HR Forum: labor law posting compliance

Showing posts with label labor law posting compliance. Show all posts

Mark your compliance calendar: New NLRA poster to be posted by April 30, 2012

Good news for all you professional procrastinators. Just when you were all geared up to order the new mandatory NLRA posting, the National Labor Relations Board has pushed back the effective date. Rather than January 31, 2012, the deadline for posting the employee rights notice is now April 30, 2012.

The NLRB postponed the date at the request of the federal court in Washington, D.C., which is involved in a legal challenge regarding the rule. The court expects to resolve the legal issue in the months leading to this modified deadline.

Compliance reminder: NLRA posting deadline is January 31, 2012

In less than two months, nearly all private-sector employers will be required to post a notice informing employees of their rights under the National Labor Relations Act (NLRA).

Reduce risk and ensure compliance with Poster Guard® Compliance Protection! Membership includes the updated federal poster and all mandatory state postings that are required for your business's compliance. You will also receive the convenience of automatic replacement shipments every time a mandatory change occurs affecting your business, for one full year!

FAQs with the new NRLA poster

Q: What if my business is non-unionized? Do I still have to comply?
A: Yes, this new poster is mandatory regardless of your company’s union status. It applies to union and non-union workplaces alike.

Q: It says “nearly” all employers have to post the new notice. What are the exceptions?
A: At this time, the requirement does not apply to agricultural, railroad or airline employers -- or the U.S. Postal Service.

Q: Will this be a separate posting?
A: No, it will be added to the current Federal Poster. Consequently, the poster will be larger – increasing from 24” x 26 ¾” to 24” x 32.75”.

Q: Are there any other posting requirements?
A: Yes, the notice must be posted in other languages if 20 percent or more of your workforce is not proficient in English. In addition to providing a Spanish version on the Spanish Federal Poster, we will create versions in other languages if there’s a demand.

Q: What are the penalties for non-compliance?
A: There is no specific fine connected with this posting. However, noncompliance can be treated as an “unfair labor practice” and can be used as damaging evidence in a lawsuit.

Compliance update: Deadline extended for new mandatory NLRA posting

The National Labor Relations Board (NLRB) just announced that the posting deadline for the new NLRA poster has been extended -- from November 14, 2011, to January 31, 2012. The Board stated this extension was necessary for additional education and outreach for employers, particularly small- and medium-sized businesses.

The postponement will not affect the final rule that led to the NLRA posting, or change the actual content of the poster.

Check back here for continued updates on this mandatory labor law posting.

New federal NLRA poster required -- Are you in compliance?

On August 25, 2011, the National Labor Relations Board (NLRB) issued a final rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA). Under the final rule, employers must display the new federal posting by November 14, 2011, to remain in compliance. Failure to post the notice will be considered an unfair labor practice.

In addition to providing examples of unlawful employer and union conduct and informing employees how to contact the NLRB with questions or complaints, the notice states that employees have the right to:

   => organize, form, join or assist a union
   => bargain collectively to improve wages and working conditions
   => discuss terms and conditions of employment with fellow employees
   => take action with those fellow employees to improve working conditions
   => strike and picket

It does not matter if your business is non-unionized, as the new posting requirement applies to union and non-union workplaces alike. The only exceptions to the requirement at this time are agricultural, railroad or airline employers -- or the U.S. Postal Service. Additionally, some very small employers and retailers may be exempt.

If you are already a Poster Guard® Compliance Protection member, you are guaranteed complete compliance with mandatory federal and state labor law postings through timely updates whenever a posting requirement changes.This means you will automatically receive the NLRA posting when it's finalized.

If you're not a Poster Guard® Compliance Protection member, sign up today to ensure compliance -- with the new mandatory NLRA posting and any future posting changes.

Compliance alert: New mandatory NLRA posting required by mid-November

As anticipated, the National Labor Relations Board (NLRB) issued a final rule requiring most private-sector employees to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a notice. Effective November 14, 2011, the new NLRA posting requirement is mandatory!

Although the NLRB has not published the poster yet, it expects it to be available anytime on or before November 1. If you are already a Poster Guard® Compliance Protection member, you are guaranteed complete compliance with mandatory federal and state labor law postings through timely updates whenever a posting requirement changes. This means you will automatically receive the NLRA posting when it's released.

