Can Employers Limit FMLA Leave for Married Co-Workers?

The Family and Medical Leave Act (FMLA) requires employers to provide qualified employees up to 12 weeks of unpaid leave each year for certain events, including the birth of a child. But there are exceptions, write attorneys at Ogletree Deakins:

“The FMLA … permits employers to limit the leaves of parent/co-workers if they are married. A husband and wife who are eligible for FMLA leave and are employed by the same employer may be limited to a combined 12 weeks of leave—rather than 12 weeks of leave each—if the leave is taken for the birth or placement for adoption of the employees’ son or daughter or to care for the child after birth or placement.”

The limitation only works if the parents are married, however:

“…under the FMLA, employers cannot limit the bonding leave of unmarried employees, but are permitted to limit the leave of married employees.”

Read the full update, Limits On Family Leave: Employees of the Same Employer - Ogletree, Deakins, Nash, Smoak & Stewart, P.C.»

It’s Simple: Ignoring FMLA Rules Will Cost You

Employers who ignore Family and Medical Leave Act regulations do so at their own peril, writes Jeff Nowak at law firm Franczek Radelet:

“The DOL’s FY 2014 budget calls for more resources dedicated for FMLA enforcement, and the DOL’s solicitor’s office already has indicated we will see an increased number of FMLA lawsuits filed by the government in the time ahead.  Moreover, as we see in this case, the DOL will not hesitate to seek a broad range of damages — even reinstatement — where appropriate.  This reality makes it critical that employers self audit their FMLA policies, practices, and forms to ensure compliance with the FMLA and its regulations.  The regulatory and enforcement environment is only going to get more difficult in the time ahead, so money budgeted now for self-audits and training is money well spent.”

Read the full update, DOL Lawsuit Highlights Simple Reality: Employers Who Ignore FMLA Regulations Face Severe Consequences - Franczek Radelet P.C.»

Are Your Trade Secrets Protected?

Two new criminal laws provide corporations with important tools for protecting trade secrets, write Heidi Sachs and Sarah Hopkins of law firm Perkins Coie. How to take full advantage of them? Follow these best practices: 

• “Require nondisclosure/confidentiality agreements with all employees, contractors and collaborators.  In exit interviews, remind employees and contractors of their confidentiality obligations.
• Restrict access to confidential materials and information on a need-to-know basis.
• Mark materials containing trade secrets as ‘confidential.’
• Ensure that all computers are password protected and that network security is adequate.
• Restrict visitors’ access, e.g., require visitors to wear visitor badges and sign in and out, and grant them only supervised access.
• Keep trade secret information out of sight and use locked drawers, doors and gates as appropriate.”

Read the full update, New Laws Increase Criminal Liability For Disclosure Of Trade Secrets: Are You Protected? - Perkins Coie 

Is OSHA At A Crossroads?

The “heart and soul” of the Occupational Health & Safety Administration is retiring next month, writes Stephen Yohay of law firm Ogletree Deakins, raising a number of questions about the agency’s future focus:

“Richard Fairfax, Deputy Assistant Secretary of Labor for Occupational Safety and Health, has announced that, as long-expected, he will retire on May 3, 2013. As Melissa Bailey, Managing Shareholder of Ogletree Deakins’ Washington, D.C. office stated to the media, Fairfax has been “the heart and soul” of the agency. He has served the agency in numerous capacities for 34 years, and his vast institutional knowledge cannot be replaced and will be missed. Although not always in agreement with industry and employers, he was willing to discuss important issues brought to his attention by members of the employer community. He was willing to assume that nearly all came in good faith and was open to listening to concerns.

Fairfax brought to the national office of the Occupational Health & Safety Administration (OSHA) a broad range of experience that few can match… He brought a combination of “real world” and national policy experience to many of OSHA’s activities, ranging from the development of National Emphasis Programs targeting specific industries, such as refineries, to determinations about enforcement issues, including settlements, to the development of directives and interpretation letters on a broad range of issues. Fairfax also shared important data about OSHA’s activities with the public, contributing to an impression of transparency.

With Fairfax’s departure, who will become the driving force on many of the initiatives that he spearheaded? Will the sense of openness be continued? Will there be an effort to utilize the agency’s personnel so that, collectively, the range of experience he offered will be brought to bear on major issues? Will OSHA’s priorities change, and if so, how? Indeed, what should the employer community expect from OSHA enforcement on the national and local levels?”

Read the full update, With Richard Fairfax Retiring, a Crossroads for OSHA? - Ogletree, Deakins, Nash, Smoak & Stewart, P.C.»

H-1B Visas to Be Awarded via Lottery

The competition for H-1B visas just got … random. That’s because US Citizenship and Immigration Services (USCIS) received more applications than the number of visas, so they’re going to select H-1B recipients via lottery. 

From Barbara Chin at law firm Mintz Levin, here’s how it will work: 

“USCIS indicates it will now begin executing the computer-generated random selection process for all cap-subject petitions received. First, USCIS will determine which U.S. Masters cases will be randomly selected toward the 20,000 limit. Once that is determined, the remainder of the U.S. Masters cases will be added to the pool of general H-1B cap petitions, and USCIS will execute the second random selection process to determine which cases are accepted toward the more general 65,000 limit. Only those cases which win the lottery will receive a receipt from USCIS. All other cases will be returned.

USCIS expects it may take two weeks for the selection process to be completed. When the selection process is completed it will enter the ‘accepted’ petitions into its system and generate the receipt notices for the ‘accepted’ petitions.”

