Articles Posted in HR Summer School

The FMLA has undergone major change in the past 18 months. First, there was the National Defense Authorization Act (NDAA), an amendment to the FMLA, which took effect in January 2008.  Then, in February, the U.S. Department of Labor (DOL), released its proposed regulations for public comment.  The comments were collected and the FMLA’s final regulations were published in November.  Then, on January 16, 2009, the final regulations took effect.  And, since then, employers have been operating under this new–and substantially different–set of regulations.  Whether or not they realize that there’s a new set of rules in town is a different question.

For those of you who are aware that the FMLA’s final regulations are now in place, you also probably know that the regs impose a set of new responsibilities on employers. I’ve spoken to Human Resource professionals about the final regulations several times since they were first promulgated, including at our annual employment law seminar last week, where William W. Bowser and I presented an FMLA update twice in the same day to accommodate the large number of attendees.  A single blog post is not the best way to share the many ins and outs of the new law. But I can address one topic that I consider to be critical for employers to understand: FMLA Notices.

FMLA Demonstrative

The final FMLA regs contain substantial changes in the conditions in which an employer can and must give certain FMLA-related notices to employees.  Each of these notices have a great number of complexities that employers are best advised to come to terms with now.  The new regulations are unforgiving when it comes to employer delays.  

The Fair Labor Standards Act (FLSA), requires employers to make, keep, and preserve records regarding employees and employee compensation.  The FLSA provides a 15-item list of the types of information that the employer has the obligation to obtain.  All primary sources of this information must be preserved for a period of three years for all current and former employees.  All supplementary sources must be preserved for at least two years.  deptoflabor

What Information Am I Required to Keep?

First, you must be familiar with the information for which you are responsible.  The list includes:

The Family Medical Leave Act (FMLA), Americans With Disabilities Act (ADA), and state worker’s compensation laws are not mutually exclusive. By qualifying for one, an employee is not automatically disqualified from the others.

For example, an employee who is hurt on the job is not necessarily ineligible for FMLA leave. He still must be an eligible employee, work for a covered employer, and have a serious health condition. If his on-the-job injury resulted in him being absent from work for two days, though, he would not qualify for FMLA because a serious health condition is defined, in part, as an illness or an injury that incapacitates the employee for more than three consecutive days.

And what about an employee who exhausts all of his FMLA leave but is still on disability leave? Can he be terminated if he fails to return to work at the end of the 12-week period? Certainly an employer can terminate an employee who fails to return to work after exhausting all available leave.

The Fair Labor Standards Act (FLSA), mandates that covered, non-exempt employees must be paid at a rate equal to one and one-half the regular rate of pay for all hours worked over forty in any given workweek.

Compliance with the overtime laws is determined by workweek and each workweek stands by itself.  A workweek is defined as 7 consecutive, 24-hour periods (168 hours), but which 7 consecutive days can be chosen by the employer.  image

The regular rate of pay is determined by dividing total earnings in the workweek by the total number of hours worked in the workweek.  The regular rate can never be less than the applicable minimum wage.  Not everything, though, is included in the calculation of the regular rate.  Excluded from the calculation are:

Employees must be paid wages for all time worked.  Period. That’s the law.  It seems simple enough but the seeming simplicity of that statement can be deceptive.  What constitutes “time worked” has remained an elusive concept for many employers.  As a result, the issue of what should be included in a calculation of the total time worked for compensation purposes, has generated a great deal of case law on the issue–some making clearer and others making the issues even more complex.

Work “suffered” is time worked.  Work that was not requested by the employer but that was “suffered” or “permitted” is considered time worked.  Then, of course, the question becomes when has an employee “suffered work.”image

Waiting time is counted as time worked when the employee is unable to use the time effectively for his own purposes and the time is controlled by the employer.   Waiting time is not counted as hours worked when the employee is completely relieved from duty; and the time is long enough to enable the employee to use it effectively for his own purpose.

The Fair Labor Standards Act (“FLSA”), provides that covered employees must be paid no less than the current state or federal minimum wage, whichever is greater, for all hours worked. The Delaware minimum wage is $7.15 trumps the current federal minimum wage of $6.55.  image

Although the concept of minimum wage is not a complicated one, there are some issues that can blur the obviousness of the hourly wage amount.  One such issue is what exactly should be included as compensation when determining whether minimum wage has been paid for all time worked.  Included in the definition of compensation are:

  • Wages (salary, hourly, piece rate);
  • Commissions;
  • Certain bonuses;
  • Tips received by eligible tipped employees (up to $4.42 per hour); and
  • Reasonable cost of room, board , and other “facilities” provided by the employer for the employee’s benefit.

The fifth type of compensation, “board and lodging,” presents some nuances of its own.  For example, it cannot exceed the actual cost of the facilities provided and cannot include a profit for the employer.  The employer must follow good accounting practices when determining the reasonable cost.  And, if no cost is incurred, the employer may not take a credit.

The Fair Labor Standards Act (FLSA) protects more than 130 million workers in more than 7 million workplaces.  image

There are two types of coverage under the FLSA:

  • Enterprise coverage:  If an enterprise is covered, all of the enterprise’s employees are entitled to FLSA protection.
  • Individual coverage:  Even if the enterprise is not covered, individual employees may be covered and entitled to FLSA protections.

To qualify for enterprise coverage, the “enterprise” must have at least two employees and must generate at lease $500,000 per year in business.  For the purposes of the FLSA, enterprises include:

FMLA 103, part of the HR Summer School Back-to-Basic Series, addresses the very hot topic of intermittent leave.  Most HR professionals would agree that the FMLA’s intermittent leave is one of the most difficult types of employment laws to administer.  In fact, a great number of the FMLA calls I get are, in some way, related to intermittent leave. 

For each question, I start my answer in the same way–with the basics.  Sometimes I find that, even the most knowledgeable HR professionals will skip the basics when there is a particularly unusual set of facts involved.  To make sure we don’t overlook the forest for the trees, sometimes it’s helpful to start at the beginning.  Slide1

What is Intermittent Leave?

HR Summer School’s Back-to-Basics Series is back, after a brief vacation.  This segment, ADA 104, covers the certification issues that commonly arise when an employee with a disability requests a reasonable accommodation.  As always, Course Materials are provided for your reference.

I. When May Certification Be Required?

The issue of certification arises most often when the individual first requests an accommodation. On a broad level, employers may ask employees for documentation to support the reasonableness of the request. The EEOC has explained that an employer may require documentation “to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation.” In short, when the disability or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about the claimed disability and functional limitations.

The HR Summer School Back-to-Back Series continues today with the second of two parts of ADA 103. Reasonable accommodations under the Americans With Disabilities Act (ADA), are not easy to manage. To make sure this difficult topic gets adequate coverage, we’ve split this class into two parts. The outline includes both parts and is provided for your later reference.


The request is the first step in an informal, interactive process between the individual and the employer. In some instances, before addressing the merits of the request, the employer needs to determine if the condition qualifies as a disability under the ADA.

Contact Information