If you're not a Poster Guard® Compliance Protection member, sign up today to ensure compliance -- with the new mandatory NLRA posting and any future posting changes.

Remember: This new posting requirements applies to nearly all private-sector employers covered by the NLRA. Only agricultural, railroad, airline employers and the U.S. Postal Service are exempt at this time.

The comments are in … is an NLRA posting on union rights forthcoming?

Today's post comes from G.Neil’s HR News Weekly:

As we indicated in an earlier post, the Office of Management and Budget (OMB) was accepting comments through Feb. 22, 2011, on a proposed rule by the National Labor Relations Board (NLRB). The rule would require all private employers to post a notice informing employees of their National Labor Relations Act (NLRA) rights.

Of the more than 4,000 comments received by the OMB a week before the deadline, many of them questioned whether the NLRB has the authority to issue this rule since the NLRA contains no provisions regarding a mandatory posting. A good portion of comments also questioned the actual content of the poster, particularly the fact that it doesn’t address the negative aspects of joining a union.

In related news, a House subcommittee recently held a hearing to examine the direction of the NLRB, including certain decisions and initiatives that may have overstepped the agency’s boundaries. In addition to criticisms against the role that organized labor has played in recent years, a prevailing theme at the hearing was the appropriateness of the proposed NLRA posting. Many of the unfavorable comments echoed those received by the OMB during the 60-day comment period.

After the hearing, NLRB Chairman Wilma Liebman stated:

“The most significant ‘emerging trend’ at the NLRB is that the agency is coming back to life after a long period of dormancy. … We are actively seeking input from practitioners and from the public, by inviting briefs for important cases that are under review, and by using the process of federal rulemaking to seek comments on one potential change intended to inform American employees of their statutory workplace rights.”

Now that the comment period is over, the NLRB has 90 days to review the public comments and issue a final rule. Stay tuned for continued updates on the proposed rule and whether a mandatory Federal poster is released as a result (most likely by this summer).

Reminder: June 21 is NLRA posting deadline for federal contractors

On May 20, 2010, the U.S. Department of Labor (DOL) issued a final rule regarding how non-exempt federal contractors and subcontractors will notify employees of their rights under the National Labor Relations Act (NLRA). The new posting requirement is in response to President Obama’s Executive Order 13496, Notification of Employee Rights Under Federal Labor Laws, issued in January 2009.

Obama’s Executive Order revokes former President Bush’s Executive Order 13201, Notification of Employee Rights Concerning Payment of Union Dues or Fees, that required federal contractors and subcontractors to post notices (commonly known as “Beck” notices) informing employees of their rights to refrain from joining a union.

While some of the language the DOL proposed in August 2009 has changed, the new, broader notice remains focused on pro-union rights for employees. The posting also provides contact information for the National Labor Relations Board (NLRB), the agency responsible for enforcing the NLRA.

Time to get into compliance!

Federal contractors with prime contracts over $100,000 and subcontracts over $10,000 must properly display the NLRA poster by the June 21, 2010, deadline. This means displaying the poster conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity. Ensure mandatory posting compliance with G.Neil’s NLRA Poster.

Survey reveals heavy financial burden of class action lawsuits

Based on the sixth annual Workplace Class Action Litigation Report by Seyfarth Shaw LLP – a leading law firm handling complex employment litigation – employers should be aware of several key trends that occurred in federal and state courts last year:

• Class action filings seeking recovery for unpaid wages and 401(k) losses increased. More age discrimination and Worker Adjustment and Retraining Notification (WARN) lawsuits were filed, too, due to workers being displaced in layoffs.

• Wage and hour litigation outpaced all other types of employment-related cases, especially in CA, FL, IL, NJ, NY, MA, MN, PA and WA.

• The Obama Administration’s renewed focus on regulation and enforcement, mostly through the DOL and EEOC, continues to increase exposure for employers.

• Massive settlements were seen in several nationwide class actions, as plaintiffs’ lawyers pushed for greater damages. The top 10 employment discrimination settlements in 2009 totaled $86.2 million, while the top 10 wage and hour settlements reached $363.6 million.

