Department of Labor Increases Monetary Penalties for FLSA, FMLA and OSHA Violations

Colorado Adds New Posting and Changes Another

New York State $15 Minimum Wage and Paid Family Leave

California Updates Pregnant Employee Notice

Employers: Required Federal Postings for Job Applicants

All employers are required to display three federal postings visible to job applicants.

Are you missing a key component of posting compliance in your business?

Depending on how your company manages job applicants, you may be missing three required Federal labor law postings that must be accessible to job applicants:

  • Equal Employment Opportunity is the Law
  • Family and Medical Leave Act (FMLA)
  • Employee Polygraph Protection Act (EPPA)

The ubiquitous requirement for “conspicuous location” comes into play here. If your labor law postings are in an area not accessible to job applicants, that location would not satisfy the conspicuous location requirement.

For example, many companies display workplace postings in break rooms or on bulletin boards next to time clocks, or in manager’s offices. But if an applicant never makes it past the reception area into area where posters are displayed, then the postings are not in a conspicuous location for applicants.

How to Meet Federal Requirements for Applicant Postings

  • Determine where applicants typically fill in and/or submit job applications at a physical location.
  • Determine if labor law posters are visible and accessible (in other words, “readable”) for job applicants.
  • If not, display the three required postings.

GovDocs offers a convenient 3-on-1 laminated posters containing the required postings for applicants. Subscribers to this blog can save 20% on all compliance poster purchases, including the GovDocs Federal Applicant poster, using coupon code BLOG20.

Focus on EEO is the Law Posting for Job Applicants

For the EEO is the Law posting, employers are encouraged to post the electronic notice on their web sites in a conspicuous location. However, electronic posting does not fulfill the obligation to physically post the required information.

Additionally, physical versions must be visible and accessible to applicants and employees with disabilities that limit mobility.

E-Verify and Right-to-Work Applicant Posting Requirements

If not, display the three required postings. If your locations participate in the E-Verify program, your participating locations will have to display the E-Verify postings “in a location that is clearly visible to any employees and applicants who will have their employment eligibility verified with E-Verify.” The posting must be displayed in English and Spanish.

Where poster display is not feasible, the employer must provide all applicants with copies of the E-Verify notices in English and Spanish with application materials.

Want Even More Information About Federal Posting Requirements?

Download the free GovDocs Federal Posting Guide to learn more about Federal postings. The Guide describes each Federal posting’s content, for whom it’s required, and the posting requirements. The Federal Posting Guide includes guidance for:

  • Postings Required for All Employers
  • Postings for Applicants
  • Federal Contractor Postings
  • Federal Construction / Transportation Projects
  • Postings by Industry / Worker Classification

Employee Fired for Postpartum Depression

An employee who provided customer assistance to healthcare patients and pharmacists soon found herself in need of an advocate for her own disability case.

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A Reimbursement Case Advocate, Meron Debru, informed her employer (The Lash Group Inc.) of her pregnancy and requested short-term disability leave for the birth of her child. Her doctor was concerned that Debru was suffering from postpartum depression and did not release her to return to work, and for nearly five months after her short-term disability ended, she was unable to work because of the postpartum depression, which is considered a disability related to childbirth and is protected by the Americans with Disability Act (ADA).

The company filled Debru’s position about three months into her leave and sent her a letter of termination, stating that she had exhausted her FMLA leave and because she had taken more than six months’ leave, which was not true. Debru protested to the human resources manager, and the company sent a new letter stating that she had exhausted her allowable FMLA leave, but that she could apply for other open positions with the company.

She was released to return to work by her physician and was forced to compete for vacant positions. After applying for three positions for which she was qualified, the company still had not hired her, and they once again formally terminated her.

The EEOC took on Debru’s case (EEOC v. The Lash Group) and won. They proved that the company had refused to provide a reasonable accommodation to an employee with postpartum depression and instead fired her because of her disability.

(To be clear, the ADA does not classify pregnancy as a disability under the ADA, but any pregnancy-related disabilities, such as postpartum depression, are considered disabilities for which employers must provide reasonable accommodation).

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Lessons Learned from EEOC v. The Lash Group

  • Employers must provide reasonable accommodation to women who experience pregnancy-related disabilities.
  • Reasonable accommodation can include the extension of unpaid leave or transferring the employee to a vacant position for which she is qualified.
  • Forcing an employee to try to find a new position within the company on her own does not meet an employer’s obligation to provide a reasonable accommodation.
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Case Outcomes from EEOC v. The Lash Group

Monetary fine: $75,000

Employer must:

  • Provide reasonable accommodation going forward.
  • Revise its family and medical leave and short-term disability benefits policies and procedures to address reasonable accommodations.
  • Notify employees that they may be entitled to a reasonable accommodation (including unpaid leave) and how to request such an accommodation.
  • Provide training on the ADA and reasonable accommodations to human resources personnel, leave coordinators and managers.
  • Report to the EEOC on how it handles future reasonable accommodation requests.
  • Post a notice regarding the resolution of this lawsuit.

