All posts by stu

Department of Labor, FMLA, Leave of Absence, Record Keeping

What if a Company does not properly designate an FMLA absence?

For many reasons, a company (with at least 50 employees) may forget, or simply neglect to provide an eligible employee with the proper FMLA paperwork before or during their leave of absence.  If this happens, does the employer need to offer the affected employee with a new 12 weeks of FMLA leave, re-sent the original notices but late, or can the employer retroactively designate an absence as FMLA leave?

Good news, the Department of Labor regulations provide some direction to those employers in the text of the regulations (29 CFR Section 825.301(d) and (e)).  If an employer does not timely designate FMLA leave, the employer may retroactively designate the absence as FMLA leave if the employer provides appropriate notice to the employee and the retroactive designation does not cause harm or injury to the employee.

For example, if an employer that was put on notice that an employee needed FMLA leave
failed to designate the leave properly, but the employee’s own serious health condition
prevented him or her from returning to work during that time period regardless of the
designation, an employee may not be able to show that the employee suffered harm as
a result of the employer’s actions. However, if an employee took leave to provide care
for a son or daughter with a serious health condition believing it would not count toward
his or her FMLA entitlement, and the employee planned to later use that FMLA leave to
provide care for a spouse who would need assistance when recovering from surgery
planned for a later date, the employee may be able to show that harm has occurred as
a result of the employer’s failure to designate properly. The employee might establish
this by showing that he or she would have arranged for an alternative caregiver for the
seriously ill son or daughter if the leave had been designated timely.  Review the regulation section. 

If an employer fails to timely designate FMLA leave and that failure causes the employee to suffer harm, the employer may be liable for damages or be required to take other remedial actions.  In those cases, the employer may be required to provide an additional 12 weeks of leave, reactivate health benefits, etc… based on the circumstances. Make sure that your company also has the most recent FMLA poster in the workplace and a written Family and Medical Leave policy in its employee handbook (signed by employees).

Consultstu LLC provides fractional HR services to small/mid businesses that lower operational costs, improve business processes and maintain compliance. We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Department of Labor, Exempt Employee, Overtime, Salaried employees

Obama Overtime Rule is Invalidated

On August 31, a federal judge hearing the case challenging the validity of the Obama Administration’s controversial new overtime regulation ruled that the key provisions were unlawful.  The regulations, developed in 2016, had nearly doubled the salary level required to qualify a worker for an exemption from overtime (the Fair Labor Standards Act’s “white collar” executive, administrative and professional (“EAP”) exemptions, changed from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). The case was pending since November 2016, when the judge ihad blocked the enforcement of the regulations from taking effect on December 1, 2016.

The judge ruled that workers, who were clearly intended to meet the overtime exemption regulations, would have lost their exemption, and thereby making the “duties” portion of the salary test irrelevant. In addition, the judge found that automatically increasing the salary level every three (3) years was unlawful. Although the salary test in the Final Rule was invalidated (due to high level), his ruling did not prevent a rule going forward that adjusts the salary level higher than the current level. In fact, the judge noted that the Department of Labor could have adjusted the salary figure for inflation (the last salary adjustment was in 2004) without an issue because the salary figure would still be operating as it had in the past – more as a floor.  The Trump Administration’s Secretary of Labor Alexander Acosta has already stated that a more reasonable salary level would be around $33,000.

Bottom line – employers should continue to use the current “white collar” exemption test which is $455 per week, when determining if an employee is exempt from overtime pay under the Fair Labor Standards Act.

Consultstu LLC provides fractional HR services to small/mid businesses that lower operational costs, improve business processes and maintain compliance. We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Construction, OSHA, Safety

What companies will be required to report OSHA 300A injury data?

Get ready, the new OSHA online reporting of injuries and illnesses will be phased in over the next two years.  Currently, OSHA plans to launch its reporting web page on or before December 1, 2017.   If you are trying to determine if your company will need to register and report your employee injury data, review the following information.  Reporting will involve the company’s year end summary data contained in the OSHA 300A form.

What companies are required to report their annual OSHA 300A injury summary data?

