New FMLA poster issued by DOL: But do you have to use it?

by Christian Schappel

The DOL just issued a new General FMLA Notice for employers to hang in their workplaces. 

The notice can be found here.

Now on to the big question: Do employers have to use it?

The answer: Employers covered by the FMLA must hang the new poster or stick with a pre-existing poster that outlines the same info.

In other words, you’re not required to swap out your current poster for the new one. But there are some reasons you may want to.

For starters, the new poster is organized in a much more reader-friendly way than the DOL’s last poster.

So if you’re not a fan of your current poster’s layout, this may be a more attractive option.

The requirements

Just to be safe, let’s recap the DOL’s regulations regarding the poster.

Employers covered by the FMLA must display in a conspicuous place — and keep displaying — a General FMLA Notice explaining the law’s protections and requirements, as well as how employees can file complaints of violations of the FMLA with the DOL’s Wage and Hour Division.

The notice — i.e., poster — must be:

• prominently displayed where it can be easily seen by employees and job applicants
• displayed even if no employees are FMLA eligible, and

Click here for entire article. 

One surprising upside to DOL’s overtime rule change

by Christian Schappel

The DOL’s change to the FLSA’s white collar overtime exemptions aren’t all doom and gloom for employers. There’s at least one silver lining. 

This “glass half full” scenario comes from employment law attorney Leonard V. Feigel of the law firm Foley & Lardner LLP.

He said for those looking for a positive spin on the rule change, this could be it:

“The publication of the final rules may provide a hidden opportunity for employers to reclassify some positions that may have changed over the years and may no longer qualify for an exemption.”

In other words, the new regulations have presented employers with the opportunity to audit employees’ job duties against their job descriptions/classifications in an attempt to make sure employees are still properly classified — and, if not, change their classifications using the umbrella of the rule change as a way to minimize any potential legal liability.

It can happen to the best of us

Even the best employers can fall victim to misclassification if they’re not keeping a close eye on the evolution of employees’ work assignments.

Click here for entire article. 

2 ACA rules changes that may have flown under HR’s radar

by Jared Bilski

In just the past year, we’ve seen wholesale Obamacare changes, like the delay of the employer mandate and the Cadillac Tax, as well as the death of the automatic enrollment provision. But there have also been a number of minor tweaks that weren’t as highly publicized.  

Just because these ACA changes haven’t been met with the same fanfare as a lot of the major reg overhauls doesn’t mean HR pros don’t need to know about them.

Inflation adjustments

Here are two minor health reform changes:

Inflation adjustments for the affordability safe harbor percentages. Under the ACA, the threshold for determining whether a health plan is “affordable” to an employee is “9.5% of household income.” In other words, the cost of coverage cannot exceed this amount. But the law provides for inflation adjustments of this percentage.

So for plan years beginning in 2016, the 9.5% of household income threshold has been adjusted for inflation and becomes 9.66%.

Click here for entire article. 

Tip Tuesday! Workers can get away with what? A ruling you have to see to believe

by Christian Schappel

A U.S. appeals court just issued some news employers will find very disturbing: There are times when employers have to just stand by and watch their workers disparage their businesses. 

Grab a vomit bag. This could make you a little sick (pun intended).

What happened?

A group of workers employed by MikLin Enterprises Inc., the owners of 10 Jimmy John’s sandwich shops in the Minneapolis-St. Paul, MN, area, asked MikLin for sick leave benefits.

And when the employer declined, the employees hung posters in public near its 10 restaurants.

The poster depicted two identical sandwiches sitting next to each other.

Displayed over one were the words:

“Your sandwich made by a HEALTHY Jimmy John’s worker.”

And over the other:

“Your sandwich made by a SICK Jimmy John’s worker.”

Underneath the photos was:

“Can’t tell the difference? That’s too bad because Jimmy John’s workers don’t get paid sick days. Shoot. We can’t even call in sick. We hope your immune system is ready because you’re about to take the sandwich test …”

Click here for entire article.  

Beyond fines: DOL takes rare step against FLSA violator

by Jared Bilski

If the thought of the DOL hitting firms with high fines and penalties for FLSA violations doesn’t scare you, maybe the prospect of being hit with additional administrative work will.

That’s what happened to one firm after the DOL uncovered a series of particularly egregious pay violations.

