Dear Reader:
The following document was created from the MTAS electronic library known as MORe (www.mtas.tennessee.edu/more). This online library is maintained daily by MTAS staff and seeks to represent the most current information regarding issues relative to Tennessee municipal government.
We hope this information will be useful to you; reference to it will assist you with many of the questions that will arise in your tenure with municipal government. However, the Tennessee Code Annotated and other relevant laws or regulations should always be consulted before any action is taken based upon the contents of this document.
Please feel free to contact us if you have questions or comments regarding this information or any other MORe material.
Sincerely,
The University of Tennessee
Municipal Technical Advisory Service
1610 University Avenue
Knoxville, TN 37921-6741
865-974-0411 phone
865-974-0423 fax
www.mtas.tennessee.edu
Click on the topics listed below in this section for more information:
In the latter part of 2010 the Department of Justice made many changes to the Americans with Disabilities Act (ADA). One set of changes to 28 C.F.R. Part 35 was with service animal regulations, and the modifications became effective on March 15, 2011. Specifically, the definition of what qualifies as a service animal has been narrowed to now read:
Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. (§ 35.104 Definitions)
This means that people can no longer claim that their pet iguana is a service animal or that Fido (who has been trained to jump through hoops but not to detect seizures) cannot accompany his owner everywhere she goes.
As with many laws, there is an exception [1], and that has to do with miniature horses.
§ 35.136 Service animals
(a) General. Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
(b) Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if —
(1) The animal is out of control and the animal’s handler does not take effective action to control it; or
(2) The animal is not housebroken.
(c) If an animal is properly excluded. If a public entity properly excludes a service animal under § 35.136(b), it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.
(d) Animal under handler’s control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).
(e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal.
(f) Inquiries. A public entity shall not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person’s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
(g) Access to areas of a public entity. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity’s facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.
(h) Surcharges. A public entity shall not ask or require individuals with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.
(i) Miniature horses.
(1) Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
(2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider—
(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
(ii) Whether the handler has sufficient control of the miniature horse;
(iii) Whether the miniature horse is housebroken; and
(iv) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
(3) Other requirements. Paragraphs 35.136 (c) through (h) of this section, which apply to service animals, shall also apply to miniature horses.
Should you have questions about these changes, the Department of Justice has a very easy to read and understand one-page fact sheet available [2].
On March 23, 2010, a federal law was passed that requires employers to accommodate nursing mothers in the workplace. In addition to federal law, there are state laws that guide compliance on this issue. This publication will guide you through state and federal laws that accommodate nursing mothers in the workplace. It also will provide information on employer best practices and frequently asked questions.
Effective July 31, 2011, the Tennessee legislature passed Chapter No. 91 (HB0871/SB0083), which removed the age limit on children who can be breast-fed in public. This statute amended T.C.A. §§ 39-13-511 and 68-58-101 by removing the 12-month age limit on children who can be legally breast-fed publicly. This does not change the federal law passed in 2010 that was part of health care reform.
In 2012, T.C.A. § 39-13-511 (d) was amended to expressly state that the definition of “indecent exposure” does not apply to a mother who is breastfeeding her child in any location, public or private. T.C.A. § 39–13–517(a)(1) also states that “nudity” or “state of nudity” prohibited by that section does not include a mother in the act of nursing the mother's baby. 2012 Tennessee Laws Pub. Ch. 885 (H.B. 3257).
Federal Law
Effective March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (PPCA) that includes a provision for nursing mothers in the workplace. The regulations amended Section 7 of the Fair Labor Standards Act that provides new requirements for employers to accommodate nursing mothers. The new requirements state that “employers are required to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee has a need to express breast milk.”
These changes to the Fair Labor Standards Act (FLSA) also apply to exempt employees, which are employees who are exempt under section 213 of FLSA and meet the executive, administrative, professional, outside sales or computer professional exemptions.
State Law
The FLSA requirement does not pre-empt state laws that may provide greater protections to employees (i.e., providing break time beyond one year after the child’s birth). Since Tennessee state law does not specify an infant’s age limitation, employees are permitted to express breast milk for as long as they are breast-feeding their child. The Tennessee state law applies to exempt employees as well as non-exempt employees. This means exempt and non-exempt employees shall be provided reasonable break time for the purpose of expressing milk. Effective July 31, 2011, the Tennessee legislature passed Chapter No. 91 (HB0871/SB0083), which removed the age limit on children who can be breast-fed in public. This statute amends T.C.A. §§ 39-13-511 and 68-58-101 by removing the current 12-month age limit on children who can be legally breast-fed publicly.
Employers with Fewer than 50 Employees
Employers with less than 50 employees are not subject to the FLSA break time requirement if the breaks would pose an undue hardship on the employer. Undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size of the employer. All employees, regardless of work site, are counted when determining whether the exemption may apply. The Department of Labor is expected to provide additional guidance on this exemption.
Employers with 50 or More Employees
Employers with 50 or more employees must comply with the regulation, regardless of hardship. All work sites and employee statuses are counted for purposes of employee count. This differs from T.C.A. § 50-1-305 (1999), which allowed Tennessee employers of all sizes to opt out if the breaks created an undue hardship on the employer.
Tennessee Legislative History
In 1999, the Tennessee legislature passed T.C.A. § 50-1-305 that requires Tennessee employers to provide daily unpaid break time for a mother to express breast milk for her infant child. When possible, the break time should run concurrently with any break time already provided to the employee. In addition, there was an exemption to the law if the practice unduly disrupts the operations of the employer. (Note: this exemption now only applies to employers with fewer than 50 employees.) The law also stated that the employer should make reasonable efforts to provide a room, other than a bathroom, where the employee could express milk in close proximity to the work area.
In 2006, the Tennessee legislature passed T.C.A. § 68-58-101 et seq. that permits a mother to breast-feed an infant, 12 months or younger, in any location public or private, that the mother is authorized to be, and prohibits local governments from criminalizing or restricting breast-feeding. In addition, the law specifies that the act of breastfeeding shall not be considered public indecency, nudity, sexual in nature or obscene. In 2011, the Tennessee legislature removed the age limit on breast-feeding in public. Amends T.C.A. §§ 39-13-511 and 68-58-101.
To remain up-to-date with current Tennessee legislation regarding breastfeeding laws, visit the state's Department of Health website [3].
Space
A bathroom, even if private, is not an acceptable location under the law. The employer must provide a space that is functional for expressing breast milk. A clean small office with electricity, a light, chair and a locked door is an appropriate space. The space can also be converted into a nursing room on an as-needed basis as long as it is available on demand. The space must be shielded from view and free from any intrusion of co-workers or the public. Nursing equipment can be somewhat noisy, so a closed office space is recommended.
Duration of Breaks
The legislation specifically states that the duration and frequency of breaks will vary. Each mother will need a different duration and frequency. In addition, women are biologically programmed to express as much milk as their growing child needs at that time which constantly varies from birth. This means that your employees may need differing durations depending on stage of child’s development and the mother’s needs. In addition to expressing milk, there is the sanitation of the equipment, storage of the milk and washing hands that should be factored into these break times.
Compensation for Non-Exempt Employees
State and federal laws do not require nursing breaks to be paid. Your city cannot limit the number of breaks an employee takes to express milk, but your city can elect to designate the nursing breaks as unpaid. However, if an employer provides regular break times, FLSA requires that all employees be paid for those breaks. Hence, nursing mothers are free to use these break times for expressing milk. Aside from the amendment to the PPACA, there is no state or federal law that requires Tennessee municipalities to offer break times.
Exempt Employees
Tennessee state law provides that exempt employees be provided break times to express milk. It is generally not recommended to dock salaried exempt employees’ pay because salary is not based on number of hours worked per day but on a per job basis.
Non-Traditional Positions
How will an employee who drives a patrol car express breast milk? While it seems difficult, many employees in non-traditional office positions nurse their children. If the employee works in a non-traditional office setting, your city should have dialogue with the employee to make sure she feels comfortable with her options for expressing breast milk. This may require the employer to be flexible and to educate co-workers on the accommodation to ensure proper personnel coverage at all times. In summary, the benefits to having breast-fed children are not just good for the employer and employee, but a healthier society for everyone and for workplaces that respect the needs of growing families.
Some Tips for Best Practices
Q: My employee is required to travel frequently as part of her job. Should I recommend she consider formula feeding?
A: Absolutely not. The choice to formula feed vs. breast-feed is an intensely personal and important decision for parents. As an employer, you should find ways to encourage, not discourage making breast-feeding work, after all it is a temporary circumstance and your city’s family friendly policies will go a long way in making your employees happier and more productive.
Q: Am I required to eliminate travel from my nursing employee’s schedule?
A: No. However, if travel is able to be modified without an undue hardship on the employer, you should consider working with the nursing mother to limit overnight or excessive travel while nursing. For some nursing mothers, travel will be feasible, for others it might be more difficult. Have the dialogue with the employee to determine what the best course of action is.
Q: Can we require the nursing mother to use her normal breaks to nurse?
A: While you cannot require your employee to forgo regular breaks (if provided to other employees), Tennessee state law says you can require the nursing mom to take them back-to back, which provides for less interruption and only one period away from the workstation rather than two.
Q: What is considered excessive under the new regulations?
A: This is not defined in the regulations and it is important to note every nursing mother will have different needs as their baby’s needs change. That nursing breaks are generally unpaid will likely serve as an incentive for employees to express milk efficiently and report back to work.
Q: How do I keep track of nursing breaks?
A: This is up to the employer to track on a per employee basis. If you provide breaks to all employees, you should not count nursing breaks as a regular break, because employees cannot be required to use their regularly provided breaks for nursing.
Q: Can I require nursing moms to sign in and out of a room for nursing breaks?
A: Yes. Some employers have a designated nursing room and employees sign in and out of the space through a central human resources office. This allows a central place for the storage of the key and ensures that the room is not used for other purposes that may prevent or impede a nursing mother from expressing milk.
Q: We have no space available to create a nursing room. Can I allow the employee to use my office until we make other arrangements?
A: Yes, but this means your office needs to be available whenever the employee needs to express milk. However, if you are required by law to provide space for your nursing mothers, it is advisable you work on a solution such as moving as soon as your lease agreement or rental agreement is up. If this is not a feasible solution, you may want to consider allowing the employee to work remotely until adequate nursing space is available. Another option would be to convert someone’s office into a nursing room and move the employee in the office into another space.
Q: Is our city required to provide a refrigerator or freezer for the storage of expressed breast milk?
A: No. At this point, the legislation does not require an employer to provide a storage unit such as a refrigerator or freezer for the storage of breast milk. However, if your city can provide such an accommodation, it would go a long way in making nursing easier for families.
The Americans with Disabilities Act is a significant wide-reaching civil rights law that was passed to prevent discrimination against individuals with disabilities. ADA applies to public and private businesses, state and local government agencies, and organizations offering public services, transportation and utilities. ADA was signed into law on July 26, 1990, with the goal of extending protections to individuals with physical or mental disabilities. Here is a snapshot of how the ADA law is divided:
The ADA prohibits employers from discriminating against a qualified person who has a disability. This protection extends to applicants as well as employees. Title I requires employers with 15 or more employees to provide qualified individuals with disabilities equal employment opportunities commensurate to that of others. The law requires that employers make reasonable accommodations to qualified individuals with disabilities.
ADA is enforced by the Equal Employment Opportunity Commission (EEOC) and the Department of Justice. Title I complaints must be filed within 180 days of the date of discrimination or 300 days if the charge is filed with a designated state or local fair employment practice agency. The new law makes it clear that the focus should be on “accommodating employees and applicants” and not the impairment itself from which the individual suffers. Employers should not need extensive analysis to determine if a condition qualifies under ADA.
ADA does not say your city has to give preference to those with disabilities, or hire someone who is not qualified to perform the essential functions of the job. ADA simply gives a qualified person with a disability the same opportunity as a qualified person without a disability. This protection covers all aspects of the employment process, including:
On Sept. 25, 2008, President George W. Bush signed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) with an effective date of January 1, 2009 (S. 3406). The ADAAA ensures protections for people with disabilities whose conditions have been denied as ADA eligible through years of Supreme Court ADA interpretation. The ADAAA greatly expands the number of persons eligible under the ADA of 1990.
On March 25, 2011, the final regulations implementing the ADAAA were made available on the Federal Register’s website www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as [4].
These changes to ADA are significant and impacted many cases that were previously thought to be settled. Two notable cases that were reversed by U.S. Pub.L. 110-325, (2009) are Toyota Motor Manufacturing Kentucky, Inc. v. Williams 534 U.S. 184 122 S. Ct. 681 (2002) and Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999). The ADAAA changed the Supreme Court’s interpretation of who is considered to be eligible under the new ADA, in effect, leading to a much larger segment of the American population that have conditions that now qualify as disabled under ADA.
More importantly for employers, the new laws brought central focus to employer compliance. “Did the employer reasonably accommodate the disabled employee?” rather than “Is the condition really considered a disability?”
The amendments restore benefits by making changes to the definition of the term disability that more closely mirrors the intentions of the original act as passed in 1990. Perhaps just as significantly, the ADAAA overturns more than a decade of court cases involving those with conditions such as epilepsy, mental health disorders, diabetes, autism, attention deficit disorder, developmental delays, intellectual disabilities, muscular dystrophy, and cancer. Additionally, other illnesses that affect major life activities such as working, communicating, concentrating, thinking, reading, and other activities of central importance now fall under the protections of ADA and are considered a protected disability.
As stated in the new legislation, the purpose of this act is:
(1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA.
In Section 3, DEFINITION OF DISABILITY under the regarded section, coverage is now expanded to persons who are not truly disabled, but who may be regarded as disabled, regardless of whether the impairment or perceived impairment limits major life activity. An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. The new 2008 ADA amendments ensure that those with serious conditions or conditions that substantially limit major life activities are now covered by ADA regardless of mitigating measures.
The ADAAA legislation: prohibits consideration of mitigating measures other than “ordinary contact lenses or eyeglasses” when determining whether someone has a disability. The Supreme Court previously allowed medications or assistive devices people used to control their disability into account when determining if that person qualified as having a disability. The ADAAA no longer allows such factors to be taken into consideration when determining whether someone is disabled under the ADA. Previously, a diabetic on medication to regulate his/her condition might have been deemed “not to have a covered disability.” Now, items such as medication, cochlear implants, oxygen therapy, hearing aids, prosthetics, etc., cannot be taken into consideration when determining the definition of disability. Additionally, because the definition of disability has been expanded, that person would likely qualify as having a disability under ADA. This change to the law overturns the intent of the Supreme Court ruling in Sutton v. United Airlines, which determined that people with disabilities were not covered by the ADA if their condition could be mitigated by medication, assistive technology and equipment, or learned behavioral adaptations. 527 U.S. 471 (1999).
The ADAAA says that the condition or impairment is a disability if it “materially restricts” a major life activity, more specifically, if it is a physical or mental impairment that substantially limits one or more major life activities. Previously, the courts held that a person had to be significantly restricted” in order to qualify under ADA.
Congress deemed this standard too restrictive and attempted to correct more than a decade of unfavorable interpretation by passing the ADAAA, which includes “bodily functions” as part of major life activities. ADAAA provided that major bodily functions covered under the ADA include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This drastically expanded the list of conditions that fall under the protections of ADA. In the past, some serious conditions were not considered disabilities under ADA because they did not substantially affect a major life activity. Now, the ADAAA provides that major bodily functions are major life activities.
Perhaps the most critical component of dealing with ADA is ensuring that employees and applicants are engaged in the interactive process and documenting that process. This can be an on-going process that may look like a series of conversations, meetings, correspondence, and hands-on problem solving. It may involve consulting with an ADA expert or checking with other employers to determine creative solutions to accommodating individuals with covered disabilities. It may involve observing the employee to determine what physical and spatial changes would best serve this individual. More often than not, the individual will have excellent suggestions as to what equipment or accommodations are needed to help the applicant/employee perform the essential job functions.
Employers don’t want to be faced with a “she said/he said” situation in court. For this reason employers should document the interactive process carefully. Courts will almost always look first at the interactive process to determine if the employer acted in good faith by working with the individual to identify barriers to applying for or performing job duties as well as reviewing the individual’s limitations to determine possible accommodations. Additionally, the interactive process is the best tool employers have to avoid liability for disability discrimination and the failure to provide reasonable accommodations. Most problems occur during the interactive process, which is completely avoidable in most cases by simply making sure you engage in dialogue with the individual.
The ADA law defines a current disability as a medical condition or disorder referred to as an” impairment” that substantially limits one or more major life activities. For an impairment to rise to the level of a disability under ADA, it must substantially limit a major life activity. An impairment alone is not automatically a disability.
An “individual with a disability” is an individual who:
“Substantially limits” was revised under the new ADAAA. Previously, “substantially limits” was akin to “significantly restricted.” During ADAAA in 2008, Congress asked the EEOC to revise its regulations of “substantially limits” by lowering the standard and making it easier to qualify as “substantially limited” under ADA. Employers are directed to construe “substantially limits” broadly, providing individuals with the maximum benefit under the law.
It should be noted that court cases have shown that objective evidence is required to show that an individual is substantially limited in major life activities as compared to the general population (not to other disabled individuals). The Connecticut Labor & Employment Law Blog recently covered a federal case Rumbin v. Association of American Medical Colleges. The court ruled that impairments that merely “affect” major life activities do not rise to the level of a covered disability under ADA (Mar-2011).
Major life activities include walking, seeing, hearing, caring for oneself, breathing, performing manual tasks, eating, speaking, standing, lifting, sitting, learning and thinking, reading, concentrating, communicating, interacting, and working. Major life activities also include the operation of major bodily functions, functions of the immune system, special sense organs and skin, normal cell growth, genitourinary, digestive, bladder, bowel, respiratory, neurological, brain, circulatory, cardiovascular, endocrine, lymphatic, hemic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ with a body system.
Prior to ADAAA certain conditions such as gastrointestinal (GI) disorders and cancer may not have been consistently covered under ADA because it was not clear that bodily functions alone were classified as major life activities. These types of conditions mainly only affected bodily conditions as opposed to limiting primary activities such as walking, talking etc. Since the passage of ADAAA this confusion has been cleared up and bodily functions are now classified as major life activities.
An “individual with a disability” is an individual who:
The “regarded as” prong of ADA was meant to keep employers from making employment-based decisions based on myths, fears, and stereotypes. In 2008, ADAAA made changes to this third part of the definition of disability. An individual no longer must show that the employer believed the impairment substantially limited ability to perform a major life activity. Individuals are covered under this provision when an employer takes action prohibited by ADA such as making an adverse employment decision based on an actual or perceived impairment (i.e., not hiring someone due to a history of a brain tumor). This means an individual could take legal action against an employer who made an adverse employment decision as a result of erroneous information.
According to the Federal Register, in the final regulations from 2011, the commission added a new provision to the final regulations (o)(4) in § 1630.2(o) which states that a covered entity is not required to provide a reasonable accommodation to an individual who meets the definition of a disability solely under the “regarded as” prong (§ 1630.2(g)(1)(iii)). However, if the individual meets the “regarded as” prong and one or both of the other two prongs of the definition of disability, the employer is required to provide reasonable accommodations.
Impairments that are short term (six months or less) are considered transitory and do not fall under the “regarded as” part of the definition. For example, an employer may choose not to hire an individual for a temporary position due to impairment such as a sprained ankle because it would prevent the individual from being able to perform an essential function of the job for the next four to six weeks.
