Proposed FMLA Rules to Address DOMA Issues by Providing a New Definition of “Spouse”

June 25, 2014 at 1:52 am | Posted in Uncategorized | Leave a comment
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Directly from the Department of Labor’s website:  

Proposed rule to extend Family Medical Leave Act protections to all eligible employees in same-sex marriages announced by US Labor Secretary.

WASHINGTON — U.S. Secretary of Labor Thomas E. Perez announced today a proposed rule extending the protections of the Family and Medical Leave Act to all eligible employees in legal same-sex marriages regardless of where they live. The proposal would help ensure that all families will have the flexibility to deal with serious medical and family situations without fearing the threat of job loss. Secretary Perez is proposing this rule in light of the Supreme Court’s decision in United States v. Windsor, in which the court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

The FMLA, enacted in 1993, entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition. Millions of workers and their families have benefited since the FMLA’s provisions became effective and even more American families would be made secure as a result of the proposed rule.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Secretary Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”
The proposed rule would change the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Currently, the regulatory definition of “spouse” only applies to same-sex spouses who reside in a state that recognizes same-sex marriage. Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages.

Following the Windsor decision, noting that it was “a victory… for families that, at long last, will get the respect and protection they deserve,” President Obama directed the Attorney General to work with the Cabinet to review federal statutes to ensure the decision, including its implications for federal benefits and obligations, is implemented.

For additional information on the FMLA, including information and fact sheets on the proposed revisions, visit http://www.dol.gov/whd/fmla/nprm-spouse. The department encourages all interested parties to view the proposed rule and submit comments at http://www.regulations.gov. The regulation identification number is 1235-AA09. Comments must be received within 45 days following publication in the Federal Register.

Major features of the new proposed rule:  

The Department is proposing to move from a “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as “place of celebration”).

The proposed definition of “spouse” expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.

The Department of Labor proposes to define “spouse” as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Comments from the Sensenig Law Firm:

What all of this means is that a whole lot of Handbooks are going to require a whole lot of revisions if the proposed Rule is approved.  Employers will need to become a bit more savvy as to laws outside of the “home” state.  The proposed rule is following along with the notion of “full faith and credit.”   I am sure the proposed rule will be hotly debated and this is just the first draft of proposed new FMLA language.  Each and every one of us has the ability to send our comments/opinions to the DOL about this proposed language, and the proposed Rule’s impact on the workplace.

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

 

 

 

New U.S. Department of Labor FMLA Regulations redefining “spouse”

June 20, 2014 at 2:01 pm | Posted in Uncategorized | Leave a comment
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The U.S. Department of Labor’s Wage and Hour Division today announced a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse under the Family and Medical Leave Act of 1993 (FMLA) in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. The NPRM proposes to amend the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. More information is available at the Wage and Hour Division’s FMLA NPRM Website.

See http://www.dol.gov/whd/fmla/nprm-spouse/ for more information.

The Rule has not been changed yet, but it is good to know the direction the DOL, the department charged with enforcing the DOL, is taking.  Stay tuned for more information!

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

 

 

New H-2A Sheep/Cattle/Goat Herder Wage and Housing Rules!

June 18, 2014 at 1:14 am | Posted in agriculture, Employee, Employer, Employment Law, H2-A, Harvesting, Immigration, New employment laws/amendments | Leave a comment
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The Department of Labor’s prior guidance on the minimum wages and housing that were required to be offered to cattle, sheep and goat herders (jobs that are not exactly coveted) under the H-2A visa program is no longer valid following a D.C. Court of Appeals case.  See Mendoza v. Perez, 2014 BL 165299, D.C. Cir., No. 13-5118, 6/13/14 .

The DOL guidance was found to be substantive rules that established standards under the H-2A agricultural guest worker program.  As such, they had to go through the rule making process, including the provision of a notice and comment period. That did not happen, so back to the drawing board for these H-2A regs!