Just one major, costly lawsuit could be devastating to your business. Stay on the right side of the law and reduce your risk with legally compliant products and services – from Poster Guard® Compliance Protection to the latest FMLA, FLSA, OSHA and HIPAA compliance materials.

Getting better versed about E-Verify

As you already know, E-Verify is the free, Web-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). It compares employee information from the Form I-9 against federal databases to confirm that new hires are legally authorized to work in the United States.

But do you know some of the latest developments surrounding this federal program? Here are the top four:

1) It is mandatory for federal contractors

As of September 8, 2009, all federal contractors and subcontractors (including those who receive American Recovery and Reinvestment Act funds) are required to use E-Verify to check a worker’s employment eligibility. The rule applies specifically to contracts of more than $100,000 and subcontracts of more than $3,000.

2) Nearly ¼ of our states require E-Verify

While largely a voluntary program, E-Verify is required for public and/or private employers in 13 states (ten through legislation and three through executive orders).

3) Participation in E-Verify is growing rapidly

More than 182,000 employers are currently enrolled in E-Verify, with more than 8.7 million queries generated in 2009. As of mid-January, the number of queries in 2010 had already reached 3.6 million.

In addition, the number of registered employers is growing by more than 1,200 per week.

4) E-Verify participants must comply with posting requirements

In addition to following specific procedures for new hires, E-Verify users must clearly display both the English and Spanish Notice of E-Verify Participation and the Right to Work Poster. Together, they explain the employer’s use of E-Verify and the rights of employees.

Keep in mind that even if your business outsources I-9 compliance and employment eligibility verification (and E-Verify is part of that process), you must display these postings in the workplace.

Playing the labor law poster game

If you own or manage a business, odds are you know about the labor law poster shuffle. It's that game we all play where we try to get the right labor law posters in the right spaces by the right deadline, and then wait, breathless, to make the dash again when the feds or a state agency decide to change the posters because they changed a microscopic date located on the bottom 1/16" of the lower right hand corner -- you know, that spot that gets hidden by the poster frame, right?

Or they have rearranged the boxes containing the information no employee has ever read, or could understand because it's written in government legalese which is twice as bad a regular legalese because it's the government. And now because of those rearranged boxes (because heaven knows, our elected officials and heads of agencies have nothing else to worry about like health care reform or campaign reform or an economy that's tanked...) every business person must scramble to tear down the old no-longer-valid posters and replace them with new valid-for-the-next-10-minute labor law posters.

And as if the shuffle wasn't bad enough, there's the trying to find out about the changes. Never mind that you're trying to run a business in the aforementioned tanked economy, managing a bunch of sick employees who can't afford to see a doctor so they came to work to cough all over you. You have to spend hours searching state and federal websites for minute changes in labor law posters and posting requirements and then rush to order the new ones before they too are outdated. Then hope that you found all the right sites and all the right posters! It's kind of like trying to dance with the music on mute -- you know it's there, but it's impossible to hear it, so you're just kind of stumbling around the dance floor.

Only in this case, one wrong step in the labor law poster shuffle and you could get slapped with some pretty hefty fines or an employee lawsuit, or maybe both. Kind of makes the trips and falls on "Dancing with the Stars" look like a fun time, doesn't it?

So what are you supposed to do? Well, you can save a few bucks and keep trying to find those posters and stay ahead of the mandatory labor law poster game. Or you can go with a labor law poster service and take just one thing off your already heaping-piled-overflowing-never-get-through-it-all plate. Your choice.

We've got a good service at G Neil. Pretty cheap, given that it covers a full year and covers any fines you get if we mess up. Pretty simple too. Just sign up, pay once, and you're good for a year. Second year and on gets even cheaper. Wanna try it? Take a minute, step out of the shuffle and see how easy labor law poster compliance can get.

Posted via email from G-Neil's Posterous

DOL and EEOC could receive major financial boost in 2010

The House approved a massive $447 billion spending bill that would provide a significant bump in funding for the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) for fiscal year 2010. The Consolidated Appropriations Act (H.R. 3288), which combines six separate spending measures, passed by a vote of 221-202 on December 10. The bill is now with the Senate and must be passed by December 18 – or extended by a temporary measure to keep it afloat.