Please note that the ADA statute and regulations do not have a list of covered conditions. These are simply some examples of conditions that may be covered under ADA, provided the individual meets the additional criteria. With courts ruling more frequently on ADA, it is important to consider the impact of recent court decisions and interpretations under ADA.
Individuals should always be assessed on a case-by-case basis. There is no one size fits all approach to determining what conditions are covered. Most importantly, to qualify under ADA the individual must have an impairment that substantially limits one or more major life activities. Some examples of impairments covered under ADA may be: HIV, AIDS, brain tumors, severe accident trauma, migraines, certain mental health disorders, psychological disorders, specific learning disabilities, mental retardation, organic brain syndrome, epilepsy, diabetes, post traumatic stress disorder (PTSD), multiple sclerosis, cancer, hypertension, asthma, and heart disease.
Some examples of impairments not covered under ADA may be: appendicitis, short bouts of depression, weight conditions within normal ranges, normal height deviations, traits and behaviors, cultural or economic disadvantages, normal pregnancies, quick temper, poor judgment, irritability, physical characteristics such as being left-handed, hair color, eye color, homosexuality, bi-sexuality, gender disorders, broken limbs, gambling addiction, eye or hair color, height, weight, lack of education, old age, poor judgment, sprains, current use of illegal drugs, sexual behavioral disorders, and disorders caused by the use of illegal drugs.
Stress
According to the EEOC, stress may be shown to be related to a mental or physical impairment. Similarly, traits such as irritability, chronic lateness, and poor judgment are not, in themselves, mental impairments, although they may be linked to mental impairments.
Other Examples of Non-covered Conditions
Broken limbs, sprains, concussions, appendicitis, common colds, or influenza generally would not be disabilities. A broken leg that heals normally within a few months, for example, would not be a disability under the ADA. However, if a broken leg took significantly longer than the normal healing period, and during this period the individual could not walk, he or she would be considered to have a disability. Or, if the leg did not heal properly, and resulted in a permanent impairment that significantly restricted walking or other major life activities, he or she would be considered to have a disability.
This list is not all inclusive and does not cover all possible scenarios related to these conditions. Additionally, each individual should be assessed on a case-by-case basis. Complications to common non-covered conditions can often result in eligibility under ADA.
The regulations no longer include a six-month durational requirement in order to establish a disability. It is often difficult to determine the duration of a medical condition or impairment. The EEOC says that if a condition is severe with an indefinite and unknown duration, it may qualify as a disability.
How long an impairment lasts is a factor to be considered, but does not by itself determine whether a person has a disability under the ADA. The basic question is whether an impairment “substantially limits” one or more major life activities. This question is answered by looking at the extent, duration, and impact of the impairment. Temporary, non-chronic impairments that do not last for a long time and have little or no long-term impact usually are not disabilities.
According to the EEOC, some conditions may be long-term, or potentially long-term, in that their duration is indefinite and unknowable or is expected to be at least several months. Such conditions, if severe, may constitute disabilities under ADA.
The regulations were loosened with ADAAA to be more flexible with episodic conditions and illnesses in remission. ADA applies when an impairment or illness is active rather than dormant. When symptoms are in remission, individuals may still be covered if they require an accommodation to continue controlling symptoms. Episodic conditions and illnesses in remission could be impairments such as: Bi-polar disorder, depression, cancer, PTSD, multiple sclerosis, GI diseases, migraine headaches, etc.
While the original ADA statute makes no mention of obesity under ADA, the 2008 amendments to ADA make it somewhat posible that obesity may be seen as a protected disability under ADA at some point in the future. The 7th Circuit joined the 2nd, 6th and 8th circuits in ruling that, absent evidence that it was caused by an underlying physiological disorder or condition, extreme obesity is not a physical impairment under the ADA. The 1st Circuit found otherwise.
Whether obesity qualifies as a disability under the ADA is largely dependent on a variety of factors, including jurisdiction. Most jurisdictions that have considered the issue have held that obesity alone, without an underlying physiological disorder, does not constitute a protected physical impairment. Even still, cities should proceed cautiously when making employment decisions that could involve these issues, and should consult with the their city attorney, or risk underwriter to ensure they are acting in accordance with the law.
A healthy pregnancy is generally not considered a disability under ADA because it does not meet the definition of a disability on its own. However, a pregnant individual with complications resulting from pregnancy, or impairments provoked by pregnancy may be considered disabled under ADA. To be covered under ADA, the pregnant individual must have an impairment that substantially limits one or more major life activities.
Regardless of ADA status your agency should be attentive to other pregnancy protections such as Family and Medical Leave Act (FMLA), Pregnancy Discrimination Act (PDA), Title VII, and state discrimination laws.
General Pregnancy Accommodations
It should be expected that individuals who are pregnant may have restrictions in lifting, walking, standing for long periods, sitting, and being exposed to certain chemicals or conditions. As an employer you should consider offering accommodations such as: closer parking, rest breaks, a chair or stool for prolonged standing, ergonomic tools, a flexible work schedule, telecommuting, limited travel, relaxed dress code, and periodic rest breaks.
Light Duty and Reduced Work Schedules for Pregnancy
Cities are not required to provide light duty work or part-time work to accommodate a pregnancy. However, an individual who is pregnant should be treated in the same manner as other individuals with non-work related injuries. If a health care provider indicates that a pregnant employee needs part-time work for health reasons, you should consider such schedule as a possible accommodation.
Positions that may be Considered Dangerous during Pregnancy
Frequently cities ask if they can make their female police officer take leave for the safety of the fetus. The answer is No. According to the EEOC, if an employee is able to perform her job functions then she must be considered eligible for employment regardless of the presence of workplace hazards to the fetus. However, if the employee is unable to perform the essential functions of the job, an offer of accommodation in the form of a transfer to another position (if available), or an offer for the employee to take leave under FMLA and or your employer’s policies, have been seen as reasonable.
Employers who have women in positions that might endanger a fetus must warn women of the potential risk and provide alternatives, if available. However, if a woman chooses to continue to work in her capacity, the employer may not interfere with her right to work unless she cannot perform the essential functions of the job. International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, 499 U.S. 187 (1991).
What if a Health Care Provider Determines She must Stop Working?
If at any point a health care provider deems it medically necessary for a female to stop working prior to delivery, a covered employer likely should accommodate that request by offering leave. While most women can work up to their due date, other women may experience health conditions that require them to stop working until delivery and postpartum recovery.
Courts have held that regular attendance is an essential function of many jobs. Therefore some cases of chronic absenteeism can prevent an employee from being able to perform the essential functions of the job. However, it is important to look at the individual’s position and duties and determine how much absenteeism or leave can be accommodated. Courts have ruled that certain positions such as bank manager or restaurant manager simply require more regular attendance in order to be able to fulfill the essential job functions. If the severity of absences requires the organization to hire a new staff member, incur unreasonable overtime costs, it may not a reasonable accommodation. Courts emphasize that there is no specific formula for determining length of leave as a reasonable accommodation. It is important to look at each position on a case-by-case basis.
Note: Please use caution with using regular attendance as an essential function of the job. Some employers are under the false notion that adding a line to each job description listing regular attendance as an essential function means that they will not have to accommodate unprotected and extended absences.
When discussing ADA the term “essential function of the job” is used quite frequently. This is because all individuals are required to be able to perform the essential functions of their job either with or without accommodations.
It is important to be able to distinguish between an essential function and a marginal function. To determine this, employers should consider the following items:
ADAAA says mitigating measures can no longer be used as a factor in determining if someone’s impairment qualifies under ADA. This is a significant change from ADA prior to ADAAA. Mitigating devices can be things such as: medication, medical supplies and equipment, prosthetics, hearing aids and other hearing devices such as cochlear implants, mobility devices, oxygen, and vision devices (except ordinary eyeglasses or contact lenses). Additionally, mitigating measures could also mean assistive technology, behavioral and neurological modifications, psychotherapy, therapy etc. For example, an individual who has insulin dependent diabetes and takes an insulin regulator will still be covered under ADA, and the employer may not use the mitigating measure (prescription) to determine limitations.
Cities and towns that fall under ADA are required to make reasonable accommodations for those applicants and employees with disabilities. This is a critical component of ADA administration. Notably, there is always much discussion surrounding what “reasonable” means.
A reasonable accommodation* is a 'feasible' or 'plausible' change in the work environment or in the way things are usually done that result in equal employment opportunity for a qualified individual with a disability. An individual with a qualified disability is not entitled to the accommodation of his choice, but only to a reasonable accommodation under ADA.
*A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases; "this means it is "reasonable" if it appears to be "feasible" or "plausible." An accommodation also must be effective in meeting the needs of the individual. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Similarly, a reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job. Finally, a reasonable accommodation allows an employee with a disability an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy. https://www.eeoc.gov/policy/docs/accommodation.html [5]
An employer must make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would cause an undue hardship on the operation of its business. Some examples of reasonable accommodation include but are not limited to:
An employer is not required to lower quality or quantity standards to make an accommodation. Nor is an employer obligated to provide personal use items, such as glasses or hearing aids, as accommodations. However, there may be limited circumstances where a personal use item is appropriate. Employers should be mindful about setting precedence, as the law does not require you to provide personal items as an accommodation under ADA. Keep in mind, the city should always have documented dialogue(s) with the individual requesting the accommodation.
When can an employer not provide a reasonable accommodation?
*The only statutory limitation on an employer's obligation to provide "reasonable accommodation" is that no such change or modification is required if it would cause "undue hardship" to the employer. "Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship. The ADA's "undue hardship" standard is different from that applied by courts under Title VII of the Civil Rights Act of 1964 for religious accommodation. https://www.eeoc.gov/policy/docs/accommodation.html [5]
The employee or individual bears the burden of identifying a workplace barrier and communicating that to the employer. Once an accommodation is requested, the individual must also take responsibility for demonstrating how the accommodation assists him or her in performing the essential job functions. Employers are free to choose accommodations and can provide those less expensive or easier to obtain.
If you suspect a potential disability it is critical that you engage in dialogue asking employees if there is anything that the employer can do to help them perform in their jobs. This will often open the door for the employees to advise you of any potential disabilities covered under ADA. Employees and applicants do not have to use legal language such as “reasonable accommodation” when expressing workplace barriers and the need for an accommodation.
According to the EEOC, an individual may use “plain language” and need not mention the ADA or use the phrase “reasonable accommodation” when requesting an accommodation. A need may be indicated by an employee stating something such as “I am having trouble hearing customers due to my recent hearing loss, as a result of treatment for XYZ.” This should be enough to prompt interactive dialogue and should be considered a request for an accommodation.
The Genetic Information and Non Discrimination Law (GINA) was signed into law by President Bush in May of 2008 and took effect November 21, 2009. As one could imagine GINA and ADA commonly intersect because disabilities are often the result of genetic issues.
GINA prohibits discrimination based on the possibility that someone will acquire a condition in the future. ADA protects individuals who currently have impairments or who are perceived as having impairments if they meet the definition of disability under ADA.
GINA restricts employers and insurers from acquiring and using genetic information except in limited circumstances. With respect to employment, GINA:
When an employer requests medical information in the course of administering ADA, there is a potential to obtain information that could be protected by GINA, including genetic information such as: results of genetic tests for cancer genes, hereditary diseases, and other disorders. Results of genetic information on family members are also protected under GINA. GINA protections include requests for genetic information by an employer about employees or their family members as well as genetic information regarding a fetus or embryo. It also includes the manifestation of a disease or disorder that may pertain to employees or their family members.
If you do use ADA accommodation forms, be sure to provide a disclaimer stating you are not soliciting genetic test results from employees or their family members or anything that may not be applicable to the ADA and covered by GINA.
Tests that are not considered genetic are:
The FMLA regulations define son or daughter as the “biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, who is under 18 years of age.” The definition is expanded to include a child 18 years of age or older if the child is incapable of self-care because of a mental or physical disability. The FMLA defers to the ADA’s definition of the term “disability.” As an employer you need to proceed cautiously when FMLA and ADA intersect. The new legislation makes it clear that an employee who performs well also may be substantially limited in one of the major life activities of learning, reading, writing, thinking, and speaking. This employee will still need to establish that he or she has limitations and needs a “reasonable” accommodation.
Some clarifications have been made since the ADA Amendments Act of 2008 was passed those include:
Employers are increasingly using social media as a way to screen and learn more information about potential job candidates. Absent a social media hiring policy and a qualified screener, this is problematic because the employer may view protected information such as what disabilities individuals or their family members may have. Once the employer sees this information there is no way to undo this. This information is protected, and not job related, it is information that should not be used during the application process. If an adverse employment decision is made, individuals may claim it was due to the employer seeing their disability status. Having a qualified third party, or a non-hiring authority screen social media avenues would prevent this protected information from being passed on to hiring authorities or to those in decision making positions and greatly reduce the employers liability.
With the expansion to the scope of ADA by the ADAAA, it is easier for an employee to take leave to care for an adult child who has a serious health condition. Under the FMLA, parents may be eligible to take family leave (FML) to care for adult children who are not in the military and are not veterans if the children are “incapable” of self-care and have a disability defined by ADA. Generally this means the adult children must require direct assistance or supervision providing self-care in three or more activities of daily living such as grooming, hygiene, bathing, dressing, and eating. These could also include instrumental activities of daily living such as essential errands, cooking, cleaning, shopping, transporting, paying bills, using communication devices, and maintaining a residence.
There are many different disabilities or conditions that could deem an adult child incapable of self-care. Conditions such as developmental disabilities including Down Syndrome, brain damage, paralysis, and any other long-term serious illness are just a few examples. If an adult child is incapacitated in a car accident this could also provide the opportunity for an eligible parent to provide care under FMLA. Temporary conditions or illnesses such as pregnancy related restrictions or routine surgeries would likely not result in someone being “incapable of self-care” as defined by the regulations.
Title II of ADA addresses the right of access to public services by individuals with disabilities. In some cases an accommodation may be as simple as providing assistance filling out utility forms, or as complex as making sure bathrooms, drink fountains, hallways, and other spaces can accommodate those in wheelchairs.
Public entities include any state or local government and any of its departments, agencies, or other instrumentalities. All activities, services, and programs of public entities are covered, including activities of state legislatures and courts, town meetings, police and fire departments, motor vehicle licensing, and employment. Unlike section 504 of the Rehabilitation Act of 1973, which only covers programs receiving federal financial assistance, Title II extends to all the activities of state and local governments whether or not they receive federal funds. Public transportation services operated by state and local governments are covered by regulations of the department of transportation.
Qualified Individuals
DOT’s regulations establish specific requirements for transportation vehicles and facilities, including a requirement that all new buses must be equipped to provide services to people who use wheelchairs. A “qualified” individual with a disability is one who meets the essential eligibility requirements for the program or activity offered by a public entity.
The “essential eligibility requirements” will depend on the type of service or activity involved. For some activities and essential job requirements the ability to meet specific skill and performance requirements may be “essential.” For other activities, such as where the public entity provides information to anyone who requests it, the “essential eligibility requirements” would be minimal. This means that a city may not refuse an individual with a disability from participating in events, parks and recreation facilities, and anything else that could be discriminatory toward those individuals with a disability. This may include such things as:
Safety Concerns
Restrictions due to documented safety hazards may be imposed, as long as they are valid and not speculative in nature.
A city may not charge a person with a disability for the use of an auxiliary aid. Cities are required to furnish auxiliary aids unless the purchase or creation of the auxiliary aid would result in an undue burden (financial or administrative). A city is not required to provide auxiliary aids that would translate to a fundamental change in the nature of a service, program, or activity.
E-911 and Emergency Services
Emergency telephone services, including 911 services, must provide direct access to individuals with speech or hearing impairments.
Building Accessibility
Cities should continually check building standards and architectural standards, as they have been revised since the inception of ADA.
Note the Safe Harbor provision of Title II requires that public entities ensure their programs are accessible to individuals with disabilities. This does not always mean the city is required to make structural changes to buildings. The determination of whether a program is accessible is made by looking at the totality of circumstances for each activity or program.
The department’s Title II regulations for state and local governments are found at Title 28, Code of Federal Regulations, Part 35 (abbreviated as 28 CFR pt. 35). The ADA Standards for Accessible Design are located in Appendix A of Title 28, Code of Federal Regulations, Part 36 (abbreviated as 28 CFR pt. 36 app. A and amended by 76 FR 13287, March 11, 2011). Those regulations, the statute, and many helpful technical assistance documents are located on the ADA website at www.ada.gov [6] and on the ADA technical assistance CD-ROM available without cost from the toll-free ADA Information Line at 1-800-514-0301 (voice) and 1-800-514-0383 (TTY).
Note: This section is not intended to provide comprehensive information on the spatial, physical, or construction issues surrounding ADA. For information related to these issues please check with your MTAS consultant for additional assistance.
Title III
Title III covers public accommodations, commercial facilities, and private entities that offer certain opportunities to the public. Places of public accommodation include restaurants, hotels, theaters, convention centers, retailers, shopping centers, dry cleaners, laundromats, pharmacies, provider’s offices, hospitals, museums, libraries, theaters, parks, zoos, amusement parks, private schools, day care centers, health spas, and bowling alleys. Entities controlled by religious groups including churches, and places of worship are not covered. Private clubs are not covered, unless aspects of that club are open to the public. State and local governments are not covered by Title III regulation, but are covered by the department of justice’s Title II regulation.
Title IV
Title IV amends the Communications Act of 1934 to require that telephone companies provide telecommunication relay services. Also included under Title IV are Closed Captioning (CC) services, namely, televisions 13 inches or more in size must provide CC services.
Title V
Title V is miscellaneous provisions. This section provides supplemental regulations that are not covered elsewhere in the act. Title V includes state immunity, retaliation, attorney’s fees, coverage of Congress, and other federal and state laws.
Dos and Don’ts for Employers
Q1: Are individuals who engage in illegal drugs protected by ADA?
Individuals who currently engage in the use of illegal drugs are not protected by the ADA when an action is taken on the basis of their current illegal use of drugs. Individuals who currently use illegal drugs are not individuals with disabilities protected under the act when an employer takes action because of their continued use of drugs. This includes people who use prescription drugs illegally as well as those who use illegal drugs. However, people who have been rehabilitated and do not currently use drugs, or who are in the process of completing a rehabilitation program may be protected by the ADA.
Q2: Are Homosexuals or Bi-sexuals protected by ADA?
The act states that homosexuality and bisexuality are not impairments and therefore are not disabilities under the ADA. In addition, the act specifically excludes a number of behavior disorders from the definition of “individual with a disability.” However, if homosexual or bi-sexual employees ask for an accommodation under ADA they should be treated the same as any other employee.
Q3: Are temporary conditions covered under ADA?
How long impairment lasts is a factor to be considered, however, it does not by itself determine whether a person has a disability under the ADA. The basic question is whether an impairment “substantially limits” one or more major life activities. This question is answered by looking at the extent, duration, and impact of the impairment. Temporary, non-chronic impairments that do not last for a long time and have little or no long-term impact usually are not disabilities.
According to http://askjan.org [7] “The six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage does not apply to the “actual disability” prong or the “record of” prong. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section. For example, if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability. At the same time, “the duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity. Impairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.”
Q4: Does the ADAAA apply to discriminatory acts that occurred prior to January 1, 2009?
No. The ADAAA does not apply retroactively. For example, the ADAAA would not apply to a situation in which an employer allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability in December 2008, even if the person did not file a charge with the EEOC until after January 1, 2009. The original ADA definition of disability would be applied to such a charge. However, the ADAAA would apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009. (Source: EEOC)
Q5: Do I need a special recordkeeping process for ADA information?
