labor lawAdivision of labor law center

July 2009 is an important month for employees and employers alike in South Dakota.

On July 24, 2009, the South Dakota minimum wage will increase from $6.55 per hour to $7.25 per hour. When the federal minimum increases, over a dozen states will increase their minimum wage to match the federal.

The South Dakota minimum wage increase mirrors the federal minimum wage increase.

The majority of the employers in the United States are covered by the federal minimum wage law, the FLSA or Fair Labor Standards Act. That law covers employers who earn $500,000 or more annually, and companies that engage in interstate commerce.

The law also applies to individual employees who engage in interstate commerce. For example, a receptionist who answers out-of-state phone calls is considered to be engaged in interstate commerce and would be covered by the federal minimum wage. (more…)

The minimum wage in South Dakota is now $6.55 per hour. On July 24, 2008 when the federal minimum wage increased from $5.85 per hour. Under state law, the South Dakota minimum wage also increases to reflect the change in the federal minimum wage.

The Fair Minimum Wage Act of 2007increased the federal minimum wage from $5.15 per hour to $7.25 per hour. However, the increase didn’t go into effect all at once. Under the federal law, the minimum wage increases in three 70 cent steps. The first step went into effect 60 days after the President signed the bill into law, on July 24, 2007. The other two increases occur on the same dates in 2008 and 2009.

The next scheduled increase in the South Dakota minimum wage (more…)

New changes to the Family and Medical Leave Act (FMLA) regulations permit an employer to “request” medical recertification of an employee’s medical condition every 6 months in connection with an absence.

In reality employers may legally deny an FMLA leave if a worker refuses to comply with the “request.”

Under the new FMLA rules, employers may require recertification annually for an ongoing serious health condition. If a worker, for example, suffers from migraine headaches that require periodic single-day FMLA absences, the employer can require the condition be recertified every year by a health professional.

They also allow an employer to clarify a medical certification with a healthcare professional. Both the employer and the health provider must abide by HIPAA medical privacy regulations, however.

Also under the new regulations issued by the U.S. Department of Labor, employers must not ask the health professional for any information that is not on the certification. While the Labor Department’s WH-380 form has been updated, it remains optional. The form allows the provider to fill in a diagnosis of the employee, but it is entirely up to the professional’s discretion.

The FMLA guarantees workers up to 12 weeks of job-protected, unpaid leave yearly to tend to their own serious illness or that of a spouse, parent, son or daughter. Employers in turn have traditionally had the right to require medical certification of the health condition.

The old regulations allow employers to seek recertification in two situations.

In the first, they may request it after 30 days, but only if the employee is currently absent. If John has surgery that keeps him out more than a month under FMLA, the employer may seek recertification after 30 days are up. But John must still be absent at the time.

In the second, they may request recertification if a healthcare provider stipulated a limit on the previous certification. If the provider said Mary’s carpal tunnel syndrome requires 6 weeks of FMLA leave, then the employer may seek recertification if she is still out of work after the 6 weeks is up.

When providers listed conditions as “lifetime” or of “unknown” duration, employers could not seek recertification.

More South Dakota FMLA Changes

Family and Medical Leave Act regulations allow employers to require workers returning from FMLA leave to present a “fitness-for-duty” certificate from a healthcare provider showing that they are capable of returning to the job.

Some proposed changes to the FMLA rules would revise the “fitness-for-duty” certification process.

One change is designed to stop abuse of FMLA leaves by some workers. It applies to those employees who take intermittent FMLA leave on short-term bases. Employers would have the authority, under the change, to require a certification each time the employee wishes to return from leave, provided a valid job safety issue exists.

If truck driver Carl suffers periodic migraine headaches that interfere with his vision, his employer could require that he present a certificate each time he returned. Obviously a truck driver with impaired vision would be a valid safety concern.

On the other hand, if employee Maria needs to take intermittent FMLA leave due to morning sickness during her pregnancy, her employer could not require recertification. No safety issue exists here.

