MBA News - FMLA

U.S. Child Labor Laws - Changes that may affect your business

MBAHRO — Thu, 01 Jul 2010 19:30:00 GMT

U.S. Child Labor Laws - Changes that may affect your business

The Fair Labor Standards Act (FLSA) Child-Labor Regulations have recently been revised. On July, 19, 2010, the final revisions to the child-labor regulations under the Fair Labor Standards Act will become legally effective.

The Department of Labor has been receiving comments on these most recent suggested regulation changes to the U.S. child labor laws since 2007. The DOL states that these revisions are supposed to make it easier for people under that age if 18 to get a job. These revisions only apply to non-agricultural positions. The Department of Labor (DOL) is scheduled to revise the provisions concerning minors in agricultural employment. The revisions single out industries like banking, information technology and advertising.

While the regulations offer an array of rules to follow, the most recent revisions address specific issues:

There is a provision permitting 14 and 15 year olds to work in teaching, computer programming and other jobs of an “artistically creative nature.”

“Youth peddling” is not now banned. This is “the selling of goods or services to customer at locations other than the youth-employer’s establishment.” Though, being a volunteer can make it okay.
The new revisions to these U.S. child labor laws address the definition of the “workweek” for 14 and 15 year olds. It’s characterizes it as, “seven consecutive 24 hour periods.” This releases the employer from a strict Sunday through Saturday calendar week definition in terms of compliance with the totalj-hours limitations applying to minors.
DOL adopted regulations implementing the child-labor civil money penalty changes made in the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA added penalties of up to $50,000 for each child-labor violation that results in death or serious bodily injury of any employee under 18. The penalties may be doubled to as much as $100,000 if the violation is determine dto be “willful” or if it’s "repeated."

Modern Business Associates frequently deals with employee issues. As a Professional Payroll and HR outsource organization, our clients rely on us to help them effectively deal with these kinds of topics.

Your Employee’s Work email expectation of privacy – New Supreme Court Decision adds some clarity.

MBAHRO — Mon, 28 Jun 2010 19:35:00 GMT

Your Employee’s Work email expectation of privacy – New Supreme Court Decision adds some clarity.

The latest Supreme Court ruling help that a California police department’s review of sexually charged text messages sent by the officer to his wife and to his mistress from his employer-issued pager, did not constitute an invasion of the employee’s privacy. This overturned a previous ruling by the 9^th Circuit. (Link to the full opinion in City of Ontario v. Quon).

As a business owner, you should take note that the Supreme Court’s decision was largely motivated by concept that the police department’s review of the messages was in line with its policy and was conducted for a valid business reason. Also, that the implications of the decision on the employees texts in this case could also be seen to apply to the work email expectation of privacy for the average employee.

The officer had exceeded the allotted monthly number of messaged approved for his text pager and, according with policy, the texts were then reviewed by his employer to determine the amount the officer would need to pay for non-work-related messages.

This court decision is the first in the area of an employer’s right to monitor the electronic communications of its employees sent and received during working time or with devices issued as part of the job.

As a business owner, it’s important to understand that:

The decision does not take away the right to privacy in all cases.
You should consider having a written policy for communication review policies and procedures for your company to avoid getting out of sync with your employees work email expectation of privacy (or texts, or phone calls).
Any search of employee communications should not go beyond what is necessary to achieve a legitimate business purpose. In this case, reviewing the records to determine the personal overuse of the texts.

Modern Business Associates frequently deals with privacy issues. As a Professional Payroll and HR outsource organization, our clients rely on us to help them effectively deal with these kinds of topics.

Fair Labor Standards Act (FLSA) and nonpaid internships: Quiz

MBAHRO — Wed, 19 May 2010 16:12:00 GMT

Fair Labor Standards Act (FLSA) and nonpaid internships: Quiz

The Fair Labor Standards Act (FLSA) requires that nonexempt employees receive at least minimum wage for all hours worked and must also receive time-and-a-half pay for all hours worked more than 40 during the workweek.

While the FLSA doesn't define what an intern is, nor provide an exemption from minimum wages or overtime for interns, it does define an employee as "any individual employed by an employer." The definition of "employ" under the FLSA "includes to suffer or permit to work."

Under federal law, for-profit organizations must pay workers unless the position fits six criteria. The following quiz helps to illustrate the six criteria.

Would the employee be correctly classified as a “Coordinator”, “Trainee”, or “Intern”?

For an unpaid internship to be lawful under the Fair Labor Standards Act (“FLSA”), the intern must be classified as a “trainee” rather than an employee.

Does the training need to be similar to that which would be given in a vocational school?

Yes.

Is the internship program for the benefit of the company to leverage willing people to help the company in exchange for experience?

No, the training is for the benefit of the trainee.

Can you use the unpaid internship program to delay hiring normal employees?

No, the trainees cannot displace regular employee positions.

Are you required to make some kind of hiring offer to unpaid interns at the end of the program, even if you know they won’t take it?

No, trainees are not necessarily entitles to a job at the completion of the training period.