Although the ADA and GINA have different exceptions to confidentiality, employers may keep genetic information in the same confidential file as medical information subject to ADA.
Q6: Who is a “qualified individual with a disability?”
A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job. (Source: www.ada.gov [6])
Q7. What limitations does the ADA impose on medical examinations and inquiries about disability?
An employer may not ask or require a job applicant to take a medical examination before making a job offer. It cannot make any pre-employment inquiry about a disability or the nature or severity of a disability. An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how he would perform these functions. An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category. A post-offer examination or inquiry does not have to be job-related and consistent with business necessity.
However, if an individual is not hired because a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be job-related and consistent with business necessity. The employer also must show that no reasonable accommodation was available that would enable the individual to perform the essential job functions, or that accommodation would impose an undue hardship. A post-offer medical examination may disqualify an individual if the employer can demonstrate that the individual would pose a “direct threat” in the workplace (i.e., a significant risk of substantial harm to the health or safety of the individual or others) that cannot be eliminated or reduced below the direct threat level through reasonable accommodation. Such a disqualification is job-related and consistent with business necessity. A post-offer medical examination may not disqualify an individual with a disability who is currently able to perform essential job functions because of speculation that the disability may cause a risk of future injury.
After a person starts work, a medical examination or inquiry of an employee must be job-related and consistent with business necessity. Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, examinations required by other Federal laws, examinations to determine current fitness to perform a particular job, and voluntary examinations that are part of employee health programs. Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions. Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the restrictions of such examinations. (Source: www.ada.gov [6])
Q8: Does the ADA require employers to develop written job descriptions?
No. The ADA does not require employers to develop or maintain job descriptions. However, a written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors. If an employer uses job descriptions, they should be reviewed to make sure they accurately reflect the actual functions of a job. A job description will be most helpful if it focuses on the results or outcome of a job function, not solely on the way it customarily is performed. A reasonable accommodation may enable a person with a disability to accomplish a job function in a manner that is different from the way an employee who is not disabled may accomplish the same function in a manner that is different from the way an employee who is not disabled may accomplish the same function. Note: MTAS recommends that you have job descriptions on file for each position.
Q9. Is testing for the illegal use of drugs permissible under the ADA?
Yes. A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests. If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record. (Source: www.ada.gov [6])
Q10. How does the ADA affect workers’ compensation programs?
Only injured workers who meet the ADA’s definition of an “individual with a disability” will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers’ compensation or other disability laws. A worker also must be “qualified” (with or without reasonable accommodation) to be protected by the ADA. Work-related injuries do not always cause physical or mental impairments severe enough to “substantially limit” a major life activity. Also, many on-the-job injuries cause temporary impairments that heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers’ compensation or other disability benefits laws may not be protected by the ADA. An employer must consider work-related injuries on a case-by-case basis to know if a worker is protected by the ADA.
An employer may not inquire into an applicant’s workers’ compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may inquire about a person’s workers compensation history in a medical inquiry or examination that is required of all applicants in the same job category. However, even after a conditional offer has been made, an employer cannot require a potential employee to have a medical examination because a response to a medical inquiry (as opposed to results from a medical examination) shows a previous on-the-job injury unless all applicants in the same job category are required to have an examination. Also, an employer may not base an employment decision on the speculation that an applicant may cause increased workers’ compensation costs in the future. However, an employer may refuse to hire, or may discharge an individual who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others, if the risk cannot be eliminated or reduced by reasonable accommodation.
An employer may refuse to hire or may fire a person who knowingly provides a false answer to a lawful post-offer inquiry about his condition or worker’s compensation history. An employer also may submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers’ compensation offices and “second injury” funds without violating ADA confidentiality requirements. (Source: www.ada.gov [6])
Q11. Is time off under ADA a reasonable accommodation? What if the employee already exhausted all other protected forms of leave such as FMLA?
Generally, the FMLA gives eligible employees up to 12 weeks of unpaid leave per year. Employers are free to discharge employees who cannot return to work after that time is up — that’s legal under the FMLA. (Note: In some cases FMLA can go up to 26 weeks). But before you fill out that pink slip, consider whether the employee may be disabled under the ADA. If so, he may be entitled to more time off as an accommodation. The FMLA allows leave for a serious health condition, which may or may not be a disability under the ADA. That’s because “serious health condition” and “disability” aren’t synonymous. Under the ADA, disability is defined as a condition that substantially limits a major life activity. Thus, a disabled employee (even one who wasn’t eligible for FMLA leave because he hadn’t worked for his employer for a year or more, or for 1,250 hours in the last year) may be eligible for leave as a reasonable accommodation under ADA.
Q12. Should we be using an ADA request form?
An ADA Reasonable Accommodation Request form for current employees is helpful for your organization. It will also allow you to put a GINA disclaimer on there if necessary. Have your legal counsel review any forms prior to use. A sample form from the state of Alaska uses is available. [8]
Q13. Can an employer use additional information such as scientific, medical or statistical evidence to help determine if a condition is covered under ADA?
According to http://askjan.org [7], the comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing prohibits the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.
Q14. As an employer, may I ask for medical documentation for a condition that is not obvious?
Yes, employers can ask for documentation when an employee requests an accommodation and the disability and or need for an accommodation is not obvious. The documentation required should not be excessive. Instead, the employer’s focus should be on the accommodation, determining if it is reasonable and whether there are other accommodations that could be considered.
Q15. I keep reading that the focus should be on the accommodation and not the condition. Does this mean we should just assume all requests are legitimate without checking to see if their impairment falls under the definition of an ADA disability?
No. You should still be sure that the condition or impairment qualifies under the present law. Each situation must be determined on a case by case basis because conditions affect individuals differently. However, the law is clear in that the employer should not have to do extensive research to see if a condition qualifies.
Q16. My employee has an impairment that substantially limits his immune system however, this major life activity is not one that is required to perform his job. Do we still have to accommodate him?
Yes. Don’t confuse the definition of disability with an accommodation. Even though he doesn’t need his “immune system” working normally to perform work, the employee still has a covered disability and is entitled to an accommodation for any limitations associated with the disability whether significant or not. Perhaps in this case a reasonable accommodation is a plastic panel that helps protect him from germs and infections.
Q17. Am I required to allow a pregnant employee to work from home?
Many courts have held that telecommuting is a reasonable accommodation under ADA. If a pregnancy qualifies under ADA and telecommuting is not an undue burden on the employer then you may be required to allow it as a reasonable accommodation. If your organization allows other disabled employees to telecommute or allows similar positions the option of telecommuting it is likely that you would need to approve such a request.
Q18. When can an employer ask an applicant to “self-identify” as having a disability?
Federal contractors and subcontractors who are covered by the affirmative action requirements of section 503 of the Rehabilitation Act of 1973 may invite individuals with disabilities to identify themselves on a job application form or by other pre-employment inquiry, to satisfy the section 503 affirmative action requirements. Employers who request such information must observe section 503 requirements regarding the manner in which such information is requested and used, and the procedures for maintaining such information as a separate, confidential record, apart from regular personnel records. A pre-employment inquiry about a disability is allowed if required by another federal law or regulation such as those applicable to disabled veterans and veterans of the Vietnam era. Pre-employment inquiries about disabilities may be necessary under such laws to identify applicants or clients with disabilities in order to provide them with required special services. (Source: www.ada.gov [6])
Q19. Can we offer pregnant employees more leave than we offer employees with other temporary disabilities?
Although employers may not treat pregnant employees worse than other temporarily disabled employees, some preferential treatment of pregnant employees may be lawful. In California Federal Savings and Loan v. Guerra, 479 U.S. 272 (1987), the Supreme Court held that a state can require employers to provide a benefit to pregnant employees, such as additional leave, which is not granted to other temporarily disabled employees. This decision appears to allow employers to give pregnant employees more leave than is given to other employees.
One caveat should be noted. This preferential treatment may apply only during the period when the employee is actually disabled as a result of the pregnancy. Employers generally must give the same leave benefits to both male and female employees who take parental leave to care for a newborn. Therefore, if you offer female employees leave for childcare when no disability exists, you also should offer male employees equivalent leave.
Q20. Can we discipline a pregnant employee for performance and attendance problems?
Generally, yes. Although a pregnant employee is protected from discrimination, you do not have to tolerate poor performance or attendance simply because she is pregnant. You may hold her to the same work standards as other employees, as long as you apply them consistently. If her performance or attendance problems are related to her pregnancy (for example, she is late to work because of morning sickness or cannot lift boxes as required to perform her job), the PDA requires only that you treat her the same as you would any other employee with a temporary medical condition. Thus, if you allow employees with temporary medical conditions to be late because of their conditions or accommodate their lifting restrictions, you should apply the same standards to a pregnant employee. Note, however, if she is covered under the FMLA, you should take her pregnancy into consideration if her attendance problems are caused by pregnancy-related medical conditions. Absences that qualify as FMLA leave should not be counted when determining whether an employee’s attendance problems warrant discipline or discharge.
Q21. Is drug testing permitted under the ADA?
Yes. Public entities may utilize reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs. (Source: www.ada.gov [6])
Q22. May an employer withdraw a telework arrangement or a modified schedule provided as a reasonable accommodation because the employee is given an unsatisfactory performance rating?
No. An employer may not withdraw a reasonable accommodation as punishment for the unsatisfactory performance rating. Simply withdrawing the telework arrangement or a modified schedule is no different than discontinuing an employee’s use of a sign language interpreter or assistive technology as reasonable accommodations. Nor should an employer assume that an unsatisfactory rating means that the reasonable accommodation is not working. The employer can proceed with the unsatisfactory rating, but may also wish to determine the cause of the performance problem to help evaluate the effectiveness of the reasonable accommodation. If the reasonable accommodation is not assisting the employee in improving his performance as intended, the employer and employee may need to explore whether any changes would make the accommodation effective, whether an additional accommodation is needed, or whether the original accommodation should be withdrawn and another should be substituted. (Source: www.eeoc.gov [9])
Q23. If an employee’s disability causes violation of a conduct rule, may the employer discipline the individual?
Yes, if the conduct rule is job-related and consistent with business necessity and other employees are held to the same standard. The ADA does not protect employees from the consequences of violating conduct requirements even where the conduct is caused by the disability. The ADA generally gives employers wide latitude to develop and enforce conduct rules. The only requirement imposed by the ADA is that a conduct rule be job-related and consistent with business necessity when it is applied to an employee whose disability caused her to violate the rule. Certain conduct standards that exist in all workplaces and cover all types of jobs will always meet this standard, such as prohibitions on violence, threats of violence, stealing, or destruction of property. Similarly, employers may prohibit insubordination toward supervisors and managers and also require that employees show respect for, and deal appropriately with, clients and customers. Employers also may:
Whether an employer’s application of a conduct rule to an employee with a disability is job-related and consistent with business necessity may rest on several factors, including the manifestation or symptom of a disability affecting an employee’s conduct, the frequency of occurrences, the nature of the job, the specific conduct at issue, and the working environment. These factors may be especially critical when the violation concerns “disruptive” behavior which, unlike prohibitions on stealing or violence, is more ambiguous concerning exactly what type of conduct is viewed as unacceptable. The following examples illustrate how different results may follow from application of these factors in specific contexts.
Example A: Steve, a new bank teller, barks, shouts, utters nonsensical phrases, and makes other noises that are so loud and frequent that they distract other tellers and cause them to make errors in their work. Customers also hear Steve’s vocal tics, and several of them speak to Donna, the bank manager. Donna discusses the issue with Steve and he explains that he has Tourette Syndrome, a neurological disorder characterized by involuntary, rapid, sudden movements or vocalizations that occur repeatedly. Steve explains that while he could control the tics sufficiently during the job interview, he cannot control them throughout the work day; nor can he modulate his voice to speak more softly when these tics occur. Donna lets Steve continue working for another two weeks, but she receives more complaints from customers and other tellers who, working in close proximity to Steve, continue to have difficulty processing transactions. Although Steve is able to perform his basic bank teller accounting duties, Donna terminates Steve because his behavior is not compatible with performing the essential function of serving customers and his vocal tics are unduly disruptive to coworkers. Steve’s termination is permissible because it is job-related and consistent with business necessity to require that bank tellers be able to (1) conduct themselves in an appropriate manner when serving customers and (2) refrain from interfering with the ability of coworkers to perform their jobs. Further, because Steve never performed the essential functions of his job satisfactorily, the bank did not have to consider reassigning him as a reasonable accommodation.
Example B: Steve works as a bank teller but his Tourette Syndrome now causes only infrequent throat clearing and eye blinks. These behaviors are not disruptive to other tellers or incompatible with serving customers. Firing Steve for these behaviors would violate the ADA because it would not be job-related and consistent with business necessity to require that Steve refrain from minor tics that do not interfere with the ability of his coworkers to do their jobs or with the delivery of appropriate customer service.
Example C: Assume that Steve has all the severe tics mentioned in Example A, but he now works in a noisy environment, does not come into contact with customers, and does not work close to coworkers. The environment is so noisy that Steve’s vocalizations do not distract other workers. Steve’s condition would not necessarily make him unqualified for a job in this environment.
Example D: A telephone company employee’s job requires her to spend 90 percent of her time on the telephone with coworkers in remote locations, discussing installation of equipment. The company’s code of conduct requires workers to be respectful toward coworkers. Due to her psychiatric disability, the employee walks out of meetings, hangs up on coworkers on several occasions, and uses derogatory nicknames for coworkers when talking with other employees. The employer first warns the employee to stop her unacceptable conduct, and when she persists, issues a reprimand. After receiving the reprimand, the employee requests a reasonable accommodation. The employee’s antagonistic behavior violated a conduct rule that is job-related and consistent with business necessity and therefore the employer’s actions are consistent with the ADA. However, having received a request for reasonable accommodation, the employer should discuss with the employee whether an accommodation would assist her in complying with the code of conduct in the future.
Example E: Darren is a long-time employee who performs his job well. Over the past few months, he is frequently observed talking to himself, though he does not speak loudly, make threats, or use inappropriate language. However, some coworkers who are uncomfortable around him complain to the division manager about Darren’s behavior. Darren’s job does not involve customer contact or working in close proximity to coworkers, and his conversations do not affect his job performance. The manager tells Darren to stop talking to himself but Darren explains that he does so as a result of his psychiatric disability. He does not mean to upset anyone, but he cannot control this behavior. Medical documentation supports Darren’s explanation. The manager does not believe that Darren poses a threat to anyone, but he transfers Darren to the night shift where he will work in relative isolation and have less opportunity for advancement, saying that his behavior is disruptive.
Although the coworkers may feel some discomfort, under these circumstances it is not job-related and consistent with business necessity to discipline Darren for disruptive behavior. It also would violate the ADA to transfer Darren to the night shift based on this conduct. While it is possible that the symptoms or manifestations of an employee’s disability could, in some instances, disrupt the ability of others to do their jobs that is not the case here. Employees have not complained that Darren’s voice is too loud, that the content of what he says is inappropriate, or that he is preventing them from doing their jobs. They simply do not like being around someone who talks to himself. (Source: www.eeoc.gov [9])
Q25. What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?
If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation. If the discipline is something less than termination, the employer may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help her avoid future misconduct. If an accommodation is requested, the employer should begin an “interactive process” to determine whether one is needed to correct a conduct problem, and, if so, what accommodation would be effective. The employer may seek appropriate medical documentation to learn if the condition meets the ADA’s definition of “disability,” whether and to what extent the disability is affecting the employee’s conduct, and what accommodations may address the problem.
Employers cannot refuse to discuss the request or fail to provide reasonable accommodation as a punishment for the conduct problem. If a reasonable accommodation is needed to assist an employee with a disability in controlling his behavior and thereby preventing another conduct violation, and the employer refuses to provide one that would not cause undue hardship, then the employer has violated the ADA.
Example A: Tom, a program director, has successfully controlled most symptoms of his bipolar disorder for a long period, but lately he has had a recurrence of certain symptoms. In the past couple of weeks, he has sometimes talked uncontrollably and his judgment has seemed erratic, leading him to propose projects and deadlines that are unrealistic. At a staff meeting, he becomes angry and disparaging toward a colleague who disagrees with him. Tom’s supervisor tells him after the meeting that his behavior was inappropriate. Tom agrees and reveals for the first time that he has bipolar disorder. He explains that he believes he is experiencing a recurrence of symptoms and says that he will contact his doctor immediately to discuss medical options. The next day Tom provides documentation from his doctor explaining the need to put him on different medication, and stating that it should take no more than six to eight weeks for the medication to eliminate the symptoms. The doctor believes Tom can still continue working, but that it would be helpful for the next couple of months if Tom had more discussions with his supervisor about projects and deadlines so that he could receive feedback to ensure that his goals are realistic. Tom also requests that his supervisor provide clear instructions in writing about work assignments as well as intermediate timetables to help him keep on track. The supervisor responds that Tom must treat his colleagues with respect and agrees to provide for up to two months — all of the reasonable accommodations Tom has requested — because they would assist him to continue performing his job without causing an undue hardship.
Practical Guidance: Ideally, employees will request reasonable accommodation before conduct problems arise, or at least before they become too serious. Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including termination) warranted by misconduct. Employees should not assume that an employer knows that an accommodation is needed to address a conduct issue merely because the employer knows about the employee’s disability. Nor does an employer’s knowledge of an employee’s disability require the employer to ask if the misbehavior is disability-related.
Example B: An employee informs her supervisor that she has been diagnosed with bipolar disorder. A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. At the meeting, the supervisor explains that the employee’s work has been generally good, but he provides some constructive criticism. The employee becomes angry, yells at the supervisor, and curses him when the supervisor tells her she cannot leave the meeting until he has finished discussing her work. The company terminates the employee, the same punishment given to any employee who is insubordinate. The employee protests her termination, telling the supervisor that her outburst was a result of her bipolar disorder which makes it hard for her to control her temper when she is feeling extreme stress. She says she was trying to get away from the supervisor when she felt she was losing control, but he ordered her not to leave the room. The employee apologizes and requests that the termination be rescinded and that in the future she be allowed to leave the premises if she feels that the stress may cause her to engage in inappropriate behavior. The employer may leave the termination in place without violating the ADA because the employee’s request for reasonable accommodation came after her insubordinate conduct. (Source: www.eeoc.gov [9])
Q26. May an employer ask a pregnant employee to sign a waiver to release the employer of liability when she works in positions that carry potential risks to the fetus?
No. According to the LSU Law Center, a woman may not absolve the employer of this liability by signing a waiver because the right to compensation belongs to the baby — not to the mother.
For additional information about ADA, contact:
ADA Information Line
U.S. Department of Justice
For ADA publications and questions:
800-514-0301 (voice) 800-514-0383 (TTY)
www.ada.gov [6]
U.S. Equal Employment Opportunity Commission
For publications
800-669-3362 (voice) 800-800-3302 (TTY)
For questions
800-669-4000 (voice) 800-669-6820 (TTY)
www.eeoc.gov [9]
The Family and Medical Leave Act (FMLA), a federal law passed in 1993, requires employers to grant eligible employees job protected leave for their own serious health conditions, birth of a child, legal placement or adoption of children, or to care for an eligible seriously ill family member.
**For Information Regarding the Expanded Family Medical Leave under the Families First Coronavirus Response Act (FFCRA), please see MTAS-3010 'Expanded Family Medical Leave under FFCRA [10]'**
On February 23, 2015, the U.S. Department of Labor’s Wage and Hour Division announced a Final Rule to revise the definition of spouse under the Family and Medical Leave Act of 1993 (FMLA) in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional.