Another change would allow employers to require that the “fitness-for-duty” certificate address directly the matter of a worker’s ability to conduct major functions of her or his position. If a warehouse employee’s job consists largely of lifting heavy boxes, then he or she could be required to present a certificate showing the ability to once again lift heavy objects.

The U.S. Labor Department recently released a series of proposed changes to the FMLA regulations. The updates could affect employers throughout the nation. Both employers and others who may be interested have until April 11, 2008 to comment on the changes. Following that date, they will be published in the National Register and have the force of law.

As with all policies, this one must be applied uniformly in similar situations. An employer must require certification from all employees returning from FMLA leave after a serious illness. The same employer may exempt all employees taking the leave to care for a newly adopted child.

Employers must still abide by the prohibition against discrimination under Title VII of the Civil Rights Act of 1964, in granting FMLA leave.

Northern Alabama, Northern Indiana, and the Delaware Valley. Northern California and the Mississippi/Arkansas Delta. What do these places all have in common?

They all encompass regions that have suffered slow growth and high jobless rates. And they have all been the beneficiaries of WIRED grants that have helped kick-start their stalled economies.

A South Dakota unemployment grant could do the same thing for parts of the state that have suffered from higher-than-average unemployment. The U.S. Department of Labor has just announced its third generation of the WIRED grants, an extremely competitive funding program that rewards plans that “think outside the box” when it comes to developing plans to prop up sagging economies.

The grant’s official name is the Workforce Innovation in Regional Economic Development Initiative. Since its inception, the Labor Department has pumped $260 million worth of WIRED grants into 26 different regions throughout the U.S. Thanks to the program, 10 different federal agencies have worked together to develop high-paying, highly-skilled jobs – the kinds of jobs needed to compete in a rapidly changing global economy.

As Secretary of Labor Elaine Chao described it when she announced the second round of WIRED grants, “Investing in area workforces through this collaborative approach will boost entire regions’ economic vitality.” She added that the regional economic development plan “transcends political boundaries to better leverage a region’s assets to help workers succeed in the 21st century worldwide economy.”

Emily Stover DeRocco, the Assistant Secretary of Labor for Employment and Training, emphasizes the benefits of partnership. She said the Third Generation of WIRED is designed “to position local Workforce Investment Boards as leaders of a strategic regional partnership.” And she noted that “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.”

First, Secretary Chao sends letters announcing a new round of the grants to governors. They in turn pick only two proposals from those that cross their desks. Each of those proposals may be for up to $5 million dollars.

Federal and South Dakota overtime laws have been the subject of a recent court ruling which orders the nation’s largest retail employer to pay back wages plus interest to employees who received less overtime pay than the law allows.  The payout totals more than $33 million and affects more than 86,680 employees.

In a recent announcement, the US Department of Labor (DOL) said Wal-Mart Stores, Inc. (Wal-Mart), failed to maintain compliance with laws pertaining to calculating South Dakota minimum wage overtime payments.  Wal-Mart used base rates of pay to compute overtime wages for employees who were regularly receiving incentives and over premium payments in addition to base pay.

To illustrate this point, consider an employee who earns a base pay rate of $6.00 per hour but who also receives incentive and premium payments on a regular basis.  In this example, the employee is regularly paid an all-inclusive rate of $7.00 instead of the $6.00 base.  To remain in compliance with federal and state laws, the employee’s overtime rate of pay must be calculated using the $7.00 per hour rate, not $6.00.

Both the South Dakota overtime law and the federal law consider a standard work week to be 40 hours.  Any work done in excess of 40 hours for the week is considered overtime and the rate of pay is increased to 1.5 times the standard pay rate.

The DOL complaint was filed in US District Court, where it was promptly approved.  Compensation for unpaid back wages must be paid, along with interest on these unpaid wages, as a deterrent to future violations of these laws.

“This settlement provides $33 million in back wages, plus interest, to Wal-Mart workers, and the company has taken corrective action to prevent this from happening again,” said Victoria A. Lipnic, DOL’s Assistant Secretary of Labor for Employment Standards.

The court order requires payment of miscalculated overtime wages for the period beginning on February 1, 2002, and continuing until January 19, 2007.