June 18, 2010 4:15 pm
The United States Department of Labor published its final rule updating regulations concerning employment of minors, effective July 19, 2010. The new regulations are designed to more accurately reflect the modern workplace.
- The new regulations add industries in which minors ages 14 and 15 are permitted to work, including advertising, banking and information technology. For minors ages 16 and 17, jobs which involve the operation of power-driven pizza-dough rollers and portable food mixers, under certain conditions are now judged to be safe for youth.
- Conversely, the new regulations also add to the list of prohibited industries due to their hazardous nature, notably work at poultry slaughtering and packing plants, forest-fighting, and the operation of certain equipment, including balers and compacters, chain saws and similar equipment. Door-to-door sales, unless done on a volunteer basis for charity, is also prohibited.
- The new rule establishes a work-study program for students ages 14 and 15 enrolled in college preparatory curricula, and allows them to work during school hours. The old regulations were similar but focused on keeping the drop-out rate among youth low and motivate them for education and the working world.
The federal fact sheet can be found at http://www.dol.gov/whd/cl/whdfsCLFR.htm.
June 02, 2010 10:26 am
Once again, the FTC has delayed the implementation of the Red Flags Rule. The delay is again attributed to additional government consideration of the types of entities covered under the rule. The AMA has just filed a lawsuit to prevent the FTC from applying the rule to physicians.
Late last year, a federal court ruled that law firms were exempt from this rule. Legislation exempting lawyers, accountants and physicians are under current consideration. H.R. 3763, which would exempt healthcare, accounting and law practices with less than twenty (20) employees, was passed by the House of Representatives in October 2009. Senate bill S. 3416, virtually the same bill, is currently under consideration.
If the issues can be resolved, the Red Flags Rule will take effect December 1, 2010.
May 27, 2010 11:48 am
On May 20, 2010, the Department of Labor Office of Labor Management Standards (“OLMS”) issued a final regulation implementing Executive Order 13496, which requires only federal contractors and subcontractors to post a notice in a conspicuous location informing employees of their collective bargaining rights under the National Labor Relations Act (NLRA). The notice must be posted by June 21, 2010, and cannot be altered; this means that it must be printed in its actual size, on 11×17 paper.
The notice must be posted by federal contractors who have contracts over $100,000. Subcontractors with federal subcontracts less than $10,000 are exempt from the requirements of the Executive Order.
If a federal contractor customarily uses the web to communicate with its employees, they must supply an electronic as well as a hardcopy version, or at least a link to the actual notice. Federal contractors must also provide notices in the languages spoken by employees, and can request them directly from the OLMS.
Federal Contractors and/or subcontractors who fail to comply with the posting requirements of Executive Order 13496 could have their federal contracts or subcontractors suspended or terminated as a result, and could be ineligible for future contracts.
For more information, see http://www.dol.gov/olms/regs/compliance/EO13496.htm.
May 26, 2010 10:05 am
After several delays, the Red Flags Rule is scheduled to take effect on June 1, 2010. This rule, enforced by the Federal Trade Commission (FTC), requires businesses and organizations to develop and implement a written Identity Theft Prevention Program designed to detect signs, or “red flags” of identity theft in their daily operations, take steps to prevent it and mitigate the danger caused by it.
The Red Flags Rule applies to “financial institutions” and “creditors” who have “covered accounts.” Financial institutions include banks, credit unions, or any other entity that holds a transaction account belonging to a customer, whether directly or indirectly, and that offers accounts where the customer can make payments or transfers to third parties.
Creditors include businesses or organizations that regularly defer payment for goods or services, or who provide goods and services and bill customers later. Creditors are also entities who regularly offer, arrange for or extend credit to customers. Utility companies, health care providers, telecommunications companies, finance companies, mortgage brokers and real estate agencies, automobile dealers and retailers that offer financing or help consumers get financing from others fall into this category.
NOTE: Simply accepting credit cards as a form of payment does not designate you a creditor under the Red Flags Rule.
Covered accounts are those that are offered primarily for personal, family or household uses that permit multiple payments or transactions, or an account for which there is a reasonable risk of identity theft. Examples are credit card accounts, loans, utility accounts, bank accounts and small business accounts.
An Identity Theft Program must include four (4) basic elements:
1. Reasonable policies and procedures to identify the “red flags” that companies may run across in the daily operation of business, suspicious patterns, practices, or specific activities that indicate the possibility of identity theft.
2. The program must be designed to detect the red flags described in the policies. For example, if you have identified fake driver’s licenses as a red flag, then you must have procedures in place to detect them.
3. The program must spell out the appropriate actions to take when red flags are detected.
4. Employers must address the methods by which they will re-evaluate their procedures periodically to ensure they are relevant at all times.
Employers will also need to designate the person from the organization who will be responsible for implementing and administering the plan effectively, and offer appropriate staff training. Employers must also address how to monitor contractors’ compliance. Finally, the head of the company must approve the plan, whether it be the Board of Directors or an appropriate senior employee in the organization.
For more information, please see the FTC’s pamphlet, Fighting Fraud with the Red Flags Rule: A How-To Guide For Business.