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

 

 

EEOC issues informal discussion letter regarding “reasonable accommodations” under the ADA/ADAA

April 29, 2014 at 2:06 pm | Posted in Uncategorized | Leave a comment
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Directly from the EEOC’s website: http://www.eeoc.gov/eeoc/foia/letters/2014/ada_reasonable_accommodation_02_25.html

The U.S. Equal Employment Opportunity Commission
EEEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Reasonable Accommodation

 February 25, 2014

Dear _:

This is in response to your letter to Chair Jacqueline A. Berrien, dated December 6, 2013, concerning a Sample Reasonable Accommodation Policy and accompanying sample forms. The sample policy, written by a law firm, notes that it is intended to aid employers in meeting their obligations under the Americans with Disabilities Act (ADA), as amended, and states that the accompanying sample forms are for “informational, educational, and/or training purposes only.”

You state that these documents were obtained from the website of a state agency. As your correspondence noted, a government official stated that the sample policy is no longer available on the agency’s website and was never used as official accommodation policy of any agency. Rather, it was posted only for training purposes.

We will not offer a comprehensive review of the sample policy and its forms. Instead, we address several aspects of the sample policy and accompanying forms that raise concerns, even if they are intended for “informational, educational, and/or training purposes.”1

Sample Disability Accommodation Policy

Requests for reasonable accommodations must be handled on an individualized basis. Employers generally need to engage in an interactive process to determine whether a reasonable accommodation is warranted, and this process is influenced by, among other things, the nature of an employee’s disability, the employee’s job, and the work environment. Consequently, it is difficult to develop a policy and related forms that can address all variables. In addition, the law in this area continues to develop, making it risky to conclude, as the policy does, that certain things never (or almost never) have to be provided as reasonable accommodations.

Leave

The sample policy states that an employer is not required to provide certain accommodations. The policy is correct that certain actions, such as eliminating essential functions, are not required. However, the sample policy states that an employer is not required to permit “unscheduled (or erratic, unpredictable, intermittent) or excessive absenteeism or tardiness as a reasonable accommodation.”

This formulation could lead to the inappropriate denial of a reasonable accommodation. First, the sample policy does not distinguish between unscheduled and excessive absenteeism. It is highly unlikely that an employer could deny unscheduled leave in all cases.

For example, an employee with epilepsy may have one or two seizures a year requiring unscheduled leave of one day each time. The fact that the leave is unscheduled, or could be characterized as erratic, unpredictable and intermittent, does not mean that an employer can deny this type of leave. An employer would have to grant leave under these circumstances as a reasonable accommodation unless it could show undue hardship.2

Second, the sample policy does not explain when leave needed as a reasonable accommodation will be considered “excessive,” thus increasing the possibility that requests will be handled inconsistently and leave will be denied inappropriately. Whether leave granted as a reasonable accommodation is “excessive” must be determined by considering whether it imposes an undue hardship.3

Working from Home

The sample policy states that working from home is “generally” not a reasonable accommodation “except in extraordinary circumstances.” While we are aware that some courts have found a legal obligation to provide telework as a reasonable accommodation to be limited,4 the law is far from settled. The EEOC recognizes telework as a form of reasonable accommodation and has provided guidance for employers and employees in determining if it may be an effective form of reasonable accommodation.5 Thus, the suggestion that working from home is not required except in extraordinary circumstances may lead an employer to violate the ADA. Of course, telework is not appropriate for all jobs. Working together, the employer and employee should determine whether it would enable performance of the job’s essential functions. Additionally, an employer need not provide telework as a reasonable accommodation if it is not necessitated by the disability or if another reasonable accommodation can be provided that will effectively meet an employee’s limitations.

Use of Mitigating Measures

The sample policy states, “if an employee can control an impairment with medication or assistive devices and thereby perform essential job duties, no reasonable accommodation would normally be needed or reasonable.” However, people with many types of disabilities and who use many different kinds of mitigating measures still may require reasonable accommodation because the mitigating measure either does not eliminate all disability-related limitations or because it imposes limitations. For example, someone with a prosthetic arm may require a device to assist with lifting, and someone with diabetes may need more frequent breaks to monitor blood glucose and insulin levels.

Our second concern is that this sentence can be read to mean that if an employee currently does not use medication or another mitigating measure, but an employer believes the employee could benefit from one, the employer may not have to provide a reasonable accommodation. The Sample Request for Accommodation Form, which asks the requestor to “list the medication and/or devices that you use or that have been recommended for you to use” (emphasis added), reinforces our reading of the language in the policy. A similar set of questions in the Health Care Provider Form asks a doctor if there are medications or assistive devices that could mitigate the effects of the impairment. If there are and the doctor has not prescribed them, the doctor is asked to explain why.