What is Postpartum Depression?

The symptoms of postpartum depression are more intense than the “baby blues” that many new mothers experience. Approximately 15% of all new mothers experience a more intense sort of “baby blues” known as postpartum depression whose symptoms may include:

  • Loss of appetite
  • Insomnia
  • Intense irritability and anger
  • Overwhelming fatigue
  • Loss of interest in sex
  • Lack of joy in life
  • Feelings of shame, guilt or inadequacy
  • Severe mood swings
  • Difficulty bonding with the baby
  • Withdrawal from family and friends
  • Thoughts of harming self or baby

Untreated, postpartum depression may last for many months or longer.

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Obama’s Plans A, B, C (and D) for Paid Sick Leave

President Obama wants all U.S. workers to have access to paid leave, and he’s not afraid to bypass Congress. Again.

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President Obama drummed up support for mandatory paid sick leave at a Baltimore coffee shop. According to the President’s statement, employers like Charmington’s Café who have voluntarily offered paid sick leave and pay more than the minimum wage experience greater worker productivity, lower staff turnover, and increased profits.

With Congress often deadlocked (or just dead-set against him), President Obama has developed several plans to help the national paid sick leave movement gain momentum – plans that mirror the effort to raise the minimum wage.

Plan A: Congressional Passage of the Healthy Families Act

Noting that 43 million American workers don’t have access to any paid sick leave, the President is advocating that Congress pass the Healthy Families Act (H.R.1286). The Healthy Families Act would require employers who employ 15 or more employees to allow each employee to earn at least one hour of paid sick time for every 30 hours worked to:

  • Meet his/her own medical needs
  • Care for the medical needs of family members (including a domestic partner or the domestic partner’s parent or child)
  • Seek medical attention, assist a related person, take legal action, or engage in other specified activities relating to domestic violence, sexual assault, or stalking.

Plan B: Paid Sick Leave Passed by City and State Governments

Given the current Republican majority in Congress, the Healthy Families Act isn’t likely to pass, so the President mentioned a hot back-up plan: “to go beat the drum across cities and states to encourage not only that these laws are adopted nationally, but also that employers start adopting these policies as well”.

He sweetened the deal by announcing that the Department of Labor would offer to fund implementation studies for states and cities.

Currently only three U.S. states — California, New Jersey, and Rhode Island — offer paid family and medical leave. Massachusetts will require employers to offer earned sick leave beginning July 1, 2015. More than a dozen U.S. cities have paid sick leave ordinances,

President Obama already had set the example at the federal level by issuing a Presidential Memorandum directing agencies to allow federal workers to take six weeks of advanced paid sick leave to care for a new child or ill family members.

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What’s the difference between a Presidential Memorandum and an Executive Order?

A Presidential Memorandum and an Executive Order are essentially the same thing, but when President Obama came under scrutiny for issuing too many Executive Orders and bypassing Congressional involvement, the White House began issuing Presidential Memoranda instead. Obama has issued more Presidential Memoranda than any other U.S. President. Read more here.

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Plan C: Voluntary Paid Leave by Employers

Presidential Adviser Valerie Jarret Turns to LinkedIn to connect with employers.

In a coordinated social media blitz, the White House’s message even reached LinkedIn. In her debut Pulse article, Senior Adviser to President, Valerie Jarrett, urged LinkedIn readers to take action voluntarily:

This is the world’s largest online audience of professionals. And if you’re an employer, the folks who are coming to your company’s pages will be looking to see if you offer precisely these sorts of policies on your books. These are the policies that will attract the best new talent. They are the policies that will make the employees you hire more productive — and encourage them to stay longer. Keep in mind that nearly one in two working parents has turned down a job because it would not work for their family. Don’t let your job be one of those.

Currently, workers are granted up to 12 weeks of unpaid leave under the Family Medical Leave Act (FMLA).

Plan D: Lose the Battle but Win the Hashtag

The Democrats flooded social media, “owning the hashtag” prior to President Obama’s public appeal to Congress and U.S. employers. The outreach campaign will help drive grassroots support so that workers will put pressure on employers and constituents will light fires (hopefully figurative fires) under politicians.

Here’s a collection of tweets supporting the President from the #leadonleave hashtag.

 

The Twitter stream even saw a torrent of infographics to help the cause. Be warned – some of these are quite, well, graphical.

 

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