labor lawAdivision of labor law center

A new law signed by President Barack Obama on October 28, 2009 expands FMLA for military families even more than the NDAA or National Defense Authorization Act of 2008.

This change in the law will require every employer to update the Military Caregiver poster, even if they do not have any employees who qualify.

The  National Defense Authorization Act for 2010 provides for two  major changes to current FMLA regulations: 

• Families of Armed Forces members on active duty are covered, not just family members of the National Guard and Reserve
•  Military caregiver leave is expanded to cover the families of some veterans 

It appears that these changes are retroactive, according to Matthew Effland, an Indianapolis attorney specializing in FMLA issues.

Active Duty Included

Under the new law, when a member of the Armed Forces is deployed to a foreign country, his or her spouse, son, daughter, parent, step-child, or step-parent can take up to 12 weeks of unpaid, job-protected FMLA leave for any “qualifying exigency.”

Many employers have already been granting this leave to military families, and not just the families of Reserve or National Guard members who are called to active duty. In fact, it is unclear why the U.S. Department of Labor interpreted the original law so narrowly in the final days of the second Bush administration.

Under the current regulations, qualifying exigencies include attending military-sponsored functions, making appropriate financial and legal arrangements, handling details of a short-notice deployment, attending counseling, and making alternate childcare arrangements. In addition, an employee can take up to 5 days of FMLA for rest and recreation or R&R under the law. The employee can also use FMLA up to 90 days following deployment for arrival ceremonies, post-deployment ceremonies and other military events.

Military Caregiver Leave Expanded to Veterans

The NDAA also permits an employee who is the son, daughter, spouse, or parent to take up to 26 weeks of unpaid, job-protected FMLA during a 12-month period to provide care for a service member who has been injured or contracted a disease in the line of duty.

This extended FMLA leave also applies to the injured soldier’s next-of-kin, regardless of the relationship. This means in some cases that an in-law, grandparent, sibling, aunt, uncle or cousin could qualify for military caregiver leave.

The new law permits the (more…)

On September 23, 2009, the EEOC published proposed rules regarding disabilities in the Federal Register.

These new rules change the definition of a disability under the ADAAA, the ADA Amendments Act of 2008, which went into effect on January 1, 2009. That law requires the EEOC to interpret the term “disability” broadly.

The law returns the meaning to disability to that enforced by the EEOC in 1990 soon after the ADA was passed. Over time, the courts have continually eroded the definition of disability under the law, requiring more proof of more severe impairments.

Some of the notable changes that employers need to be aware of:

An impairment that substantially limits a major bodily function is sufficient to constitute a disability. Under the old regulations, a condition like cancer or AIDS did not in and of itself, constitute an impairment. The employee had to show that he or she was limited in major life functions by the condition. Under the new regulations, such a condition in and of itself is a disability.

Mitigating measures must be disregarded. (more…)

The IRS  and U.S. Department of Labor are cracking down on employers who try to avoid employment taxes by misclassifying employees as independent contractors.

Under IRS regulations, an independent contractor is a self-employed small business person. The employer does not have to pay FICA or unemployment taxes on independent contractors, under federal law. State laws requiring workers’ comp insurance do not apply to independent contractors. Employers are also not required to withhold federal income taxes for independent contractors.

The minimum wage and overtime provisions of the FLSA, the federal Fair Labor Standards Act, do not apply to independent contractors.

All of these factors make hiring independent contractors very attractive to employers. However, both the IRS and the U.S. Department of Labor have stepped up enforcement actions against employers who misrepresent workers as independent contractors, when in fact they are employees.

To further complicate the issue, there is no one standard or group of standards to determine if a worker is an independent contractor, rather than an employee. The IRS has traditionally used the 20-factor test, particularly to determine if workers’ compensation coverage is required.

The IRS 20-factor test basically determines how much control the employer exercises over the worker. In general, a high level of control results in employee status, rather than independent contractor status. When an employer controls when, where or how the work is performed, that usually constitutes employee status.

Other agencies use (more…)

Companies holding federal contracts need to be aware of important deadlines regarding the new E-Verify regulations.

These regulations require that employers use the E-Verify system to determine that current employees – even long-term employees – working on federal projects can legally work in the U.S.

Some important deadlines to keep in mind: 

• The employer must enroll in E-Verify, or re-enroll as a federal contractor, within 30 days after a federal contract is signed
• Within 90 days, the employer must begin verifying the status of new hires
• Within 90 days, the employer must check the work status of all current employees who will work on the federal project
• Any subcontractors hired must also meet the same deadlines 

Even a company that has  used E-Verify for many years must re-enroll once a federal contract is signed. “It’s very important that employers understand that they have to be identified and enrolled as a federal contractor,” says Cynthia Lange, an attorney with Fragomen, Del Rey, Bernsen & Loewy, LLP.

This is a reversal in regulations, since in the past employers were prohibited from using E-Verify to determine the work status of any existing employees.

Business owners may be tempted to enroll in E-Verify immediately, but experts urge them to wait until a federal contract is signed. “Businesses that didn’t hold a new or current contract with the federal government will most likely have to re-enroll once a new contract is signed,” according Lange.

The mandatory use of E-Verify by federal contractors was first proposed by then-president George W. Bush in June 2008. In November 2008, the final regulations to enforce the executive order were issued. However, like a number of other executive orders, it was put on hold until President Obama took office.

President Barack Obama

The mandatory use of E-Verify by federal contractors was contested in court by a coalition of employer’s groups, including SHRM, the Society for Human Resource Management.

E-Verify is a joint venture between the Department of Homeland Security, the Social Security Administration and USICS, the Immigrations and Customs Service.

The federal EEOC just published new regulations that redefine disability under the Americans with Disabilities Act.

The new regulations specifically address the definition of disability within the ADAAA of 2008, which has been in effect since January 1, 2009.

Under the new rule, certain impairments will create a presumption of disability. These impairments include epilepsy, diabetes, multiple sclerosis, developmental disabilities, deafness, blindness, use of a wheelchair due to mobility problems, autism, cerebral palsy, HIV/AIDS, muscular dystrophy, major depression, bipolar disorder, partial or complete amputations, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.

The new ADA rules mean that an employee who has been diagnosed with any of those conditions is presumed to be disabled and entitled to reasonable accommodation.

This may seem to be a common-sense approach to disabilities, but it has not always been so.

Under the old rules, each employee claiming a disability had to individually demonstrate that the condition limited one or more major life activities. A very large company might have 10 blind employees. Each blind employee would have to individually prove that blindness impaired their performance at one or more major life activities like reading, walking, using a phone book, using public transportation, cooking, shopping, personal grooming, etc.

An individualized assessment of whether a substantial limitation exists should still be done, according to the EEOC. However, the federal agency claims this “can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”

Employers should note that the list of impairments is not exhaustive. Other conditions (more…)