To ensure compliance, employers offering unpaid internships should structure the position in a way that the intern receives the full benefit of the experience.

Failing to comply with wage and hour laws can lead to serious FLSA administration errors that could cost your business thousands in fines. Tools like the FLSA Compliance Kit can help you navigate through every FLSA regulation from child labor laws to timekeeping discrepancies.

Modern Business Associates frequently deals with designing internship programs. As a Professional Payroll and HR outsource organization, our clients rely on us to help them effectively deal with these kinds of topics.

What else do they look for during a Department of Labor (DOL) gov. compliance audit?

MBAHRO — Mon, 15 Mar 2010 22:54:00 GMT

What else do they look for during a Department of Labor (DOL) gov. compliance audit?

During a DOL gov. compliance audit, the investigator covers many areas of your business.

The primary focus is on your pay records.
DOL investigators also usually review the employer's adherence to federal child-labor laws, which prescribe the number of hours and times of day-night youths may work, as well as the jobs they may perform.

Click here for a link to the DOL’s FAQ on child labor laws
DOL investigators will also perform at least a cursory analysis of the employer's compliance with the Family and Medical Leave Act and will make sure mandatory posters are displayed. See DOL's Web site for poster information.

Click here for a link to the DOL’s FMLA information page

Modern Business Associates helps our clients deal with DOL gov. compliance audit issues. As a Professional Employee Organization, our clients rely on us to help them effectively deal with these kinds of labor issues.

Layoffs and other times when job reinstatement according to FMLA regulations may not be necessary.

MBAHRO — Wed, 17 Feb 2010 16:58:00 GMT

Layoffs and other times when job reinstatement according to FMLA regulations may not be necessary.

Does your HR department know the limited situations under which an employer can refuse to reinstate an employee who has taken FMLA leave according to FMLA regulations?

The Act's primary purpose is to ensure that employees are reinstated to the same or equivalent positions held at the commencement of the leave. Moreover, when there is a dispute, it is probably fair to say that the U.S. Department of Labor and most courts lean strongly in favor of the reinstatement of employees. Laws in this area do offer some limited circumstances in which an employer may deny job restoration to otherwise protected employees:

Key employees-According to FMLA laws, an employer may deny reinstatement, but not leave, to "key employees." A key employee is a salaried employee who is compensated within the top 10 percent of the employees working within a 75-mile radius of the employee's worksite. 29 CFR §825.217.1 To deny job restoration to a "key employee," the employer must be able to show that the employee's restoration, not leave, would cause "substantial and grievous economic injury" to the employer's operations. In addition, the employer must have informed the employee, in writing, of his status as a "key employee" prior to the commencement of the FMLA leave. 29 CFR §825.216(c).
Layoffs-An employer may deny reinstatement to an employee whose job was eliminated due to a reduction in force, but only when the employer can demonstrate that the employee's job would have been eliminated even if the employee had not been on FMLA-protected leave. 29 CFR §825.216(a)(1).
Specific term or project-Some employees are hired for a specific term or to perform a specific function. If the term expires or the function ends while the employee is on FMLA leave, the right to job restoration ends as well. 29 CFR §825.216(b).
Employee notice-In rare circumstances, an employee taking leave according to FMLA laws will tell the employer that he will not be returning to work. Pursuant to the Act's regulations, an employer's obligation to restore an employee to work ceases if the employee provides the employer with "unequivocal notice" that he will not return to work. However, the regulations also make it clear that an employee does not forfeit his right to reinstatement when the employee states that he may not be able to return to work, but would like to do so. 29 CFR §825.309(b)
Fitness for duty-Sometimes an employer has concerns about an employee's ability to resume all previous job duties and wants to delay or eventually deny an employee's release until a "fitness for duty" certification is obtained. This is permissible only if the employer notified the employee in writing prior to the leave that a fitness for duty certificate will be required to return to work and the employee fails to present such documentation. 29 CFR §825.216(c).
Other considerations-In determining whether an employee who is on leave due to an illness or injury is entitled to job reinstatement, an employer should not ignore state and local family and medical leave laws and the Americans with Disabilities Act (ADA). If the employee was injured at work, state workers' compensation laws may govern.

No decision to deny job restoration can be taken lightly and you should consult with your HR professional prior to any decision involving the job status of someone who has been on leave provided by FMLA laws.

1. The court in Harbert v. Healthcare Service Group, Inc., 391 F.3d 1140 (10th Cir. 2004), cert. denied, 126 S.Ct.
356 (2006), concluded that in "joint employer" situations in which the employee has a fixed job site, the term "worksite" is the site to which the employee is assigned.

2. The Department of Labor (DOL), in a December 1, 2006, Federal Register notice, published a request for information soliciting comments on the FMLA. The comments were due on February 16, 2007, and will be used by the DOL in a possible overhaul of the FMLA regulations.

Modern Business Associates frequently deals with issues relating to FMLA laws and employees. Laws like FMLA are the kinds of topics MBA deals with regularly as a Professional Employee Organization. Our clients rely on us to help them effectively deal with these kinds of topics including FMLA regulations.