James will then be entitled to 2 weeks of unpaid FMLA leave. Thus, James has effectively substituted PTO for part of his FMLA leave.

Under the new FMLA regulations, the employer is permitted to require workers to use up all PTO before charging time to FMLA leave.

Another change in the new FMLA regulations changes a policy regarding employee attendance. Previously, FMLA time did not count toward a worker’s absence, which meant an employee who took 12 weeks of FMLA could still qualify for a “perfect attendance” award, often earning bonuses, too. With the new regulations, FMLA absences will be considered the same as any non-FMLA absences for award purposes, so workers will no longer be eligible for perfect attendance awards.

In other changes proposed on February 11, 2008, employers will have close to two months to comment on these changes. On April 11, 2008, the regulations will be in effect and in force.

The U. S. Department of Labor’s Victoria Lipnic made the following statement. “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.”

A majority of the new regulations address the definition and medical certification of the worker’s “serious health condition”.

When a worker has a “serious medical condition”, FMLA allows him or her to take up to 12 weeks of unpaid leave per 12 month period. In addition to using FMLA for him or herself, the leave can be taken to care for a family member with a “serious health condition.” According to FMLA, family member is defined as a parent, spouse or child.

To be eligible for FMLA leave, employers usually require that a healthcare practitioner certify the “serious medical condition.” The U. S. Department of Labor supports this practice to avoid employee’s abusing the leave.

Even when certification is provided, employers can, in some cases, request a second or third opinion. These visits must be paid for by the employer.

The new rules retain six of the definition for a “serious medical condition” and provide additional clarification of 2 terms. One of these six definitions requires that the “serious medical condition” involve greater than 3 days of incapacitation, and “two visits to a health provider”.

The Tenth Circuit court ruled that the visits must occur during the incapacitation period. U. S. Department of Labor, however, will amend the rule such that the two visits are required within 30 days of the incapacity.

Working members of a soldier’s family now have access to more than 6 months of unpaid, job protected leave through an amendment to the Family and Medical Leave Act, or FMLA.

The amendment was signed into law by the President on January 28, 2008, and went into effect immediately. Employers are obligated to give the leave time now, and in the absence of detailed information about the regulations, they are expected by the U.S. Labor Department to make a “good faith” effort to comply with the law.

As an amendment to the FMLA, the Labor department is saying that employers should use existing procedures for the unpaid leave - medical certification and substitution of paid leave, for example.

The law also expands the FMLA beyond members of the “immediate family” (spouses, children, and parents) to “next of kin.” That means aunts, uncles, cousins, and in-laws are likely to be eligible for the expanded leave.

The amendment is part of the National Defense Authorization Act (NDAA), or HR 4986. It guarantees as much as 26 weeks of FMLA leave for relatives and spouses of Reserve and National guard people who are either called to duty, or face imminent deployment.

That’s an expansion from the 26 weeks of FMLA leave traditionally offered, and which will continue to be available to those not covered by the amendment.

The new law allows a family member to take up to the maximum of 26 weeks to be a caregiver to a member of the National Guard, Reserve, or armed forces who is undergoing medical treatment.

The medical treatment would include physical and mental therapy. It also involves outpatient treatment and recuperation. Finally, it can be used to give care to a soldier who is on the temporary disability retired list for a severe injury or illness.

The NDAA guarantees that an employee can receive up to 26 weeks of the unpaid, job protected leave for “any qualifying exigency” when a spouse, parent, or child goes on active duty or is about to be called up. That may include care of children because of deployment.

The Family and Medical Leave Act (FMLA) was passed in 1993. It was not until the National Defense Authorization Act of 2008, however, that any major changes to the FMLA were made.

The new NDAA expands coverage for relatives of injured soldiers and soldiers on active duty.

The U.S. Department of Labor is busy developing regulations based on the new legislation. Details are sketchy yet, so it is not known yet whether all the FMLA’s rules will continue to apply.

The FMLA is the groundbreaking legislation that provided up to 12 weeks annually of job protected, unpaid leave.

The time may be used if the worker is seriously ill or must care for a member of the “immediate family” who is ill. “Immediate family” is defined as a spouse, child, or parent.