The Final Rule amends the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. More information is available at the Wage and Hour Division’s FMLA Final Rule website [11].
On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA) of 2010. While the general purpose of the law was to authorize funding for the defense of the United States and its interests abroad, this law contained several amendments to FMLA provisions.
Among other things, NDAA expanded the scope of FMLA for military families that includes:
In early 2008, President Bush first amended the FMLA law to provide two new family leave entitlements for military families.
The new law was expanded to provide:
In November 2008, the DOL issued the final regulations, which not only addressed these new military entitlements, but also aimed at clarifying existing FMLA rules. After much discussion, the final regulations sought to enhance communication between employees, health care providers, and employers. While these new regulations do provide clarity, there are regular circumstances in which judgment is required. This was the first significant change to the FMLA in more than a decade.
After a two-year period that involved nearly 20,000 comments, the DOL released a significant update to the Family and Medical Leave Act that took effect January 16, 2009.
The final update included clarifications to the military benefit enhancements that were released in early 2008 (NDAA) and specifies how to administer the changes that came about as a result of the amendment.
In addition, the rule re-organized the traditional FMLA regulations and clarified the statute’s rights and obligations. The DOL also used this occasion to amend and create new forms that should be used for certification requirements regarding the use of FML and military family leave. Find the forms on the DOL website [12].
On February 23, 2015, the US Department of Labor's Wage and Hour Division announced a final rule to revise the definition of 'spouse' under the Family Medical Leave Act of 1993. The final rule amends the definition of spouse so that eligible employees in legal same-sex marriages will be able to take leave under protection of the FMLA to care for their spouse or family member, regardless of state of residence, effective March 27, 2015.
With the addition of the change to include same sex marriages as covered spouses, Family Medical Leave (FML) eligibility continues to entail:
Break-in-Service
Under the law, if an employee has a break in employment that lasts seven years or less, the employee’s service prior to the service must be counted when determining if the employee has been employed for at least 12 months.
Breaks in service of more than seven years need not be counted unless the break in service was caused by:
The regulations that came about in 2009 provided more definitive requirements for health care provider visits and the proper administration of the FMLA for an employee or eligible family member’s serious health condition.
An employee or eligible dependent may have a serious health condition if he or she is incapacitated for more than three consecutive days and undergoes continuing treatment from a health care provider two or more times within a 30-day period. In order for continuing treatment to exist, the employee must have a visit with a health care provider within seven days of the onset of the incapacity and have a second visit within 30 days of the incapacity. Prior to these changes, FMLA regulations simply provided that a serious health condition involved more than three consecutive, full days of incapacity.
In addition, the final rule clarifies that in the case of an employee taking more than three consecutive calendar days of incapacity (days off) plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. This may also include treatment by a health care provider on one occasion followed by and resulting in a regimen of continuing treatment under the provider’s supervision. The final rule states that periodic visits to a health care provider for chronic serious health conditions require at least two visits to a health care provider per year. 29 C.F.R § 825.115(c)(1).
The final rules which became effective January 16, 2009, do not change the fundamental definition of what constitutes a serious health condition.
Section 101(11) of FMLA defines a Serious Health Condition as “an illness, injury, impairment, or physical or mental condition that involves:
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.” (defined above)
Examples of Serious Health Conditions
The definition of Serious Health Condition continues to be heavily debated. It is intended to cover illnesses and injuries that require an employee be absent from work more than a few days or on a recurring basis. Serious Health Conditions under FMLA are not intended to cover short and minor illnesses such as seasonal allergies, colds, stomach bugs, single asthma attacks, and viruses. However, complications that result in serious health that the medical certification is used to qualify each situation separately. It is certainly possible for one diagnosis to affect one person drastically differently from another. conditions (i.e., hospitalizations or advancement to pneumonia, etc.) would certainly qualify as a serious health condition. It is important to note that the medical certification is used to qualify each situation separately. It is certainly possible for one diagnosis to affect one person drastically differently from another.
Some common examples could be: terminal illness, critical injury, most cancers, emphysema, appendicitis, severe respiratory conditions (such as chronic asthma), heart attacks, heart conditions requiring bypass or valve operations, back conditions requiring surgery or extensive therapy, strokes, spinal injuries, severe arthritis, pneumonia, severe nervous disorders, any serious injury caused by an accident on or off the job, childbirth, kidney disease, injuries caused by serious accidents, Alzheimer’s, and multiple conditions that if not treated would likely result in someone being incapacitated for more than three days.
Some additional examples are: depression, routine pregnancy and prenatal care, complications related to pregnancy including severe morning sickness, migraines, substance abuse treatment administered by a health care provider, emotional distress following a miscarriage, and mental health conditions.
Conditions that generally do not normally meet criteria (unless serious complications arise): Common cold, flu, virus, earaches, upset stomach, minor ulcers, non-migraine headaches, routine dental work or orthodontic procedures, absence due to substance abuse (note: active treatment is generally covered), and stress etc.
Note: Each individual FMLA request needs to be judged independently along with careful review of health care provider notes. You should also pay attention to new case law, as the courts may deem that certain aliments are in fact serious health conditions under FMLA. Additionally, just because a condition does not qualify under FMLA does not mean that it may not qualify under ADA.
Burden of Proof
Employees who take FML for their own serious health condition are held to a somewhat higher standard than when they take leave to help an immediate family member with such a condition. As a result, documenting that an employee’s own illness qualifies for FML usually requires furnishing the employer with more detailed medical information than when proving that a child, spouse or parent has a serious illness. For this reason documentation and a completed health care provider’s statement are very important. In the event that more information is needed to determine FMLA eligibility, the human resource professional or FMLA administrator should seek immediate clarification from the employee’s healthcare provider. Note: An employee’s direct supervisor may not contact the health care provider for additional information.
Employees, absent unusual circumstances, are required to follow an employer’s policy relating to proper call-in procedures for reporting FML absence(s). Employers may require employees seeking FML to call a "designated number or a specific individual to request leave." 29 C.F.R. § 825.303(c). Under old regulations, an employer could not delay or deny FML if an employee failed to follow protocol.
It is specified that once FML has been granted for an employee's health condition, the employee must thereafter “specifically reference either the qualifying reason or the need for FML. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.” 29 C.F.R. § 825.303(b).
For unforeseeable absences, it should be “practicable” for employees to request leave “either the same day or the next business day.” 29 C.F.R. § 825.302(b).
Employees on Intermittent Leave
Remember, if you have employees on intermittent FML, it is imperative that they follow your city’s call in procedures for every absence (scheduled or unscheduled) and specify if each leave request will be FMLA related or not FMLA related. Without this information on every absence you will be unable to properly track FML time used.
Employers’ policies determine if employees will be paid or unpaid and they can require that employees use any and all paid time off concurrently with FML.
Under the regulations, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted. An employee using paid leave concurrently with FML must follow the same rules of the employer’s policy that apply to other employees. The statute provides that employees may choose to take annual, personal, sick leave concurrently with FMLA. Employers can require their employees to take paid leave concurrently with FML. If a city does not choose to do this, its employees will then be able to “stack” time, which can result in an undue burden on the employer. (Example: An employee takes five weeks off for surgery and uses all of his available sick leave. The employer does not start FMLA protection until the employee runs out of sick leave, which means the employee will get five weeks sick leave and then the employer will start 12 weeks of FML when the employee is out of sick leave.)
Light Duty
Time spent in light duty positions cannot be used against an employee’s FML entitlement.
The law now states that employees who accept light duty work need not exhaust their FML by agreeing to perform light duty. Whether light duty is presented as an option or as a mandatory provision, it may not be counted toward an employee’s FMLA benefit. 29 C.F.R. § 825.207(e).
Overtime
Many employees are regularly required to work overtime in their positions. However, when they go out on FML they are unable to do so.
The hours that the employee would have been required/mandated to work as overtime may be counted against the employee’s FMLA entitlement (i.e., counted as intermittent or reduced schedule leave, as applicable). However, if that overtime is voluntary, those hours may not be counted against an employee’s leave entitlement.
The most recent rules combine several of the old notices into one section of the regulations and remove some inconsistencies that existed in regard to time periods. Employers are required to provide employees with the General Notice about FMLA (this could be via a poster and a handbook, an eligibility notification, a rights and responsibilities notice, or a designation notice). Employers are given additional time to provide the notices, which is now five days.
Content and Clarification
Medical Certification and Timing
Fitness for Duty Certification
Restrictions still apply for those employers requesting fitness for duty certificates for employees on intermittent FML. Under the legislation, employers are able to request a fitness for duty certificate once every 30 days “if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave.”
Waiver of Rights
Under updated rules, employees may elect to voluntarily settle their FMLA claims without the interference of court or DOL. Prospective waivers of FMLA are prohibited. Employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA.
Military Caregiver Leave
The National Defense Authorization Act (NDAA) provided a new leave entitlement of up to 26 weeks to care for a covered service member with a serious injury or illness. An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member, who is recovering from a serious illness or injury sustained in the line of duty, is entitled to up to 26 weeks of leave in a single 12-month period to care for the service member.
Definition of Covered Service Member
A covered service member is a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of five years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
Qualified Exigency Leave (QE)
The NDAA provides a new reason for leave under FMLA to allow families of National Guard, regular Armed Forces, Reserve personnel, and eligible veterans to take FMLA job-protected leave to manage their responsibilities called qualifying exigencies.
Qualified Exigency: As defined by DOL Fact Sheet 28A
Qualifying exigencies include:
Family Medical Leave to Care for Adult Children
Typically when we think of parents taking FML to care for children we assume the eligible children are under 18 or permanently disabled. However, with the expansion to the scope of ADA (Americans with Disabilities Act) by the ADA Amendments Act, it is easier for an employee to take leave to care for an adult child who has a serious health condition and is incapable of selfcare under ADA.
Under the FMLA, a parent can take family leave (FML) to care for his or her adult children who are not in the military and are not veterans if the children are “incapable” of self-care or have a disability defined by ADA. Generally this means the adult child must require direct assistance or supervision providing self-care in three or more activities of daily living such as grooming, hygiene, bathing, dressing, and eating. These could also include instrumental activities of daily living such as essential errands, cooking, cleaning, shopping, transporting, paying bills, using communication devices, and maintaining a residence. There are many different disabilities and conditions that could deem an adult child incapable of self-care. It could be a serious accident, surgery, illness, or more permanent conditions such as developmental disabilities, Down syndrome, brain damage, paralysis, etc.
Temporary conditions or illnesses such as pregnancy-related restrictions or routine surgeries would likely not result in someone being “incapable of self-care” as defined by the regulations.
FMLA and GINA (Genetic Information NonDiscrimination Act)
GINA was signed into in law by President Bush in May of 2008 and took effect November 21, 2009.
Title I addresses the use of genetic information in health insurance.
Title II addresses discrimination in employment based on genetic information.
GINA restricts employers and insurers from acquiring and using genetic information except in limited circumstances.
With respect to employment, GINA makes it illegal to discriminate against employees or applicants because of genetic information. GINA prohibits employers or employment agencies and labor organizations from requesting, requiring, or purchasing genetic information of employees and applicants (as well as their family members).
Specifically it:
The Link between GINA and FMLA
When asking for medical information in the course of administering FML (or ADA), there is a potential to obtain information that could be protected by GINA, including genetic information such as: results of genetic tests for cancer genes, hereditary diseases, and other disorders. Results of genetic information on family members can also fall under FMLA/ADA due to GINA. GINA protections include requests for genetic information by an employer about employees or their family members as well as genetic information regarding a fetus or embryo. It also includes the manifestation of a disease or disorder that may pertain to employees or their family members.
The EEOC issued regulations under GINA that define terms and provide guidance for employers administering the act’s provisions. They specifically reference certain issues under FMLA. https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/gina [15]
Inadvertent Acquisition of Genetic Information
GINA, as originally written, makes the mere acquisition of genetic information on employees and their family members illegal. As a general matter, employers seem to understand this, but with the passage of GINA, employers were worried about facing GINA violations due to inadvertent acquisition of information (i.e., raising money for a family member’s condition, or knowledge of an employee or family member’s condition via social media or water cooler talk at the office). Employers questioned whether simply receiving the information (inadvertently) would be a violation of GINA. The EEOC offered clarifications [16] to these concerns.
Social Media
Final regulations make clear that the inadvertent acquisition exception applies in the workplace as well as incidents that take place online such as on Facebook or other social media avenues. They provide for a specific situation where a manager or supervisor inadvertently learns of a genetic condition of an employee or their family member via a social media platform where the manager or supervisor has been given permission to access the profile (i.e., friends on Facebook).
An employer would not violate GINA if a supervisor and employee are friends on a social media site and the employee posts about money being raised for his father’s Alzheimer’s. However, this exception (employer protection) would not apply if the employer needed special permission to access a profile and the employer went around those privacy safeguards to get the information. If the employer sought out that information it could be a GINA violation. In this case the inadvertent exception would not apply.
As an HR best practice, it is not recommended to “friend” employees or applicants on social media sites. While it is not illegal, the implications can be complex and can potentially place your city at unnecessary exposure.
Casual Conversations
According to the EEOC this depends on the nature of the situation. If the employer inadvertently requests information about a genetic health issue in a casual conversation it may not violate GINA.
For instance, a supervisor may make general health inquiries such as “How are you?” “How do you feel today?” Those kinds of questions are acceptable and are generally not a GINA violation. But if the employer goes further by probing for information such as asking if other family members have the condition, or if the employee has been tested for a condition, then according to the regulations the employer has crossed the line and is likely to be in possession of protected genetic information acquired illegally. The outer limits of this water cooler exception will surely be tested in the courts. Be cautious!
Requests for Medical Leave: FMLA/ADA/Worker's Compensation
GINA specifically prohibits an employer from asking about an employee’s family genetic health information. There is an exception to this: when the employer is specifically asking for medical info for purposes of FMLA/ADA/Workers’ Compensation certification it should be following certain steps in order to make sure it falls within the exceptions that are allowed under GINA.
If an employee is seeking leave to care for a family member then obviously the employer will have access to a family member’s health information that may be protected under GINA (family history of medical information specifically). This is a limited exception and only applies to an employee’s family member, which may include family history information. So in this case, under FMLA; an employer could legally receive information on a family member’s medical history information. Note: This exception does not apply to the employee’s request for his own serious health condition.
GINA makes clear that if a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of medical information will generally not be considered inadvertent unless the individual directs the employer in writing or verbally not to request genetic information. In other words, the employer needs to state up front that it does not want genetic information on health care certification forms. Otherwise a situation may be created where genetic information under GINA will likely be acquired.
Safe Harbor Language
Employers can include this with the request for information/health care certification forms. This is essentially a disclaimer on any medical information requests that explicitly state employers do not want protected genetic information under GINA.
The EEOC has provided sample safe harbor language as follows that you may choose to utilize in your communications:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Bottom line: When you are asking for medical information under FMLA make sure it falls under a GINA exception and does not violate the law. Note: The most recent forms produced for FMLA purposes by the DOL [12] have included compliant safe harbor language for applicable situations addressed by each.
Employer Checklist
The following FAQ’s are samples from the U.S. Dept of Labor, Wage and Hour Division’s page ‘FMLA Frequently Asked Questions.’ Further questions can be found: http://www.dol.gov/whd/fmla/fmla-faqs.htm [18]
**For Expanded FMLA under the FFCRA as it relates to the COVID-19 pandemic of 2020, please follow this link: https://www.dol.gov/agencies/whd/fmla/pandemic [19] **
Coverage
(Q) What types of businesses/employers does the FMLA apply to?
(A) The FMLA applies to all:
Eligibility
(Q) Who can take FMLA leave?
(A) In order to be eligible to take leave under the FMLA, an employee must:
Hours of Service Requirement
(Q) Does the time I take off for vacation, sick leave or PTO count toward the 1,250 hours?
(A) The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.
Unpaid leave
(Q) Is my employer required to pay me when I take FMLA leave?
(A) The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected.
Qualifying conditions
(Q) When can an eligible employee use FMLA leave?
(A) A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12 month period for one or more of the following reasons:
The FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness.
Birth and bonding
(Q) Are there any restrictions on when an employee can take leave for the birth or adoption of a child?
(A) Leave to bond with a newborn child or for a newly placed adopted or foster child must conclude within 12 months after the birth or placement. The use of intermittent FMLA leave for these purposes is subject to the employer’s approval. If the newly born or newly placed child has a serious health condition, the employee has the right to take FMLA leave to care for the child intermittently, if medically necessary and such leave is not subject to the 12-month limitation.
(Q) When can a parent take leave for a newborn?
(A) Mothers and fathers have the same right to take FMLA leave to bond with a newborn child. A mother can also take FMLA leave for prenatal care, incapacity related to pregnancy, and for her own serious health condition following the birth of a child. A father can also use FMLA leave to care for his spouse who is incapacitated due to pregnancy or child birth.
Intermittent/reduced leave schedule
(Q) Does an employee have to take leave all at once or can it be taken periodically or to reduce the employee’s schedule?
(A) When it is medically necessary, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.
Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement.
(Q) Can an employer change an employee’s job when the employee takes intermittent or reduced schedule leave?
(A) Employees needing intermittent/reduced schedule leave for foreseeable medical treatments must work with their employers to schedule the leave so as not disrupt the employer’s operations, subject to the approval of the employee’s health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodate recurring periods of leave better than the employee’s regular job.
Serious health condition
(Q) What is a serious health condition?
(A) The most common serious health conditions that qualify for FMLA leave are:
(Q) Can I continue to use FMLA for leave due to my chronic serious health condition?
(A) Under the regulations, employees continue to be able to use FMLA leave for any period of incapacity or treatment due to a chronic serious health condition. The regulations continue to define a chronic serious health condition as one that (1) requires “periodic visits” for treatment by a health care provider or nurse under the supervision of the health care provider, (2) continues over an extended period of time, and (3) may cause episodic rather than continuing periods of incapacity. The regulations clarify this definition by defining “periodic visits” as at least twice a year.
(Q) Can I take FMLA leave for reasons related to domestic violence issues?
(A) FMLA leave may be available to address certain health-related issues resulting from domestic violence. An eligible employee may take FMLA leave because of his or her own serious health condition or to care for a qualifying family member with a serious health condition that resulted from domestic violence. For example, an eligible employee may be able to take FMLA leave if he or she is hospitalized overnight or is receiving certain treatment for post-traumatic stress disorder that resulted from domestic violence.
Certification
(Q) Am I required to prove that I have a serious health condition?
(A) An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.
(Q) What happens if my employer says my medical certification is incomplete?
(A) An employer must advise the employee if it finds the certification is incomplete and allow the employee a reasonable opportunity to cure the deficiency. The employer must state in writing what additional information is necessary to make the certification complete and sufficient and must allow the employee at least seven calendar days to cure the deficiency, unless seven days is not practicable under particular circumstances despite the employee’s diligent good faith efforts.
(Q) Can my employer make me get a second opinion?
(A) An employer may require a second or third medical opinion (at the employer’s expense) if he or she has reason to doubt the validity of the medical certification.
(Q) Do I have to give my employer my medical records for leave due to a serious health condition?
(A) No. An employee is not required to give the employer his or her medical records. The employer, however, does have a statutory right to request that an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists.
(Q) How soon after I request leave does my employer have to request a medical certification of a serious health condition?