Here are a few highlights regarding the proposed funding:

=> $13.3 billion for the DOL, with $1.6 billion earmarked for worker safety and health programs ($121 million more than the amount provided in 2009)

What it means: More financial support for the enforcement and compliance initiatives of the Employment Benefits Security Administration (EBSA), Employment Standards Administration (ESA), the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) – including the hiring of 600 new, full-time employees. Employers could see a greater presence by OSHA, with more inspections, more audits of safety records and more enforcement of required safety standards.

=> $367 million for the EEOC ($23 million more than the amount provided in 2009)

What it means: More funding to ease the backlog of 70,000+ pending employment discrimination cases. The EEOC received 93,277 private-sector discrimination charges in 2009, the second-highest number in 20 years. Employers could see more employee lawsuits coming their way for discrimination based on race, color, national origin, sex, age, religion or disability.

So while we can’t be certain how this bill will play out in the coming months, we do know that President Obama's administration places a high priority on employment and labor law reform, particularly the enforcement of laws designed to protect employees.

Now, more than ever, employers need to step up their compliance and training programs to prevent costly fines and potential lawsuits. In light of this possible funding and renewed enforcement, you would be wise to:

1. Conduct procedural audits and other internal reviews to identify any issues that require immediate action.

2. Review and revise the employment policies in your company’s Employee Handbook and ensure they’re properly distributed. Be certain your policies reflect the many employment law developments in the past year, such as changes to the ADA, FMLA and COBRA.

3. Assess your internal complaint procedures (as well as your employees’ awareness of such procedures). Employees who cannot voice their concerns are more likely to feel powerless and as a result, take legal action against their employers.

4. Provide ongoing harassment prevention and anti-discrimination training to employees and managers. Your company must send a clear message that harassment will not be tolerated in the workplace – and support that message with education on how to recognize and prevent harassment.

5. Maintain up-to-date labor law postings and other specialized, employee-facing posters, which keep your company in compliance and act as a first line of defense in an employee-based lawsuit.

New Federal EEOC poster released - All covered employers must post to comply!

On October 23, 2009, the Equal Employment Opportunity Commission (EEOC) released the revised “Equal Employment Opportunity is the Law” poster, which includes the new Genetic Information Nondiscrimination Act (GINA) and ADA Amendments Act regulations. The EEOC posting change is mandatory for all covered employers.

Effective November 21, 2009, GINA prohibits employers with 15 or more employees from:

• Using genetic information to discriminate against an individual through hiring, firing, compensation, promotions and other employment decisions

• The collection and disclosure of genetic information

• Retaliation against individuals who exercise their rights under GINA

Now is the time to get into compliance with this mandatory posting update, as well as learn more about GINA and its impact on your business.

When you enroll in Poster Guard® Compliance Protection, you’ll enjoy the promise of complete, worry-free posting compliance – immediately, with the revised EEOC poster and in the future, with automatic posting replacements anytime mandatory changes affect your federal or state postings.

For an overview of GINA and clear explanations of how it affects you as an employer, download the ComplyRight™ Now E-Guide: New Genetic Discrimination Law: What It Means for Employers.

Obama delays E-Verify requirement

President Obama has delayed the effective date of a new rule that would require government contractors to verify the immigration status of their employees using the federal government’s E-Verify electronic employment eligibility verification system. The new effective date is June 30, 2009.

E-Verify is the U.S. Citizenship and Immigration Services’ (USCIS) system that federal contractors would be required to use to verify the eligibility status of new hires and existing employees to work in the U.S.

Obama’s administration pushed back implementation of the new E-Verify rule in order to complete an administration review of the requirement, which is also the subject of a federal lawsuit, according to a Federal Register notice published Friday.

This extension will mark the third delay in the effective date of the requirement, which was originally scheduled to take effect January 15, 2009.

DOL releases updated FMLA poster

On December 18, 2008, the U.S. Department of Labor (DOL) issued a new Family and Medical Leave Act (FMLA) poster based on revisions published in November 2008. Employers with 50 or more employees, and all public sector employers, are required to update their mandatory employee and applicant labor law postings with the new FMLA poster.

The new FMLA poster outlines how the expanded FMLA provides job-protected leave for the spouses, children or parents of members of the armed forces called to active duty in the U.S. military. Additional FMLA rights for employers and workers are clarified on the new poster, too.

