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Opinion: Time to revise employment-related practices

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The U.S. Department of Labor issued three opinion letters impacting compliance on providing leave under the Family and Medical Leave Act, compensating employees under certain employer-sponsored volunteerism programs and navigating differences between the Fair Labor Standards Act and federal, state and local laws.

In addition, the National Labor Relations Board overturned the Obama-era independent contractor test, and the Equal Employment Opportunity Commission extended the deadline for filing EEO-1 Surveys. Organizations need to these changes.

Family and medical leave
A business may not delay the designation of FMLA-qualifying leave or authorize more than 12 weeks of leave under FMLA (26 weeks for military caregivers) regardless of whether a team member asks for a postponement or the company has other paid or nonpaid leave programs available. The organization must begin an associate’s FMLA leave once the corporation has enough information to determine his request is for a FMLA-qualifying reason. This was the norm until the 2014 Ninth Circuit Court decision stating a worker may defer FMLA leave and take paid time off instead. However, the Labor Department opinion letter noted an FMLA regulation mandating an enterprise to provide notice of FMLA leave within five days of discovering the purpose for the leave.

Once an individual communicates a need to take leave for an FMLA-qualifying reason, neither he nor the employer may decline FMLA protection for that leave. Accordingly, if a business allows him to substitute paid leave or non-FMLA unpaid leave for FMLA leave, his paid leave must be counted toward his total FMLA entitlement and must not expand it.

Employer-sponsored volunteerism
The department also published an opinion letter concerning appropriate compensation practices for companies allowing laborers to participate in corporate-sponsored volunteer programs. Charitable and truly voluntary programs are noncompensable. However, mandated programs or volunteer work directed or controlled by the organization must be compensated.

Fair labor differences
The DOL also published an opinion letter regarding employer compliance when the FLSA conflicts with federal, state or local wage and hour laws. When a federal, state or local minimum wage or overtime law varies from the FLSA, the enterprise must give the team member the most protection.

Independent contractors
For decades, courts and the NLRB used a common law test to ascertain if a worker was an employee or independent contractor. A 2014 labor board decision made it less likely a laborer would be considered an independent contractor.

As of Jan. 25, 2019, the board overruled the 2014 decision and will apply the traditional, more business-friendly common law test to determine independent contractor status. Several key factors include method of payment and length of work time.

EEOC survey
The EEOC announced the EEO-1 submission deadline is extended to May 31. The annual survey is required for private companies with 100 or more associates. It’s also mandated for federal government contractors or first-tier subcontractors with 50 or more staff members and a federal contract, subcontract or purchase order amounting to $50,000 or more.

Lynne Haggerman holds a Master of Science in industrial organizational psychology and is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.

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