The effectiveness of medications and other mitigating measures can vary widely. The use of a particular medication or other mitigating measure may eliminate one employee’s need for a reasonable accommodation, but not another’s. Moreover, the choice of whether to use a mitigating measure is the individual’s, and an employer cannot base a denial of a reasonable accommodation on its belief that the individual ought to be using a particular mitigating measure instead.6

Request for Accommodation Questionnaire

Requirement that Employee Requesting Accommodation Be Substantially Limited in Performing Essential Functions

This form begins by stating that the employer is committed to accommodating the needs of any qualified individual who has a physical or mental impairment “which substantially limits his or her ability to perform the essential duties of the job.” However, an individual does not have to be substantially limited in the major life activity of working (there is no major life activity of performing essential functions) to have a disability under the ADA, and an employee who is substantially limited in a major life activity other than working (which will usually be the case) need not demonstrate that any work-related limitation necessitating a reasonable accommodation is “substantial.”7

Questions that Ask for More Information than Permitted by the ADA

The form asks questions that, in many situations, will violate the ADA if asked routinely of all employees requesting reasonable accommodation. Although, as the EEOC has noted, employers are permitted as part of the interactive process to ask disability-related questions if they are necessary to establish that the person has a disability and/or needs a reasonable accommodation, this does not entitle the employer to obtain any medical information it wants.8

First, if a disability is obvious (e.g., blindness, deafness, missing limb), an employer may not ask questions to establish if the person’s impairment is a disability.9 Even when the disability or need for accommodation is not obvious, the ADA prohibits employers from asking disability-related questions of employees unless they are job-related and consistent with business necessity.10 Employers may seek disability-related information as part of the interactive process as long as such information is necessary to establish that the person has a disability and/or needs a reasonable accommodation.11 The appropriate questions will differ in each situation depending on a number of considerations, including the individual’s impairment, the employer’s previous knowledge about the employee’s disability, and the type of reasonable accommodation requested. Therefore, requiring everyone who requests an accommodation to answer all of the questions on this form will violate the ADA in most, if not all, instances.

For example, we strongly disagree with the practice of routinely asking a person requesting reasonable accommodation to describe “your treatment plan in detail.” There may be situations in which an employer might be entitled to certain information about an employee’s treatment to determine whether a medical condition is a disability (such as information about use of a mitigating measure), or whether a person’s treatment is connected to the type of reasonable accommodation requested (most notably, where the employee has requested leave to obtain treatment). However, an employer cannot justify routinely asking individuals requesting a reasonable accommodation to divulge in detail their treatment plans. Similarly, although an employer may ask about the use of mitigating measures to determine an employee’s need for a reasonable accommodation, we disagree that employers may routinely ask individuals requesting reasonable accommodation what medication and/or devices “have been recommended for you to use.” Indeed, such a question will rarely, if ever, be permissible.

Questions that Require Employees to Address the Need for Accommodations They Have Not Requested

In addition to asking for medical information that may not be needed to evaluate a request for reasonable accommodation, the form focuses on certain types of reasonable accommodations, apparently requiring an individual to address the need for them, even if they are not the ones being requested. For example, there are questions asking whether (1) the requestor’s impairment requires leave or the need for adjustments to work schedules or (2) the impairment affects the ability to work a normal work schedule. There is no reason to ask these questions of someone who, for example, requests a modification of equipment or a sign language interpreter.

Focusing on Certain Accommodations to the Exclusion of Others

The form implies that the listed questions are the only ones that should be asked in response to a request for reasonable accommodation. However, the form does not ask questions that would be helpful in assessing requests for accommodations such as modification or purchase of equipment, a change in a workplace policy (other than leave and attendance policies), the ability to bring a service animal to work, or removal or substitution of a marginal function. Additionally, the form does not account for situations in which employees require accommodations for reasons other than to perform essential functions. The obligation to provide reasonable accommodation extends to employees seeking equal access to a benefit or privilege of employment, such as employer-provided training, as well as to applicants who require accommodation for some aspect of the hiring process.12 We are not suggesting that this form be lengthened to add more questions (we think it is already too long as an initial means of obtaining information related to a request for reasonable accommodation); rather we want to point out that the wide-ranging nature of reasonable accommodations undermines any attempt to draft a comprehensive form that asks all the right questions.

