Memorial Day Reminder: Remember Your Obligations to Employees Currently Serving and Those Returning From Service

As we pashutterstock_1371695303used on Memorial Day to remember those who gave their lives in active military service, employers should not forget that employees who are currently serving in the Army, Navy, Air Force, Marines and Coast Guard (collectively, the “uniformed services”) are afforded a broad range of rights and protections by the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  USERRA is a federal law that protects civilian job rights and benefits for veterans and members of the Guard and Reserves.  USERRA, like the Family and Medical Leave Act, includes both substantive job restoration rights—at the conclusion of one’s service—as well as non-discrimination and non-retaliation provisions.  The job restoration rights provided by USERRA, however, impose heightened obligations on employers in an effort to ensure the returning service member is not disadvantaged when reentering the workforce because of his or her service.  Many employers also do not realize that returning service members—those that return to the same employer from which they took leave to serve—may only be terminated for just cause for certain periods of time depending on the length of their service.

No discrimination or retaliation.  Let’s start with the easy part.  As you might expect, employers must not deny initial employment, reemployment, retention in employment, promotion or any benefit of employment to an individual on the basis of his or her military service.  Additionally, an employer cannot retaliate against an individual by taking any adverse employment action against him or her because the individual has acted to enforce protections under USERRA, testified or otherwise Continue reading

D.C. Paid Family Leave Law Advances Towards Implementation

D.C. is moving forward with proposed final regulations to implement its Paid Family Leave law, the Universal Paid Leave Amendment Act of 2016, effective April 7, 2017 (D.C. Official Code 32-541.02(b)(2)).  The Rules are intended to create a regulatory framework for employers to register, opt-in, and opt-out for D.C.’s Paid Family Leave program.

As discussed in a prior blog post, all D.C. employers need to begin to prepare for the implementation of the program because starting July 1, 2019, the District will begin to collect quarterly taxes to fund the Paid Family Leave benefit, in the amount of .62 percent of the wages of its covered employees, based on wages beginning April 1, 2019.  The payroll tax will apply even if employers already provide paid leave benefits to its workers.

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Our firm has received several questions about the new rules, and below are some frequently asked questions about the Paid Family Leave law:

  1. Does the law apply to all employers in D.C.?

Yes.  Any sized employer doing business in D.C. is covered by this law, including small businesses, non-profit organizations, and self-employed individuals who opt into the program.

  1. I have employees who work in D.C. and other states outside of D.C., which employees are covered by this law?

Any employee who spends more than 50% of their work time in D.C. will be covered, and the employer must count their wages as subject to the payroll tax.

  1. Do wages include tips, commissions and other types of pay?

Wages will have the same meaning as provided for in D.C.’s unemployment compensation act, so all income will be counted as wages.

  1. Is there a minimum number of hours an employee must work before they are eligible for paid leave?

An employee is eligible for paid leave benefits as soon as they are hired, regardless of the number of hours worked for the employer, subject to a one week waiting period before benefits are paid.

  1. How much of paid leave is an employee entitled?

Starting on July 1, 2020, employees are entitled to paid leave benefits in the amount of eight (8) weeks for parental leave, six (6) weeks for those taking care of sick family members; and two (2) weeks for medical leave.  An employee can receive benefits under any one or a combination of paid leave provided under the Act.  However, employees are only entitled to receive payment for a maximum of 8 workweeks in a 52-workweek period, regardless of the number of qualifying leave events that occurred during that period.

For example, if an employee receives parental leave following the birth of twins, the employee is only entitled to 8 weeks of paid leave, not 16.  Also, if an employee receives 4 weeks of paid medical leave to care for a sick family member, and then takes parental leave a few months later, the employee is only entitled to an additional 4 weeks of paid leave within the 52-workweek period.

  1. Are there notice and record-keeping requirements?

Yes, employers are required to provide employees a notice (1) at the time of hiring; (2) annually; and (3) at the time the employer is aware that the leave is needed.  The notice must explain the employees’ right to paid leave benefits under the Act and the terms under which such leave may be used; that retaliation for requesting, applying for, or using paid leave benefits is prohibited; that an employee who works for an employer with under 20 employees shall not be entitled to job protection if he or she decides to take paid leave pursuant to the Act; and that the covered employee has a right to file a complaint and the complaint procedures established by the Mayor for filing a complaint.

Covered employers are also required to develop and maintain records pertaining to their obligations under the Act for no less then three years.

An employer that violates the notice requirement may be subject to a $100 civil penalty for each covered employee to whom individual notice is not delivered and $100 for each day that the covered employer fails to post notice in a conspicuous place.

  1. How does the Paid Family Leave law interact with the DCFMLA and existing employer paid leave policies?

The DC Family Medical Leave Act (DCFMLA), which provides for 16 weeks of unpaid leave, remains unchanged under the Act.  Therefore, employees are still eligible to take unpaid leave under DCFMLA.  When paid leave taken pursuant to the Act also qualifies for leave under the DCFMLA, the paid leave taken under the Act will run concurrently with, not in addition to, leave taken under other acts such as DCFMLA.  Nothing in the act provides job protection to any eligible individual beyond that to which an individual is entitled to under DCFMLA.

Eligible employers are not prohibited from providing individuals with leave benefits in addition to those provided under the Act but employers are still required to provide the paid leave benefits under the Act.  The provision of supplemental or greater paid leave benefits does not exempt the covered employer from providing or prevent an eligible employee from receiving benefits under the Act.

 

If your company employs workers in the District of Columbia, you should begin preparing for the tax collection now.  If you have any questions about this new law, contact one of our labor & employment attorneys in D.C.

 

US DOL Issues FMLA Opinion Letters Clarifying No Fault Attendance Policy Rules and…Organ Donation

By: Aaron R. Gelb

Until last week, the US Department of Labor (the “DOL”) had not issued an Opinion Letter regarding the Family and Medical Leave Act (the “FMLA”) since George W. Bush was packing up and preparing to leave the White House in January 2009.  DOL Iterp Letter ImageOn August 28, 2018, Bryan Jarrett, the Acting Administrator of the DOL’s Wage and Hour Division (the “WHD”) issued two Opinion Letters—one addressing an important consideration facing employers with no-fault attendance policies and another that addresses whether organ donation surgery can qualify as a “serious health condition” under the FMLA for the purposes of taking leave.  While the answer to the latter question will likely not surprise anyone who regularly deals with employee requests for leave under the FMLA, the WHD’s opinion regarding whether and how points should be removed from an individual’s record while they are on protected leave does indeed provide much needed clarity on that topic.

But first, a bit of background regarding why the mere issuance of these letters is significant.  An opinion letter is an official, written opinion issued by the Wage and Hour Division of the DOL explaining how a certain law applies in specific circumstances described by an employer, employee, or other entity requesting the opinion. The DOL noted in a June 2017 press release that the Wage and Hour Division had been issuing opinion letters for more than 70 years until the Obama administration replaced them with general guidance memoranda in 2010.  “Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” said Secretary Acosta in the press release. “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities,” said Secretary Acosta, explaining that such letters would enable employers to “concentrate on doing what they do best: growing their businesses and creating jobs.”

Turning to the two opinion letters issued on August 28, 2018, we will first address the leave for organ donation, then consider no-fault attendance policy rules. Continue reading