Welcome to Legal Briefs for HR, an update on employment issues sent to over 3600 HR professionals, in-house counsel, and business owners. Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list. Back issues are posted on my firm’s website at www.munckcarter.com under E-Newsletter. Welcome to new subscribers who attended my speech on the pending modified FMLA regulations, for the Dallas ISCEBS chapter (www.dfwiscebs.org)!
Here’s the latest:
1. ADA Amended – President Bush has signed off on amendments to the ADA which will take effect on 1-1-09. The amendment changes key definitions in the statute, in order to negate the effect of several U.S. Supreme Court decisions and EEOC guidance which made it harder for workers to claim a protected disability. Say good-bye to the Court’s view that whether or not an impairment “substantially limits” a worker is to be judged in light of the effect of mitigating measures (e.g., devices, medication, bodily adaptation). Say farewell to a restrictive interpretation of “substantially limits.” And say hello to an expanded definition of “major life activities.” We’ve got three months to digest the revisions before they take effect, so stay tuned for more discussion.
2. No Boot After a Toot – Add one more consideration to your pre-discharge checklist if your business involves manufacture, distribution or sale of toys or children’s products: did your employee report what he or she reasonably believed to be an unsafe product at any stage? If so, you should know that the Consumer Product Safety Improvement Act of 2008 has added whistleblower protection that could give that employee a cause of action against you. The law will be enforced by DOL’s OSHA division and took effect on 8-14-08.
3. Tell Mama – A legislative trend is shaping up, allowing nursing mothers to be exempt from serving as jurors. So far, CA, ID, IL, IA, KS, KY, MS, NE, OK, OR, VA and PR have such exemptions. Add that to the 21 states that have laws related to breastfeeding in the workplace, some of which require employers to provide a private space, other than a toilet stall or restroom, to express milk. This issue is one of many that employers miss, by focusing only on federal employment laws.
4. Fun With FMLA – Once again, a poorly written employee handbook is the difference between a clean break and lawsuit filed by a former employee. The employee successfully argued that her employer’s failure to clearly identify which 12-month period it used to calculate FMLA eligibility allowed her to pick a different period, providing her with protection under the statute. The employer tried to argue that other parts of the book, including the sick pay and vacation policies, referred to a fiscal year (that began on July 1) but the court was not impressed and allowed the plaintiff to use a calendar year instead. Using that as the basis, she had FMLA eligibility remaining when she was discharged from employment. Spencer v. Marygrove College (E.D. Mich. 8-26-08).
5. More Fun With FMLA – Employers of 50+ employees are patiently waiting for publication of revised FMLA regulations which will [1] update the existing regulations; and [2] add new sections that relate to the National Defense Authorization Act (NDAA). The NDAA was enacted in January of this year, adding two new types of FMLA leave. “Care-taker” leave is already required, to give eligible employees up to 26 weeks of job-protected leave to care for a family member who’s recuperating from an injury sustained while on active duty in the U.S. military. “Active duty” leave will be triggered, as soon as the regs are published. In the meantime, go to www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf for a FMLA poster insert and get ready to update your FMLA policy in your employee handbook.
6. Not Child’s Play – The IA Attorney General filed suit last month against a company’s execs and three HR managers, alleging 9311 child labor violations involving 32 youths under the age of 18 (and 7 of them were under age 16). The allegations include employment in a prohibited occupation (meat-packing), exposure to dangerous chemicals and poisons (e.g., dry ice, chlorine solutions), use of prohibited power machinery (e.g., conveyor belts, meat grinders, circular saws, power washers) and “hours worked” violations (e.g., too many in a day, too many in a week). Since the kiddos are back in school, now’s a good time to refresh yourself on both the federal and state child labor limitations that apply to your workplaces and restrict the amount of work that can be performed during the school year. A good summary of the state-by-state variations can be found at www.youthrules.dol.gov./states.htm.
7. Post-Ike Spike in Scammers – It happens every time. Calamity strikes, good people want to help and not-so-good people try to cash in on their generosity. By now, you and your employees should know to be wary of requests for cash from unknown parties sent via email, but it bears repeating. For good advice on how to respond (and report the baddies to the Attorney General for prosecution) go to www.oag.state.tx.us/oagNews/release.php?id=2674.
8. Good Folks – Not everyone is a turkey. Kudos to idled Toyota workers in San Antonio, where around 340 of the 2000 workers are working in city parks, trimming vegetation and repainting tables and trash cans. The Tundra pickup plant was shut down in August, cutting production of the 2008 short due to slow sales, and will re-open in November with production of the 2009 model. The employees receive their full pay during the idling.
9. Food for Thought – A Canadian restaurant chain has been tagged by the U.S. Dep’t of Labor with nearly $500,000 in back wages for requiring tipped employees to [1] share 3% of their tips with managers and cooks; and [2] chip in 75 cents per day to a “dine and dash” fund meant to pick up the tab when customers leave without paying for their meal. You know better than that, right?
10. Rat-B-Gone – In a symbolic gesture to demonstrate a new spirit of cooperation with management, NY area union officials punctured and cut into pieces a 12 foot tall inflatable rat which has been a staple of union picket lines and demonstrations. Gee . . . in the spirit of recycling, couldn’t it have been donated to the Macy’s Thanksgiving parade or something?
11. Mental Outlook – Get ready for an ERISA amendment that will mandate parity in benefit plans for treatment of physical and mental impairments. The measure has been passed by the House (H.R. 6983) and the Senate (H.R. 6049) and the White House said it would sign the Senate version (as embedded in an energy and tax bill). The bill prohibits employer group health plans’ use of limitations and requirements on mental health treatments, unless medical and surgical benefits are similarly limited. You can check out the text of both bills at www.thomas.loc.gov by inserting the bill numbers.
12. See You at HR Southwest! – We are so lucky to have the 2nd largest HR conference in the U.S. right here, in Fort Worth, each October! It’s a great opportunity to hear motivating key-noters, choose from an array of experts’ presentations on the issues that concern you, shop the latest products and services in the Exhibitors’ Hall and a valuable chance to renew existing relationships with your colleagues and forge new bonds. Go to www.hrsouthwest.com for more info. And if diversity programs are on your mind, I’ll hope you’ll add my session to your agenda . . . it will be at 2 p.m. on Wednesday, October 15. Safe travels to all, and I’ll see you there!
Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Carter P.C.
600 Banner Place
12770 Coit Road
Dallas, TX 75251
972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (cell)
amross@munckcarter.com
www.munckcarter.com
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