Questions that Are Confusing or Irrelevant

One question asks whether the impairment limits the person’s “ability to perform or engage in any activities outside of work[.]” If the question is an attempt to determine the major life activity that is substantially limited as a result of an impairment, it is poorly worded to elicit such information. If the question has nothing to do with determining whether the requestor has a disability, then the question would appear to be irrelevant.

A follow-up question implies that an inconsistency exists if a requester states that an impairment affects work-related activities but not non-work activities: “Explain why your non-work activities are not affected when the impairment will affect your work activities.” (emphasis in the original). However, it is quite possible that a disability will present work-related difficulties that do not affect an individual off the job.

Failure to Explain the Reason for Asking the Questions on the Form

Finally, we note that the sample form does not explain the need for asking any of these questions. Once an employer has carefully considered the necessity of asking certain questions as part of an interactive process, it should explain to the individual, either on the form or in person, the reason for asking each question, i.e., an employer should explain how a particular question provides information to establish the existence of a disability and/or a need for reasonable accommodation. Though not specifically required by the ADA, this can encourage the individual’s cooperation in providing information.

Health Care Provider Questionnaire

This sample questionnaire is 7 pages long and asks many of the same questions asked in the sample Request for Accommodation Form. The ADA prohibition on asking disability-related questions of an employee, except if they meet the “business necessity” test, extends to questions asked of an employee’s doctor.13 Consequently, we believe that a number of the questions on this form that also appear on the sample Request for Accommodation form discussed above would violate the ADA for reasons discussed in the previous section.

Also of concern is the wording of certain questions. They give a doctor limited choices in answering, apparently because the form seems to focus on a limited number of reasonable accommodations. For example, one question asks the doctor whether the employee is able to perform his job, including meeting normal attendance and overtime requirements. If the doctor answers no, then the doctor is instructed to check only one of the following three answers:

The Patient is not able to perform any job duties and needs a continuous leave of absence
The Patient is able to perform all job duties but needs a special work schedule
The Patient is able to perform some, but not all, job duties.
The questions do not take into account the possibility that the employee can perform all work functions but needs a reasonable accommodation other than a modified work schedule. Perhaps this sample form is intended to be used only for employees requesting leave or changes to their work schedules, but that is by no means clear.

The ambiguity of other questions raises concerns that a doctor’s answers could, incorrectly, lead an employer to fail to provide a reasonable accommodation or exclude a qualified individual with a disability from working. For example, one question asks the doctor to answer “yes” or “no” to the following: Will the Patient fully recover from the Health Condition at some date in the future so that the Patient can perform all job duties without restrictions?” It is not clear how the doctor should respond if, for example, the employee will never fully recover but may still be able to perform all job duties without restrictions.

More troubling is the fact that the sample form suggests to an employer that an employee who has been on leave because of a disability or who sustained an injury must ultimately be able to work without any restrictions. Employers cannot require that employees be fully recovered or able to work without restrictions if an employee could return to work with a reasonable accommodation (absent undue hardship).14

Conclusion

The wide range of disabilities, employers, jobs, workplaces, and reasonable accommodations makes it exceedingly difficult to develop a form with questions that almost everyone requesting accommodation would need to answer. Additionally, the longer the form, the higher the likelihood that many requestors (or their health care professionals) will be asked questions that violate the ADA and do not serve the employer’s interest in obtaining relevant information to make an informed decision about the request for reasonable accommodation.

If an employer uses forms to gather information about the need for a requested reasonable accommodation, it should ask, in plain English, the few questions that will help to determine whether the requestor has a disability and needs a reasonable accommodation. (If the disability is obvious, then an individual should be asked to answer only those questions on the form that address why a reasonable accommodation is needed.) Regarding the existence of a disability, for example, a form could ask information about the nature of the requestor’s impairment and its expected duration; the kind of activities, including major bodily functions, that the impairment affects; and the way in which the activities are affected.15 A form could also ask about the use of mitigating measures and the extent to which they eliminate or control the impact of the medical condition. It is helpful to give examples to explain terms that many people may not recognize as having specific legal meanings. So, a form that asks about an impairment’s effect on “major bodily functions” or other “major life activities,” could offer examples such as normal cell growth; endocrine, neurological, or brain function; standing; lifting; and concentrating. Similarly, a form could provide examples of mitigating measures such as medication, physical therapy, assistive devices, and behavioral modifications. Regarding the need for reasonable accommodation, a form could ask how an accommodation would assist the individual to apply for a job, perform the job’s essential functions, or enjoy equal access to the benefits and privileges of employment.

