Monday, November 24, 2008

The Employee Free Choice Act

In this election year, the Employee Free Choice Act (EFCA), also known as the Card Check bill, has been discussed in terms of its effect on worker secret ballots. The focus of this bill is to make it easier to remove obstacles to union organizing. EFCA is supported by many Democrats in Congress and President-Elect Obama. It is very likely the bill will become law early in 2009. In that case, the bill would become the most significant modification to federal labor law in the past forty years.

The first feature of the EFCA is that it seeks to eliminate an employer’s right to a secret ballot election before asking the employer to accept unionization of its workplace. Once the employers are presented with authorization cards signed by a majority of its employees, the act would require them to recognize a union.

The second important feature of the EFCA is that it allows either the employers or the employees to request mediation if they cannot reach an agreement on initial collective bargaining.

Last but not least, the EFCA would for the first time create substantial penalties for labor violations. These would apply during any period when unions are attempting to organize and during negotiations of a first contract.

Thursday, November 20, 2008

FMLA Final Rules Issued

On November 17, 2008, the U.S. Department of Labor (DOL) issued the new final regulations for the Family and Medical Leave Act (FMLA) to replace the original 15-year-old one. The new regulations will take effect on January 16, 2009, and will require every employer to display a new version of the FMLA poster.

With regard to military leave, the new FMLA rule include:
Military Caregiver Leave: The new rule expands FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty. These family members may take up to 26 workweeks of leave in a 12-month period.

Leave for Qualifying Exigencies for Families of National Guard and Reserves: Under the new rule, employees with a covered family member on active duty may also take up to 12 weeks of FMLA job-protected leave for a “qualifying exigency”, which include short-notice deployments, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and additional activities where the employer and employee agree to the leave

Other changes include:
The Ragsdale Decision/Penalties: The new rule removes the so-called "categorical" penalty (requiring an employer to provide 12 additional weeks of FMLA-protected leave after the employee has already taken 30 weeks of leave) and holds employers liable if an employee suffers individual harm because the employer did not follow the FMLA rules.

Waiver of Rights: The new rules state that employees may settle their FMLA claims out of court with the employer, even without departmental approval. However, prospective waivers of FMLA rights are still illegal.

Serious Health Condition: The new rules also provide guidance on the definition of "serious health condition." They clarify that if an employee is taking leave that contains more than three calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the start of the incapacity and the first visit must take place within 7 days of the first day of incapacity. In addition, according to the new rules, employees with chronic serious health conditions must visit a healthcare provider at least twice per year.

Light Duty: In at least two court cases, judges have ruled that an employee can use up his or her 12-week FMLA leave while on a "light duty" assignment. But under the new rules, time spent in "light duty" work can’t be counted toward any portion of the 12 weeks of FMLA, and if an employee is voluntarily doing light duty work, he or she is not on FMLA leave.

Perfect Attendance Awards: Under the new rules, an employer can deny perfect attendance awards to employees who take FMLA leave. But if employees on other types of leave get the perfect attendance awards, the awards must also be paid to those on FMLA leave.

Employer Notice Obligations: All employer notice requirements have been clarified in a "one-stop" section in the new regulations in order to clear up some conflicting provisions and time periods.

Employee Notice: Under the previous regulations, employees were allowed to notify their employers of their need for FMLA leave up to two business days afterwards, while under the new rules, employees must follow the employers’ usual and customary call-in procedures, unless there are unusual circumstances.

Medical Certification Process (Content and Clarification): The new rules add a requirement to make clear the group of persons who may have contact with an employee’s healthcare provider on behalf of the employer to obtain medical certifications, and an employee's direct supervisor is forbidden to have such contact.

According to Victoria A. Lipnic, Assistant Secretary for the Employment Standards Administration, these changes have been carefully weighed. “This common sense, balanced rule is the product of a two year-long transparent process involving about 20,000 public comments and reflects the careful consideration of the views of FMLA stakeholders,” said Victoria Lipnic.

The new FMLA rules will help both employees and employers better understand their rights and responsibilities. At the same time, they will speed the implementation of a new law that expands FMLA coverage for military family members.
As an employer, you will be required to post a new federal Family and Medical Leave poster and modify your current FMLA policies to stay in compliance with the new regulations.