(A) Under the regulations, an employer should request medical certification, in most cases, at the time an employee gives notice of the need for leave or within five business days. If the leave is unforeseen, the employer should request medical certification within five days after the leave begins. An employer may request certification at a later date if he or she has reason to question the appropriateness or duration of the leave.
(Q) May my employer contact my health care provider about my serious health condition?
(A) The regulations clarify that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Under the regulations, employers may contact an employee’s health care provider for authentication or clarification of the medical certification by using a health care provider, a human resource professional, a leave administrator, or a management official. In order to address employee privacy concerns, the regulations makes clear that in no case may the employee’s direct supervisor contact the employee’s health care provider. In order for an employee’s HIPAA-covered health care provider to provide an employer with individually-identifiable health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.
(Q) Must I sign a medical release as part of a medical certification?
(A) No. An employer may not require an employee to sign a release or waiver as part of the medical certification process. The regulations specifically state that completing any such authorization is at the employee’s discretion. Whenever an employer requests a medical certification, however, it is the employee’s responsibility to provide the employer with a complete and sufficient certification. If an employee does not provide either a complete and sufficient certification or an authorization allowing the health care provider to provide a complete and sufficient certification to the employer, the employee's request for FMLA leave may be denied.
(Q) How often may my employer ask for medical certifications for an on-going serious health condition?
(A) The regulations allow recertification no more often than every 30 days in connection with an absence by the employee unless the condition will last for more than 30 days. For conditions that are certified as having a minimum duration of more than 30 days, the employer must wait to request a recertification until the specified period has passed, except that in all cases the employer may request recertification every six months in connection with an absence by the employee. The regulations also allow an employer to request recertification in less than 30 days if the employee requests an extension of leave, the circumstances described in the previous certification have changed significantly, or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.
Additionally, employers may request a new medical certification each leave year for medical conditions that last longer than one year. Such new medical certifications are subject to second and third opinions
(Q) Can employers require employees to submit a fitness-for-duty certification before returning to work after being absent due to a serious health condition?
(A) Yes. As a condition of restoring an employee who was absent on FMLA leave due to the employee’s own serious health condition, an employer may have a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to submit a certification from the employee’s own health care provider that the employee is able to resume work. Under the regulations, an employer may require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the position if the employer has appropriately notified the employee that this information will be required and has provided a list of essential functions. Additionally, an employer may require a fitness-for-duty certification up to once every 30 days for an employee taking intermittent or reduced schedule FMLA leave if reasonable safety concerns exist regarding the employee's ability to perform his or her duties based on the condition for which leave was taken.
(Q) What happens if I do not submit a requested medical or fitness-for-duty certification?
(A) If an employee fails to timely submit a properly requested medical certification (absent sufficient explanation of the delay), FMLA protection for the leave may be delayed or denied. If the employee never provides a medical certification, then the leave is not FMLA leave.
If an employee fails to submit a properly requested fitness-for-duty certification, the employer may delay job restoration until the employee provides the certification. If the employee never provides the certification, he or she may be denied reinstatement.
Employee notice
(Q) What and when do I need to tell my employer if I plan to take FMLA leave?
(A) Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable – generally, either the same or next business day. When the need for leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave.
Employees must provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that the employee is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the employee or employee’s qualifying family member is under the continuing care of a health care provider.
When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave, however, due to a FMLA-qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for the leave or the need for FMLA leave.
(Q) Is an employee required to follow an employer’s normal call-in procedures when taking FMLA leave?
(A) Yes. Under the regulations, an employee must comply with an employer’s call-in procedures unless unusual circumstances prevent the employee from doing so (in which case the employee must provide notice as soon as he or she can practicably do so). The regulations make clear that, if the employee fails to provide timely notice, he or she may have the FMLA leave request delayed or denied and may be subject to whatever discipline the employer’s rules provide.
Employer notice
(Q) Are employers required to tell their employers of the existence of FMLA and the employee’s right to take FMLA leave?
(A) Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the Wage and Hour Division. An employer that willfully violates this posting requirement may be subject to a civil money penalty of up to $110 for each separate offense.
Additionally, employers must include this general notice in employee handbooks or other written guidance to employees concerning benefits, or, if no such materials exist, must distribute a copy of the notice to each new employee upon hiring.
When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his or her rights and responsibilities under the FMLA. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave.
(Q) How soon after an employee provides notice of the need for leave must an employer determine whether someone is eligible for FMLA leave?
(A) Absent extenuating circumstances, the regulations require an employer to notify an employee of whether the employee is eligible to take FMLA leave (and, if not, at least one reason why the employee is ineligible) within five business days of the employee requesting leave or the employer learning that an employee’s leave may be for a FMLA-qualifying reason.
(Q) Does an employer have to provide employees with information regarding their specific rights and responsibilities under the FMLA?
(A) At the same time an employer provides an employee notice of the employee’s eligibility to take FMLA leave, the employer must also notify the employee of the specific expectations and obligations associated with the leave. Among other information included in this notice, the employer must inform the employee whether the employee will be required to provide certification of the FMLA-qualifying reason for leave and the employee’s right to substitute paid leave (including any conditions related to such substitution, and the employee’s entitlement to unpaid FMLA leave if those conditions are not met). If the information included in the notice of rights and responsibilities changes, the employer must inform the employee of such changes within five business days of receipt of the employee’s first notice of the need for FMLA leave subsequent to any change. Employers are expected to responsively answer questions from employees concerning their rights and responsibilities.
(Q) How soon after an employee provides notice of the need for leave must an employer notify an employee that the leave will be designated and counted as FMLA leave?
(A) Under the regulations, an employer must notify an employee whether leave will be designated as FMLA leave within five business days of learning that the leave is being taken for a FMLA-qualifying reason, absent extenuating circumstances. The designation notice must also state whether paid leave will be substituted for unpaid FMLA leave and whether the employer will require the employee to provide a fitness-for-duty certification to return to work (unless a handbook or other written document clearly provides that such certification will be required in specific circumstances, in which case the employer may provide oral notice of this requirement). Additionally, if the amount of leave needed is known, an employer must inform an employee of the number of hours, days or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice. Where it is not possible to provide the number of hours, days, or weeks that will be counted as FMLA leave in the designation notice (e.g., where the leave will be unscheduled), an employer must provide this information upon request by the employee, but no more often than every 30 days and only if leave was taken during that period.
"COBRA" stands for Consolidated Omnibus Budget Reconciliation Act of 1986 [20] (29 U.S.C. §§ 1161–1168 and 42 U.S.C. §§ 300bb-1–300bb-8). Upon occurrence of a qualifying event, this federal law (along with the Affordable Care Act (ACA)) requires municipalities with 20 or more employees to continue health coverage, at the employee’s expense, for a certain period at the group rate. The Affordable Care Act, however, has not changed an employer's obligation to offer COBRA to qualified beneficiaries experiencing a qualifying event. Qualifying events include but are not limited to:
Once the qualifying event occurs, the employee or qualified beneficiaries must be given at least a 60 day notice to elect continuation of health care coverage. The period for which coverage can be continued varies, depending on the qualifying event. The notice must advise the ex-employee of assistance available from the state Department of Social Services. T.C.A. §4-3-1404.
For an updated guide to COBRA (Consolidated Omnibus Budget Reconciliation Act of 1986) click on any or all of the sections below to obtain the specific information you want. To print off the complete guide, click on view PDF section on this page.
Background
The year was 1985, and America faced a huge budget deficit. Add to that, more and more Americans were finding themselves uninsured and being denied care at their community hospitals. To address the growing budget deficit and uninsured rate, Congress enacted the Consolidated Omnibus Budget Reconciliation Act (COBRA) in 1986.
Landmark Federal Legislation
Congress passed COBRA on April 7, 1986. Among other things, COBRA amended the Employee Retirement Income Security Act (ERISA), the Internal Revenue Code, and the Public Health Service Act (PHSA), all of which mandated that most group health plans offer a continuation of health insurance when employees and beneficiaries would otherwise lose group health coverage
Public Health Service Act (PHSA)
The PHSA contains the provisions of the Consolidated Omnibus Budget Reconciliation Act that govern continuation of coverage under government-sponsored group health plans.
The COBRA statute contains provisions that bridge the gap to group health coverage created when employees experience certain life changes. COBRA allows qualified employees and beneficiaries the ability to continue group health insurance after losing coverage due to certain “qualifying events.” Prior to this statute becoming law, employees& and their dependents were at risk of losing group health coverage when the employee carrying health insurance changed jobs, divorced, or experienced other qualifying events. COBRA requires a temporary continuation of health benefi ts at the group rate, which generally is the entire cost of continuation coverage, including the employee contribution plus the employer contribution plus any administration fee.
Intent of Legislation
While the intent of the legislation seemed simple — give workers the chance to continue their health insurance under circumstances that would normally cause them and their dependents to lose coverage — the result was cumbersome legislation that requires health plan administrators to perform a complex series of actions to ensure compliance with COBRA regulations. Employers and plan administrators are urged to use caution administering COBRA and to document carefully the timeliness of all notices sent or received.
While ERISA generally does not govern the administration of local government health plans, amendments to the Public Health Service Act (PHSA) provide that local governments offer the continuation of coverage. State and local government health plans are subject to the continuation provisions contained in PHSA Public Health Service Act) but not the provisions contained in ERISA or the Code. PHSA provides virtually identical coverage requirements with the exception of financial penalties or an enforcement scheme. However, courts do look to ERISA-COBRA cases for guidance with PHSA-COBRA administration and rulings.
To be eligible for COBRA continuation coverage, a qualified beneficiary must be enrolled in the employer’s group health plan on the day before the qualifying event takes place. Simply stated, if a person is not enrolled in a plan, there is no coverage to lose. But once a person is a qualified beneficiary, he or she may be able to enroll previously non-covered individuals. A “qualified beneficiary” can be one of the following:
Two groups of people who can never be qualified beneficiaries are (1) non-resident aliens with no U.S. source of income and (2) individuals who are not otherwise qualified beneficiaries who become covered under a group health plan because of another qualified beneficiary’s election. Any relative of these non-resident aliens also is not a qualified beneficiary solely because of the relationship to the non-resident alien.
A qualified beneficiary (QB) may be any employee, former employee, spouse or dependent child who was covered under the group plan on the day before the qualifying event date. In certain situations, a retired employee and his or her dependents also may be considered QBs.
Qualified Beneficiary (QB)
QBs are individuals who are eligible to continue coverage based on certain qualifying events. Typically, this is the employee as well as any covered dependent(s) such as a spouse or child(ren). For COBRA purposes, each covered person is considered a separate QB.
QBs may include:
*Qualified Medical Child Support Order
The regulations specify that self-employed persons, agents, contractors and corporate directors are covered employees. However, these people are considered covered employees only if the employer maintains a plan covering traditional, common-law employees.
Certain individuals may be added to a qualified beneficiary’s health plan coverage but not be entitled to the same rights as a qualified beneficiary. For example, a former dependent child of a covered employee could enroll under a group health plan as a qualified beneficiary, marry, opt to cover a new spouse, have a child and opt to cover the child all within 36 months of COBRA continuation coverage. Thus an employee’s grandchild could be enrolled in an employer’s group health plan under COBRA but not as a qualified beneficiary. The only way the grandchild could become covered is if the former dependent child, a qualified beneficiary, so elects. The former dependent child’s new spouse would not have any election rights, nor would the grandchild.
Another group of individuals who could become covered under COBRA continuation coverage, but who are not qualified beneficiaries, are former qualified beneficiaries. For example, employee Smith is married and terminates employment but elects to continue only single coverage. His spouse declines to continue any coverage. During a subsequent open-enrollment period, Smith enrolls his spouse. If the couple is divorced within the 18-month continuation period, Smith’s spouse could not continue health benefits because she is not a qualified beneficiary.
The following list of qualifying events should trigger the COBRA notification process.
Second Qualifying Events
A second qualifying event is a qualifying event that occurs during the 18-month period following the date of any employee’s termination or reduction in hours. The beneficiary of that second qualifying event will be entitled to a total of 36 months of continued coverage. The period will be measured from the date of the loss of coverage caused by the first qualifying event.
According to direct information from the U.S. Department of Health and Human Services:
Second qualifying events may include the death of the covered employee, divorce or legal separation from the covered employee, the covered employee becoming entitled to Medicare benefits(under Part A, Part B or both), or a dependent child ceasing to be eligible for coverage as a dependent under the group health plan.
The following conditions must be met in order fora second event to extend a period of coverage
If all conditions associated with a second qualifying event are met, the period of continuation coverage for the affected qualified beneficiary (or beneficiaries) is extended from 18 months (or 29 months) to 36 months.
COBRA premiums typically are set at 102 percent of the total cost of the plan. The plan can include the premium costs paid by employees and the employer, plus an additional two percent administration fee.
COBRA Premium
This is the amount the QB pays for continuation coverage. It usually is equivalent to the total employer premium plus a two percent administration charge.
Example COBRA Rates
Note: The numbers below are hypothetical and have no relation to actual COBRA premiums. This is for illustration purposes only.
Active Employee Rates
(Individual Health Coverage)
Employee Pays………$100 per month
Employer Pays………$500 per month
Total Cost………$600 per month
COBRA Rates (Individual Health Coverage)
Employee pays $600 per month plus administration fees totaling $612 per month. This includes employee and employer contributions plus a COBRA administration fee.
The Employer Contribution………$500 per month
The Employee Contribution………$100 per month
Two Percent Administration Fee………$12 per month
Total COBRA Cost………$612 per month
This means group health coverage for COBRA participants usually is signifi cantly more expensive than health coverage for active employees, since the employer usually pays a part of the premium for active employees, and COBRA participants generally pay the entire premium themselves. However, by law coverage under COBRA cannot exceed 102 percent of the actual cost of the coverage to the group plan. The one exception comes in the case of disabled beneficiaries who receive the 11-month extension, in which case the premium can be as high as 150 percent. In the case that a QB is eligible for an additional 11 months (beyond the original 18 months) of COBRA he could be charged up to 150 percent of the cost of the coverage for those additional 11 months.
Nevertheless, continuation of group health coverage under COBRA ordinarily is less expensive than individual health coverage and generally offers a richer benefi t with less risk.
The plan must allow employees and QBs to pay the COBRA premiums on a monthly basis and may allow the employee to make payments on another schedule such as quarterly or weekly.
COBRA premiums generally are increased if the costs of health benefits or administration fees increase, but they typically are fixed for at least the coming year.
Qualified beneficiaries must be offered coverage identical to that available to active employees and their families covered under the group health plan. In other words, a qualified beneficiary generally is entitled to the same coverage he or she had immediately before qualifying for continuation of coverage under COBRA.
If a former employee had medical, dental, vision, and prescription benefits under single or multiple health plans, this person would have the right under COBRA to elect to continue coverage in any or all of those plans. Any change in coverage under the plans for active employees also applies to individuals covered under COBRA, and COBRA participants must be allowed to make the same choices given to non-COBRA participants in the health plan.
Qualifying events are those that cause the qualified beneficiary to lose coverage under the plan.
As shown in the following schedule, qualified beneficiaries generally can continue health coverage for up to 18 months for themselves and their families. In some cases, coverage is extended to 36 months. COBRA coverage can be terminated before these maximum periods if premiums are not paid on time or if the employer ceases to maintain a group health plan for its employees. Some plans allow COBRA participants to convert group health coverage to an individual policy when the COBRA continuation period ends. The option to enroll in a conversion health plan must be given at least 180 days before COBRA coverage ends and may vary by state and type of plan offered.
Qualifying Event | Qualified Beneficiaries | Maximum Period of Continuation |
Termination (for reasons other than gross misconduct) | Employee Spouse Dependent children |
18 Months* |
Employee enrollment in Medicare | Spouse Dependent children |
36 Months |
Divorce or legal separation | Spouse Dependent children |
36 Months |
Death of employee | Spouse Dependent children |
36 Months |
Loss of dependent child status under plan eligibility rules | Dependent children | 36 Months |
* In certain circumstances QBs entitled to 18 months of COBRA may become entitled to a disability extension of 11 months (for a total maximum of 29 months) or an extension of 18 months due to the occurrence of a second qualifying event (for a total maximum of 36 months).
Plan sponsors may forget that a change in the benefits under the plan for active employees will apply also to qualified beneficiaries. It is important to note that qualified beneficiaries must be allowed to make the same choices given to non-COBRA beneficiaries under the plan, such as during periods of open enrollment. This means that all COBRA beneficiaries must receive the same opportunity to change plans or enroll in new plans as if they were active employees or plan members.
Family and medical leave itself is not a qualifying event under COBRA, as employers are required by FMLA to maintain group health insurance coverage for employees on leave. If an employee on FMLA leave notifies the organization that he/she does not intend to return to work, however, a COBRA qualifying event may occur. Additionally, if additional unpaid leave is used after exhaustion of FMLA, a COBRA qualifying event may occur, also.
Some of the notifications described below may not apply if you are administering your COBRA programs in-house. The bolded notices represent the critical notifications that employers often must design. Sample forms are available through MTAS.
The COBRA notices are listed below. Click on the notice you want or if you want to view or print all notices click on the "view PDF of this section".
The initial notice usually is the employee’s and QB’s first notification of COBRA under a group health plan. It typically occurs at the time coverage begins and lets a QB know that he or she loses coverage due to certain qualifying events and that COBRA will be offered.
The plan administrator must send the notice to the employee and spouse within 90 days of new coverage. This notice is commonly issued in the plan’s Summary Plan Description (SPD), but the employer must ensure the plan’s SPD meets timing guidelines and contains minimum requirements of the notice distribution rules. Employers may want to consider posting the SPD on their Internet/Intranet site as well.
The general notice must be addressed to both employee and spouse. If the spouse resides at a separate address, a notice should be sent separately to the spouse. If dependents reside in a different household, a separate notice also should be sent to those dependents residing separately. If a spouse’s coverage becomes effective on a different date than that of the employee, a separate notice must be sent to the spouse.
Hand delivering the notice to employees is acceptable but does not meet the requirements for spousal notification procedures. If an employee or spouse experiences a qualifying event within 90 days of being covered and the general notice has not been sent, it should be sent out at the same time as the election notice. If administrators are using a generic notice they must be sure to include the name and specific contact information of the person whom the qualified beneficiary may contact with further questions and request additional plan information.
Employer and Plan Administrator Qualifying Event Notice
Must be sent from employer to plan administrator within 30 days after the qualifying event and must contain information about the plan, covered employee, and qualifying event, including type and date of event. Employers have 30 days following the date of the QE to notify plan administrators. Plan administrators have 14 days to then notify the QBs, and if the employer is also the plan administrator the notice must be provided within 44 days of the QE.
Employee Qualifying Event Notices
Employees and QBs must notify plan administrators of qualifying events. In order for employees and QBs to understand their responsibility employers must ensure that employees and QBs are notified of the “reasonable procedures” for QBs to follow when furnishing the notice(s). It is advisable for employers and plan administrators to include these notice requirements in the summary plan description and general notice (if sent separately). It also is advisable to remind employees frequently of their responsibilities (i.e., notifying plan administrator when there is an address change or QE). Employees and QBs must notify the plan administrator within 60 days of the qualifying event.
Perhaps the most important of all COBRA notices, the election notice, is sent out at the time of the qualifying event and advises employees and QBs of their right to continue coverage under COBRA.
In order for this to go smoothly, the preceding employee qualifying event notices should have been applied, and the employee should have notified the plan administrator of the qualifying event (if applicable).
The election form generally is several pages long and often broken up into different sections to help with clarity. The election notice should contain all of the information individuals need to make a COBRA election.