Employers should consider the purpose behind each question on a form, i.e., whether the answer will provide information concerning the existence of a disability, the need for a reasonable accommodation, or both. Any question that does not address at least one of these issues should be carefully reviewed to determine whether the information requested is necessary to enable the employer to determine the need for a reasonable accommodation, especially if it is a disability-related question. Employers also may wish to have an appropriate management official handling the request (e.g., an HR director) review the form before giving it to a particular applicant or employee to determine if certain questions should be eliminated as irrelevant to the particular request and/or whether other questions should be asked.

I hope this information is helpful. This letter does not represent an official opinion of the EEOC.

Sincerely,

/s/

Peggy R. Mastroianni
Legal Counsel

Footnote

1 We note that the introduction to the sample forms does encourage an employer to seek legal advice from its counsel when faced with “particular fact situations.”

2 Example 34 in EEOC’s Q&A on “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, http://www.eeoc.gov/facts/performance-conduct.html, addresses a similar situation. This section also provides examples where an individualized assessment of the facts supports an undue hardship determination. The discussion also notes the impact of the Family and Medical Leave Act when an employee requests intermittent leave, something the sample policy does not acknowledge in suggesting that intermittent leave may generally be denied.

3 The sample policy states that “not all possible accommodations are reasonable” and this includes “excessive absenteeism.” The EEOC regards the length of leave as an issue of undue hardship. See Question 44 in EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, http://www.eeoc.gov/policy/docs/accommodation.html [hereinafter “EEOC Accommodation Guidance]. Therefore, we believe that it would be better to explain that denial of excessive leave will be based on the undue hardship factors, which include the impact on the employer’s operations resulting from leave already used and any additional leave requested.

4 See, e.g., Mobley v. Allstate Ins. Co., 531 F.3d 539 (7th Cir. 2008).

5 See Question 34 in EEOC Accommodation Guidance, supra note 3; see also EEOC Fact Sheet, “Work at Home/Telework as a Reasonable Accommodation,” http://www.eeoc.gov/facts/telework.html.

6 See Question 38 in EEOC Accommodation Guidance, supra note 3. As the answer to Question 38 points out, the decision to forgo use of medication, treatment, or an assistive device (or any other mitigating measure) may render an individual not qualified. See also 29 C.F.R. pt. 1630 app. § 1630.2(j)(1)(vi).

7 See 29 C.F.R. pt. 1630 app. § 1630.2(j) (discussion of “Substantially Limited in Working”).

8 See Questions 6 and 8 in EEOC Accommodation Guidance, supra note 3.

9 See Question 6 in EEOC Accommodation Guidance, supra note 3.

10 See “General Principles” section in EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/guidance-inquiries.html [hereinafter EEOC Inquiries Guidance].

11 See Question 7 in EEOC Inquiries Guidance, supra note 10.

12 See Questions 12-13 and section on “Reasonable Accommodation Related to the Benefits and Privileges of Employment” in EEOC Accommodation Guidance, supra note 3.

13 See Question 1 in EEOC Inquiries Guidance, supra note 10.

14 Cf. Question 13 in the EEOC Enforcement Guidance: Workers’ Compensation and the ADA, http://www.eeoc.gov/policy/docs/workcomp.html.

15 The ADA Amendments Act of 2008 (ADAAA) made it much easier for individuals claiming rights under the ADA to show that they have covered disabilities. For example, certain impairments will easily be found to be disabilities, including diabetes, post-traumatic stress disorder, and epilepsy. See 29 C.F.R. § 1630.2(j)(3)(iii) and 29 C.F.R. pt. 1630 app. § 1630.2(j)(3). Information substantiating that an individual has one of these types of impairments should be sufficient to establish that the individual has a covered disability. As a result of the ADAAA, most of the focus of the reasonable accommodation process, and the forms used to gather information as part of that process, should be on whether an accommodation is needed, and if so, what type, rather than on whether an individual has a covered disability.