Tuesday, November 18, 2008

Ohio minimum wage to increase to $7.30 in 2009

The minimum wage in Ohio will increase on January 1, 2009, from $7 per hour to $7.30 per hour for non-tipped employees and from $3.50 per hour to $3.65 per hour for tipped employees. The increase was announced by the Ohio Department of Commerce and will apply to employers who gross more than $267,000 per year.

The state minimum wage for employees in smaller companies (grossing less than $255,000 per year or less than $267,000 after January 1, 2009) and for 14- and 15-year-old is currently $6.55 per hour and will increase to $7.25 per hour on July 24, 2009.
Passed by voters in November 2006, the constitutional amendment states that minimum wage in Ohio shall increase on January 1 of each year by the rate of inflation. The increase is tied to the Consumer Price Index (CPI) for urban wage earners and clerical workers for the 12-month period prior to September. From September 1, 2007 to August 31, 2008, the CPI rose 4.6 percent.

Pregnancy Discrimination Compliance Materials

According to the EEOC, pregnancy discrimination complaints increased by 65% between 1992 and this year. Part of that increase, but not all of it, may be due to an increase in the number of women with infants who work. In some areas, pregnancy discrimination complaints increased 50% between 1995 and 2006.

Companies avoid becoming the target of pregnancy discrimination claims by properly training supervisors, having strong HR policies, and using an FMLA Administrator Kit. Under the federal Family and Medical Leave Act (FMLA), employees are entitled to up to 12 weeks of unpaid leave for a variety of serious health conditions, including pregnancy.

In addition, employers cannot discriminate against pregnant employees according to the Pregnancy Discrimination Act. The employer cannot set mandatory leave periods, and employees with pregnancy disability have to be treated the same as employees on other types of medical leave.

Monday, November 17, 2008

Connecticut Minimum Wage to Increase to $8.00 on January 1, 2009

The state of Connecticut will increase its minimum wage to $8.00 effective January 1, 2009, and to $8.25 effective January 1, 2010.

On June 23, 2008, the Connecticut General Assembly voted to override Governor M. Jodi Rell's veto of legislation that will increase the state's minimum wage from $7.65 to $8.00 effective January 1, 2009, and to $8.25 effective January 1, 2010.

In addition, the General Assembly also voted to override the governor's veto of a companion bill (S.B. 55) which will increase the minimum wage tip credit for bartenders and wait staff. S.B. 55 will allow hotels and restaurants to pay service employees who regularly receive tips less than minimum wage, as long as tips make up the difference.

Governor Rell said: “It is not a minimum wage increase that will support our families—it is a thriving economy, accomplished through a business-friendly environment with successful employers and reasonably priced consumer goods and services.” Connecticut's current minimum wage of $7.65 per hour is higher than the federal minimum of $6.55 per hour. Governor Rell signed the last increase in the minimum wage two years ago.

Vermont Minimum Wage to Increase to $8.06 on January 1, 2009

The state of Vermont will increase its minimum wage to $8.06 per hour effective January 1, 2009. The service or tipped employee basic wage will also increase to $3.91 per hour. The state minimum wage is subject to cost-of-living adjustments each year based on the CPI.

Governor James H. Douglas announced recently that, according to Title 21 of the Vermont Statutes, the state of Vermont will increase the minimum wage to $8.06 per hour effective January 1, 2009.

The law requires an adjustment to the minimum wage be calculated each year based on the change in the federal Consumer Price Index, US city average, not seasonally adjusted, for the 12 months ending in August, and cannot increase more than five percent per year. The 5.4% increase in the CPI-U will result in an increase of at most five percent, or $0.38, for 2009.

Workplace Injuries Reduce in 2007

On October 23, the U.S. Bureau of Labor Statistics (BLS) issued a report indicating that private industry employers have succeeded in reducing workplace injuries in 2007.

According to the BLS, approximately 4 million work-related injuries and illness occurred in 2007, a rate of 4.2 nonfatal injuries for each 100 full-time employees. Compared with 4.1 million cases altogether and 4.4 cases per 100 employees in 2006, that is a reduction of 4.5%. This is the fifth consecutive year that the rate of workplace injuries and illnesses declined.

Assistant Secretary of Labor for Occupational Safety and Health Edwin G. Foulke, Jr., said, “The injury and illness results demonstrate that OSHA’s balanced approach to workplace safety encompassing education, training, information sharing, inspection, regulation and aggressive enforcement is achieving significant reductions in workplace injury and illness throughout the country. This report shows that employees are now safer in the workplace than ever before. This success validates our efforts, and we are redoubling this commitment to make workplaces even safer.”

