Don't Forget Daylight Savings Time
Posted by: John Gilliland
March 06, 2008
Topic: Wage & Hour

At 2:00 a.m. this Sunday (i.e., the second Sunday in March) daylight savings time arrives and clocks should be set ahead one hour. 

Remember, if you have caregivers working a night shift or live-in, the change to daylight savings time can affect the number of hours they work.  For example, an employee who normally works an 8-hour shift that includes when the time changes, will actually only work 7 hours.  You can either pay for only the 7 hours actually worked or pay for the full 8 hours.  If you pay a full 8 hours, you do not need to include the extra hour's pay in determining a nonexempt employee's regular rate for overtime pay purposes. 

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Supplement Your FMLA Poster
Posted by: John Gilliland
February 26, 2008
Topic: FMLA

As a result of the provisions added to the Family and Medical Leave Act to provide for military family leave, employers need to update their FMLA posters.  Complete posters will be available when final regulations are published.  In the meantime, the Wage and Hour Division has published a sample, brief explanation of the expanded leave.  It could be posted with your current FMLA poster.  A copy of that supplemental statement is at:

                 http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf

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More FMLA Changes Coming
Posted by: John Gilliland
February 14, 2008
Topic: FMLA

More changes to FMLA regulations are on the way. On February 11th, the US Department of Labor's Wage and Hour Division published proposed rules in the Federal Register. A complete copy can be obtained through the Wage and Hour Division's website at http://www.dol.gov/esa/whd/

The proposed changes will impact on many of the key aspects of the FMLA rules, including:

* Employer and employee notices

* Nonconsecutive periods of service in determining "eligible employees"

* Fitness for duty certification

* HIPAA and contact with health care providers

* Substitution of paid leave

* Poster revisions

Comments concerning the proposals must be received by the Wage and Hour Division by April 11, 2008.

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Expansion of FMLA Approved
Posted by: John Gilliland
February 08, 2008
Topic: FMLA

There is something that has not been getting much attention in the popular press, but is filling the news sources for employment lawyers. That is that, at the end of January, President Bush signed a law which expanded the leave available under the Family and Medical Leave Act ("FMLA") to include leave for certain family members of an individual in the Armed Forces, including a member of the National Guard or Reserves.

First, employers must provide up to 26 workweeks of leave to a qualifying employee of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. A "qualifying employee" includes the "spouse, son, daughter, parent, or next of kin" of the service member.

Second, employers are required to provide leave for "any qualifying exigency ... arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation." "Any qualifying contingency" has not yet been defined but it is expected to include a service-members deployment and leave from active duty. This provision is not effective until the U.S. Secretary of Labor issues final regulations defining "any qualifying contingency."

Most of the rest of the FMLA is not changed.

More information concerning the changes can be found at the Wage and Hour Division's website. Go to: http://www.dol.gov/esa/whd/fmla/index.htm.

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Employers May Restrict Use of E-Mail
Posted by: John Gilliland
January 25, 2008
Topic: Labor

I think I am now on track to do better in keeping this blog up to date... we'll see.  

Since I last wrote, probably the thing that has been getting the most play and discussion among employment lawyers is a decision in December 2007 by the National Labor Relations Board ("NLRB").  It ruled that employers have the right to prohibit workers from using the company's e-mail to send out union-related messages as long as the employer had a policy barring employees from sending e-mail for "non-job-related solicitations."  The Guard Publishing Co dba The Register Guard, 351 NLRB 70 (Dec 16, 2007).

In fact, the employer in that case allowed a number of non-work-related employee e-mails, but there was no evidence it permitted e-mails urging support for groups or organizations.  The NLRB held that unlawful discrimination against a union occurs only when union communications are prohibited while other communication "of a similar character" (such as from other outside organizations) are allowed.  In this case, that did not occur.

Given how common e-mail has become, it is an important decision for employers.  However, the NLRB was closely divided.  The vote was 3-2.  Thus, the rules could easily change in the future.

A valid no solicitation/no distribution policy is an important part of your personnel policies, especially if you want to control and manage union activities.  But, it needs to be carefully written to be lawful and control union solicitation.  It is something to seek knowledgeable legal advice concerning. 

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