  1. Large companies (250 or more employees) in industries covered by the recordkeeping regulation should be planning to submit information from their 2016 Form 300A when the OSHA site is launched.   Large employers will be required to submit some or all information from all 2017 forms (300A, 300, and 301) by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted in March.
  2. Small and mid sized companies (20-249 employees) in certain high-risk industries must submit information from their 2016 Form 300A as described above.  High-risk industries include companies in agriculture, manufacturing, construction, grocery stores, trucking, warehousing and hospitals.  Click here for the entire list of NAICS codes.
  3. Low-risk industries, such as physician and dentist offices, many retail stores, accounting firms and others are not required to submit their data, check the entire list here.
  4. Under the current rule, companies with less than twenty (20) employees are not required to report.

Follow our blog for future updates.

Consultstu LLC provides fractional HR services to small/mid businesses that lower operational costs, improve business processes and maintain compliance. We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Construction, OSHA, Record Keeping

OSHA Delays Electronic Records Reporting until December 1, 2017

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published a rule entitled “Improve Tracking of Workplace Injuries and Illnesses” with an effective date of January 1, 2017, for the final rule’s electronic reporting requirements (81 FR 29624). Under these requirements, certain employers who were required to complete Form 300A in 2016 must submit the information on the form to OSHA electronically by July 1, 2017.  However, the OSHA website was not ready to receive this data.

The Department proposed to delay the initial deadline for electronic submission of 2016 300A data from July 1, 2017, to December 1, 2017.

OSHA currently expects to launch the data collection system by August 1, and the proposed due date of December 1 will allow OSHA to provide employers the same four-month window to electronically submit their 2016 Form 300A data. This delay will also to provide the new administration the opportunity to review the new electronic reporting requirements prior to their implementation and allow affected entities sufficient time to familiarize themselves with the electronic reporting system, which will not be available until August 1.

Follow our blog posts for the latest news from OSHA.

Department of Labor, Employee benefits, ERISA, Form 5500, Record Keeping

Did you miss it? July 31 deadline for filing Form 5500 (calendar year plans)

The Department of Labor deadline for filing Form 5500 (Annual Return/Report of Employee Benefit Plan) is the last day of the month following the seventh month after the plan year ends. So, if your company’s group health plans end on December 31st, your due date is July 31, 2017.  Did you remember?

Group health plans: A company with group health plans (fully insured and self-insured) that cover 100 or more participants are required to file Form 5500. If fewer than 100 participants at the beginning of the plan year, the company is exempt from filing.  The filing of Form 5500 (and schedules) must be done electronically with the DOL through the ERISA Filing Acceptance System (EFAST2) or EFAST2-approved vendor software. Plan administrators are required to keep a copy on file and make a paper copy available to any participant, beneficiary or the DOL upon request. Read more.

Pension and Welfare Plans: All pension benefit plans and welfare benefit plans covered by ERISA must file a Form 5500 or Form 5500-SF for a plan year unless they are eligible for a filing exemption.  The forms report the plan’s financial condition, investments, and operations.  The Form 5500-SF, Short Form Annual Return/Report of Small Employee Benefit Plan, is a simplified annual reporting form for use by certain small pension and welfare benefit plans.  Read more.

Search here for Form 5500 and 5500-SF filings received by DOL’s EFAST2 system.

Consultstu LLC provides fractional HR services to small/mid businesses that lower operational costs, improve business processes and maintain compliance. We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

I9 Form, Immigration, New Hire, Record Keeping, USCIS

New revised I9 Form now available

On July 17, 2017, USCIS released a revised version of Form I-9, (or fillable pdf version) Employment Eligibility Verification, on July 17. Instructions for how to download Form I-9 are available on the Form I-9 page. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through September 17. On and after September 18, employers must use this revised I9 form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9. See the USCIS News release.

What was revised on the Form I-9 instructions:

  • Changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • Removed “the end of” from the phrase “the first day of employment.”

Revisions to the List of Acceptable Documents on Form I-9:

  • Added the Consular Report of Birth Abroad (Form FS-240) to List C and to the drop down menu on the fillable form.  E-Verify users will also be able to select Form FS-240 when creating a new case.
  • Combined all the certifications of the report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • Renumbered all List C documents except the Social Security card.  For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

In addition, the USCIS included these changes in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also easier for users to navigate.