Comments from Christine Sensenig of the Sensenig Law Firm:

One size fits all does not apply to the ADA, or the ADAA.  Employers must consider each request for a reasonable accommodation on a case-by-case basis.  Employers must also consider the actual impact on the organization as a result of the employee’s request for accommodation.  While a very small employer may not be able to accommodate an employee’s request for major changes in his or her work schedule, larger employers will not have the same restrictions.  Using forms provides consistency for an employer, but that form must be tailored each and every time to apply to the unique situation at hand.  The key phrase to use is “how can we help you?” when addressing disability related issues.

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

 

 

DOL obtains $428,8000 in back wages and damages for FLSA, AWPA/MSPA violations by Hawaiian Farmer – the price of basil is definitely going up this year!

April 24, 2014 at 2:01 am | Posted in agriculture, discrimination, Employee, Employer, Employment Law, FLSA, H2-A, Harvesting, Immigration, Legal, wage & hour | Leave a comment
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DIRECTLY FROM DOL’s WEBSITE:  

Hawaii’s Fat Law’s Farm to pay $460,000 for FLSA, AWPA & MSPA violations 

HONOLULU — Fat Law’s Farm Inc. has been ordered by a court to pay $428,800 in back wages and liquidated damages to workers after an investigation by the U.S. Department of Labor’s Wage and Hour Division found the Oahu-based employer in violation of the Fair Labor Standards Act’s minimum wage, overtime and record-keeping provisions. The company has also agreed to pay $31,200 in civil money penalties because of deplorable housing, safety and health conditions for workers, in violation of the Migrant and Seasonal Agricultural Worker Protection Act.

“Failure to pay minimum wage and overtime to agricultural workers has become distressingly common when large agricultural actors, such as Fat Law’s Farm, establish a clear system of nonpayment or underpayment of wages,” said Janet Herold, the department’s regional solicitor in San Francisco. “This judgment makes clear that the department will not permit the creation of a second-tier workforce in which coercion, substandard housing and underpayment of wages rule the day.”

Fat Law’s Farm and owners Frank Law, Alice Law and Tim Law, failed to pay minimum wage for all hours worked and did not pay employees overtime at time and one-half their regular rates of pay for all hours beyond 40 in a workweek, as required by the FLSA. The company employed two primary groups of workers. Filipino workers were predominantly paid at $7.25 per hour, with overtime compensation. Workers, mainly from Laos, were paid $5 per hour in cash, without overtime, for 70 hours per week on average. In a consent judgment filed in the U.S. District Court of Hawaii, Judge J. Michael Seabright ordered Fat Law’s Farm permanently enjoined and restrained from violating the provisions of the FLSA.

The department executed a search warrant issued by the U.S. District Court in Hawaii that permitted Wage and Hour investigators to gain access to Fat Law’s Farm.

“The department made use of a search warrant to get an honest snapshot of the pay practices and working conditions established by the employer and the documented effort to hide evidence and witnesses from inspection,” said Juan Coria, acting regional administrator for the Wage and Hour Division in the Western Region. “With the warrant, we obtained unhindered access to employee and payroll documents reflecting names and payment disbursements to workers employed at the farm, including employees paid only in cash. We will continue to protect workers, prevent abuse and enforce labor laws, particularly where workers are vulnerable and violations are so egregious, as in this case.”

Fat Law’s Farm produces and supplies herbs and vegetables in Hawaii and is the main exporter of Hawaiian-grown basil to the U.S. mainland and Canada, which is sold locally by retailers, such as Safeway Inc.
Employers under the MSPA are required to provide safe housing and safe transportation. The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour. Earnings may be determined on a piece-rate basis, but overtime pay must be computed using the employee’s average hourly rate. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law.
For more information about the FLSA, MSPA and other federal wage laws, call the division’s toll-free helpline at 866-4US-WAGE (487-9243) or its Honolulu office at 808-541-1361. Information is also available at http://www.dol.gov/whd.

