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Proposed Regulations:
Yesterday, the Department of Labor published its proposed regulations (pdf) to address the recently enacted changes to military leave and eligibility requirements for flight crew members. Beyond the changes detailed below, the DOL clarified that employers are not required to provide employees with FMLA-protected military caregiver leave for the "serious injury or illness of a veteran" until final rules defining that term are issued. However, employers are required to comply with the expansion of qualifying exigency leave for foreign deployment of a family member in the regular Armed Services, in addition to the leave already available for family members of Reservists and members of the National Guard.

Highlights of the Proposed Regulations:

Qualifying Exigency Leave

• Expanded to allow qualifying exigency leave for qualifying family members of individuals who serve in the regular armed services
• Addition of a foreign deployment requirement associated with the active duty for which exigency leave is requested
• Expanded leave available (from 5 to 15 days) for qualifying family members of servicemembers on rest and recuperation leave

Military Caregiver Leave

• Expanded to allow military caregiver leave for qualifying family members of individuals who serve in the regular armed services and to recent veterans
• Definition of "serious injury or illness"
  • Expanded to include conditions that existed before the servicemember joined the military or served active duty but were aggravated in the line of duty
  • For veterans, defined to include any of the following: (1) conditions that occurred while the veteran served and continued after the veteran's discharge; (2) physical or mental conditions for which the veteran has received a VA Service Related Disability Rating of 50% or higher; or (3) any injury or illness of similar severity as (1) or (2) that substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability, or would do so absent treatment.

Flight Crew Employees

• Hours of service eligibility criteria: Flight crew employees must meet at least 60% of the applicable monthly guarantee and must have worked or been paid for at least 504 hours (not including personal commute time or time spent on vacation, sick leave or medical leave)
• Calculation of leave taken: Includes specific calculations for leave usage with different methods for "line holders" and flight crew members on reserve status.
• "Physical impossibility": The proposed rules clarify that the physical impossibility provision is to be used only in limited circumstances where, as applied to flight crew members, there are truly no flights available to restore the employee returning from FMLA leave. In such cases, the employer may count the delay to return the employee to work due to physical impossibility against the flight crew member's FMLA entitlement. However, the DOL is considering removing the "physical impossibility" requirement from the regulations altogether if it finds that employers have applying the provision more broadly than intended.

Note that these are proposed regulations not requiring employer compliance at this time—the DOL will collect comments from the public for the next 60 days, and after those comments are collected, the DOL will issue final rules that employers will be required to follow.

FMLA Model Forms and Notices:

As we reported previously, the optional FMLA forms supplied by the DOL expired on December 31, 2011. On Monday of this week, they reissued the identical forms as published before (available here) under a new expiration date of February 28, 2015. These forms still do not include the GINA safe harbor language we recommended in our previous post, nor do they account for the 2010 changes for military exigency leave. So they remain less than ideal, but at least are no longer past their expiration date.

At the same time, in the proposed rules published yesterday, the DOL stated that it intends to remove its current model forms and notices from the regulations' Appendices entirely, and to issue a revised FMLA poster and model forms and notices to reflect the final changes to the regulations that result from their latest proposal.
 

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The Department of Labor has begun enforcing the law passed in March 2010 requiring break time for nursing mothers and has cited 15 employers for violations of the law. We wrote about this law at the time the statute went into effect. While there was little guidance about the law at that time, the Department of Labor has provided a little more direction since then. However, there are still no formal implementing rules for the requirement.

The health care reform law passed in 2010 amended the Fair Labor Standards Act requiring “reasonable” break time for employees who are nursing mothers. The general requirements are as follows:

• The employee must be a non-exempt employee under the FLSA.
• The nursing mother’s child must be 1 year old or younger.
• Breaks must be provided as frequently as needed by the nursing mother.
• The duration of the breaks “may vary” as needed but no specified time period is set forth in any Department of Labor guidance.
• A place must be provided that is “shielded from view and free from intrusion from coworkers and the public” that is not a bathroom. The space need not be designated for this purpose at all times, but it must be available when the nursing mother needs it. If the employer has no nursing mothers, the employer does not need to maintain dedicated space for nursing mothers.

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The U.S. Department of Labor Office of Federal Contracts Compliance Programs (OFCCP) has proposed a new rule requiring federal contractors and subcontractors to set a goal to have 7% of their workforce be individuals with disabilities. Presently, federal contractors and subcontractors are only required to set percentage numerical goals for areas of their workforces where women and minorities are found to be underrepresented based on an "Availability Analysis" conducted under OFCCP regulations. The 7% goal for persons with disabilities proposed by OFCCP would apply to each job group in the contractor’s workforce. It is not based on any calculation by the contractor of availability but is rather based simply on OFCCP's estimate of the percentage of the overall workforce that is disabled.

The proposed rule also imposes a requirement that contractors invite applicants to voluntarily self-identify as an individual with a disability at the hiring stage and the pre-offer stage, and to conduct an annual anonymous survey of its employee's inviting them to identify themselves as a person with a disability. The rule would also require contractors to maintain recruiting and hiring data concerning persons with disabilities.

