The U.S. Department of Labor has just issued a series of questions and answers pertaining to the employment law implications with respect to individuals who are off from work due to the H1N1 flu virus pandemic. The first Q & A pertains to the FLSA and the second Q & A pertains to the FMLA.
The Centers for Disease Control and prevention (“CDC”) has just issued a report indicating that in the past six months 22 million Americans have become sick with the H1N1 influenza virus (a/k/a the “swine flu”), of which 4,000 have died. As this pandemic shows no signs of abating, employers are faced with many legal issues in addition to being concerned about the health and safety of their workers, customers and clients, while at the same time attempting to determine how best to carry on their businesses under these circumstances.
An excellent reference source for most questions pertaining to this pandemic is the federal government’s website http://www.flu.gov., which contains very useful and specific information, as well as links to issues of specific concern to various businesses.
The U.S. Department of Labor has just issued two sets of questions and answers concerning the impact of the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) on issues pertaining to employees absences from work and payment to employees who are directly or indirectly affected by the H1N1 flu virus. Additional guidance is provided by the EEOC with respect to the impact of the Americans with Disabilities Act (“ADA”) on this pandemic situation.
As this situation has evolved, the federal government has continued to issue additional information and guidelines, some of which modified prior guidance. Accordindly, continued monitoring of the main website - www.flu.gov is advised.
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
On October 9, 2009, the U.S. House of Representatives also passed the “Paycheck Fairness Act” (“PFA”), which proposes to make several changes to the Equal Pay Act of 1963 (“EPA”). The EPA prohibits discrimination in compensation on the basis of gender for equal work. The EPA sets forth the criteria for determining whether the work performed is “equal” and defenses to such a claim.
The PFA is intended to substantially toughen the EPA, by more narrowly defining the circumstances of a defense to an equal pay claim. It also adds provisions for nonretaliation, compensatory damages and, in cases of malice or reckless indifference, punitive damages. The bill specifically permits the filing of an “opt-in” class action. The damages and class action provisions appear to also apply to other violations of the FLSA.
The PFA is a companion bill to the Fair Pay Act, which the House passed on the same day, and they are likely to be considered together by the Senate.
Expect increased activity in the labor and employment law arena from Washington, DC in 2009. The Labor Movement invested more than $300 million and countless volunteer hours to help elect President-elect Obama and enlarge the Democratic majority in Congress and it expects both to enact new legislation and initiate administrative activities that will benefit labor unions and workers.
The number one priority of the labor movement is the Employee Free Choice Act (“EFCA“). EFCA would dramatically change the rules with respect to union organizing of employees by allowing a union to bypass the NLRB’s secret ballot election procedure. If EFCA is enacted, an employer would be required to recognize a union as the representative of its employees after the NLRB has verified that a majority of the employees have signed union authorization cards. After recognition, the employer and the union would have 90 days to negotiate their first collective bargaining agreement. If they are unsuccessful, a mediator from the Federal Mediation & Conciliation Service (“FMCS“) would then become involved in the negotiations. If a contract is not agreed to in the following 30 days, the issues will be submitted to an arbitrator, who will have the power to make a final and binding decision on all open issues. President-elect Obama was a sponsor of the EFCA bill when he was a Senator and Representative Hilda Solis (nominee for Secretary of Labor) voted for it when it passed the House in 2007. It is very likely that EFCA will be enacted, but not necessarily in the first 100 days of the new administration and there may be some modifications made to the proposed collective bargaining procedures and/or to a proposed statutory fine process for unfair labor practices.
President-elect Obama will be able to appoint 3 new Board Members to the 5 member National Labor Relations Board (“NLRB“) and to designate a new Chairman and General Counsel of the Board. These appointees are likely to be more favorable to unions and workers than those appointed during the Bush administration. Also pending in Congress is the “RESPECT” bill, which is intended to reverse a prior NLRB decision that broadly defined which employees were supervisors and thus exempt from union organizing efforts.
The U.S. Department of Labor (“DOL“) is expected to get increased funding and enlarge its staff, so that it will become more active in investigating and enforcing the numerous laws within its purview. There are serious efforts to increase the minimum wage (“FLSA“) and to enact new safety rules (“OSHA“). There is also talk of revising the 2004 DOL regulations pertaining to overtime exemptions, so that more employees will be entitled to overtime.
Several organizations that advocate for a more family friendly workplace are expected to make an effort to have the Family & Medical Leave Act (“FMLA“) require paid leave. There are several states that have recently passed such legislation. The recently promulgated FMLA regulations are not expected to be changed in the near future.
President-elect Obama also has the opportunity to appoint the Chairman, General Counsel and Commissioners to the Equal Employment Opportunity Commission (“EEOC“) and that agency is expected to increase its enforcement efforts during the new administration. Pending in Congress is the “Lilly Ledbetter Fair Pay Act”, intended to reverse the holding of a U.S. Supreme Court case, by allowing an individual to file an employment discrimination charge based on the last date that they were adversely affected by the alleged discrimination.
There are numerous other labor and employment bills pending in Congress which may be enacted as a result in the change in Congress and the administration, so stay tuned for an exciting 4 years.
Welcome to my blog. I'm Paul Cherner, a labor and employment attorney at Hinshaw & Culbertson LLP in Chicago. Just a reminder, these posts are not legal advice. This site is my personal blog and the opinions expressed are mine and not those of my firm or my firm's clients. Please contact me if you have questions or comments at pjcherner at gmail dot com.