For more information and the press release as printed above from the DOL, see:  http://www.dol.gov/whd/media/press/whdpressVB3.asp?pressdoc=Western/20140415.xml

COMMENTARY BY CHRISTINE SENSENIG:

With this hefty of an amount due to be paid, pesto sauce is going to become a bit more expensive in restaurants next year due to fewer people picking basil in 2015 at Fat Law Farms.  The AWPA/MSPA have numerous provisions protecting agricultural workers from abusive working conditions, wage violations, and differential treatment.  While the DOL did not necessarily make findings that Fat Law Farms violated a variety of laws, it is significant that Fat Law Farms entered into a consent decree, agreeing to pay back wages and liquidated damages to the tune of $428,800 plus Civil Money Penalties of $31,200.00.   The exposure during litigation may have been worse than the almost half a million dollar payment agreed to by Fat Law Farms, but Fat Law Farms decided to make a business decision and avoid the uncertainty of litigation.

Now is a good time for those in the agricultural industry to review their AWPA and MSPA policies, as well as their minimum wage compliance, to ensure that a friendly visit from the local DOL agents won’t result in fewer basil leaves for the local bar’s herbal martinis, or any other crop for that matter.

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

EEOC to host meeting about social media on March 12, 2014 – this should be lively!

March 11, 2014 at 7:52 pm | Posted in EEOC, Employee, Employer, Employment Law, Facebook, New employment laws/amendments, Social Media/Social Networking | Leave a comment
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PRESS RELEASE DIRECTLY FROM THE EEOC’S WEBSITE

3-5-14

Next EEOC Commission Meeting on March 12

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) will hold a meeting on Wed., March 12, at 9:30 a.m. (Eastern Time), at agency headquarters, 131 M Street, N.E., Washington, D.C. 20507. In accordance with the Sunshine Act, the open session of the meeting will be open to public observation of the Commission’s deliberations.

The Commission will hear from invited panelists on how the use of social media in the workplace is impacting the enforcement of equal employment opportunity laws. Participants will address a range of issues, including recruitment and hiring, harassment, and records retention and discovery. The Commission is scheduled to hear from the following confirmed panelists during the meeting (in order of appearance):

  • Carol Miaskoff, Acting Associate Legal Counsel, EEOC, Office of Legal Counsel
  • Rita Kittle, Senior Trial Attorney, EEOC Denver Field Office (via video teleconference)
  • Lynne Bernabei, Partner, Bernabei & Wachtel PLLC
  • Renee Jackson, Associate, Nixon Peabody LLP
  • Jonathan Segal, Partner, Duane Morris LLP; Managing Principal, Duane Morris Institute, testifying on behalf of the Society for Human Resource Management

Seating is limited, and the EEOC encourages visitors to arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room. Visitors should bring a government-issued photo identification card to facilitate entry into the building.

The Commission meeting agenda is subject to revision. Additional information about the meeting, when available, will be posted at http://www.eeoc.gov/eeoc/meetings/index.cfm.

As part of the EEOC’s commitment to cut costs whenever possible, every effort is being made to utilize local resources and technology to facilitate testimony. The agency will continue to fulfill its mission to stop and remedy employment discrimination by balancing the need to provide service to the public with fiscal responsibility.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

NLRB strikes down yet another Social Media Policy, this time it is Georgia-Pacific’s policy that must be revised

January 24, 2014 at 8:14 pm | Posted in Employee, Employer, Employment Law, Facebook, Legal, Social Media/Social Networking, union | Leave a comment
Tags: , ,

The NLRB has reached a settlement with Georgia Pacific regarding the Company’s Social Media Policy.  Georgia Pacific’s Social Media Policy had prohibited employees from sharing “personal information” such as wages/compensation, hours, and other “terms and conditions of employment.”  Georgia Pacific must now post a notice, approved by the Regional Director of the NLRB, telling the Company’s employees about their rights to:

1.  Form, joint or assist a union;

2.  Choose a representative to bargain with Georgia Pacific on the employee’s behalf;

3.  Act together with other employees for the employees’ benefit and protection;

4.  Choose not to engage in any of these protected activities.

Take a look at the notice that must be posted:  http://www.local1097.org/index_htm_files/NLRB.pdf

Georgia Pacific must also post information that it will NOT issue policies that interfere with the employees’ right to share information relating to wages, hours, and other terms and conditions of employment with other employees, including on social media sites.

Social Media issues continue to be a hot topic, evolving it seems on a weekly basis.  Take out your policy, review the policy, and examine how far your policy goes in limiting the information employees can share.

