Tag Archives: DOL

Home Health Care Rule and FLSA

Starting January 1, 2015 home care aides are not exempt from Wage and Overtime laws.  The Department of Labor released a press release discussing this wage and hour change as well as unveiling a new web portal with interactive tools.  The web portal for Home Care can be accessed here.

In the DOL’s press release, DOL stated,

This change will result in nearly two million direct care workers – such as home health aides, personal care aides and certified nursing assistants – receiving the same basic protections already provided to most U.S. workers.

The DOL also explained that this wage and hour new rule did not apply to companionship workers.  The DOL stated,

The final rule also clarifies that direct care workers who perform medically-related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime.

And, in accordance with Congress’ initial intent, individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection (providing company, visiting or engaging in hobbies) and care incidental to those activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.

The final rule can be accessed here.

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DOL clarifies expansion of FMLA due to ADAAA

The DOL published Administrator’s Interpretation No. 2013-1, which clarifies the expansion of FMLA.  The DOL explained that the ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims, but also expanded the scope of FMLA coverage for children.

The DOL clarified the following.

  • The DOL adopted the ADA’s definition of disability to define “mental or physical disability” for purposes of defining a son or daughter 18 years or older.  See 58 Fed. Reg. 31794, 31799 (June 4, 1993).  The 2008 FMLA Final Rule explicitly adopts the ADAAA’s changes to the ADA’s definition of disability;
  • The definition of a “son or daughter” is defined by the definition of a disability under the ADAAA, which “shall be construed in favor of broad coverage;”
  • The determination of whether an adult son or daughter is incapable of self-care under the FMLA focuses on whether the individual currently needs active assistance or supervision in performing three or more activities of daily living (or ADLs) including “grooming, hygiene, bathing, dressing and eating;” or instrumental activities of daily living (or IADLs) including “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, and using a post-office, etc.;”
  • A serious health condition is an illness, injury impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider; and
  • For a parent to take FMLA leave to care for an adult son or daughter, the parent must be “needed to care” for that son or daughter due to the serious health condition.

In the Administrative opinion, the DOL provides examples.

via Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children | Orrick – Global Employment Law Group – JDSupra.

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Misclassification of workers and the DOL’s take on it

Labor Employment Perspectives reports on a possible change that the Department of Labor (“DOL”) regarding classification of workers.

DOL suggests that it may push forward changes to the record keeping requirements under the Fair Labor Standards Act (“FLSA”) regulations.  These changes will bring to the forefront issues relating to the misclassification of workers as independent workers when they are, in fact, employees.

On January 11, 2013, the DOL requested comments on a public survey designed to look at worker classification and determine the workers’ knowledge and understanding of employment laws and rules regarding basic laws and misclassification.

The DOL states,

The purpose of this study is to design and administer a new survey to collect information about employment experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification…..

The data collection effort with this group will gather information about workers’ employment and pay arrangements and will measure workers’ knowledge about their current job classification, and their knowledge about the rights and benefits associated with their job status.

As a backdrop, in 2010, DOL commissioned a study, which found that 10% to 30% of audited firms for state unemployment insurance had one or more of its employees misclassified as independent contractors.  In the fall of 2010, the DOL proposed a change to the regulations regarding record keeping designed to “enhance the transparency and disclosure to workers of their status as the employer’s employee or some other status, such as an independent contractor…”

In other words, the regulations, if passed as suggested in 2010, would require employers to inform workers of whether they are (1) employees, (2) independent contractors, or (3) other status.  Currently, the law does not require this.

Given their renewed interest, as evidenced by the public survey focused on worker classification, FMLA regulations may change.

 

via Right-to-Know Regulations May Move Back to the Forefront; Time to Check If You Have Misclassified Your Workers! | Labor & Employment Law Perspectives.

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FMLA and Adult Children?

On January 14, 2013, The Department of Labor issued a new interpretation that clarifies its position on the ability of employees to take leave under the FMLA to care for an adult child who has a disabling medical condition.  You can read the DOL’s guidance for adult children here.

The FMLA allows employees to take leave to care for a son or daughter with a serious health condition.  However, the scope of allowable leave narrows once an employee’s son or daughter reaches 18 years old.  At that point, a parent is entitled to take FMLA leave when all four of the following occur:

(1) the adult child has a disability as defined by the ADA;

(2) the child is incapable of self-care due to that disability;

(3) the child has a serious health condition; and

(4) the child is in need of care due to the serious health condition.

Prior to this interpretation, there was some question as to whether the adult child’s disability must have developed before the child reached 18 years of age for the parent to be eligible for FMLA leave.  The Department of Labor has now clarified that the age of onset of the disability is immaterial so long as the child at issue has a disability under the ADA.

This interpretation reflects the impact of the ADAAA’s expansion of the definition of “disability” on the FMLA and will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities.

via New Department of Labor Interpretation on FMLA Leave for Adult Children | Baker, Donelson, Bearman, Caldwell & Berkowitz, PC – JDSupra.

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DOL Releases New Family and Medical Leave Guide

The U.S. Department of Labor released a new Employee Guide to the Family and Medical Leave Act on June 27, 2012. The new guide, available online and in print, includes easy-to-follow and informative charts that map out the FMLA leave process and a summary of how coverage and eligibility are determined.

View the Slideshow

Listen to the Archived Webinar

Download the FMLA Guide

via Adjunct Law Prof Blog: US DOL Releases New Family and Medical Leave Guide.

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Wal-Mart Settles with DOL in FLSA Investigation to the tune of $4.8 Million

It’s my favorite foil for employment classes for a reason. According to the DOL, Wal-Mart has agreed to pay more than $ 4.8 million in back wages and damages to 4500 workers improperly classified as exempt from the FLSA’s overtime provisions. The superstore will also pay about $450,000 in civil fines. From the press release,

The violations affected current and former vision center managers and asset protection coordinators at Wal-Mart Discount Stores, Wal-Mart Supercenters, Neighborhood Markets and Sam’s Club warehouses. Wal-Mart failed to compensate these employees with overtime pay, considering them to be exempt from the FLSA’s overtime requirements. The Labor Department’s investigation found that the employees are nonexempt and consequently due overtime pay for any hours worked beyond 40 in a week.

“Misclassification of employees as exempt from FLSA coverage is a costly problem with adverse consequences for employees and corporations,” said Secretary of Labor Hilda L. Solis. “Let this be a signal to other companies that when violations are found, the Labor Department will take appropriate action to ensure that workers receive the wages they have earned.”

Under the terms of the settlement, Wal-Mart has agreed to pay all back wages the department determined are owed for the violations in addition to paying liquidated damages to the employees and a penalty to the department. The civil money penalties assessed stem from the repeat nature of the violations. Wal-Mart, which operates more than 3,900 establishments in the United States, corrected its classification practices for these workers in 2007, and negotiation over the back pay issues has been ongoing since that time. A third-party administrator will disburse the payments to the affected employees.

“Our department has been working with Wal-Mart for a long time to reach this agreement,” said Nancy J. Leppink, deputy administrator of the Wage and Hour Division. “I am very pleased that staff in our Southwest region persevered, ensured these employees will be paid the back wages they are owed and brought this case to conclusion. Thanks to this resolution, thousands of employees will see money put back into their pockets that should have been there all along. The damages and penalties assessed in this case should put other employers on notice that they cannot avoid their obligations to their employees by inappropriately classifying their workers as exempt.”

via Workplace Prof Blog: Wal-Mart Settles with DOL in FLSA Investigation to the tune of $4.8 Million.

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