According to a recent DOL investigation, Colmonero’s Pallets Inc., a pallet manufacturing firm in Phoenix, had a real knack for skirting major FLSA requirements, specifically those involving the law’s recordkeeping provisions, in an effort to avoid paying overtime.

The DOL claimed the company:

• Paid employees as vendors who only received a flat rate
• Doling out under-the-table cash payment instead of time-and-a-half
• Distributing checks under false names to avoid paying overtime, and
• Destroying employees’ timecards at the end of each pay period.

$300K in wages and damages plus …

When the DOL completed its investigation, Colmonero’s was ordered to pay $139,154 in back wages, an equal amount in damages and an additional $21,692 because of the willful nature of the violations.

But the agency didn’t stop there.

Click here for entire article. 

Employees jumping ship, but many want to climb back on board

by Tim Gould

Employees may be leaving jobs at historically high rates, but there’s a silver lining: A big bunch of them come back to their old employers.  

That’s the word from a new survey from national staffing company Spherion. About 1,000 full- and part-time workers took part in the research, and nearly one in three (29%) said they’ve returned to a previous employer after leaving for some time. An additional 41% said they were open to being a similar “boomerang” employee.

Why are so many workers open to the idea of returning to a company they once left? Salary was the biggest motivator, but the “the feeling of being wanted” came in second, the survey said.

Sixteen percent of workers said they would consider going back to a previous employer if a former manager or colleague expressed interest in having them do so.  An equal number indicated that they never wanted to leave their previous company in the first place, with non-work factors necessitating the move.

And it doesn’t look like the former employers need to make the initial overture. More than half (55%) of workers said it is their responsibility to initiate conversation about making a return, versus only 28% who believe a previous colleague should reach out to them.

The flip side: More than one in three (35%) workers would not consider going back, feeling that such a move would either be a step back in their career (27%) or the company culture was not the right fit the first time (19%).

Click here for entire article. 

Tip Tuesday! OSHA increases fine 400% for failing to report employee injuries

by Christian Schappel

Heads up: OSHA has cranked up the fine for failing to report workplace injuries in the time required.

OSHA just issued a new guidance memorandum — Revised Interim Enforcement Procedures for Reporting Requirements under 29 C.F.R. 1904.39 — to its inspectors. But there’s a clear warning in it for employers as well: Follow OSHA’s reporting requirements or pay dearly.

The memorandum raises the maximum penalty for not reporting fatalities, hospitalizations, amputations and eye losses from $1,000 to $5,000 — that’s a 400% jump.

It does not, however, change an area director’s authority to raise the penalty to as much as $7,000 if he or she determines the higher fine is necessary to create a “deterrent effect.”

What’s required?

Under OSHA’s new reporting rules, which took effect in 2015, here’s what employers are required to:

• Report the death of an employee as a result of a work-related incident within eight hours. This applies to fatalities that occur within 30 days of the work-related incident.
• Report all work-related in-patient hospitalizations of at least one employee within 24 hours.
• Report all work-related amputations within 24 hours.
• Report all work-related losses of an eye.

Click here for entire article. 

6 ways to break free from worry

Try these tips to stay calm and present

We all worry from time to time. And sometimes it can serve a purpose. It can inspire us to take action or solve a problem. 

But here's what's not healthy: Your mind in a constant tangle of troubling what-ifs and worst-case scenarios. If you tend to do this, you can make yourself miserable — raising your anxiety, draining your energy and disrupting your life. 

Learning to let go 

Now consider this: Worrying all the time is a habit. That means it can be changed. You can train your brain to stay calm and look at things more positively.

Give these tips to try — to find what helps you let go of worry: 

1. Practice mindfulness. When worries arise, bring your attention back to the present moment. It's not an easy skill. But it does get easier with practice.

2. Create a "worry zone." Set a daily time and place — well before bedtime — where you can think about your concerns. When you find yourself fretting during the day, try to save those thoughts for your "worry zone." Like mindfulness, setting worries aside takes practice. And it can help you stay in the present moment. 

3. Ask yourself: Does this problem have a solution? Write down what you're worried about. Then make a list of possible answers. Focus on the things you can change. What's a first step you might take? When you make a plan, it can help you feel less stressed

Click here for entire article. 

Lost in the shuffle: 2 lesser-known ACA changes HR needs to know

by Jared Bilski

In just the past year, we’ve seen wholesale Obamacare changes, like the delay of the employer mandate and the Cadillac Tax, as well as the death of the automatic enrollment provision. But there have also been a number of minor tweaks that weren’t as highly publicized.