May 25, 2010 2:28 pm
The New York Court of Appeals has eliminated an affirmative defense for New York City employers who are sued for claims of sexual harassment by a supervisor under the New York City Human Rights Law (“NYCHRL”). The Court held that the vicarious liability defense under Faragher-Ellsworth is inconsistent with the plain language of the NYCHRL, which applies strict liability against employers for the actions of managers and supervisors. The court ruled, therefore, that the employer was vicariously liable even though they “exercised reasonable care” to correct the alleged behavior and prevent it from happening in the future, and even though the employee did not take advantage of the corrective opportunities offered by the employer.
Because employees will receive more favorable treatment under the city statute than at either the state or federal level, New York City employers should prepare for an increase in lawsuits filed under the NYCHRL. The court did confirm that an employer’s anti-discrimination and harassment policies and procedures may mitigate penalties and/or damages. It is more important than ever that all employers proactively develop and maintain procedures, educate their employees with specialized and continued training, and promptly investigate any and all complaints that come to light.
For more information, see Zakrzewska v. The New School, 2010 N.Y. LEXIS 632 (N.Y. May 6, 2010).
April 28, 2010 5:38 pm
Late last week, Ohio Senator Sherrod Brown introduced the Employee Misclassification Protection Act (EMPA), which would prevent and penalize workers from misclassifying workers as independent contractors, and provide those workers with the protections and benefits they would have earned. The legislation would amend the Fair Labor Standards Act and the Social Security Act.
Employers would be required to provide written notice to those employees they have identified as independent contractors, which includes 1) their classification; 2) the Department of Labor (DOL)’s website established for providing additional information about employees’ rights; 3) address and telephone of their local DOL office; and 4) any additional information as required.
The EMPA would ensure that employers keep accurate records classifying each worker accordingly, and would increase penalties for noncompliance. It would also provide protections to workers who are discriminated against because they have asked to be accurately classified. For any infraction, employers could be fined up to $1,100 per day per employee, up to $5,000 per employee per day for repeated violations, and liquidated damages.
Lastly, the EMPA would enhance state and federal efforts to combat misclassification by mandating DOL-monitored state audits, increasing state penalties, providing a mechanism for the DOL and Internal Revenue Service to refer incidents between each other, and directing the DOL to perform audits on “frequent offender” industries.
In addition to the federal proposed legislation, many states, including New York, New Jersey, Connecticut, Nebraska and Ohio are strengthening state legislation on their own.
April 28, 2010 11:34 am
The New York State Department of Labor has substantially revised its New York State Worker Adjustment and Retraining Notification Act (NYS WARN) regulations. The state statute, which took effect February 1, 2009, is more stringent than the federal law in that ninety (90) days’ written notice of a mass layoff, plant closing, covered reduction in work hours and/or relocation is required. The federal statute requires only sixty (60) days’ notice.
Notice must be given to all employees, regardless of whether they are represented by a union, as well as their representatives, local workforce reinvestment boards and the Commissioner of Labor. This is another departure from the federal statute which does not require such notification to be sent to individual employees who are represented or the other entities. The notice must contain certain information, such as:
- The expected date of the first separation;
- The date an individual employee will be separated;
- A statement as to whether the separation will be permanent or temporary; and
- Whether bumping rights exist.
Employer attestations are also required.
The notice to the Commissioner of Labor must include the same information, as well as the location where the separations will occur.
Failure to provide the required notification could result in fines of up to $500 per day for each day of the violation.
Please click here for a copy of the revised New York statute.
The state of Ohio is also contemplating a bill that provides at least 90 days’ notice to employees of a reduction in force, including mass layoffs, plant closings or relocation that results in the loss of twenty five (25) employees or more. If the layoff would affect 250 employees, then 120 days’ notice would be required.
April 28, 2010 11:32 am
The Court of Appeals for the Second Circuit (which covers the states of New York, Connecticut and Vermont) recently ruled that an employee who is otherwise protected under the Americans with Disabilities Act (ADA) would not be shielded if chronically absent from a job for which attendance is an essential job function.
The Court ruled against the plaintiff, a power plant boiler utility operator and an alcoholic, saying that attendance was particularly important due to safety concerns; the presence of an employee in that position was required in order to monitor the boiler and prevent a power outage or an explosion.
The ADA specifically permits employers to hold employees afflicted with alcoholism to the same performance standards as non-alcoholic employees, even if the alcoholism causes the unsatisfactory performance. The employee could not prove that he was fired because he took FMLA leave, but the defendant Company showed that he repeatedly violated the Company’s “no call no show” policy.
See Vandenbroek v. PSEG Power CT LLC, No. 09-1109-cv (2nd Cir. 12-11-2009)
April 22, 2010 3:31 pm
Congress has extended the COBRA subsidy again, so that it applies to individuals who are involuntarily terminated on or before May 31, 2010. The extension gives Congress additional time to consider and approve a measure extending the subsidy through the end of 2010.
April 20, 2010 5:56 pm
According to a new interpretation of New York Labor Law 193 by the New York Department of Labor, employers are no longer allowed to make certain deductions from an employee’s paycheck, including but not limited to deductions for salary overpayments, salary or benefit advances or tuition. This is true even if the employee has approved the deduction and the deduction does not exceed 10% of the employee’s pay. An employer can ask the employee to pay back the money separately, but cannot take an adverse action against the employee if he or she does not. This is a major reversal of the NY DOL’s position under New York Labor Law 193, which governs paycheck deductions.