“The 21 percent decline in the workplace injury and illness rate over the past 6 years, and the 4.5 percent decline over the past year, show the effectiveness of the strategy of targeted enforcement coupled with prevention through compliance assistance to promote a culture of safety at the workplace,” said Secretary of Labor Elaine L. Chao.
Safety figures for 2008 will not be released until November 2009.

Sunday, November 16, 2008

Employment situation Summary

According to the report of the Bureau of Labor Statistics of the U.S. Department of Labor, Nonfarm payroll employment fell by 240.000.The unemployment rate rose to 6.5 in October from 6.1 of September. The number of jobless persons went up to 10.1million, increasing 603.00.

In the last 12 months, the number of unemployment persons has increased by 2.8 million.

Among the unemployment increasing rate, the adult men account for 6.3 percent, which was ranking number one. Secondary to adult men, adult women is 5.3 percent. The unemployment rate for whites increased 5.9 percent while Hispanics rose 8.8 percent.

In October, the number of long-term unemployment is 2.3 million, increased by 249.000. Among the total unemployment, the number of long-term unemployment is 22.3 percent.

In this month, the number of persons who worked part time for economic reasons rose to 6.7 million. The persons who would like to work full time but were not given the chance are included in this category.

Thursday, November 13, 2008

Florida Minimum Wage to Increase to $7.21 in 2009

The state of Florida will increase its minimum wage from $6.79 per hour to $7.21 per hour effective January 1, 2009, according to a recent announcement from Florida's Agency for Workforce Innovation ("AWI").

On November 2, 2004, Florida voters approved a constitutional amendment which created the state’s minimum wage; it applies to all employees in the state who are covered by the federal minimum wage. Florida law requires the Agency for Workforce Innovation to calculate a new minimum wage each year based on the Consumer Price Index, and publish the new minimum wage on January 1.

Florida employers should note that federal law requires businesses to pay the higher of either the federal minimum wage or the Florida minimum wage. The Florida minimum wage will be higher than the federal minimum wage until July 24, 2009, when the federal standard will increase to $7.25.

Holiday Shutdowns and Exempt Employees

Many employers are considering giving workers additional unpaid time off during the holidays because of the current economic crisis. The day after Thanksgiving and/or the day after Christmas are in many cases now being included as holidays. Some employers are considering giving employers an entire week between Christmas and New Years.

There are two kinds of employees who are not required to be paid during these holiday closures. One kind is hourly employees, and the other is non-exempt salaried employees.

However, the regulations regarding paying salaried exempt employees are more complex. According to Angela Stone of the SHRM, “if an exempt employee works any portion of a workweek, he or she must be paid for days in which they are ready, willing and able to work.” Stone also indicates that a deduction cannot be made for time when no work is available.

In California, the regulations regarding holiday shutdowns require that employers give notice to employees at least 90 days in advance if they will be required to use vacation or personal time for such closures.

Wednesday, November 12, 2008

DOLE Plan for Workers Who May Lost Job

The department of labor and Employment (DOLE) said they had made a contingency plan for helping the local and overseas Filipino workers who may lose jobs due to the global financial crisis.

According to Labor and Employment Secretary Marianito D. Roque, the plan made a set of interventions for workers who may be fired due to the current international economic crisis. However, it is not to say that the crisis has already caused a massive displacement of workers.

Once the displacement occurs, the DOLE would immediately implement its contingency plan for affected local workers and overseas Filipino workers (OFWs). The interventions consist mainly of helping affected OFWs find employment in other overseas destinations or set up livelihood or business enterprises for those who no longer want to work abroad, and the fund from the livelihood program shall be set aside for assistance to displaced OFWs, according to Sec. Roque..

The DOLE is trying their best to open new employment opportunities for OFWs in other courtiers to offset job losses in the labor markets that could be hit adversely by the financial crisis.

Registered Apprenticeship Programs Revised

The National Apprenticeship System provides millions of American workers with rigorous, industry-driven job training and high-wage employment in the nation’s most competitive industries.

On October 29, 2008, the Labor Department announced that it has revised regulations to update labor standards for the nation's Registered Apprenticeship programs.

In order to keep pace with changes related to 21st century employment opportunities, the revised regulations take the workforce demands of new and emerging industries into consideration, and create more flexibility for apprentices and employers, providing them with increased choices to meet the needs of industries which have traditionally used Registered Apprenticeship programs.

