HR Watchdog

Important Update for Some 2009 Products!!

The U.S. Department of Labor published the final version of the new Family and Medical Leave (FMLA) regulations on November 17. In order to provide you with the most accurate information possible, we are currently updating all products to include these regulations and how they affect your business. Because of these late-breaking changes, we will not be shipping product on December 5 but do anticipate shipping before January 1, 2009.

The regulations, which go into effect January 16, 2009, cover:
•    New poster and notice requirements
•    Eligibility for leave if the employee has a break in service with the employer
•    When bonus payments may be denied to an employee on FMLA
•    Increase in penalties for failure to post the FMLA notice
•    Requirement that employers indicate how much time will be used as FMLA (if known)
•    Retroactive application of leave.

See previous blogs on FMLA updates for 2009.

The CalChamber's Required Notices Kit, 2009 Labor Law Digest, 2009 Labor Law Administration, 2009 HR Handbook and 2009 Employee Handbook Software for California Employers will reflect the changes to FMLA.

Holidays and Sexual Harassment

Halloween can be a time when employees push the limits of appropriate costume wear in the workplace.

Listen to my conversation with KION radio personalities Mark and Jim about what employers should be mindful of if their workers want to play dress up anytime throughout the year, not just on October 31.

Final Version of New FMLA Regs Published

On November 17, 2008, the U.S. Department of Labor published the final version of the new Family and Medical Leave (FMLA) regulations. The regulations become effective on January 16, 2009 - 60 days after they are published in the Federal Register.

The new regulations cover FMLA leave related to military service, including a definition of "exigency" and when employees may take FMLA for such reasons.

Other changes include:

• Increases the penalty if employer fails to post the required FMLA poster – An employer that willfully violates the posting requirement may be assessed a civil money penalty by the Wage and Hour Division not to exceed $110 for each separate offense (it was previously $100);
• Lists specific events that would be a “qualifying exigency” at section 825.126. CalChamber members and purchasers of Labor Law Digest and Labor Law Administration can access a chart that defines qualifying exigency in detail.
• Clarifies Joint employment and PEOs. A “Professional Employer Organization” (PEO) is a type of company that contracts with client employers to perform administrative functions such as payroll, benefits, regulatory paperwork, and updating employment policies;
• Defines eligibility for employees with a break in service;
• Clarifies “serious health condition”;
• Clarifies when holidays are considered FMLA leave;
• Explains when an employer can transfer an employee needing intermittent or reduced leave to another position to better accommodate the leave;
• Adds an exception for physical impossibility-where the employee needs less than a full day for FMLA reasons, but it is impossible for them to return to work (flight attendant, train engineer) the entire shift missed is FMLA;
• Clarifies that unpaid FMLA and paid leave provided by the employer run concurrently;
• Explains that substitution of paid leave does not apply when the employee is receiving paid disability leave (for any reason).  However, the employer and employee may agree to use paid leave to supplement the paid disability leave;
• The employer may terminate an employee’s health insurance coverage while the employee is on FMLA leave if the employee fails to pay the employee’s share of the premiums, the grace period has expired, and the employer provides sufficient and timely notice to the employee;
• Bonuses paid for achievement of a specific goal may be denied to employees on FMLA unless employees on other types of leave receive the bonus;
• Employees and employers may agree to settle past claims for FMLA violations;
• Time spent in a light duty assignment does not count as FMLA, but the right to reinstatement ends when the 12-month period used to calculate FMLA ends;
• Requires that employers notify unqualified employee who requests FMLA why he/she is not eligible for FMLA;
• States employers’ responsibility for designating leave as FMLA, and that only one notice is required for each FMLA-qualifying reason per applicable 12-month period;
• Requires notice of fitness for duty certification at the time of designation of leave;
• Employer must notify the employee of the amount of FMLA leave that will be counted against the employee’s entitlement (if known);
• FMLA leave may be designated as such retroactively if the employer’s failure to timely designate leave does not cause harm or injury to the employee;
• Where it is feasible that the employee could give 30 days advance notice of the need for leave and does not do so, the employer may require that the employee explain why the notice was not given;
• Gives employees 7 calendar days to provide clarification or additional information where the medical certification is deemed inadequate by the employer;
• Employees bear responsibility for providing the employer with  required certification of need for FMLA;
• Employers may require annual certification for conditions lasting beyond a single leave year;
• New forms for certification of employee’s own serious illness/injury and for employee’s family member – note, these forms cannot be used in California because of California’s privacy laws, use the forms available to members and purchasers of Labor Law Digest and Labor Law Administration.

Read the entire text of the regulations.

The CalChamber's Required Notices Kit, 2009 Labor Law Digest, 2009 Labor Law Administration, and 2009 Employee Handbook Software for California Employers will reflect the changes to FMLA.

Time off for the Holidays - what is your company doing?

Thanksgiving is on its usual Thursday this year, but Christmas Eve and New Year's Eve are on Wednesday's this year. Are you giving employees Christmas Day off, if so, how about the day after, which is a Friday. And the same for New Year's. And, are you planning on giving employees the day off with pay or without?

Remember, if exempt employees work at all in a workweek, they must be paid for the entire week. Further, if you require employees to take a vacation or PTO day, the DLSE strongly advises giving employees at least 90 days notice of this requirement.

What are employers doing?