Just because these ACA changes aren’t receiving the fanfare of the major reg overhauls, it doesn’t mean HR pros don’t need to know about them.

Inflation adjustments

Here are two minor health reform changes:
Inflation adjustments for the affordability safe harbor percentages. Under the ACA, the threshold for determining whether a health plan is “affordable” to an employees is “9.5% of household income.” In other words, the cost of coverage cannot exceed this amount. But the law provides for inflation adjustments of this percentage.

So for plan years beginning in 2016, the 9.5% of household income threshold has been adjusted for inflation and become 9.66%.

Click here for entire article. 

When ADA and FLSA collide: Can overtime be an ‘essential job function’?

by Jared Bilski

When a job requires employees to log more than 40 hours per week on a regular basis, is it safe to say overtime is an “essential job function” of that position and deny an accommodation request that attempts to skirt the OT? 

That question was at the heart of Agee v. Mercedes-Benz. The plaintiff, Kimberly Agee, had a disability — breast cancer — that required a lifting restriction saying she wasn’t allowed to lift anything over 15 pounds. The company accommodated her lifting restriction by transferring her to work stations where she wouldn’t have to lift anything over 15 pounds.

Then, Agee became pregnant and presented the company with a doctor’s note from her OB-GYN stating that she couldn’t work more than 40 hours per week “due to her medical limitations.”

When the company asked for additional information about the scheduling restriction, she returned with another note that reiterated the need for the 40-hour limit and lifting restrictions because of the pregnancy and her medical issues. However, this note also made it known that the hour-restriction was “seemingly indefinite.”

And here’s where things got interesting. Once company learned about the indefinite nature of the accommodation, it let Agee know it couldn’t accommodate a permanent 40-hour workweek restriction because working mandatory overtime was an essential function of the job. Instead, it told Agee she was being placed on unpaid FMLA leave and that she need to get the doctor to lift the restrictions or it would eventually terminate her.

Click here for entire article. 

Tip Tuesday! Warning: Managers & HR pros can be personally liable for FMLA violations

by Christian Schappel

Courts have ruled that managers and supervisors can be held personally liable for FLSA violations. And now, in a new twist, courts are saying you can be individually liable for FMLA violations as well. Here’s why and when. 

In a nutshell, the FMLA says that an employer can be:

“… any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer …

And employers can be held liable for FMLA violations — even if those “employers” are individuals within a company.

So how do you determine who qualifies as an employer under the law? Courts have recently ruled that the FMLA’s definition of employer closely tracks the definition of employer under the FLSA and, therefore, have reasoned that the standards used to evaluate employers under the FLSA should be applied to FMLA cases as well.

In other words, courts can look at the “economic reality” of a situation to determine an individual’s level of control over an employee — and, thus, that individual’s liability under the FMLA.

Employee claims HR director is liable

Recently, the U.S. Court of Appeals for the Second Circuit used this very line of thinking to determine that Shaynan Garrioch, the director of HR for the Culinary Institute of America (CIA), could potentially be held individually liable for FMLA violations allegedly committed against Cathleen Graziadio, CIA’s payroll administrator.

Click here for entire article. 

Workers win OT case against Tyson, but who’ll get paid is an open question

by Tim Gould

The Supreme Court has broadened the way employees can file class action suits to settle wage-and-hour disputes.  

The court recently sided with 3,300 workers at an Iowa pork processing facility who claimed their employer, Tyson Foods, owed them overtime for putting on and taking off the protective equipment required by their jobs.

A lower court had awarded the workers about $6 million. The case before the Supreme Court centered around whether the workers had properly been granted class status and whether the plaintiffs could use a statistical analysis to prove they were entitled to the overtime pay.

The employees claimed they weren’t paid for donning and doffing their protective gear, which protected them from injury as they slaughtered hogs and prepared them for shipment at the Tyson facility in Storm Lake, IA..

Since Tyson didn’t keep records of the time spent donning and doffing, the employees relied on a study performed by an industrial relations expert who, according to a Wall Streeet Journal blog, set the average time spent at about 20 minutes per day.  The researchers then paired that data with workers’ time sheets.

Tyson’s lawyers argued that the analysis was faulty, given the differences between the time various employees might spend in the donning/doffing process, and the fact that the data included workers who hadn’t worked any overtime.

Click here for entire article.