Jam Packed this month! DOL Updates (Overtime rule, FLSA & FMLA); Alcoholism as a Disability; VETS 4212; & Upcoming Events!
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DOL Update #1: Overtime Rule Listening Sessions
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On August 27th, the DOL announced that it will hold public listening sessions regarding a new overtime rule. Here are just some of the questions for which the DOL is seeking input:
- What is the appropriate salary level (or range of salary levels) above which the overtime exemptions for bona fide executive, administrative, or professional employees may apply?
- What benefits and costs to employees and employers might accompany an increased salary level?
- What is the best methodology to determine an updated salary level?
- Should the Department more regularly update the standard salary level and the total-annual-compensation level for highly compensated employees?
Click here
for a listing of locations, date and times.
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DOL Update #2: 6 New Opinion Letters
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On August 28th, the U.S. Department of Labor issued six new opinion letters: four regarding
wage and hour issues
and two related to
FMLA administration
. Here's a quick recap of just two of them:
- FLSA Question: Must a non-exempt (hourly) employee be paid for time the employee spends "voluntarily participating in certain wellness activities, biometric screenings and benefits fairs"? The employee's participation may reduce his health care insurance premium. The participation may take place during and outside of the employee's regular working hours and is 100% voluntary.
- Answer: No. Why? (1) The employee's participation is completely voluntary. (2) The employee's participation is for the primary benefit of the employee, helping him or her make more informed decisions about matters unrelated to his or her job. (3) The time allotted is sufficient for the employee to use it effectively for his or her own purpose. Thus, they "do not constitute compensable time under the FLSA."
- FMLA Question: Does an employer's no-fault attendance and roll-off period violate the FMLA? An employer has a no-fault attendance policy; if an employee accrues 18 points in a 12-month period of active service the employee will automatically be fired. Points are accrued for absence and lateness. FMLA-covered absences are not counted, nor are certain other absences such as vacation or workers' comp. However, active service is not defined. So, when an employee goes out on FMLA leave, his points accrued as of the day the covered absence begins remain until he returns. He may then accrue more points thereafter. Thus, the points may remain on his record for more than 12 months.
- Answer: No. Why? An employee neither loses a benefit that accrued prior to taking the leave nor accrues any additional benefit to which he or she would not otherwise be entitled. Such practices do not violate the FMLA.
Note
: Remember that FMLA issues often overlap the Americans with Disabilities Act (ADA). The EEOC takes exception to "bright line" leave policies that have a definitive or automatic termination provision. So, while the DOL found the policy described above acceptable under the FMLA, the EEOC might find otherwise under the ADA.
Click here
for just one example that gives 20 million reasons for employers to avoid strict no-fault attendance policies.
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DOL Update #3: New FMLA Forms
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Finally, the DOL has published
new FMLA forms
with an expiration date beyond 30 days! The new forms now expire 8/31/2021. Be sure you are using all of the current forms.
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Question of the Month: Alcoholism as a Disability
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This month I actually had 3 questions that were in the running for this section. But, I received this question twice. Can alcoholism be a disability under the ADA? If so, when or how?
The ADA's definition of "disability" treats alcoholism and drug addiction differently. Under the ADA, alcoholism may be a "disability" even if a person continues to drink. But, if a person is currently using illegal drugs, that person is not covered under the ADA, even if addicted to the illegal substance. The ADA's definition of "disability" covers persons who are addicted to drugs only if they are not currently engaging in the illegal use of drugs and have completed or are participating in a drug rehabilitation program.
So what's the practical application? Even where you think safety is an issue, tread lightly. For example, one employer had a policy that prohibited any driver from ever holding a driving position if the employee self-reported any history of alcohol abuse.
Click here
to see how that turned ou
t.
Then register and join FiveL's
September webcast
, "
The ADA: Today's Trends and Tips
."
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VETS 4212 Filing Due September 30th
Got government contracts? If so, then you are likely required to file your annual report by September 30th.
Click here
for more information, including
FAQ's
.
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A SHRMStore
Great 8 Best-Seller
8 Years in a Row
!
Thank YOU!
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Upcoming Events, Seminars & Presentations
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- Tuesday, September 11th, "Got Contracts? Current Trends in Employment Agreements" a webcast hosted by NAMIC 10:30 - 11:30 a.m. ET
- Wednesday, September 26th, "The ADA: Today's Trends & Tips" FiveL's monthly webcast.
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This publication does not constitute the rendering of legal advice. You should consult your company's legal counsel for guidance on any matter.
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