The regulations require that the election notice contain the following information:
The election notice must be sent within 14 days of the event date or loss of coverage by the plan administrator to the covered employees and QBs. In 2004, the rules solidified the long-standing practice that when the employer is also the administrator of the plan, the notice must be sent within 44 days of the event. This 44-day period, however, applies only to terminations of employment, reduction in hours (can include leave without pay or layoff), death of employee, and employer bankruptcy events. In cases of divorce, legal separation or dependent ineligibility, the notice must be sent within 14 days of the employer receiving notice.
If a plan administrator receives notice of a qualifying event, or even a second qualifying event, and determines that the individual is not entitled to COBRA or a disability extension, the plan administrator also must provide a notice to the individual explaining the reason for the denial. This notice does not apply to events in which the employer is required to notify the plan administrator such as termination of employment, reduction in work hours, death or enrollment in Medicare. This must be sent out in the same time frame as the plan would have sent the election notice.
The Department of Labor provides examples of triggering events that would require that the new notice of unavailability be sent. Examples include when the employee or QB fails to notify the employer of one of the above events or does not notify the employer/plan administrator in a timely manner. The employer/plan administrator then would be required to send the notice describing the reason for denying continuation of coverage within 14 days.
This notice mandates that the plan administrator send to covered employees and QBs a notice in the event their COBRA coverage terminates before the maximum COBRA coverage period.
The law states that this be sent as soon as practicable.
This notice is sent from the plan administrator to covered employees and QBs and should include the reason for and termination date of health benefits any rights the QB has to elect alternative group or individual coverage.
An example of the need for a notice of early termination is an employer terminating the health plan which means, in effect, an individual’s COBRA coverage would terminate earlier than the full-time period for which COBRA was offered to that individual.
HIPAA
The Health Insurance Portability and Accountability Act of 1996 was passed after COBRA went into effect. HIPAA is not directly related to COBRA although HIPAA does make some key changes to COBRA’s continuation of coverage. The Health Insurance Portability and Accountability Act (1996) (HIPAA)
HIPAA’S Effect on COBRA While HIPAA and COBRA are separate laws, HIPAA does affect COBRA continuation coverage. Effective January 1, 1997, HIPAA made changes to COBRA continuation coverage in the areas of disability extension, definition of qualified beneficiary, and the duration of COBRA continuation coverage. HIPAA’s main purpose was to provide protection against pre-existing condition exclusions if a person avoids a gap in insurance coverage longer than 63 days (including COBRA coverage).
HIPAA made three primary changes to COBRA:
Continuation period
Under HIPAA legislation, disabled individuals (as deemed so under the Social Security Act) are entitled to 29 months of COBRA continuation coverage if they become disabled during the first 60 days of COBRA coverage. HIPAA also ensures that if the individual entitled to the disability extension has non-disabled family members who are entitled to COBRA continuation coverage, those non-disabled family members also are entitled to the 29 months disability extension. Under the prior law, individuals had to be deemed disabled at time of the initial QE in order to qualify for the 29 months.
Coverage termination
HIPAA made a coordinating change to the COBRA rules so that if a group health plan limits or excludes benefits for pre-existing conditions but because of the new HIPAA rules those limits or exclusions would not apply to (or would be satisfi ed by) an individual receiving COBRA continuation coverage, the plan providing the COBRA coverage can stop making the coverage available.
Continuation coverage for children
COBRA rules were revised so that children adopted by the covered employee during the COBRA period are considered QBs.
HIPAA certificates of creditable coverage are no longer required as of January 1, 2015. Effective January 1, 2015, group health plans and insurers are no longer required to issue a certificate of creditable coverage (“HIPAA Certificate”) to individuals who lost group health plan coverage.
While this section is intended to give you a brief overview of COBRA, most human resources professionals know that there are literally endless ways to be considered “non-compliant.”
Here are some tips on sound COBRA administration.
The burden of proof rests on you, the employer. Even if you have outsourced your COBRA function, there still is plenty of room for error. At the end of the day, the courts will want to know if the notice was sent within the proper time and if it contained the legal minimum requirements. Employers are obligated to prove they fulfilled the COBRA notice requirements. If challenged, employers must prove they mailed the COBRA notice(s), not that the notice has been received. Courts have deemed first class mail sufficient for COBRA purposes. A first class mailing is considered received unless it was returned to the sender.
Postage date is key. Timeliness of mailings (on both ends) is based on postmark date. If an employee fails to pay the premium payment on time coverage is subject to termination. However, if the payment was postmarked within the 30-day grace period, the premium should be considered paid. If the employee/QB elects to hand deliver the payment, it must be in your hands (the plan administrator) by the end of the grace period. Sometimes this means the plan administrator receives, opens, and processes the payment after the 30-day grace period has expired. For purposes of counting days, Saturdays and Sundays count. However, if the last day of the election period ends on a weekend or holiday, you are required to extend the date until the end of the next business day.
Make a good faith effort to communicate. Employers are not required to send monthly billing statements, warning letters or lapse notices. Such notices are considered a courtesy and are not required by law; however, improving communication with current employees and future COBRA QBs can go a long way toward avoiding complaints that can turn into formal grievances.
Remember, QBs have the right to change their minds within their election period. A QB can change his mind and revoke the waiver of coverage& at any time during the election period. The waiver is not required by law, but if you provide one be sure to include language indicating that the QB has the right to revoke the initial election at any time during the election period.
Last but not least, be careful when dealing with spouses of former employees. An ex-employee cannot waive COBRA continuation rights on behalf of his/her spouse. The spouse has the individual right to receive COBRA information and make a determination on coverage. Additionally, in many divorce cases the judge mandates that one spouse be financially responsible for health coverage on the other spouse for a period of time. This does not mean an ex-spouse is eligible to stay on the plan as a regular spouse. It generally means the spouse is required to pay COBRA premiums on behalf of the other spouse or assist the spouse in getting coverage elsewhere.
Health care reform also has a provision that requires employers to report the cost of group health plan coverage on each employee’s W-2 form each year. Cost is generally to be determined by taking the COBRA premium and subtracting the two percent administrative fee (if applicable). The Department of Labor notes that health care reform did not (1) eliminate or change the COBRA rules; (2) extend the COBRA time periods; or (3) extend the premium subsidy law.
COBRA continuation coverage laws are administered by several agencies. The departments of Labor and Treasury have jurisdiction over private-sector health group health plans. The Department of Health and Human Services administers the continuation coverage law as it affects public-sector health plans. The Department of Labor’s interpretive and regulatory responsibility is limited to the disclosure and notification requirements of COBRA.
U.S. Department of Labor
Employee Benefits Security Administration
Division of Technical Assistance and Inquiries
200 Constitution Avenue NW, Suite N-5619
Washington, DC 20210
http://www.dol.gov [22]
The Internal Revenue Service, Department of the Treasury, has issued regulations on COBRA provisions relating to eligibility, coverage and premiums in 26 CFR Part 54, Continuation Coverage Requirements Applicable to Group Health Plans. Both the departments of Labor and Treasury share jurisdiction for enforcement of these provisions. For a table of contents and questions under the regulations, see http://www.law.cornell.edu/cfr/text/26/54.4980B-0 [23].
The Centers for Medicare and Medicaid Services offer information about COBRA provisions for public sector employees. You can contact the centers at:
Centers for Medicare and Medicaid Services
7500 Security Boulevard
Mail Stop S3-16-26
Baltimore, MD 21244
(410) 786-3000
http://cciio.cms.gov/programs/protections/cobra/cobra_fact_sheet.html [24]
The Immigration Reform and Control Act (Pub. L 99-603) was originally passed on November 6, 1986, in order to control and deter illegal immigration to the United States. Further modifications by the Immigration and Naturalization Act of 1990 (Pub. L 101-649) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Pub. L 104-208) resulted in the requirement for employers to verify the identity and employment eligibility of any person employed by the organization. The U.S. Citizenship and Immigration Service (USCIS), formerly Immigration and Naturalization Services (INS), is responsible for the documentation of alien employment authorization, for Form I-9 itself, and for the E-Verify employment eligibility verification program. Since 2002, it has been a part of the U.S. Department of Homeland Security (H.R. 5005).
The U.S. Citizenship and Immigration Service publishes handbooks and manuals to help employers comply with the verification rules. The most important is the M-274, Handbook for Employers: Guidance for Completing Form I-9 (Employment Eligibility Verification Form) (Rev. April 2020) (https://www.uscis.gov/i-9-central/handbook-employers-m-274 [25]). This section summarizes the employer I-9 verification responsibilities as outlined in the handbook. Both the form and the manual have been revised and prior versions can no longer be used after September 18th, 2017.
Current law (8 U.S.C. § 1324(b)) requires all employers in the U.S. to complete an Employer Eligibility Verification form (Form I-9) for each newly hired employee to verify each employee’s identity and eligibility to work. According to the manual, “to comply with the Immigration Reform and Control Act’s I-9 requirements, the verification should be done by an in-person inspection of the original document that shows an employee’s identity and his/her eligibility to work in the United States. A record of the employer’s verification is made and retained on the Form I-9 for each person hired by the organization.”
Employers should see https://www.uscis.gov/i-9 [26] for the form and I-9 Central for the most up-to-date information.
The I-9 form must be completed for all employees hired on or after November 7, 1986, as well as for any existing employee who requires re-verification. You do not need to complete a Form I-9 for persons who are:
Section 1 of the Form I-9 must be completed on or before the employee’s first day of work. The new form can be completed on line or by hand. The on-line form is not for electronic submission by purely fillable. Instructions for completing for forms are also available.
The employee must provide his/her full legal name and other names used in the past. The employee must provide a home address, apartment number, city or town, state, and zip code. PO boxes are not allowed. The employee must also provide data of birth, social security number, e-mail address and telephone number. The employee must read and attest to their citizenship or immigration status by checking the appropriate box. If the employee attests to "alien authorized to work", then the employee must provide either their alien registration number or the employer's form I-9 admission number. The employee must sign and date the form. You should ensure that the employee prints the information clearly. The instruction handbook provides that if the employee cannot complete Section 1 without assistance or if he/she needs Form I-9 translated, someone may assist him or her. The preparer or translator must then complete the Preparer/Translator Certification block on Form I-9.
Section 2 of the Form I-9 must be completed within three (3) days of the employee’s actual start date. The employee must present to you an original document or documents that establish identity and employment authorization. Some documents establish both identity and employment authorization (List A documents). Other documents establish identity only (List B documents) or employment authorization (List C documents) only. The employee can choose which documents he or she wants to present.
Section 3 of the Form I-9 must be completed for employees who are rehired or whose employment authorization requires reverification or who has changed his/her name.
See https://www.uscis.gov/i-9-central/complete-and-correct-form-i-9 [27] for more information.
The handbook [28] provides that the employers must examine the original document or documents the employee presents to determine if it reasonably appears to be genuine and relates to the person presenting it and then complete Section 2 of the Form I-9. The employee must be physically present during the examination of the employee's documents.
One document from List A must be examined, or one document from List B and one document from List C. The employer must record the necessary information (title, issuing authority, number) and expiration date (if any); fill in the date of hire and correct information in the certification block; and sign and date the form. Signing the form attest to physically examining the documents provided. Complete the form by entering the business name and address.
Any document(s) from the list of acceptable documents presented by the individual that reasonably appear on their face to be genuine and to relate to the person presenting them must be accepted. Return the original documents to your employee when finished.
The following documents establish both identity and employment authorization from List A of the list of acceptable documents:
Employers presenting a List A document should not be asked to present any other documents.
The USCIS has published an online version of the Form I-9. The online version is easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions and checks for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.
USCIS has also developed a Form I-9 Desktop Widget. With one click of the widget and you can go to an online, fillable form-I-9,Employment Eligibility Verification, right from you computer desktop. It requires that Java must be installed along with Internet Explorer 5.5 or later and Adobe Reader Plugin. Windows PC's must have at least a 32 bit OS with 32 bit JVM, 64 bit OS with 32 or 64 bit JVM. You can download the widget from https://www.uscis.gov/i-9-central/form-i-9-desktop-widget-download [29].
List B documents [30] establish identity only for individuals 18 years of age or older and must not be expired. The list includes:
Acceptable List B documents for persons under age 18 who are unable to present a document list above include:
For minors under the age of 18 and certain individuals with disabilities who are unable to produce any of the listed identity documents, special notation may be used in place of a List B document.
Employees who chose to present a List B document must also present a document from List C for Section 2.
For minors under the age of 18 and certain individuals with disabilities who are unable to produce any of the listed identity documents,special notation may be used in place of a List B document.
If a minor (a person under the age of 18) is unable to present a List A document or an identity document from List B, the employer should have the Form I-9 completed as follows:
An individual with a disability, who is placed in a job by a non-profit organization, association, or as part of a rehabilitation program, who cannot present a List A document or an identity document from List B, should complete Form I-9 as follows:
Documents from List C [31] establish employment authorization and include:
Special rules apply when verifying the employment authorizations for other special categories also exist. Among the categories are:
When an employer rehires an employee, the employer must ensure that the individual is still authorized to work. This is done by completing a new Form I-9 or the employer may re-verify or update the original form by completing the Reverification and Rehires section (Section 3). If an employee, who has previously completed a Form I-9, is rehired, the employer may re-verify on the employee’s original Form I-9 if:
To re-verify, the employer must:
NOTE: U.S. Citizens and noncitizen nationals never need reverification.
To update an employee's name (optional), the employer must:
If you discover an error on the employee's Form I-9, you should bring the form into compliance immediately and ask the employee to correct the error. Employers may only correct errors made in Section 2 or Section 3 of Form I-9. If you discover an error in Section 1 of the employee's Form I-9, you should ask your employee to correct the error.
The best way to correct the form is to:
To correct multiple recording errors on the form, redo the section on a new Form I-9 and attach it to the old form. Complete a new Form I-9 if major errors (such as entire sections being left black or Section 2 being completed based on unacceptable documents) need to be corrected. A note should be included in the file regarding the reason you made changes to an existing Form I-9 or completed a new Form I-9.
Be sure that you DO NOT to conceal any changes made on the form (other than simple notation errors when copying document information). Doing so may lead to increased liability under federal immigration laws.
If you have made changes on a Form I-9 using correction fluid, it is recommended that you attach a signed and dated note to the corrected Form I-9 explaining what happened. More information about making corrections to the form can be found at I-9 Central [33].
The Form I-9 must be maintained for as long as the individual works for you. Once the individuals employment has terminated, the Form I-9 must be maintained for at-least three years after the date of hire or one year after the date of termination, whichever is later. The handbook provides that "the forms can be retained in paper, microfilm, microfiche, or electronically".
Form I-9 can be signed and stored in paper format. A simple photocopy or printed I-9 form can help ensure that the employee received the instruction for completing the form. You may retain the completed paper forms on-site, or at an off-site storage facility, for the required retention period, as long as the employer is able to present the form within three days of an inspection request from DHS, OSC, or the U.S. Department of Labor.
8 C.F.R. Part 274a.2(b)(2)(iii) provides that Form I-9 may also be stored on microfilm or microfiche or electronic version of the form. You only have to keep the pages of the Form I-9 which you or the employee entered data. To do so:
USCIS provides a “Portable Document Format” (PDF) printable form I-9 from its website, https://www.uscis.gov/i-9 [26]. Employers may electronically generate and retain Form I-9 as long as:
The standard specifies that to store records electronically, the employer may complete or retain the forms in an electronic generation or storage system that includes:
Part Three of the handbook [28], Guidance for Completing Form I-9, now includes information about electronically signing and retaining I-9 forms. If you complete Form I-9 electronically using an electronic signature, your system for capturing electronic signatures must allow signatories to acknowledge that they read the attestation and attach the electronic signature to an electronically competed Form I-9. In addition the system must:
If you retain Forms I-9 electronically, you must implement an effective records security program that:
You may choose to copy or scan documents an employee presents when completing Form I-9, which you may, but are not required to do, retain with his/her Form I-9. If copies or electronic images of the employee's documentation are made, they must either be retained with Form I-9 or stored with the employee's records.
As an employer, you can violate federal law by using the Form I-9 in a discriminatory manner. Employer sanctions and anti-discrimination provision of the Immigration and Nationality Act (INA) were added by the Immigration Reform and Control Act and prohibits four types of unlawful conduct:
Discriminatory documentary practices related to verifying the employment authorization and the identity of employees during Form I-9 or E-Verify process is called "document abuse" according to the handbook. Document abuse occurs when employers treat individuals differently on the basis of national origin or citizenship or immigration status in the Form I-9 or E-Verify process. Document abuse can be categorized into four types of conduct:
Immigration status or citizenship discrimination occurs when employees are treated differently based on their real or perceived citizenship or immigration status in regard to hiring, firing, or recruitment or referral for a fee. Employer must treat all groups the same.
When an employer treats employees differently in the employment process based on their national origin, that behavior constitutes national origin discrimination. An employee’s national origin relates to the employee’s place of birth, country of origin, ethnicity, ancestry, native language, accent or the perception that they look or sound "foreign".
The handbook [28] specifically states that “retaliation occurs when an employer or other covered entity intimidates, threatens, coerces, or otherwise retaliates against an individual because the individual has filed an immigration–related employment discrimination charge or complaint; has testified or participated in any immigration–related employment discrimination investigation, proceedings, or hearing; or otherwise asserts his/her rights under the INA’s anti-discrimination provisions.”
The Office of Special Council for Immigration-Related Unfair Employment Practices, Civil Rights Division, Department of Justice (OSC), enforces the anti-discrimination provisions of the INA. Title VII of the Civil Rights Act of 1964 (Title VII), as amended, also prohibits national origin discrimination, among other types of conduct. OSC and EEOC share jurisdiction over national origin discrimination charges. Generally, the EEOC has jurisdiction over larger employers with 15 or more employees, whereas OSC has jurisdiction over smaller employers with between four and 14 employees.
The DHS or an administrative law judge may also impose penalties if it is revealed that an employer knowingly hired or knowingly continued to employ an unauthorized worker, or failed to comply with the employment eligibility verification requirements with respect to employees hired after November 6, 1986. “If DHS or an administrative law judge determines that you knowingly hired unauthorized aliens, continued to employ aliens knowing that they were not authorized or have become unauthorized to work in the United States, or practiced unlawful discrimination, you may be ordered to cease and desist from such activities and pay a civil penalty. The penalty can also include possible imprisonment. Failure to properly complete, retain, and/or make available for inspection Forms I-9 could result in a civil penalty for each violation.”
On June 11, 2008, then President George W. Bush amended Executive Order 12989 to direct all federal departments and agencies to require contractors to use an electronic employment eligibility verification system to verify the employment authorization of employees performing work under a federal contract. The DHS designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use.
Formerly referred to as the Basic Pilot Program, E-Verify is an Internet-based system operated by the U.S. Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). E-Verify is voluntary and free to employers and provides an automatic link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers. E-Verify works by electronically comparing the information on an employee’s Form I-9 with SSA and DHS records to verify the identity and employment eligibility of newly hired employees.
On September 17th, 2018, E-Verify expanded to access Department of Motor Vehicles records. Now, if an employee presents a driver's license or state ID card as a list B document and if the document is issued by one of the states and territories under E-Verify's expanded access, E-Verify will prompt the user to enter the document information. E-Verify is using this process to prepare for an expansion of driver's license and state ID verification capabilities.