Along with the FMLA poster, employers must post all other mandatory federal and state labor law posters, a burden that entails monitoring up to 20 different posters from as many as seven different agencies. And with the incoming Democratic administration expected to serve a more regulatory function with labor issues and workers’ rights, the level of labor law posting enforcement is expected to increase.

That’s why many employers are turning to third-party poster providers to maintain their posting compliance.

Poster Guard Compliance Protection, guaranteed by G.Neil, offers employers the easiest way to keep up to date with all federal and state posters. In addition to a poster set containing all required postings, employers automatically receive a new poster any time a federal or state posting regulation changes. Poster Guard Compliance Protection also offers a 100% Compliance Guarantee against fines, online auditing tools and dedicated customer support.

The ADA Amendments Act, Part 2: How employers should prepare

In our last post, we examined the major changes the Americans with Disabilities Amendments Act will have on the original law when it becomes effective on January 1, 2009.

The new amendments make major changes to the original ADA, including what is considered a major life activity and the definition of disability. Employers must be aware of the changes and the effect they will have on their businesses. From the Word on Employment Law with John Phillips:

All we know now is that the realm of “the disabled” is about to be significantly enlarged. While it may be incorrect to say the new Act makes everyone disabled, we’ll be much closer to that point than we’ve ever been. Reasonable accommodation requests will become more frequent and more complicated. Disability discrimination charges and litigation will increase dramatically. Given the new Act’s language, it’ll be difficult for courts to dismiss these cases without letting a jury decide them.

In many respects, we’re starting all over with disability discrimination. If the Supreme Court has, in the past, given employers an advantage in these cases, the advantage is about to be given to employees.

If you haven’t started already, employers should be preparing for how the changes to the ADA will effect employment processes, accommodating employees with disabilities and compliance requirements.

In a recent Workforce article, author Tina M. Maiolo explained the next steps employers should take to prepare for the upcoming ADA changes. Here are her seven steps to compliance with the ADA Amendments Act:

Assume every employee is healthy. Presume nothing, especially whether the employee has any type of impairment.

Assume all employee impairments fall under the ADA. When an employee claims to have an impairment, always assume that it is qualified as a disability under the ADA Amendments Act. Employers are “safer to assume from the outset that an impairment qualifies as a disability than trying to argue later that it does not.”

Accommodate employee impairments. After a claim is made, be sure to make all reasonable attempts to accommodate the employee’s impairment. Unless the accommodation creates “undue hardship,” by being so burdensome or expensive that it changes the nature of the business, employers must be accommodating.

Review and edit job descriptions. “An employer’s defense against an ADA Amendments Act claim is likely to rest on whether the disabled employee was "qualified" to perform the essential functions of his or her job.” Write an accurate and detailed job description from the beginning that clearly defines essential job functions.

Begin ADA Amendments Act training. “HR should treat the ADA Amendments Act as an entirely new law.” Everyone involved in the hiring process, including HR and managers should go through training to understand the changes.

Throw away, modify or create disability policies. Either start from scratch writing new disability policies, or modify your existing policies to reflect the latest ADA changes. It would be best to have these done before the law goes into effect on the first of the year.

Make modifications as the courts interpret the new amendments. “The impact of the ADA Amendments Act will not be static,” they will continue to evolve over time. Stay on top of the latest changes and your business will be better protected.

Understanding the changes to the ADA is the first step to compliance. Once the law goes into effect on January 1, 2009, it is up to employers to choose to follow what is required of them under the law.

If you’re looking for help managing employee accommodation requests, the ComplyRight ADA Administration System contains all the forms and information employers need to comply. Complete with forms, tip sheets and valuable best practice information, the system can help you manage any request.

ADA Amendments Act, Part 1: What changed?

In September, President Bush signed the Americans with Disabilities Amendments Act as an effort to restore protection for disabled individuals that were created in the original 1990 bill. The new ADA Amendments will go into effect on January 1, 2009 and every employer and HR professional must be prepared to stay in compliance with the new regulations.

The new ADA changes allow more protections for disabled individuals by reversing Supreme Court decisions that once narrowed the definition of disability and what is a major life activity. It also forms broader parameters to how the law may be interpreted by the courts in the future.