The proposed rule also requires contractors to develop and implement written programs for handling requests for reasonable accommodation and to engage in specific types of outreach and recruitment efforts to recruit individuals with disabilities, and to make mandatory job opening listings with the nearest One Stop Career Center as is currently required for recruiting veterans.

A link to the the OFCCP's related FAQ's can be found here.

The proposed rule is open for comment until February 7, 2012.  

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We’ve noticed some cases recently filed challenging employers’ use of the fluctuating workweek method to determine the overtime compensation for employees who receive commission payments. Plaintiffs are alleging that this practice is not permitted by the Fair Labor Standards Act (FLSA) when employees earn commissions in addition to their salaries. However, this issue is unresolved, and precedent seems to favor the employer defendants.

The fluctuating workweek method is permitted by FLSA regulation 29 C.F.R. § 778.114, promulgated by the Department of Labor to implement the Supreme Court's holding in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580 (1942). This method permits employers to pay non-exempt employees pursuant to the fluctuating hours method if five criteria are met:

1. The employee's hours must fluctuate from week to week;
2. The employee must receive a fixed weekly salary that remains the same regardless of the number of hours worked per week;
3. The fixed salary must be sufficient to provide compensation at a regular rate not less than the legal minimum wage;
4. The employee must receive at least 50 percent of his regular hourly pay for all overtime hours worked; and
5. The employer and the employee must have a clear mutual understanding that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek.

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In a decision issued on April 28, 2011, the Sixth Circuit Court of Appeals offers employers some clarity on the test to determine whether using unpaid interns or other student trainees violates the Fair Labor Standards Act (FLSA). In this case, Solis, Secretary of Labor v. Laurelbrook Sanitarium and School Inc., 6th Cir. No. 09-6128, the Court threw out a U.S. Department of Labor lawsuit against a Tennessee religious school's student work experience program.

The Department of Labor brought an action against the Laurelbrook school alleging that its students were "employees" and had to be paid under the FLSA. The school operates a nursing home partially staffed by students to further the students' practical training. The Sixth Circuit affirmed the district court's finding that the school's students were not "employees." The Court noted that there is no bright-line test for determining whether a student worker is an employee for purposes of the FLSA. The Court affirmed the district court's use of the "primary benefit" test in making the determination. This test ascertains which party derives the primary benefit from the relationship. If a student receives the primary benefit of the work performed for a purported employer, and the student's presence does more harm to the purported employer's operations than good (or no good at all), the student will not be considered to be an employee under the FLSA. Factors such as whether the relationship displaces paid employees and whether there is educational value derived from the relationship are relevant considerations.

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On April 25, 2011, the Department of Labor's Office of Federal Contract Compliance Programs announced a proposed rule to increase the affirmative action obligations federal contractors and subcontractors owe to veterans. It was published in the Federal Register on April 26 to allow for a 60-day comment period and will likely generate significant discussion among both contractor and veterans groups.

Some of the changes simply clean up regulatory language which is no longer accurate and others clarify existing obligations. The most controversial changes, however, add some rather significant data collection, monitoring, recruitment and hiring obligations. As the DOL's news release summarized:

"The rule proposes requiring contractors to engage in at least three specified types of outreach and recruitment efforts each year. In addition, the proposed rule would require that all applicants be invited to self-identify as a "protected veteran" before they are offered a job. Increasing data collection on job referrals, applicants and hires, and requiring contractors to establish hiring benchmarks to assist in measuring the effectiveness of their affirmative action efforts also are proposed."

As we have previously reported, this Agency has become much more active under the Obama administration and previously indicated that this rule would be forthcoming. Unfortunately, even those businesses who are making substantial, good faith efforts to employ veterans may find the proposed recordkeeping and goal setting obligations unwieldy.

Those wanting a copy of the proposed rule can find it in the April 26, 2011 Federal Register or by going to this link. Porter Wright intends to file comments as an interested party in response to the proposed rule, so please let us know if you have any positive or negative input regarding the rule.

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In July 2007, the Fourth Circuit Court of Appeals held in Progress Energy v. Taylor, 493 F.3d 454 (4th Cir. 2007), that, under the Department of Labor’s (DOL’s) regulations and the Family and Medical Leave Act (FMLA), employees cannot waive their rights under the FMLA in a private agreement, such as a severance agreement.  To waive FMLA rights, the Fourth Circuit held that the agreement must first be court- or DOL-approved.  Progress Energy, supported by several other business groups, appealed the decision to the U.S. Supreme Court, citing a split between the Fourth and Fifth Circuits.  On January 14, 2008, the Supreme Court asked the DOL to submit its view on the issue.  This type of request is often a signal that the Supreme Court will review the decision. 

The background of the case is relatively simple.  Taylor, the employee, was terminated by Progress Energy as part of a reduction in force in which past performance evaluations were used to determine which employees to terminate.  Taylor received poor performance evaluations after several health-related absences that Progress Energy determined were not FMLA protected.  Although Taylor tried to have the evaluations changed, she was unsuccessful.  Upon her termination, Taylor and Progress Energy entered into a severance agreement where Taylor received $12,000 in exchange for waiving all rights to litigate.  The agreement did not specifically mention Taylor’s rights under FMLA, but it referenced rights under “other federal laws.”

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