Consultstu LLC provides fractional HR services to small/mid businesses that lower operational costs, improve business processes and maintain compliance. We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Injury Statistics, Workers Compensation

Florida Discontinues Workers Compensation Claims Database

During the 2017 Legislative Session, HB 1107, a bill relating to public records, created 440.1851, Florida Statutes (F.S.). This statute provides an exemption from public records requirements for personal identifying information filed with the Department of Financial Services and other agencies pursuant to the Workers’ Compensation Law; specifying persons to whom and circumstances in which such confidential information may be disclosed. The statute becomes effective on July 1, 2017.

Consequently, the Workers’ Compensation Claims Database is discontinued effective July 1, 2017. If you are an authorized individual, to whom and in circumstances in which such confidential information may be disclosed, please complete the Records Release Authorization Form to enable the Division to respond to your public records request. HB 1107 is attached for your reference.

Now, access to claims information is limited to: the injured employee (or spouse/dependent if authorized by the claimant), a legal representative, party litigant and a carrier or employer for the purpose of investigating the compensability of a claim.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Drug Free Workplace, Medical Marijuana, Workers Compensation

Highlights of the new Florida rules for Medical Marijuana

TALLAHASSEE, FL – On Friday, June 23, Governor Rick Scott signed into law a broader medical marijuana system for the state of Florida.  Lawmakers had been unable to pass the measure in the regular session, so it passed the new law (SB 8A) in a special session.  Before the ink is dry, there are several lawsuits threatened.  John Morgan, the Orlando trial lawyer who bankrolled the constitutional amendment, plans to sue over the ban on smoking marijuana and Joe Redner, the Tampa strip club owner plans to file a lawsuit because people cannot grow their own plants. Here are the highlights from the new rules:

  • The bill includes procedures for patients to be issued medical marijuana for all debilitating medical conditions listed in the State Constitution, but also includes two other conditions: (1) Chronic nonmalignant pain, which is defined as pain that is caused by or that originates from a qualifying medical condition and persists beyond the usual course of the qualifying medical condition; and (2) terminal conditions.
  • Eliminate the 90-day waiting period before the qualified physician may register a patient for medical marijuana.
  • Allow marijuana edibles and vaping, but prohibit the smoking of marijuana.
  • Establish qualifications to become a caregiver and require a caregiver to be registered on the medical marijuana use registry and possess a caregiver identification card.
  • Medical Marijuana Treatment Centers (MMTCs) may begin dispensing marijuana pursuant to this law on July 3, 2017.
  • It will be illegal for a qualified patient or caregiver cultivating marijuana or acquiring marijuana from anyone other than an MMTC.
  • It does not limit an employer’s ability regarding a drug-free workplace program or policy, does not require an employer to accommodate the medical use of marijuana in the workplace or an employee working while under the influence of marijuana, does not create a cause of action against an employer for wrongful discharge or discrimination, and that marijuana is not reimbursable under ch. 440, F.S., relating to workers’ compensation.
  • Rename the Office of Compassionate Use in the DOH, the Office of Medical Marijuana Use.
  • A physician may issue a physician certification for low-THC cannabis only, to a patient who is pregnant.

Read the entire Florida law signed by Governor Scott at the link listed above.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and risk management solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Employee Policies, FMLA, Retaliation

Can Rigorous Enforcement of FMLA procedures become Interference & Retaliation?

Atlanta, GA – On January 27, 2017, the Eleventh Circuit Court of Appeals decided Diamond v Hospice of Florida Key, and analyzed how to review claims of FMLA interference and retaliation.   Here are the facts.  The Plaintiff, Ms. Diamond was a social worker for Hospice of Florida Keys.  She submitted the proper FMLA paperwork because her parents were ill. Hospice approved her to take intermittent FMLA leave.  She took leave at various times between June 2013 and February 2014.  Hospice policy mandated that she use her PTO during these absences.  When she was almost out of paid leave, she received a written notice that her balance was low and that continued absences could affect her employment.  The notice didn’t mention FMLA—just her low PTO balance.  There was an allegation that receipt of this notice could discourage an employee from taking FMLA leave, or continuing to take qualifying FMLA even when PTO was exhausted.