One of the biggest questions the amendments answer is in regards to: What is a major life activity? As written, the new ADA states that it shouldn’t be interpreted strictly and whether someone is disabled “should not demand extensive analysis.” According to The Word on Employment Law with John Phillips, Phillips explains:

The Act includes a nonexhaustive list of activities that constitute major life activities, including caring for oneself; bending; performing manual tasks; speaking; seeing; breathing; hearing; learning; eating; reading; sleeping; concentrating; walking; thinking; standing; lifting; communicating; and working. Are you beginning to get the picture? If an employee can’t perform one of these activities, he/she is automatically disabled. Wow!

We’re just beginning, however. The Act also includes a subset of major life activities called “major bodily functions,” including functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. There is no requirement that the functions have any relation to the ability to perform a job. Indeed, some are completely unrelated to work. If these functions are substantially impaired, however, you have a disability.

In another big change, the Act reverses Supreme Court rulings that denied disability status to people with conditions in remission or improved by medicine or medical treatment. The new amendments state that such a condition is still considered a disability if it limits a major life activity when that person is active. According to Phillips:

A disability is to be determined without regard to the ameliorative effects of mitigating measures such as “medication, medical supplies, equipment, or appliances, low-vision devices . . . prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; auxiliary aids or services; or learned behavioral or adaptive neurological modifications.” The only exceptions are eyeglasses and contact lenses.

Additionally, the amendments make the process of claiming a disability less involved. To prove that an employee was disabled under the original ADA, one had to prove they were regarded as having a physical or mental impairment and that the impairment considerably limited a major life activity. “Pandora’s box will be opened,” by the new act, in that an employee may be considered disabled “whether or not the impairment limits or is perceived to limit a major life activity.”

The definition of disability has been significantly altered by the new ADA Amendments Act, employers must be educated on how to fully comply with the latest changes. In our next post, we’ll explain how employers should prepare for the new ADA changes before it becomes effective on the first of the year.

For help managing ADA accommodation requests under the new amendments, take a look at the ComplyRight ADA Administration System. It contains all the necessary forms, tools and information to effectively manage employee requests for reasonable accommodation.

25 states scheduled to raise minimum wage in 2009

In 2009 the country will see minimum wage increases in 25 states, the District of Columbia and Puerto Rico. Listed below are all of the states that have scheduled minimum wage increases next year. Visit Anne Bares at Compensation Force for a complete breakdown of all the scheduled changes.

Arizona
Connecticut
District of Columbia
Idaho
Illinois
Indiana
Kentucky
Maine
Maryland
Missouri
Montana
Nebraska
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
South Dakota
Texas
Utah
Vermont
Virginia
Washington

Researching continually changing labor laws and what your business is required to post is a never-ending task, but luckily there are tools out there to help you stay up to date.

G.Neil’s Poster Guard Compliance Protection is just one valuable service that takes the stress of wondering whether you’re in compliance with federal and state labor laws off your shoulders and places it into the hands of experienced labor law professionals.

Read this and learn more about how Poster Guard can help you track the latest labor law changes and keep your business in compliance.

Employee Free Choice Act, employers (union and non-union) must be prepared

The Employee Free Choice Act (EFCA), also known as the “Card Check bill” has been the top priority of unions throughout this election year. If passed, the EFCA will amend the National Labor Relations Act (NLRA) by removing previous barriers to union organizing.

President elect Barack Obama was a co-sponsor of the bill while a senator and has said that he will sign it into law if the legislation comes across his desk.

If Obama signs the EFCA, it would result in the most “sweeping” changes to the NLRA in the past 40 years. Union and non-union employers must be prepared for this law, which will make it easier for workplaces to unionize and will likely lead to a spike in union organizing activity, according to Mark Mathiason of the Gray Plant Mooty law firm.

In a recent Human Resources Executive Online article, Garry Mathiason, partner and vice chair of Littler Mendelson in San Francisco, advised:

The 2009 agenda for HR professionals must assume EFCA in some form will become law. In anticipation, employers should consider auditing conditions to determine whether they would support an organizing drive; monitoring union-organizing activities within the industry or geographical location; training management about rules associated with union organizing, potentially providing employees with information and arguments about union representation when organizing activity is anticipated and -- in some highly targeted industries -- even before receiving evidence of organizing activity; and, most of all, reviewing overall employment conditions to ensure they are competitive and the needs of employees are being addressed.

