October 27th, 2009 | By Paul Cherner
The military caregiver leave provisions of the FMLA were expanded with the recent enactment of section 565 of the National Defense Authorization Act of 2010, as follows:
(1) Eligible employees will be able to take Military Caregiver Leave for covered servicemembers who are veterans undergoing medical treatment, recuperation, or therapy, or who are otherwise in an outpatient status, for a serious injury or illness and who were a member of the Armed Forces (including the National Guard and Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation or therapy. An eligible employee may take up to 26 weeks of leave during a single 12 month period, which commences on the date that the employee first takes such leave. [Note: Previously, such leave was only available to care for current members of the Armed Forces, Guard, or Reserves.]
(2) “Serious illness or injury” is now defined as an injury or illness that was incurred by the member or by a veteran while in the line of duty on active duty in the Armed Forces or which existed before the beginning of the member’s active duty and was aggravated by service in the line of duty while on active duty in the Armed Forces and that may render that member medically unfit to perform the duties of the member’s office, grade, rank, or rating . [Note: These changes have now included veterans as well as certain preexisting conditions that were aggravated while on active duty].
(3) Qualifying Exigency Leave will now also cover members of the regular Armed Forces during their deployment to a foreign country. [Note: Prior to these amendments, Qualifying Exigency Leave was only available for covered military members in the Reserves or Guard when ordered to active duty during the deployment of the member to a foreign country.]
These changes became effective on October 27, 2009, the date the law was signed by President Obama.
Employers should review and revise their FMLA leave policies and practices to reflect these new amendments.
Note: A special nod of thanks to the FMLA blog for tipping us off about these important changes that are buried within that massive new defense authorization act.
September 23rd, 2009 | By Paul Cherner
The EEOC has just published for public comment proposed new regulations interpreting the Americans with Disabilities Amendments Act of 2008 (“ADAA“). The ADAA, which became effective January 1, 2009, required the EEOC to revise its ADA regulations and to redefine the term “substantially limits” in accord with the Congressional goal of defining the term “disability” in favor of broad coverage to the maximum extent permitted by the ADA.
The proposed new rules reiterate that the definition of “disability’ should be broadly interpreted. The new rules liberally interpret the term “substantially limits” by providing that a limitation need not significantly or severely restrict a major life activity in order to meet the ADA standard for disability. The definition of “major life activities” has been expanded and now include factors on two non-exhaustive lists, including one that identifies major bodily functions.
These rules provide that actions based on an impairment should also include actions based on symptoms of an impairment. They also provide that qualification standards, employment tests or other selection criteria based on an individual’s uncorrected vision should not be used unless shown to be job-related for the position in issue and consistent with business necessity.
There is a 60 day period for public comment and then a period of time in which the EEOC will consider the comments before issuing final rules, which will probably not occur before early 2010. However, all employers should be reviewing their ADA policies and practices NOW to take into account the new realities of dealing with a broader and more liberal ADA. The EEOC has published questions and answers regarding their proposed new ADAA rules and employers are advised to review that document with legal counsel and their HR team.
July 17th, 2009 | By Paul Cherner
President Obama has nominated Jacqueline A. Berrien to be Chair of the Equal Employment Opportunity Commission. Ms. Berrien has been associate director-counsel of the NAACP Legal Defense and Educational Fund for the past five years. She previously worked for the Ford Foundation and the American Civil Liberties Union.
There appears to be a compromise gathering consensus concerning the enactment of the Employee Free Choice Act (“EFCA”). See our prior post for a description of the key provisions of this proposed legislation. The compromise that is emerging will be to drop the card check recognition provisions in favor of quick union elections (five to ten days) to be conducted by the NLRB. Left in the bill for now are the provisons providing for arbitration of first time union contracts and increased penalties for unfair labor practices committed during organizing drives and/or first contract negotiations. It is predicted that the Senate will probably not deal with this legislation until September at the earliest.
June 9th, 2009 | By Paul Cherner
The Family and Medical Leave Act (“FMLA”) was amended last year to provide for two new forms of leave for eligible employees who have a family member on active duty in the armed forces. These amendments afford eligible employees the opportunity to take “military caregiver leave” to care for covered service members. The other form of leave provided is “qualifying exigency leave” for any qualifying event that arises from a family member being called to active duty or receiving notice of an impending call to active duty status.
The U.S. Department of Labor has issued detailed regulations implementing these two new forms of leave for employers with 50 or more employees. Employers are required to update their FMLA policies, post revised FMLA notices and provide for these two new additional forms of leave for their eligible employees. For an indepth discussion of these new forms of leaves, see this author’s article “Leave for Military Family Members – What Employers Need to Know” in this week’s online version of Crain’s Workforce Management and the December 10, 2008 post in this blog..
April 28th, 2009 | By Paul Cherner
President Obama has announced his intention to nominate two union attorneys to be Board members of the NLRB. They are Craig Becker and Mark G. Pearce.
Becker has been Associate General Counsel for the Service Employees International Union for 17 years and holds the same position at the AFL-CIO. He has practiced and taught labor law for 27 years.
Pearce practices labor law at a law firm in Buffalo, NY that represents unions and individual employees. He previously taught labor law and began his career at the NLRB.
