Employment Law Bits

A Summary of the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) was passed “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” Under FMLA, eligible employees are entitled to take up to twelve weeks of unpaid, job-protected leave for specified family and medical reasons.

Recently, FMLA was amended by the National Defense Authorization Act for FY 2008. The changes affected by these amendments include allowing employees to take up to twelve weeks of leave for any “qualifying exigency” arising out of the fact that a covered military member is on active duty, or has been notified of an impeding call or order to active duty, in support of a contingency operation. Additionally, employees are allowed to take up to twenty-six weeks of leave to care of a covered service member with a serious injury or illness.

To be eligible for FMLA benefits an employee must:

• Work for a covered employer (any public agency, including state, local, and federal employers and any private sector employer with fifty or more employees);


• Have worked for the employer for a total of at least twelve months (need not be consecutive);


• Have worked at least 1,250 hours in the previous twelve months.

If an employee is eligible for FMLA leave, the employer must grant him or her up to a total of twelve weeks unpaid leave during any twelve month period, if one of the following events occurs:

• The birth and care of a newborn child of the employee;


• Placement with the employee of a son/daughter for adoption or foster care;


• A spouse, son, daughter, or parent with a serious health condition requires care;


• The employee suffers from a serious health condition; or


• Qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter or parent is on active duty in the military.

It is unlawful for an employer to interfere with, restrain or deny the exercise of any right provided by FMLA. If you feel that your rights have been violated, you are urged to contact an employment law attorney.

Governor Patrick seeks change in CORI Law

Massachusetts Governor, Deval Patrick, is seeking an overhaul of the state’s Criminal Offender Record Information (CORI) Law. This law allows employers access to criminal records of potential employees for a fee. Currently about three percent of employers in the state obtain official criminal records from the state, while the majority of employers use private services that gather information at courts.

Patrick is proposing to establish a secure Internet site which would allow access to both potential employers and people with criminal records. The employers (and other entities, such as licensing boards, organizations and landlords) would be able to access the site to view criminal records, while people with criminal records would be able to see who has been checking their records.

To obtain a criminal record check currently costs eligible employers $15 for each person’s record. The system proposed by Patrick would charge $20 to $35 per check of the database. Ideally, the newer system would be more efficient and easier to navigate.

Right now, offenders with a misdemeanor on their record can petition to have their record sealed by the court after ten-years; Patrick is proposing to cut this waiting period down to five-years. The Governor is also seeking to reduce the waiting period for sealing felony records from the current fifteen-year period down to ten-years. Additionally, the new bill would expand the rights job applicants have for reviewing and contesting the accuracy of the record before being rejected by the employer because of it.

Emergency Influenza Containment Act

On November 3, 2009, House Representatives George Miller (D-CA) and Lynn Woolsey (D-CA) introduced H.R. 3991, known as the Emergency Influenza Containment Act. This bill would require employers to provide five (5) paid sick leave days per year to employees that are either sent home or directed to stay home due to a contagious illness such as the H1N1 flu virus. The bill would affect employers with fifteen (15) or more employees who do not already provide at least five (5) paid sick days, and it would protect both full-time and part-time workers.

This bill is especially important for low-wage workers, who may not be able to afford to take time off due to illness, and those in the hospitality, food service, education, and health care industries, as they come into contact with the public on a regular basis.

Moreover, the Center for Disease Control recently stated that an ill worker will infect one in ten co-workers, and the National Partnership for Women and Families estimates that the economy loses approximately $180 billion each year in terms of productivity when employees who are sick go to work anyway, (this phenomenon, increasingly common due to the recession, is coined as “presenteeism,” and its connotation is just as negative as the term “absenteeism.”) Finally, employers will likely benefit in other ways from the institution of paid sick leave: sick workers will not be present at work, which will reduce the opportunity of spreading sickness at the work site.

Details about the push to increase minimum wage for tipped-employees

On July 24, 2009, the federal minimum wage increased to $7.25 per hour from $6.55 per hour. However, not all minimum wage earners saw an increase in their paychecks. Employees who are classified as “tipped” employees have a lower minimum wage because of the income they receive from tips. This group of employees includes such professions as restaurant servers, bartenders, hotel workers, nail technicians, and car wash attendants.

The federal minimum wage for tipped employees is currently $2.13 per hour and has been since 1991. During that eighteen year period, the federal minimum wage for non-tipped employees has increased five times, from $4.25 per hour in 1991, to the most recent figure of $7.25 per hour.

Alerted to the inequities of this system, Representative Donna F. Edwards (D-MD) has introduced a bill that would raise the federal minimum wage of tipped employees to $3.75 per hour three months after enactment. It would then increase to $5.00 in 2011 and cap out at 70 percent of the regular minimum wage in 2012. From 1966 to 1996 the tipped employee minimum wage had been determined as a percentage of the regular minimum wage. Congressional action in 1996 ended that practice, giving restaurant industry employers a windfall.

The National Employment Law Project (NELP) is the main advocacy group behind this push for an increased minimum wage for tipped employees. NELP has reported that tipped employees have been forced to get by with poverty-level incomes as a result of this neglect by the legislature. Restaurant servers (the largest group of tipped employees) have nearly three times the poverty rate of the national workforce as a whole.

Thirty-two states currently have tipped employee minimum wages above the federal level, including seven which guarantee tipped employees the full minimum wage of regular workers. Although the fate of this legislative proposal is still uncertain, it could potentially affect thousands of businesses across the country.

Unemployment benefits in Massachusetts explained

The Massachusetts Division of Unemployment Assistance (DUA) works to help get Massachusetts citizens back on their feet when they lose a job. DUA provides unemployment insurance (UI) benefits and transitional services while workers are awaiting re-employment. Listed below is a brief description of the services offered to the temporarily unemployed.

Weekly Benefits
Unemployment Insurance claimants are able to receive a weekly benefit of approximately 50 percent of their average weekly wage, up to the statutory maximum. The current maximum benefit rate is $628 per week. However, those with children may be eligible to receive an additional $25 per child per week up to a total of one half of the weekly benefit amount.

The maximum number of weeks a claimant can collect full benefits is 30 weeks. The maximum benefit credit amount is $18,840. Like many regular paycheck schedules, workers who are eligible for UI benefits receive a weekly payment for the prior week’s benefit.

Additionally, through the Emergency Unemployment Compensation (EUC) Program, Massachusetts claimants may be eligible for extended federal benefits.

Health Insurance Coverage
Massachusetts residents who receive UI benefits and meet certain income eligibility guidelines may also qualify for health insurance coverage under the Medical Security Program (MSP). Participants in the Program can receive assistance with making payments to a COBRA or personal health insurance plan and may even qualify for enrollment in a free health insurance plan.

Job Training
While receiving UI benefits, workers can apply for approved training if they feel training will help to secure new employment. Though DUA will not cover the costs of training, workers may be eligible for up to an additional 18 weeks of UI benefits while attending approved full-time training.
 
Job Search Assistance - One-Stop Career Center Services
For those who are either unemployed or just looking for a better job, the Commonwealth offers helpful guidance. With locations across the state, One-Stop Career Centers provide employment services that allow workers to search for jobs in an environment that is comfortable and resourceful.

As the economy works to fight its way out of this slump, it is good to know exactly how our government is aiding us through our most trying times.