USCIS is still processing applications not subject to the cap (Chile or Singapore nationals, individuals who have had an H-1B visa within the last six years, and employees seeking to extend their stay or change employers). Everyone else? Cross your fingers…

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Read the updates:

• H-1B Cap Hit for Fiscal Year 2014 – Mintz Levin 
• USCIS Announces H-1B Cap Lottery – Epstein Becker & Green, P.C. 
• H-1B Cap for 2014 Fiscal Year Reached – Morgan Lewis 
• Did You Apply For An H-1B Visa? H-1B Cap Already Reached! What to Do Now That The Cap Has Been Reached – Scott Legal Services, P.C. 
• USCIS Reaches FY 2014 H-1B Cap - Proskauer Rose LLP 
• H-1B Cap Reached in the First Week of Filing - Davis Brown Law Firm 
• FY-2014 H-1B Cap Reached – FosterQuan, LLP 
• H-1B FY 2014 Cap Met- Now What? - Tahmina Watson 

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Find additional Immigration Law updates on JD Supra»

Employee Communication Is Good. Problems It Can Create? Not So Much…

From Richard Albert at law firm Foley & Lardner, some useful rules for making sure that communications with your employees don’t create liabilities for your business. Like this:

“Where an employer representative verbally addresses groups of employees about employee relations topics, there is always the possibility of misinterpretation or misunderstanding of what has been said. For that reason, it is always helpful to maintain some kind of written documentation as to what was said during a verbal presentation to employees. That documentation can range from an outline of topics discussed to detailed notes taken during the presentation, but it is important to have some written confirmation of what was said with as much detail included as is possible under the circumstances. Additionally, employers should use sign-in sheets or other means of determining which employees are present when verbal presentations are made.”

Read the full update, Communicating With the Workforce — A Very Good Idea, But Proceed With Caution - Foley & Lardner LLP»

Are Crowdsourced Workers Employees or Contractors?

From Michael Newman at law firm Barger & Wolen, a tale of these decidedly modern times:

“What happens when modern innovations in the workforce (made possible by the advent of the internet) collide with traditional concepts of employment?  You get lawsuits like Christopher Otey v. Crowdflower, Inc., filed late last year in the Northern District of California…

[Crowdsourcing employment service] CrowdFlower has always designated its ‘crowdforce’ as independent contractors.  Now, in a federal class action lawsuit, a former worker for CrowdFlower alleges that he — and all of the other members of the ‘crowdforce’ — are employees and not independent contractors.  And therefore, according to the Complaint, under the Fair Labor Standards Act (FLSA) and Oregon Law, such ‘employees’ are entitled to minimum wage rates — rather than the $2-3 dollars per hour that the Complaint alleges they are in fact earning.”

Read the full update, Crowdsourced Workers: Are They Employees or Independent Contractors? - Barger & Wolen»

Fired Employee Not Employed Long Enough to Receive FMLA Protection

Can an employer terminate  a worker who requests leave under the Family and Medical Leave Act? Perhaps, explains Theodore Olsen of law firm Sherman & Howard:

“Timing is everything.  If an employee has not yet been employed for the 12 months required by law in order to be eligible for Family & Medical Leave Act leave, is the employee protected from discharge for expressing her intention to take such a leave as soon as she becomes qualified?  A district court rules no, there is no protection… [T]he Court ruled that the employee, by law, was not yet protected by the FMLA, and therefore, dismissed her retaliation and interference claims under the FMLA.” 

Read the update, Employer Lawfully Fires Soon-to-be-Covered Employee Who Gives Notice of Need for Upcoming FMLA Leave - Sherman & Howard L.L.C.»

NLRB Says Employees Free to Discuss Salary with Co-workers

Neil Goldsmith of law firm Franczek Radelet reports on a recent National Labor Relations Board ruling that an employer violated the National Labor Relations Act when it fired a worker for talking about salaries with colleagues:

“In Jones & Carter, the employer had a confidentiality policy that prohibited employees from discussing ‘financial matters concerning either [firm] clients or the firm’ with ‘outsiders or friends.’ The employer maintained that this portion of its confidentiality policy prohibited employees from discussing salaries with other employees ‘unless the employee is discussing his or her own salary with the employee’s supervisor.’ The employer terminated an employee after she ‘harassed’ and ‘badgered’ other employees about their salary information. 

The ALJ held that the employee ‘(was terminated because of her protected activity in discussing salary information with [another employee].’”

Read the update, NLRB Orders Reinstatement And Backpay For Employee Who Was Unlawfully Discharged For Discussing Salary Information At Work - Franczek Radelet P.C.»

Limited On-the-Job Alcohol Test Gets Passing Grade from Federal Judge

Employers may administer random alcohol tests to new employees in hazardous jobs thanks to a recent federal court ruling, writes Beth Zoller of XpertHR:

“A district court in Pennsylvania held that an employer may require probationary employees in safety sensitive positions to undergo random alcohol testing without violating the Americans with Disabilities Act (ADA) if it can show that there is a clear business justification and medical necessity. In doing so, the court dismissed a claim filed by the Equal Employment Opportunity Commission (EEOC) on behalf of an employee who was terminated when she obtained a false positive test result due to her diabetes medication…

The court held that the random tests were job-related and consistent with business necessity as required by the ADA. The court also rejected EEOC Enforcement Guidance requiring employers to engage in an individualized analysis before requiring employees to undergo a medical examination and providing an exception only for public safety employees. The court noted that unless an alcohol test was administered, supervisors would have a difficult time determining if an employee was drunk while engaging in hazardous work because of the heavy layers of protective gear worn by plant workers. Lastly, the court reasoned that testing only probationary employees was permissible because such employees are less likely to comply with the company’s alcohol policy and because random testing of veteran employees would be broader and more intrusive than necessary.”

Read the full update, Take A Deep Breath: Employers May Conduct Random Alcohol Tests – XpertHR»