The most significant change to the regulations is the creation of multiple training approaches that increase flexibility for employers to select which path best serves an apprentice’s or employer’s needs.
“These regulations have been revised for the first time since 1977 to advance Registered Apprenticeship’s strengths in developing a skilled, competitive workforce for the 21st century global economy,” said Deputy Assistant Secretary of Labor for Employment and Training Brent R. Orrell. “The changes we are instituting through these new rules will create more options for employers, and position Registered Apprenticeship to engage today’s growing industries, while ensuring the safety of apprentices and the quality of programs.”

Sunday, November 09, 2008

New Mental Health Parity Bill

President George W. Bush recently signed the $700 billion Wall Street bailout. This bill also included an important provision concerning employee health benefits.

In this law, insurance carriers are required to provide equal coverage for mental and physical illnesses. Workers will receive benefits for treatment of depression, phobias, grief, drug dependence and other mental health issues. Treatment for mental illness was often previously limited to $2,000 per year, while some group health insurance plans covered physical illness up to $200,000 per year. This law makes that disparity illegal.

The law ensures that American workers continue to receive insurance coverage for mental health treatments under their group health insurance. A similar law in effect for the previous 12 years was scheduled to expire on January 1, 2010.

The bill passed the House on October 3 with a vote of 263 to 171. This measure is expected to cover up to one third of all workers in the U.S.

The law will be effective on January 1, 2010. The previous law would have expired before that day. Businesses with 50 or fewer employees are exempt.

Thursday, November 06, 2008

No Texting While Driving in California

On September 24, 2008, California Governor Schwarzenegger signed bill S.B. 28 into law, banning drivers from reading, writing or sending a text message while driving in a vehicle beginning January 1, 2009.

The bill would impose a base fine of $20 for a first offense and $50 for any subsequent violation, but no violation point will be assigned to the driver’s license.

As he signed the bill, Schwarzenegger said, “Banning electronic text messaging while driving will keep drivers’ hands on the wheel and their eyes on the road, making our roadways a safer place for all Californians…Building on legislation already helping save lives in California, I am happy to sign this bill because it further encourages safe and responsible driving.”

Since July, drivers in California have been prohibited from using handheld wireless telephones while driving, unless the devices are configured to allow hands-free listening and talking, and drivers under age 18 are not allowed to use any electronic devices.

Tuesday, November 04, 2008

San Francisco’s Minimum Wage To Increase To $9.79 Per Hour

The San Francisco Office of Labor Standards Enforcement announced on 17th, Oct that the City’s minimum wage would increase by 43 cents, from $9.36 per hour to $9.79 per hour effective January 1, 2009.

The Minimum Wage Ordinance, passed by San Francisco voters in November 2003, calls for annual rate adjustments based on the previous year’s Consumer Price Index for urban wage earners in the San Francisco-Oakland-San Jose metropolitan area.

According to San Francisco Mayor Gavin Newsom's office, the city will update multilingual posters to announce the new rates and mail the posters to 90,000 registered businesses and employers are required to post the notice in their workplace
The current national minimum wage is $6.55 per hour, while the California State minimum wage is currently $8.00 per hour.

New York Nursing Mothers Act

The New York Nursing Mothers in the Workplace Act was passed in 2007. The act requires employers to provide reasonable unpaid break time for a working mother to express milk and permit mothers to use paid break time to express milk. The employer must provide mothers with a private area near the workplace. According to the law, bathrooms and storage areas are not suitable for mothers.

Mothers are covered under the law during the first three years of their infant’s life. “We recognize the tremendous health benefits that breastfed infants enjoy and how important it is to increase the number of infants that are breastfed. Breastfed infants are at reduced risk for asthma, obesity, diabetes and other chronic illnesses throughout their lifetimes. The evidence is clear that being breastfed is important to the lifelong health of infants, and we want to encourage new mothers to continue to breastfeed after they return to work,” said State Health Commissioner Richard F. Daines, M.D.

“Under the labor law, all nursing mothers in New York state have the right to express breast milk in the workplace, and it is the responsibility of every employer to make sure that their employees know their rights under the law,” said state Labor Commissioner M. Patricia Smith.

Illinois, Colorado and several other states have also passed laws to protect the rights of working mothers who are breastfeeding.