The NLRB has a total of five Board Members. Traditionally, the President appoints three Members from his party to the staggered terms of the NLRB and designates one of them to be Chairman. The two other Board Members are traditionally from the opposition party. At the present time, there are two Board Members serving on the NLRB who were appointed during the prior administration- Chairman Liebman (D) and Member Schaumber (R). If these two new appointments by President Obama are confirmed by the Senate, there will be a Democratic majority for the first time in many years.
The President also nominates the General Counsel of the NLRB.
Update re : EFCA – Senator Arlen Specter (R – PA) previously announced that he would vote against a cloture motion on EFCA thereby making it unlikely that a filibuster could be ended. Today, Senator Specter announced that he will run for reelection to the Senate next year as a Democrat. This will likely change the playing field for the pasage of EFCA. Stay tuned for new developments.
Update re NLRB Nominees: On December 28, 2009, the Washington Post reported that the nomination of Craig Becker to the NLRB has been returned by Congress to the White House for “reconsideration.” Speculation is that Becker may request that his nomination be withdrawn in view of the strong likelihood that Senator John McCain will not allow this nomination to be passed out of the Senate committee for a vote by the full Senate. On January 7, 2010, the NY Times reported that President Obama will resubmit Becker as a nominee to the NLRB.
April 22nd, 2009 | By Paul Cherner
On January 17, 2009, the Economic Stimulus Plan was enacted, a part of which provided for subsidies of COBRA premiums pursuant to certain criteria. See the postings in this blog of March 5 and 20, 2009 for a brief description of that criteria.
The U.S. Department of Labor and the Internal Revenue Service have continued to update information concerning this subsidy and employers should check these websites with respect to complying with the mandates of this program.
April 18, 2009 was the deadline for mailing Notices to all employees who have been involuntarily separated since September 1, 2008, whether they elected to take COBRA coverage or not. The DOL website contains model notices to be sent to former employees, as well as to employees who are involuntarily separated during the remainder of 2009.
April 22nd, 2009 | By Paul Cherner
As of April 3, 2009, all U.S. employers are required to use a new revised Form I-9. This new form contains several changes in accordance with final rules issued by the Department of Homeland Security. You can download the new I-9 form by clicking on the website of the U.S. Citizenship and Immigration Services Agency (f/k/a the INS). The form is also available in Spanish.
The USCIS has also prepared a 45 page handbook for employers that should be helpful for any questions that you may have concerning the new I-9 form,
March 26th, 2009 | By Paul Cherner
The U.S. General Accounting Office (“GAO”) recently issued a scathing report about the DOL’s handling of FLSA investigations. The title of the report is “Wage and Hour Division’s Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft.”
In response, the new DOL Secretary, Hilda Solis, issued a News Release stating that she takes the issues raised by the GAO report seriously and will be hiring 250 new field investigators to refocus their efforts on enforcement of wage-hour laws. This is a one-third increase in that investigative staff. Employers can anticipate more vigorous enforcement of these laws and should prepare now by conducting an audit of thier compliance with the FLSA
March 20th, 2009 | By Paul Cherner
The U.S. Department of Labor has issued updated information for employers on complying with the new COBRA subsidy provisions that were contained in the Economic Stimulus Plan. You can review this information at the DOL web page on this subject.
There are model notices which must be sent to former covered employees (and their qualified beneficiaries) who were involuntarily terminated after September 1, 2008, whether or not they previously elected COBRA coverage. Individuals who were not eligible for COBRA, but were eligible for continuation of health care coverage under state or local law are also entitled to this subsidy and must also be sent an appropriate notice.
A notice must also be given to all covered employees (and their qualified beneficiaries) who are involuntarily separated from February 17, 2009 through December 31, 2009. For a detailed discussion of this subsidy see our posting of March 5, 2009. The DOL webpage also provides links to Frequently Asked Questions about this subsidy from the DOL and the IRS, as well as from the House Ways & Means Committee.
On March 24, 2009 at 11:30 (EDT), the DOL will be presenting a webcast about compliance with these new rules. You may register online for this free webcast.
March 10th, 2009 | By Paul Cherner
The Employee Free Choice Act (EFCA) was introduced today in the House and the Senate with much fanfare and rhetoric.
In our January 19, 2009 post, we set out the key provisions of this legislation from the prior effort to pass it in Congress. This bill will essentially allow unions to organize workers on the basis of the workers signing union authorization cards and will, in effect, obviate the usual process of the NLRB holding a secret ballot election on the issue of union representation. Additionally, the original bill set a short timetable for bargaining the first union contract and provided for binding arbitration when the parties had not reached an agreement within the proscribed time limits.
This new legislation contains essentially the same provisions of the prior EFCA bill. There will be a vigorous campaign within Congress by unions and employers over this legislation. It is too early to predict what will be contained in the final version of this important piece of legislation.
In the coming months you will be reading about this legislative battle in the papers and hearing about it from the broadcast media, since it is a “hot button” topic for many interest groups.
It is currently expected that the process of trying to enact this legislation may take until sometime this summer before it goes to a final vote. However, Senate leadership has announced that they intend to try to have it voted on after the Easter recess. We will keep you advised of further significant developments.