The EFCA would amend the NLRA in three major areas:

The EFCA would require the National Labor Relations Board (NLRB) to recognize a labor union through authorization cards signed by a majority of employees, without the benefit of a government-supervised, secret-ballot election.
It would also require arbitration if an employer and a newly certified union are unable to reach an agreement on an initial contract in a timely fashion.
The new law would create significant penalties for remedying employer unfair labor practices. Such penalties would apply during any period when unions are organizing and during negotiations of a first contract.

The G.Neil labor law team will continue to watch the EFCA as President elect Obama prepares to take office in January. Check back regularly for the most up-to-date information to help your business take action and stay in compliance.

New FMLA regulations, what employers need to know

The U.S. Department of Labor released the final regulations under the Family and Medical Leave Act (FMLA), clarifying employer and employee rights under the law. The new FMLA regulations were published in the Federal Register on November 17, 2008 and will take effect on January 16, 2009. New forms and posters reflecting the latest changes will be required for employers subject to the FMLA.

This is the first set of revisions to the FMLA regulations since its enactment in 1993 and will affect all employers that must adhere to FMLA guidelines. The final rule helps workers and employers better understand their responsibilities and will speed the implementation of a new law that expands FMLA coverage for military families.

"This final rule, for the first time, gives America's military families special job-protected leave rights to care for brave service men and women who are wounded or injured, and also helps families of members of the National Guard and Reserves manage their affairs when their service member is called up for active duty," said U.S. Secretary of Labor Elaine L. Chao in a recent press release. "At the same time, the final rule provides needed clarity about general FMLA rights and obligations for both workers and employers."

The final rule includes two notable benefits for some military families:

Military Caregiver Leave: Expands FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

Leave for Qualifying Exigencies for Families of National Guard and Reserves: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs — "qualifying exigencies." The rule defines "qualifying exigencies" as: (1) short-notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.

Additional highlights from the new FMLA regulations:

Waiver of Rights: The department has finalized its position that employees may voluntarily settle their FMLA claims without court or departmental approval. However, prospective waivers of FMLA rights will continue to be prohibited.

Serious Health Condition: The new rule clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Additionally, it defines "periodic visits to a health care provider" for chronic serious health conditions as at least two visits per year.

Light Duty: Time spent in "light duty" work does not count against an employee's FMLA leave entitlement, and the employee retains the right to job restoration during the light duty period.

Employer Notice Obligations: The final rule clarifies and strengthens the employer notice requirements to employees in order that employers will better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.

Employee Notice: Under the new regulations, employees must follow their employer’s normal call-in procedures when taking FMLA leave. Under current rules, employees may notify their employer up to two days after an absence on their need for FMLA leave.

Medical Certification Process: The final rule recognizes the Health Insurance Portability and Accountability Act (HIPAA) and its impact on medical privacy. Responding to concerns about medical privacy, the new provisions prohibit direct supervisors from obtaining employee medical information for FMLA certification.

View the final rule as it appears in the Federal Register, here.

New forms and posters will be required for employers subject to FMLA guidelines. G.Neil’s top legal experts are working to provide you with the information and resources needed to stay in full FMLA compliance.

As of today, our legal team is developing a new E-Guide to explain the new FMLA rules in plain English. Check back regularly for the most up-to-date information to help you understand and take action on the latest legal requirements that affect your business.

Read our new Q & A reviewing the latest Family and Medical Leave Act Changes.

New FMLA rules coming to a workplace near you

New Family and Medical Leave Act regulations are expected to become official soon and could go into effect by the end of this month.

In late October, the Department of Labor (DOL) submitted a final draft of new FMLA regulations to the Office of Management and Budget (OMB) for review. The OMB has a final action date of November 2008, but no specific day.

The DOL released proposed FMLA rule changes in February and asked for public comment. It is still unknown what changes were made, if any, based on feedback from the public.

The proposed regulations suggested a dozen key changes, some of the most substantial changes include notice from employees, eligibility standards, the definition of “serious health condition” and the release of FMLA claims.

We’ll have more information once the final regulations are published. Subscribe or check back often for the latest updates.

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