A Really Bad Day for Massachusetts Employers

A Massachusetts law passed last week makes treble damages mandatory for all wage and hour violations, regardless of how innocent or inadvertent. This law overturns the 2005 SJC decision in Wiedmann v. The Bradford Group, Inc , which held that treble damages should be awarded only to punish willful misconduct.

Although the effective date of this new law is July 13, 2008, the text of the bill states it is "intended to clarify the existing law". I'm sure more than one Plaintiff will argue that this law should be applied retroactively.

Companies with employees in Massachusetts should carefully scrutinize their wage and hour policies and procedures to ensure they are in strict compliance with all provisions of the expansive Massachusetts wage and hour laws. Note carefully that this law has no mercy for the "oops, I didn't mean it" defense, or the "we promise we'll fix it right away" excuse. Employers are essentially defenseless against any wage & hour claims – if you're not in compliance, you're paying triple damages.

Don't shoot the messenger here, but I'd be remiss if I didn't mention that because this law makes Massachusetts the only state in the country that mandates treble damages for all violations, it's likely the class-action plaintiff's attorneys will descend on the state in the near future. Even more reason to make sure your wage & hour policies and procedures are flawless.

Now, let's hope this doesn't spread north, or anywhere else for that matter. Sorry, Massachusetts.

Did you file your Safety Summary Form?

A quick reminder for New Hampshire Employers with 10 or more employees: Safety Summary Forms must be filed with the NH Department of Labor every two years by January 1^st. If you filed in 2006, you're due to file again this year. The Department is just now starting to check to see who has filed, and is reminding those delinquent employers that they are subject to a CIVIL PENALTY OF $1,000 PER DAY for every day you fail to file. Now, I know this isn't really on the top of the priority list for most employers, but hey, it's really not that difficult, and why not just keep the DOL happy? You can even file on line on the NHDOL website.

New FMLA regulations released

This has got to be some kind of record set by the Department of Labor. The new FMLA regs purportedly will be published in the Federal Register on Monday, February 11^th. These regs don't just tell us how to implement the new Servicemember Leave, but also clarify a few other pesky FMLA issues. I'll post more about this next week, but if you're really on the edge of your seat, HR Hero already has an informative article posted here. You can even download the new proposed regulations … all 479 pages of them. (I guess I know what I'll be doing this weekend). Happy reading.

Effective Date of FMLA Expansion

As usual, Congress is clear as mud. And they certainly didn't let us down with this FMLA expansion we've been talking about. Seems there is quite a bit of confusion over when it becomes effective and binding on employers. It also seems that I may have added to that confusion in my previous post. Sorry about that. Let me see if I can clear it up here…

The National Defense Authorization Act which was signed into law by President Bush on January 28, 2008 amends the FMLA to create two new types of leave for family members of active duty military personnel. One type of leave became effective the day the law was signed. The other type doesn't become effective until the Department of Labor issues regulations. As I said, clear as mud.

The two types of leave are:

1. An employee who is a spouse, child, or parent of a member of the Armed Forces that has been called to active duty in support of a contingency operation is entitled to up to 12 weeks of leave for a "qualifying exigency" brought on by the call to active duty. This does not become effective until the Secretary of Labor issues final regulations defining "any qualifying exigency."
   
   
2. An employee who is a spouse, child, parent or next of kin of a member of the Armed Forces who has been seriously injured in the line of duty is entitled up to 26 weeks of leave during a single 12 month period to provide care for the injured servicemember. This became effective on January 28, 2008.
   

According to a memo posted on the DOL website, employers are required to act in good faith to provide the 26-weeks of leave immediately, and are encouraged to provide the exigency leave to qualifying employees in the interim.