Other allegations of interference and retaliation included (a new HR Manager):

  • A new HR Manager was hired in the middle of the FMLA intermittent leave
  • She was asked for an updated medical certification when her mother’s condition worsened.
  • While on leave, the CEO warned her that she could lose her job if she worked for another company.
  • The new HR Manager requested documentation to verify that she was actually in the places she claimed to be.
  • When her mother was admitted to the hospital, Hospice asked for more documentation.
  • Hospice also noted that her “continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.”
  • Hospice warned her that she might want to conserve her FMLA leave, as it was “running low” which caused her to not take available leave, which caused her to leave her parents early and not provide recommended care.
  • Five days after Hospice warned her (about 2 weeks after her last leave), Hospice terminated Diamond for poor job performance.

The Eleventh Circuit stated that to establish an FMLA interference claim: (1) that she was denied a benefit to which she was entitled under the FMLA and (2) that she was prejudiced by the interference.  The Court found that interference goes beyond denying leave or refusing to reinstate. Citing the regulations, the Court found that discouraging an employee from using leave can be interference.  Importantly, the employer’s intent doesn’t matter—only the employer’s conduct and whether it discouraged the employee.  Lastly, a plaintiff may not need to show denied leave or lost wages to prove prejudice from the interference.  If she got the leave (and thus did not lose wages), she can show actual monetary losses sustained as a direct result of the alleged violation.

What are the lessons for employers?

  • The way you grant FMLA leave is as important as giving the days requested.
  • Be consistent about treating performance problems during intermittent FMLA leave so you can rebute allegations of retaliation or interference.  Your focus should be on what an employee does, not on their availability or reliability.
  • Follow the rules for re-certifications and don’t ask for extra “proof” apart from what is allowed under FMLA regulations.  If you think the employee is lying, don’t ask for receipts, but use another method to investigate.
  • Discouraging FMLA leave has now been elevated to interference under this decision.
  • Train managers about FMLA and employee rights, and that they should not express frustration with employee absences.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Discrimination, EEOC, Gender Non-conformity

Gender non-Conformity Discrimination is Actionable under Title VII in Florida

In an important decision affecting Florida employers, on March 10, 2017, the Eleventh Circuit Court of Appeals decided that sexual orientation discrimination is not actionable under Title VII.  Title VII is the federal law that protects employees from employment discrimination in the workplace, but it is not the only law.  Florida state law, as well as local ordinances (city and county) also regulate employer conduct.  Florida state law does not protect sexual orientation, but many cities and counties protect sexual orientation, therefore employer policies and practices should reflect and comply with all applicable regulations.  When necessary, employers also should take care to cover sexual orientation as a protected category when providing antidiscrimination and antiharassment training to employees and their supervisors.

In the case of Evans v. Georgia Regional Hospital, the plaintiff was a security guard at the Georgia Regional Hospital.  Her lawsuit was based on claims that she was discriminated against because of her sex and terminated for not carrying herself in a “traditionally womanly manner.”  Ms. Evans was gay and alleged that she did not broadcast her sexuality; however, she clearly identified as a male and presented herself as male by wearing a male uniform, a male haircut, and men’s shoes.  She claimed that she was terminated for gender non-conformity and retaliation after she complained to her employer about the alleged discrimination.

While the appellate court found that discrimination based on gender non-conformity is actionable, it held that prior precedent mandated that sexual orientation discrimination is not recognized under Title VII.   It concluded that the majority of other circuits have held that sexual orientation discrimination is not actionable under Title VII. However, on April 4, the Seventh Circuit issued a groundbreaking decision that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited under Title VII of the Civil Rights Act of 1964.  This sets up a future decision by the U.S. Supreme Court on this subject.

Under the Obama Administration, the EEOC has taken the position that all complaints of discrimination on the basis of sexual orientation are sex discrimination claims under Title VII, at least for claims against the federal government.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and risk management solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

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