On November 14, 2008, the Civilian Agency Acquisition Council (CAAC) and the Defense Acquisition Regulations Council (DARC) published the Federal Acquisition Regulation (FAR) final rules (FAR case 2007-013, Employment Eligibility Verification) that implemented the amended Executive Order 12989. The FAR, effective September 8, 2009, is a set of rules and regulations used to manage the way the federal government acquires supplies and services with appropriated funds.
Also known as the “E-Verify Federal Contractor Rules,” the FAR rules direct federal agencies to require many federal contractors to use E-Verify. It requires federal contractors, through language inserted into their federal contracts, to agree to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, as well as their current employees who perform work under a federal contract. Title 48, Subpart 22.1802(a).
Is your city required to use E-Verify? It depends. The E-Verify federal contractor rules only affect federal contractors who were awarded a new contract on or after September 8, 2009, that includes the FAR E-Verify clause (48 C.F.R., Subpart 22.18). E-Verify contracts must also have a period of performance of 120 days or more, a value exceeding the simplified acquisition threshold of $150,000 and at least some portion of the work under the contract must be performed in the United States. Title 48, Subpart 22.1803(b).
Subcontractor means any supplier, distributor, vendor, or firm that furnishes supplies or services to a prime contractor or another subcontractor. Title 48, Subpart 22.1802(2). Subcontractors also may be subject to the FAR E-Verify clause if: (1) the prime contractor includes the FAR clause; (2) the subcontract is for commercial or non-commercial services or construction; (3) the subcontract has a value of more than $3,000; and (4) the subcontract includes work performed in the United States. Subcontractors who are suppliers, however, are not subject to the E-Verify federal contractor rules. Title 48, Subpart 52.222.54(e).
If your federal contract contains the FAR E-Verify clause, subject to certain exceptions, you must use E-Verify to confirm the employment authorization of:
To verify these individuals, according to Title 48, Subpart 52.222.54(b), the employer must:
8 C.F.R. Part 274a(2) provides that after hiring a new employee and completing the Form I-9 required for all new hires (regardless of E-Verify participation), the employer must submit a query into the E-Verify system that includes information from sections 1 and 2 of the form I-9, including:
If your federal contract does not contain the FAR E-Verify clause, you are not required to enroll in and use E-Verify as a federal contractor but may participate voluntarily.
If your city has federal contracts issued after the September 8, 2009, date that contains the FAR E-Verify clause and your city is not yet enrolled, you must (Title 48, Subpart 52.222.54(b)(1)):
If your city is already enrolled in E-Verify but not designated as a federal contractor with FAR E-Verify clause, you must do the following:
Some employees are exempt from the E-Verify requirements, and employers are not permitted to verify these employees in E-Verify. Other employees are not required to be verified, but employers may choose to verify them. Employees exempt from E-Verify are (1) those individuals hired on or before November 6, 1986, and continuing in employment with the same employer; and (2) employees previously confirmed as authorized to work in E-Verify.
The following organizations awarded a federal contract that includes the FAR E-Verify clause are only required to use E-Verify for new hires and existing non-exempt employees who are working directly under contract. Title 48, Subpart 22.1802(b)(2):
Your city must indicate that your organization qualifies for the exception when you enroll in E-Verify or, if your city is already enrolled, when you update your city profile.
The Tennessee Lawful Employment Act (TLE) (T.C.A. §§ 50-1-701- 50-1-715) was signed into law June 7, 2011, and requires all employers in Tennessee to demonstrate that they are hiring and maintaining a legal workforce either by enrolling and verifying the employment eligibility of all newly-hired employees through the federal E-Verify program or request all newly-hired employees to provide identity and employment I-9 authorization documents. Valid documents under the Tennessee Lawful Employment Act per T.C.A. § 50-1-703(a)(1)(A) include:
Additionally, if your city hires non-employees, such as independent contractors, you are required to request and maintain a copy of either a valid Tennessee driver’s license or photo ID license. The employment verification provisions apply to all state and local government agencies no later than January 1, 2012.
Under T.C.A. § 50-1-703(b)(1-3), the employment verification provisions will be phased in as follows:
To verify individuals using E-Verify under the TLE Act, employers must:
The TLE Act (T.C.A. § 50-1-103(c)) provides that employers are not required to use E-Verify if the employer requested from the employee, received and documented the “lawful resident verification information” consistent with the employers requirements under the Immigration Reform and Control Act of 1986 (I-9). The Tennessee Lawful Employment Act also provides that if, however, an employer uses E-Verify, it is a defense to a charge of hiring illegal aliens. Obtaining one of the listed documents, on the other hand is not a defense if that is the only evidence the employer has.
For employers without Internet access, the TLE Act allows such employers to enter into a Memorandum of Understanding with the Tennessee Department of Labor and Workforce Development, and permits this agency to enroll the employer in the E-Verify program and conduct employment verification checks of newly hired employees through E-Verify on behalf of the employer. T.C.A. § 50-1-703(a)(5). An employer who has requested this service from the Tennessee Department of Labor and Workforce Development, but has not received assistance will not be in violation of the act (T.C.A. § 50-1-703(a)(2)). Alternatively, the act allows employers to utilize the services of a third party agent to conduct the E-verification process for newly hired employees. T.C.A. § 50-1-703(a)(4).
Under the TLE Act, employers must maintain a record of results generated by E-Verify for three years from the date of hire or one year from the date of termination, whichever is later. Employers who elect to verify the employment eligibility of newly hired employees by requesting an identity and employment authorization document, rather than enroll in E-Verify, must retain this documentation for three years after the documentation is received or for one year after the employee (or non-employee, whichever is the case) stops providing services or labor, whichever is earlier. T.C.A. § 50-1-703(a)(3)(A).
The penalties for violation of the TLE Act are stiff, to say the least. They are outlined below:
The U.S. Citizenship and Immigration Service provides a wealth of information (https://www.uscis.gov/e-verify/publications/manuals-and-guides/publications-manuals-and-guides [35]) to help employers comply with the provisions of the law. A number of manuals and customer guides provide helpful information regarding immigration benefits. Form I-9 support is available to answer questions about Form I-9 and employment authorization, Monday through Friday, from 8 a.m. to 5 p.m., except when the federal government is closed.
The Office of Special Counsel for “Immigration-Related Unfair Employment Practices” (OSC) is available to answer questions about unfair immigration-related employment practices and discrimination against workers on the basis of a worker’s citizenship or immigration status, or based on the worker’s national origin, including discrimination in the Form I-9 process. The OSC’s website provides information on how to prevent discrimination, how to file a complaint against an employer and answers to frequently asked questions.
The U.S. Citizenship and Immigration Services offers a wealth of resources to help employers comply. Free webinars are available at http://www.uscis.gov/e-verify/e-verify-webinars/take-free-webinar [36].
A copy of the revised form can be downloaded from the web at https://www.uscis.gov/i-9 [37]. Revisions also have been made to the Handbook for Employers, Instructions for Completing the Form I-9 (M-274)(Rev. 03/08/13) and can be obtained online at https://www.uscis.gov/sites/default/files/files/form/m-274.pdf [28].
In some circumstances, the employer must accept a receipt in lieu of a List A, List B, or List C document if one is presented by an employee. Acceptable receipts include:
When a receipt is provided, the employer enters the word "receipt" and its document number in the document number space, and enters the last day that the receipt is valid in the "Expiration Date" field. A receipt indicating that an initial or extension of an expiring employment authorization document (Form I-776) is not acceptable. Additionally, receipts are not acceptable if employment last less than three (3) business days.
To update the I-9 form, the employer must
You are not required to update Form I-9 when your employee has a legal change of name. However, it is recommended that you maintain correct information on forms I-9 and note any name changes in Section 3. form I-9 regulations do not require that employee present documentation to show that they have changed their name. You should take steps to be reasonably assured your employee's identity and the accuracy of tour employee's legal name change. Such a change may call into question your continued ability to rely on the documents presented by your employee in their previous name as reasonably relating to them. These steps may include asking the employee to provide documentation of the legal change of name to keep with Form I-9, so that your actions are well-documented if the government asks to inspect your Form I-9.
You may encounter situations other than a legal change of name where an employee informs you that their identity is different from that previously used to complete Form I-9. If your employee informs you that their name, date of birth, or Social Security number is substantially different from that previously provided on form I-9, and is unable to provide evidence linking the new information to the identity previously used, you should:
Provisions of the Fair Credit Reporting Act (FCRA) (15 U.S.C. § 1681 et seq.), which is the federal law governing consumer information, have been amended by the Consumer Credit Reporting Reform Act of 1996 (Pub. L. No. 104-208, the Omnibus Consolidated Appropriations Act for Fiscal year 1997, Title II, Subtitle D, Chapter 1), Section 311 of the Intelligence Authorization for Fiscal Year 1998 (Pub. L. No 105-107), the Consumer Reporting Employment Clarification Act (CRECA) of 1998 (Pub. L. No. 105-347), Section 506 of the Gramm-Leach-Bliley Act (Pub. L. 106-120), Section 358(g) and 505(c) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act)(Pub. L. 107-156), and the Fair and Accurate Credit Transaction Act (FACTA) of 2003 (Pub. L. No. 108-159). Section 719 of the Financial Services Regulatory Relief Act of 2006 (Public Law 109-351), Section 743 (Div. D, Title VII) of the Consolidated Appropriations Act of 2008 (Public Law 110-161), the Credit and Debit Card Receipt Clarification Act of 2007 (Public Law 110-241), and Sections 205 and 302 of the Credit Card Accountability Responsibility and Disclosure (CARD) Act of 2009 (Public Law 111-24), the Consumer Financial Protection Act of 2010 (CFPA) (Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Public Law 111-203) and the Red Flag Program Clarification Act of 2010 (Public Law 111-203).
The Consumer Financial Protection Bureau (CFPB), created in 2010, has assumed responsibility for enforcement of the Fair Credit Reporting Act, the role previously provided by the Federal Trade Commission. The change was implemented by a transfer of FCRA rule making authority from the FTC to CFPB. Specifically, the FCRA requires employers who use outside agencies to perform credit or other background checks (including criminal, reference, or driving record checks), as defined by CRECA, to comply with comprehensive notice, consent, and disclosure obligations both prior to doing the checks and after the results are reported. The provisions of FCRA, CRECA and FACTA directly affect those cities that use outside agencies to secure information about applicants and employees.
The rules apply to anyone over whom the Federal Trade Commission (FTC) has jurisdiction and who maintains or possesses consumer information for business purposes. It applies to individuals and to both large and small organizations that use consumer reports. This includes consumer reporting companies, lenders, insurers, employers, landlords, government agencies, mortgage brokers, car dealers, attorneys, private investigators, debt collectors, individuals who pull consumer reports on prospective at-home employees, and entities that maintain information in consumer reports as part of their role as a service provider to other organizations covered by the rule.
According to the act (15 U.S.C. § 1681(a), the definition of a consumer report includes:
“any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for credit or insurance to be used primarily for personal, family,or household purposes, employment purposes, or any other purpose authorized under section 604 [§ 1681b].”
Consumer information is defined as any record about an individual that is a consumer report or is derived from a consumer report. However, according to the FACTA amendment, “a consumer report does not include communications made to an employer while investigating suspected employee misconduct relating to employment or employee compliance with applicable laws or with pre-existing written policies of the employer”. 15 U.S.C.§ 603(y)(1)(B)(i) and 15 U.S.C.§ 603(y)(1)(B)(ii).
Generally, a city that accesses a consumer report while conducting a background check on an applicant has eight (8) main obligations: “(1) show a permissible purpose. (15 U.S.C. 604(a)(3)(B) and 604(b)), (2) provide certification of compliance (15 U.S.C. 604(f)), (3) notify consumers when adverse actions are taken (15 U.S.C. 603(k)), (4) Limit on use of information when a fraud or active duty alerts are on file (15 U.S.C. §605A), (5) comply with regulations when notified of an address discrepancy (15 U.S.C. 605(h)(1)(A)) , (6) establish procedures to dispose of records (15 U.S.C. §628); (7) make a clear and conspicuous written disclosure to the consumer before the report is obtained, in a document that consists solely of the disclosure,that a consumer report may be obtained (15 U.S.C. 604(b)(2)(A)(i)), and (8) obtain from the consumer prior written authorization to access reports (U.S.C. 604(b)(2)(A)(ii)),
Before a consumer reporting agency may provide or prepare a consumer report for an applicant, the employer must certify to the agency that: (1) it has provided the required “clear and conspicuous disclosure” to the individual who is the subject of the report; (2) it has received written authorization to obtain the report. 15 U.S.C. § 604(b)(2)(A).
If an applicant applies for employment by mail, telephone, computer, or other similar means, at any time before a consumer report is procured or caused to be procured in connection with that application: (1) the person who procures the consumer report on the applicant for employment purposes shall provide to the applicant, by oral, written, or electronic means, notice that a consumer report may be obtained for employment purposes, and a summary of the consumer’s rights under section 615(a)(3); and (2) the applicant shall have consented, orally, in writing, or electronically to the procurement of the report by that person. 15 U.S.C. § 604(b)(2)(B).
Once the employer has the consumer report, it may decide to take an action based on the consumer report (or based in part on the consumer report). An adverse action includes a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee. 15 U.S.C. § 603(k)(B). Before taking any adverse employment action against someone based in whole or in part on the consumer report, the employer must provide the affected individual with an adverse action disclosure that includes a copy of the consumer report as well as a summary of that individual’s rights under the FCRA. 15 U.S.C. § 604(b)(3)(A). In other words, when the employer receives the consumer report, he/she must immediately send a copy of the report and the individual’s rights statement to the applicant.
Then, if the employer takes adverse action based upon the subject of the report, the employer must by oral, written or electronic means: (1) provide oral, written or electronic notice of the adverse action to the affected individual; (2) written or electronic disclosure of a numeric credit score used in taking any adverse action, the range of possible credit scores, all the key factors that adversely affected the credit score, the date on which the credit score was created and the name of the person or entity that provided the credit score or credit file; (3) provide orally, written or electronically the name, address, and telephone number of the consumer reporting agency that provided the report to the employer (the telephone number provided must be the toll-free number where the individual can reach the agency, if the agency maintains files on consumers on a nationwide basis) and a statement that the agency did not make the decision to take adverse action and thus cannot tell the applicant or employee the specific reason for the actions; (4) provide notice of the individual’s right to obtain a free copy of the report on which the adverse action was based within 60 days of notice of the action; and (5) provide notice of the individual’s right to dispute the accuracy or completeness of any information in the report with the consumer reporting agency. 15 U.S.C. § 615(a).
Similarly, an employer must provide an adverse action notice to an existing employee who is subject to an employment decision that adversely affects his or her employment, such as termination or discipline, based in whole or in part on a consumer report. U.S.C. § 603(k)(1)(B)(ii). An adverse action notice also is required in employment situations if credit information is used to deny employment. 15 U.S.C. 615(b)(2).
If an applicant applies for employment by mail, telephone, computer, or other similar means, and if a person who procured a consumer report on the consumer for employment purposes takes an adverse action on the employment application based in whole or in part on the report, then the person must provide the consumer within 3 business days of taking such action, an oral, written or electronic notification: (1) that adverse action has been taken based on a consumer report received from a consumer reporting agency; (2) the name, address and telephone number of the consumer reporting agency that furnished the report (including a toll free telephone number if the agency compiles and maintains files on consumers on a nationwide basis); (3) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the consumer the specific reasons why the adverse action was taken; and (4) that the applicant may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report. 15 U.S.C. § 604(b)(3)(B).
An investigative consumer report, which is viewed as a much more intrusive inquiry and which contains information collected from personal interviews with neighbors, friends, or associates of the consumer, requires additional obligations. The act (15 U.S.C. § 603(e)) defines an investigative consumer report as:
“a consumer report or portion thereof in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information”.
If a city wants to use an investigative consumer report, it must disclose to the applicant, in a notice mailed, or otherwise delivered to the applicant, no later than three days after the date the report is first requested, that “the investigative consumer report may be obtained” and “inform the employee or applicant that he or she has a right to request additional disclosures of the nature and scope of the investigation” and provide the current or prospective employee with a “summary of the consumer’s rights.” 15 U.S.C. § 606(a)(1). The city also would have to certify to the consumer reporting agency that it “made the appropriate disclosures and will comply with the disclosure on request of nature and scope of the investigation”. 15 U.S.C. § 606(a)(2). This would not affect investigative reports generated using internal investigators for public safety departments. If a city, however, uses an outside firm to conduct investigative consumer reports, then it must comply.
If the city decides to reject the applicant based in whole or in part on an investigative consumer report, the city must provide oral, written or electronic notice of the adverse action and also provide the applicant with a copy of the report and the summary of rights before taking such action. After taking adverse action, the city must provide notice to the applicant or employee of the adverse action, provide the name, address and telephone number of the agency that furnished the consumer report on which the adverse action was based and notify the applicant or employee of the right to obtain the report. 15 U.S.C. § 615(a). The city must also provide a statement that the consumer reporting agency did not maike the decision to take the adverse action and is unable to provide the consumer the specific reasons why the adverse action was taken. 15 U.S.C.§ 615(a)(3)(B)
Individuals may dispute inaccurate information that appears in a credit report. 15 U.S.C § Section 611(a)(1)(A) provides that “if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file …, before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.” The 30-day period may be extended for not more than 15 additional days.
Individuals may also dispute inaccurate information with the furnisher of the consumer information (15 U.S.C. 623(a)(8)). 15 U.S.C. § 623(b) requires the furnisher of the consumer information to investigate good faith disputes, considering “all relevant information” submitted by the consumer. If the investigation shows that the information was inaccurate, the furnisher is required to promptly notify each Consumer Reporting Agency to which it reported the information, and provide to the CRA any correction necessary to make the information accurate.
Question: You advertise vacancies for cashiers and receive 100 applications. You want credit reports on each applicant because you plan to eliminate those with poor credit histories. What are your obligations?
Answer: You can get credit reports if you notify each applicant in writing that a credit report may be requested and if you receive the applicant’s written consent. Before you reject an applicant based on credit report information, you must make a pre-adverse action disclosure that includes a copy of the credit report and the summary of consumer rights under the FCRA. Once you’ve rejected an applicant, you must provide an adverse action notice if credit report information affected your decision.
Question: You are considering a number of your long-term employees for a major promotion. You want to check their consumer reports to ensure that only responsible individuals are considered for the position. What are your obligations?
Answer: You cannot get consumer reports unless the employees have been notified that reports may be obtained and have given their written permission. If the employees gave written permission in the past, you need only make sure that the employees receive or have received a “separate document” notice that reports may be obtained during the course of their employment — no more notice or permission is required. If employees have not received notice and given permission, you must notify the employees and get their written permission before you get their reports. In each case where information in the report influences your decision to deny promotion, you must provide the employee with a pre-adverse action disclosure. The employee also must receive an adverse action notice once you have selected another individual for the job.
Question: A job applicant gives you the okay to get a consumer report. Although the credit history is poor and that’s a negative factor, the applicant’s lack of relevant experience carries more weight in your decision not to hire. What’s your responsibility?
Answer: In any case where information in a consumer report is a factor in your decision — even if the report information is not a major consideration — you must follow the procedures mandated by the FCRA. In this case, you would be required to provide the applicant a pre-adverse action disclosure before you reject his or her application. When you formally reject the applicant, you would be required to provide an adverse action notice.
Question: The applicants for a sensitive financial position have authorized you to obtain credit reports. You reject one applicant, whose credit report shows a debt load that may be too high for the proposed salary, even though the report shows a good repayment history. You turn down another, whose credit report shows only one credit account, because you want someone who has shown more financial responsibility. Are you obliged to provide any notices to these applicants?
