labor lawAdivision of labor law center

Thanks to a ruling on group health insurance, South Dakota employee benefit plans will continue to include limits on coverage for mental health that equal those for medical and surgical procedures.

The ruling applies to what is known as the Mental Health Parity Act, or MHPA. As its name suggests, it declares that any employee group health plan in the nation must cover mental health treatment at levels equal to other kinds of medical treatment.

The law was recently extended through December 31 of 2007. The MHPA originally became law in 1996, but a so-called “sunset clause” was written into it, forcing its expiration on September 31 of 2001. But it has been extended five times by amendments since its creation. In excess of 150 million employees in the U.S. are covered by group health insurance packages, so the impact is wide-ranging.

The MHPA was a turning point. Until then, a health plan could put high limits on medical and surgical treatment, but much lower levels for coverage of mental health treatment issues.  While medical coverage limits might be at $100,000, mental health limits might be $10,000 or lower, sometimes as low as $5,000. Thanks to MHPA, that is illegal.

What is covered by mental health treatments? Typically, periods in drug and alcohol rehabilitation centers are included. Also covered are visits to a licensed therapist, a psychologist, or a psychiatrist, as well as stays in hospitals – mental health facilities or the mental health sections of medical hospitals for illnesses such as depression, schizophrenia, and post-traumatic stress disorder.

The Employee Benefits Security Administration (EBSA) enforces the law covering group health plans. It was first called the Pension and Welfare Benefits Program. In January of 1986, it became the Pension and Welfare Benefits Administration. Finally, in 2003 it received its EBSA title when it received an upgrade to sub-cabinet level, overseen by an Assistant Secretary of Labor. Its responsibilities now include monitoring health care law violations as well as pension law. 

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Several states mandate the display of sexual harassment posters, including Alaska, Connecticut, Massachusetts, Rhode Island, South Dakota and Vermont. In other states, many employers choose to display a poster on sexual harassment prominently in the workplace, as part of their prevention program.

According to the Equal Employment Opportunity Commission, the EEOC, prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser’s conduct must be unwelcome.
• It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

The USERRA Notice poster was recently updated, making it more important than ever that employers display a current poster. The USERRA- Uniformed Services Employment and Reemployment Rights Act poster, ensures the rights of returning veterans and emergency workers.

Federal and state laws require each employer to prominently display a number of labor laws posters, including the USERRA notice. These federal and state labor law posters should be displayed in a conspicuous place. Popular locations are the employee break room, near the time clock, or in another “employees only” area where they will be noticed by every employee.

Most employers find the large, laminated federal and state labor law posters the most durable. There are six posters required for all employers, by federal law. These include:

• USERRA - Uniformed Services Employment and Reemployment Rights Act
• Equal Employment Opportunity is the Law
• Federal Minimum Wage
• Employee Polygraph Protection Act
• Family and Medical Leave Act
• OSHA-Job Safety & Health Protection

To save space, all six federal posters are conveniently available on a single large, laminated poster, called the Complete Poster.

In addition, each state mandates different labor laws posters. The state posting requirements vary greatly. The State of Hawaii mandates only one poster, called the Labor Law Poster, which includes information on Discrimination, Wage & Hour Laws, Unemployment Insurance Law, Disability Compensation Law, Dislocated Workers/Plant Closings, Occupational Safety & Health Laws, Military Leave and the Whistleblower Protection Law.

Several states require only three posters, including Tennessee, North Dakota and South Dakota. Pennsylvania and Rhode Island each require eight different posters, while the State of California requires a whopping 14 state labor law posters to be displayed.

It’s easy for busy employers to overlook the mandatory requirements for state and federal labor laws posters. Many employers don’t realize that depending upon state, they could be subject to fines up to $7,500 in not complying with federal or state posting requirements. The purpose of the posters is to advise employers and employees of their rights and obligations under the law. There is also contact information for employers and employees to report violations of labor law.

Employers in South Dakota are required by law to post the South Dakota posters outlining the state and federal labor and employment laws.  Compared to other states, South Dakota has relatively few state laws that need to be posted: sexual harassment, unemployment insurance and workplace safety.  The federal laws are basically the same for every state, however.  They are USERRA – Uniformed Services Employment and Reemployment Rights Act, Equal Employment Opportunity is the Law, Federal Minimum Wage, Employee Polygraph Protection Act, Family and Medical Leave Act and OSHA – Job Safety and Health Protection.

The South Dakota posters need to be placed in a visible location in an area in the workplace where all of the employees have access.  Possible locations are the employee work room, break room, mail room or any other place where the employees visit or gather on a regular basis.  Additionally, the employers need to make sure they have the most current information available on their posters.  This needs to be checked yearly because labor and employment laws can change that often.

The requirements for employers to post the information found on the South Dakota posters are meant to benefit the employees because this is their main source of information on the labor laws that affect them and their rights within the workplace.  Furthermore, the labor laws often also outline the protocol for filing complaints including which state and federal agencies the employees should contact if the need arises. 

Employers can also benefit from posting South Dakota posters as well.  They can use the information to help them know exactly what they need to do uphold the law and their employees’ rights in the workplace.  They can also use the posters as a quick reference if they have specific questions about the labor laws that pertain to them such as who is affected by the Family and Medical Leave Act.

During my research into sexual harassment laws across the States, I found that most sexual harassment claims are brought into the Federal courts because they are under Federal law. Each state has its own civil rights law that state that sexual harassment is unlawful and punishable in court and each of these laws is guided by the Federal laws.

The state laws also cover the same ground as Title IX, which states that men and women should be treated equally in the workplace and that states may not discriminate based on gender. These state laws have provided a possible cause of action for sexual harassment because the entire issue of sexual harassment still seems to be wrought within a grey area, I’ve found.

In South Dakota, if an employee feels that he or she has been sexually harassed in the workplace, then he or she needs to file a claim with the Commission on Human Affairs, a division of the state government. The individual believing to have been sexually harassed has a limited amount of time (180 days) from the date of the alleged harassment in order to file the claim. This time limit is common across the states.

Once the claim is filed with the state, it will be automatically cross-filed with the federal government as well. However, if you choose to file with the Federal government first instead of with the state government, then you should know that the deadline is longer and the Federal government will, in turn, cross-file the complaint with the state.

Many people believing to have received sexual harassment in the workplace choose to also consult an attorney. The attorney can take care of the filing for you and will argue your case on a state or federal level if the case is accepted.