The law also allows workers to take the leave to care for and bond with a newborn child, a newly adopted child, or a new foster child under age 18. In that capacity it is a common maternity or paternity leave.

The FMLA requires that a worker be reinstated to his or her original job at the end of the leave. If the original job is not available, the employee must receive a job that is similar in pay, working conditions, benefits, and duties. In most cases, employees are reinstated to their original positions.

The Act applies only to firms with 50 or more employees within a 75-mile radius. There are 11 states, however, which have expanded that to include smaller companies.

No state or federal law says workers must be paid during FMLA or NDAA leave. But employers may count paid leave time, such as sick time or PTO (Paid Time Off) against the 12 weeks of FMLA leave. That can only be done if the company notifies the employee in writing before the leave begins.

A recent EEOC settlement charges that a worldwide oil drilling company subjected black employees to racial harassment on offshore oil rigs. The harassment included a racially hostile work environment, including the display of nooses in the workplace on Rig 108.

Under the agreement, Helmerich & Payne International Drilling Company (or H&P) of Tulsa, Oklahoma, will pay more than $290,000 in damages. H&P’s global operations include contract drilling in the U.S., South American and Africa, among others.

The suit alleges that H&P tolerated a hostile work environment for African American men and women aboard the oil rig, including derogatory language and race-based name-calling directed at black employees.

The nearly $300,000 in damages goes to 7 employees, for an average of more than $42,800 each.

In addition, the consent decree requires that H&P conduct anti-discrimination training and post a notice about the settlement. The company is forbidden to engage in racial harassment or retaliation against employees. It also requires that H&P redistribute the company’s policy prohibiting racial harassment to all employees, and that H&P report some types of complaints of harassment or retaliation to the EEOC for the next two years, for continued monitoring.

 “We are pleased that H & P has taken these important steps to improve its work environment,” said C. Emanuel Smith, regional attorney for the EEOC’s Birmingham District, which includes Alabama, much of Mississippi, and the Florida Panhandle. “The monetary relief for the victims in this case should remind employers that there is a high price to pay for racial harassment.”
Commenting from agency headquarters in Washington, EEOC Chair Naomi C. Earp noted that, “A noose is a racial icon that constitutes a severe form of harassment under Title VII of the Civil Rights Act. Nooses are closely associated with racial intimidation, violence and death, and therefore have no business in the workplace. It’s time for corporate America to be more proactive in preventing and eliminating racist behavior. The EEOC intends to make clear that race and color discrimination in the workplace, whether verbal or behavioral, is unacceptable and will not be tolerated.”

EEOC Birmingham District Director Delner Franklin-Thomas, said, “Despite what some may think, overt forms of race and color discrimination have resurfaced in today’s workplace – in addition to new and more subtle forms of racism. There has been strong evidence over the past two decades, as shown in this case, that racist language and nooses are far too common on the job.”

While not admitting any wrongdoing, H&P has agreed to the terms of the settlement.

This is just the most recent in a series of discrimination suits this year. The company, Quietflex Manufacturing Co., L.P., paid $2.8 million in its settlement with the workers. It denied any wrongdoing. The workers had staged a work stoppage to protest the discrimination, and were fired. The company, however, shortly afterward hired them back.

Target Corp. paid $775,000 in January as a result of a racial harassment suit that accused the company of violating Title VII of the Civil Rights Act of 1964 by creating a hostile work environment. Again, the EEOC acted on behalf of the complainant, an employee of the company’s Springfield, Pennsylvania plant who was training to become a store manager. EEOC said the employee, Michael Hill, faced racial harassment from a store manager and as a result was forced to resign. In the settlement, Target also agreed to conduct employee-training sessions at the Springfield store. The company denied any wrongdoing.

Jacqueline McNair, regional attorney for EEOC, said she expected the training program and Target’s emphasis on anti-discrimination policies would “create a more employee friendly work environment at Target’s facility.”

Title VII declares it illegal to discriminate against anyone because of race, color, religion, sex, or national origin in hiring. It also declares that a firm that creates a hostile work environment in essence forces the worker involved to resign. Title VII prohibits retaliation against any worker who makes a discrimination complaint. All of the companies mentioned in this article deny any wrongdoing.