So what's an employer to do? I previously said you should be thinking about amending your policies, but not to actually do it until we get the final regulations. I stand by that. Remember, these new types of leave simply amend the FMLA. Chances are, any employee requesting 26 weeks of leave to care for an injured servicemember would have fallen under your current FMLA policy to begin with, and would have been entitled to 12 weeks of leave. In this case, you're simply extending that leave for 26 weeks. In terms of the exigency leave, its up to you whether you want to grant it. But, there's really not much sense in amending your policy now, just to amend it again once the DOL defines "qualifying exigency".

Hope that clears things up. Feel free to email me with questions.

FMLA – Servicemember Leave expansion signed by President

As you've likely already heard, the Family Medical Leave Act (FMLA) has been expanded to include Servicemember Family Leave. The President signed this law yesterday. Although we are still waiting for regulations to define certain terms, employers covered by the FMLA will be required to grant two new types of leave:

a.) An employee who is a spouse, child, or parent of a member of the Armed Forces that has been called to active duty in support of a contingency operation is entitled to up to 12 weeks of leave for a "qualifying exigency" brought on by the call to active duty; and

b.) An employee who is a spouse, child, parent or next of kin of a member of the Armed Forces who has been seriously injured in the line of duty is entitled up to 26 weeks of leave during a single 12 month period to provide care for the injured servicemember.

The good news for employers is that this part of the law does NOT become effective until the DOL issues the final regulations. We'll need to wait until we have the regulations to know what will qualify as a "qualifying exigency" or what kinds of proof employers will be permitted to require of employees requesting this leave. The draft regulations have already been submitted to the Office of Management and Budget. The public now has 60 days in which to comment, and then the regulations can become effective.

In the meantime, employers covered by the FMLA should be working to amend their FMLA polices to include this new leave. However, employers should wait until the final regulations are issued to publish this policy, as some of the definitions in the regs may affect your policy and leave program. Any amendment of this policy should be reviewed by an attorney to make sure you've got all your bases covered. Also, keep in mind that a few states, including Maine and New York, have enacted their own laws relating to leave for family of active duty military personnel. Generally, whichever law provides the greatest benefit to the employee will govern.

FMLA Servicemember Leave UPDATE redux

Looks like the FMLA expansion is well on its way to becoming law. The amended bill was presented for President Bush's signature on January 24. The Department of Labor also issued a press release last Thursday, in which they announced the draft regulations had already been sent to the Office of Management and Budget for the public comment period.

The text of the Servicemember Leave hasn't changed since it was first passed and presented back in December. Read the text of the bill here. Read my earlier post on how that will affect employers here.

Employers should be thinking now about amending their FMLA policies. This law will likely become effective, and binding on employers, before the final Regs are issued.

Smoking pot at work?

No, not me, but now that I've got your attention….

A new employer-friendly case came out of the California Supreme Court today. While not earth-shattering, our employers in Maine & Vermont might have some interest.

The California Supreme Court upheld a small company's termination of an employee who failed a drug test. What's the punch line? Well, this employee was a card-carrying medical-marijuana user (no, I didn't know they carried cards either). California is one of 12 states who have legalized marijuana use by prescription, and this guy actually had one of those prescriptions. But, thanks to a 2005 US Supreme Court ruling, federal laws prohibiting marijuana possession (i.e., the Controlled Substances Act) trump those pesky state laws that allow it.

And that, my friends, was the crux of the case in California. The pot-smoking employee protested his termination on the ground that he should be afforded the same protection as other employees who use prescription painkillers. The employer argued it could require him to be pot-free because possession of pot was still in violation of federal law. The court agreed with the employer and the pot-smoking employee is looking for work elsewhere.

Two local states, Maine & Vermont, both allow medical use of marijuana, but both states have dealt with workplace use to some degree. The Vermont law specifically permits the arrest and prosecution of a person who is "under the influence of marijuana" while "in a workplace or place of employment". The Maine law requires more diligence by the employer – use of marijuana is not authorized by Maine law "in a workplace where such use is not permitted". Presumably, Maine employers must actually prohibit drug use in the workplace (e.g., in an employee handbook) to get around the medical marijuana law. Just one more reason to have those written policies up to date!