The above is not legal advice nor is this posting the creation of an attorney client relationship between the Sensenig Law Firm and the reader.

It’s only a bill, yes only a bill, sitting there on Capitol Hill – but it is something to be aware of!

November 20, 2013 at 2:49 pm | Posted in Employee, Employer, Employment Law, FLSA, New employment laws/amendments, wage & hour | Leave a comment

As taken directly from http://beta.congress.gov/bill/113th/senate-bill/1687?goback=%2Egde_2479785_member_5808759237924397059#%21
 Summary: S.1687 — 113th Congress (2013-2014)

There is one summary for this bill. Bill summaries are authored by CRS.

Shown Here:
Introduced in Senate (11/12/2013)

Payroll Fraud Prevention Act of 2013- Amends the Fair Labor Standards Act of 1938 (FLSA) to require every person (including every employer and enterprise) that employs an employee or non-employee who performs labor or services, including through an entity such as a trust, estate, partnership, association, company, or corporation, to: (1) classify such individuals accurately as employees or non-employees; and (2) notify each new employee and new non-employee of his or her classification as an employee or non-employee, together with information concerning their legal rights.

Makes it unlawful for any person to: (1) discharge or otherwise discriminate against an individual (including an employee) who has opposed any practice, or filed a complaint or instituted any proceeding related to this Act, including with respect to an individual’s status as an employee or non-employee; and (2) wrongly classify an employee as a non-employee.

Doubles the amount of liquidated damages for maximum hours, minimum wage, and notice of classification violations by an employer. Subjects a person who: (1) violates such requirements (including recordkeeping requirements) to a civil penalty of up to $1,100; or (2) repeatedly or willfully violates such requirements to a civil penalty of up to $5,000 for each violation.

Directs the Secretary of Labor to establish a single webpage on the Department of Labor website that summarizes the rights of employees and non-employees under the FLSA and this Act.

Amends the Social Security Act to require, as a condition for a federal grant for the administration of state unemployment compensation, for the state’s unemployment compensation law to include a provision for: (1) auditing programs that identify employers that have not registered under the state law or that are paying unreported compensation where the effect is to exclude employees from unemployment compensation coverage, and (2) establishing administrative penalties for misclassifying employees or paying unreported unemployment compensation to employees.

Requires any office, administration, or division of the Department of Labor to report any misclassification of an employee by a person subject to the FLSA that it discovers to the Department’s Wage and Hour Division (WHD). Authorizes the WHD to report such information to the Internal Revenue Service (IRS).

What this means for employers is the employees MUST be notified as to whether they are exempt or non-exempt from overtime, as well as how the employer is classifying the employment relationship – employee or independent contractor.

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

Sometimes it is fun to do something a little less serious…..

August 22, 2013 at 3:11 pm | Posted in Uncategorized | Leave a comment

http://us1.campaign-archive2.com/?u=90b255b20087b1d87f7762948&id=6d415880d0&e=056708127e

 

 

The new Form I-9 is here – along with newly revised M-274 Handbook!

March 13, 2013 at 4:21 pm | Posted in E-Verify, Employee, Employer, Employment Law, H2-A, I9, Immigration, Legal, New employment laws/amendments | Leave a comment
Tags: ,

It is hard to believe but the U.S. government actually issued a new Form I-9 without ten years of committee meetings to discuss those revisions.  The new Form I-9 is here, effective March 8, 2013, for all employers to begin using.  The questions will continue to roll in about the new format, about what documents to accept, about what pages to keep, and how the new Form I-9 affects internal Form I-9 audits.

The newly revised Form I-9 can be found at:

http://www.uscis.gov/files/form/i-9.pdf

Another surprise is that the Form I-9 Handbook, the M-274, was revised as well – the revised version was released yesterday.  Please print the new M-274 and review it carefully.  This revised version of the M-274 has color photos and better examples of the documents usually provided to employers by non-citizens.

http://www.uscis.gov/files/form/m-274.pdf

Follow the instructions carefully and be sure that the form I-9’s you keep have the list of documents on the back of the actual completed portion.

There will be confusion as to how to address concerns.  E-verify will also be affected by the new Form I-9.  Stay posted for updates!

The above is not legal advice nor is this posting the creation of an attorney client relationship between the Sensenig Law Firm and the reader.

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