Answer: Both applicants are entitled to a pre-adverse action disclosure and an adverse action notice. If any information in the credit report influences an adverse decision, the applicant is entitled to the notices — even when the information isn’t negative.
The FCRA amendment also requires that any person who maintains or possesses consumer information must be prepared to dispose of those records in a way that ensures that the information will not be accessed or used improperly. 16 C.F.R. § 682.3(a). This requirement is intended to protect consumer privacy and to prevent identity theft. It addresses only the disposal of consumer information, not all employment information. It also does not address retention schedules or how records should be kept or maintained.
Consumer information is covered if it is in paper, electronic or other forms. If a city acquires consumer information, the city must take “reasonable measures to protect against unauthorized access to or use of the information” (16 C.F.R. § 682.3(b)), when the city disposes of it. Disposal under the act means “the discarding or abandonment of consumer information or the sale, donation, or transfer of any medium, including computer equipment, upon which consumer information is stored”. 16 C.F.R. § 682.1(c). Reasonable measures for disposing of consumer report information, as suggested by the act (16 C.F.R. § 682.3(b)(1-3)), could include establishing and complying with policies to:
Under the act (16 C.F.R. § 682.3(b)(3)), “due diligence” includes:
Legal consequences exist for employers who fail to get an applicant’s permission before requesting a consumer report or who fail to provide pre-adverse action disclosures and adverse action notices to unsuccessful job applicants. The FCRA allows individuals to sue employers for damages in federal court. A person who successfully sues is entitled to recover court costs and reasonable legal fees (15 U.S.C. §§ 616) and (15 U.S.C. §§ 617). The law also allows individuals to seek punitive damages for deliberate violations. In addition, the Federal Trade Commission (FTC), other federal agencies, and he states may sue employers for non-compliance and obtain civil penalties. 15 U.S.C. §§ 621(a),15 U.S.C. §§ 621(b) and 15 U.S.C. §§ 621(c).
NOTE: The Fair Credit Reporting Act has been amended to establish "Red Flag and Identity Theft" provisions 15 U.S.C. § 605A and 15 U.S.C. § 605B.
Employers who fail to comply with the rules are subject to FTC fines and penalties, which can be substantial if a large number of files are involved. In the event a person willfully fails to comply with any requirement imposed by the law, the employer is liable to that consumer in an amount equal to the sum of (a) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000 or in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $1,000, whichever is greater. 15 U.S.C. §§ 1681. The person could also be held liable for such amount of punitive damages as the court may allow (15 U.S.C. §§ 1681n(a)(2)) and, in the case of any successful action to enforce any liability, the cost of the action together with reasonable attorney’s fees as determined by the court. 15 U.S.C. §§ 1681n(a)(3).
In the event of a knowing violation, the individual/company that obtains the consumer report is liable to the consumer reporting agency for actual damages sustained by the consumer reporting agency or $1,000 whichever is greater. 15 U.S.C. § 616(b). Additionally, if the state has reason to believe that any person has violated the act, it may bring action to enjoin such violation in any appropriate United States district court and fine such person damages of not more than $1,000 for each willful or negligent violation. In the case of any successful action, the individual/company will have to pay for the cost of the action and reasonable attorney fees as determined by the court. 15 U.S.C. §§ 621(c)(1). If your city routinely conducts credit checks on applicants or employees, you may want to consider only conducting the checks on positions involving money (finance department employees, police officers, etc.). Then be sure to provide notice and follow the guidelines when an adverse decision is made.
Additionally, Section 1681s(a)(2)(a) gives the Federal Trade Commission authority to seek civil penalties for violations of the FCRA in an amount not more than $2,500 per violation. In setting a civil penalty amount, it requires a court to consider “the degree of culpability, any history of prior such conduct, ability to pay, effect on ability to continue to do business, and such other matters as justice may require.”15 U.S.C. §§ 1681s(a)(2)(b).
If your city routinely conducts credit checks on applicants or employees, you may want to consider only conducting the checks on positions involving money (finance department employees, police officers, etc…). Then be sure to provide notice and follow the guidelines when an adverse decision is made.
The CFPB has issued updated FCRA notices that employers and consumer reporting agencies must use when conducting background checks on employees or applicants. The revised form, effective as of January 1, 2013, are available in Appendices K, M and N at the end of Title 12 of the Code of Federal Regulations, Part 1022 and are substantively the same as the old forms. Each form was revised to replace references to the FTC with reference to the CFPB and to provide a link to the new website. They include:
The Summary of Consumer Rights is the form used mostly by employers, most notably when obtaining "investigative consumer reports" and sending pre-adverse action letters.
A SUMMARY OF YOUR RIGHTS UNDER THE FAIR CREDIT REPORTING ACT
The federal Fair Credit Reporting Act (FCRA) promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies. There are many types of consumer reporting agencies, including credit bureaus and specialty agencies (such as agencies that sell information about check writing histories, medical records, and rental history records). Here is a summary of your major rights under the FCRA. For more information, including information about additional rights, go to www.ftc.gov/credit [41]or write to: Consumer Response Center, Room 130-A, Federal Trade Commission, 600 Pennsylvania Ave. N.W., Washington, D.C. 20580.
In addition, since September 2005 all consumers are entitled to one free disclosure every 12 months upon request from each nationwide credit bureau and from nationwide specialty consumer reporting agencies. See www.ftc.gov/credit [41]for additional information.
States may enforce the FCRA, and many states have their own consumer reporting laws. In some cases, you may have more rights under state law. For more information, contact your state or local consumer protection agency or your state Attorney General. Federal enforcers are:
TYPE OF BUSINESS: |
CONTACT: |
Consumer reporting agencies, creditors and others not listed below |
Federal Trade Commission: Consumer Response Center - FCRA Washington, DC 20580 1-877-382-4357 |
National banks, federal branches/agencies of foreign banks (word "National" or initials "N.A." appear in or after bank's name) |
Office of the Comptroller of the Currency |
Federal Reserve System member banks (except national banks, and federal branches/agencies of foreign banks) |
Federal Reserve Consumer Help (FRCH) P O Box 1200 Telephone: 888-851-1920 Website Address: www.federalreserveconsumerhelp.gov [42] |
Savings associations and federally chartered savings banks (word "Federal" or initials "F.S.B." appear in federal institution's name) |
Office of Thrift Supervision |
Federal credit unions (words "Federal Credit Union" appear in institution's name) |
National Credit Union Administration |
State-chartered banks that are not members of the Federal Reserve System |
Federal Deposit Insurance Corporation |
Air, surface, or rail common carriers regulated by former Civil Aeronautics Board or Interstate Commerce Commission |
Department of Transportation , Office of Financial Management |
Activities subject to the Packers and Stockyards Act, 1921 |
Department of Agriculture |
T.C.A. §§ 47-18-2108 provides that employees/applicants have a right to place a "security freeze" on your credit report, which will prohibit a consumer reporting agency from releasing information in your credit report without their express authorization. A security freeze must be requested in writing by certified mail or by electronic means as provided by a consumer reporting agency. The security freeze is designed to prevent credit, loans, and services from being approved in the employee or applicants' name without their consent. If the employees/applicants are actively seeking a new credit, loan, utility, or telephone account, you should understand that the procedures involved in lifting a security freeze may slow your applications for credit. Employees/Applicants should plan ahead and lift a freeze in advance of actually applying for new credit. When a security freeze is placed on a credit report, the employee/applicant will be provided a personal identification number or password to use if they choose to remove the freeze on your credit report or authorize the release of your credit report for a period of time after the freeze is in place. To provide that authorization the employee/applicant must contact the consumer reporting agency and provide all of the following:
(1) The personal identification number or password;
(2) Proper identification to verify their identity; and
(3) The proper information regarding the period of time for which the report shall be available.
A consumer reporting agency must authorize the release of your credit report no later than fifteen (15) minutes after receiving the above information.
A security freeze does not apply to a person or entity, or its affiliates, or collection agencies acting on behalf of the person or entity, with which the employees/applicants have an existing account, that requests information in the credit report for the purposes of fraud control, or, reviewing or collecting the account. Reviewing the account includes activities related to account maintenance.
The employee/applicant should consider filing a complaint regarding their identity theft situation with the Federal Trade Commission and the Tennessee department of commerce and insurance, division of consumer affairs, either in writing or via their Web sites.
The employee/applicant has a right to bring civil action against anyone, including a consumer reporting agency, who improperly obtains access to a file, misuses file data, or fails to correct inaccurate file data.
A consumer report agency shall not charge a Tennessee consumer to place, temporarily lift, or permanently remove a security freeze (T.C.A. § 47-18-2108(l).
Additonally, T.C.A. § 47-18-2111 gives parents or legal guardians the ability to enact a security freeze on persons under 16 yeas of age or an incapacitated person under the care of a guardian or conservator (protected consumer). When the freeze is in place, consumer reporting agencies cannot release that person's credit report or any other information regarding that person unless the security freeze is removed. The maximum fee for placing or lifting a freeze for a "protected consumer" is ten dollars ($10.00) for each action. A consumer reporting agency shall not charge any fee if the protected consumer's representative (1) has obrained a police report of alleged identity fraud and the protected sonsumer is the alleged victim; and (2) provides a copy of the police report to the consumer reporting agency; or a request for the placement or removal of a protected consumer security freeze is for a protected consumer who is under sixteen at the time of the request and the consumer report ing agency has a consumer report pertaining to the protected consumer.
The Fair Labor Standards Act of 1938 (FLSA, herein referred to as “the act”), known primarily as the minimum wage and overtime law, was passed during a period when our nation was experiencing an economic recovery from the Great Depression. Administered by the U.S. Department of Labor’s (DOL) Wage and Hour Division, the act was designed to encourage employers to hire more employees in lieu of scheduling overtime and to prevent unfair competition by requiring all employers to pay a minimum wage and overtime for all work in excess of 40 hours per work week. By requiring overtime pay, the act created a monetary penalty for employers who did not spread their existing work among a greater number of employees. The act, in essence, provided an incentive to hire more people rather than increase the hours worked by existing employees.
The act did not cover government employees until a series of amendments (1966 and 1974) and court challenges extended coverage to state and government employees. Maryland v. Wirtz, 392 U.S. 183 (1968); Employees of the Department of Public Health and Welfare v. Missouri, 411 U.S. 279 (1973); National League of Cities v. Usery, 426 U.S. 833 (1976); and Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985); overruling recognized by Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720, 59 USLW 4814 (U.S.Tenn. Jun 27, 1991). Even so, application of all the provisions of the act to governments was further delayed until August 1992. This delay was due to issues of the salary basis test for public employers and exempt employees’ pay for partial-day absences (public accountability).
The FLSA contains minimum wage, overtime pay, and record keeping requirements and restricts child labor. These provisions apply to all state and local government employees except certain workers excluded from the FLSA definition of “employee” and employees who may qualify for exemption from the requirements of the act. The act establishes a definition of “hours worked” and provides the conditions under which overtime pay is due. It also provides a partial overtime exemption for certain categories of employees.
Though the act addresses many issues surrounding wages, it does not require:
The act can be enforced by private employee lawsuits or by action of the Department of Labor. If the DOL is involved, special investigative procedures are used. The Wage and Hour Division of DOL is responsible for implementing regulations under the FLSA and enforcing compliance with the act. Should the employer lose a case in court, the employee generally collects back pay and liquidated damages. There is a two-year statute of limitation under the act, extending to three years if a violation is willful. Attorney fees, too, generally are recoverable.
This document details the specifics of the act: what the act requires, who is covered, who is not covered, hours worked and compensation, overtime pay, record keeping, and penalties. It should become a well-used resource in your municipal government library.
When passed in 1938, the act did not apply to local governments. It specifically covered “employees engaged in interstate commerce, employees engaged in the production of goods for commerce, and employees in an enterprise engaged in commerce or in the production of goods for commerce” (private sector employees). State and local government employees first became subject to the minimum wage and overtime pay provisions of the Fair Labor Standards Amendments of 1966, which became effective February 1, 1967.
The 1966 amendments specifically extended coverage to state and local government employees engaged in the operation of hospitals, residential care facilities, schools and mass transit systems. The Education Amendments of 1972 extended the provisions to virtually all remaining state and local government employees who were not covered as a result of the 1966 amendments.
On June 24, 1976, the Supreme Court ruled in National League of Cities v. Usery (NLOC), 426 U.S. 833 (1976), that, under the 11th Amendment, “the minimum wage and overtime pay provisions of the FLSA were not constitutionally applicable to the integral operations of the states and their political subdivisions in areas of ‘traditional governmental functions’.” The court specifically found that such functions included, among others, schools and hospitals, fire prevention, police protection, sanitation, public health, and parks and recreation. The court’s decision did not affect application of the minimum wage and overtime pay provisions to state and local government employees engaged in activities that were not traditional functions of government or of the other substantive provisions of FLSA (the child labor and the equal pay provisions).
On February 19, 1985, the Supreme Court ruled in Garcia v. San Antonio Metropolitan Transit Authority et al. 469 U.S. 528 (1985), and Donovan v. San Antonio Metropolitan Transit Authority et al., 468 U.S. 1213, 104 S.Ct. 3582-83, 82L.Ed.2d 880 (1984), that the minimum wage and overtime pay provisions of FLSA applied to public mass transit employees of the San Antonio Metropolitan Transit Authority. In so doing, the courts overruled their earlier decision in National League of Cities v. Usery, thus allowing the minimum wage and overtime pay provisions to be applied “in toto” to state and local government employees who are engaged i traditional governmental activities.
The application of the Garcia decision, however, was delayed by legislative action in November 1985 with passage of the Fair Labor Standards Amendment of 1985. The amendment provided that no state or local government would be liable for minimum wage or overtime violations until April 15, 1986, and established new guidelines for compensatory time off and for volunteers. On April 18, 1986, the Department of Labor issued proposed regulations extending the minimum wage and overtime provisions of the act to state and local governments. The proposed regulations did not take effect until January 16, 1987.
In 1987, the final regulations were released by the Department of Labor, Wage and Hour Division (29 C.F.R. § 541 et seq.); however, on May 5, 1986, the Wage and Hour Division of DOL issued a memo to all assistant regional wage and hour administrators stating that the DOL:
“... would not assert a violation of the act against any employer who, in good faith, relies on an interpretation contained in the proposed rules, which is subsequently revised in the final rules.”
The inclusion of public employees under the act presented some unusual problems for state and local governments resulting from the pay practices of public employers. Basically, the salary basis test eliminated the executive, administrative and professional exemptions from use by public employers because principles of public accountability prevented them from paying employees for time not worked. To remedy the situation, the DOL released final regulations in August 1992 to amend the salary basis test for public employers to allow docking of exempt employee’s pay for partial-day absences. The regulations provided that “the executive, administrative and professional exemptions would not be lost for public sector employees who were subject to a pay system established by statute, ordinance or regulation or by a policy or practice established pursuant to principles of public accountability.” 29 C.F.R. § 541.710.
On April 23, 2004, the DOL unveiled sweeping changes to its regulations implementing the “white collar” exemption to the FLSA. The rule changes established a new salary test and pay-docking rules, adjusted the job duty test and established a new “highly compensated employee” provision.
The Fair Minimum Wage Act of 2007 made the first increase in the minimum wage rate since 1997. Introduced on January 5, 2007, the act established an incremental increase in the minimum wage. The current rate, as of July 24, 2009, is $7.25 per hour.
Requirements of FSLA
The FLSA requires employers to comply with the minimum wage, overtime pay, equal pay, record keeping and child labor standards for employees who are covered by the act. Except for the child labor restrictions, the act does not impose any limitations on the number of hours that may be worked by employees covered under the act. Instead, it seeks to limit the number of hours worked by requiring additional pay, called overtime pay, for hours worked in excess of the established 40-hour maximum during any seven consecutive 24-hour periods. Work may begin at any time of day and any day of the week.
State and local governments must pay their employees a minimum wage of not less than $7.25 per hour as of July 24, 2009. Under the act, “employees do not have to be paid on an hourly basis merely because the statute specifies a minimum wage on this basis. Employees may be paid on an hourly, salaried, commission, monthly, piecework or any other basis as long as pay covering each work week equals or exceeds the minimum wage standard. The minimum wage need not be paid in cash; it can be paid in whole or in part in board, lodging or other facilities.” 29 C.F.R. § 531.27.
The FLSA allows sub-minimum wages for learners, student-learners, messengers, apprentices, disabled workers, patient workers and full-time students of institutes of higher learning. Special certificates must be obtained from the Wage and Hour Division for workers to be employed at sub-minimum rates (except for workers qualifying for the youth “opportunity wage”). Employers may not displace other employees to hire workers at the lower rate of pay or make partial displacements by reducing hours, wages or employment benefits. 29 C.F.R. § 520.408(d).
“Employers are allowed to pay employees less than 20 years of age an ‘opportunity’ wage of $4.25 per hour for the first 90 days of their employment. Similarly, hiring an employee less than 20 years of age and then discharging them at the end of the 90-day period is illegal. Approval/certificates of the ‘opportunity wage’ are not issued if lower wage rates limit full-time job opportunities for others in the work place.” 29 U.S.C. § 206(g); 29 C.F.R. §§ 520.201 – 520.503 also provide the procedures to apply for special certification. 29 C.F.R. § 520.506 provides information about how to comply with the terms of the certificate, and 29 C.F.R. § 520.508 provides record keeping compliance information.
“Students in institutions of higher education may be employed at a sub-minimum wage. If the appropriate certificate procedures are followed and regulatory requirements are met, then full-time students of institutions of higher education may be paid no less than 85 percent of the federal minimum wage for work they perform for their school.” 29 C.F.R. § 519.11. “Full-time students at any educational level (but at least 14 years of age) employed by retail or service establishments, or in agriculture, may be paid wages no less than 85 percent of the minimum wage.” 29 C.F.R. § 519.2(a). “Additionally, student-learners who receive instruction at an accredited school, college or university and work part-time in a bona-fide vocational training program may be paid no less than 75 percent of the minimum wage.” 29 C.F.R. Part 520, Subpart E.
Special certificates authorizing the employment of apprentices in skilled trades at sub-minimum wages may also be requested. Section 29 C.F.R. § 520.300 defines a “skilled trade” as one with the following characteristics:
A special sub-minimum wage also may be paid to learners. “A learner is a worker ‘who is being trained’ for an occupation, which is not customarily recognized as an apprentice trade, for which skill, dexterity and judgment must be learned and who, when initially employed produces little or nothing of value.” 29 C.F.R. § 520.300. “Learners must be paid no less than 95 percent of the minimum wage (special rules apply for piece rate wages). An employee cannot, however, be considered a learner once he or she has acquired 240 hours of job-related and/or vocational training with the same employer or training facility during the past three years. Employers must also apply to DOL for learners’ certificates prior to employing learners at the sub-minimum wage rate.” 29 C.F.R. §§ 520.201 – 520.503.
29 C.F.R. Part 525 provides greater flexibility in establishing the hourly wages paid to disabled workers in sheltered workshops. “A worker with a disability" is one whose earning or productive capacity is impaired by age, physical or mental deficiency or injury.” 29 C.F.R. § 525.3(d). “The regulations stipulate that certificates will be issued only to those individuals whose earning capacity is impaired to the extent that the individual is unable to earn at least the minimum wage.” 29 C.F.R. § 525.12. No fixed percentage is set. The rate is subject to DOL approval and may be appealed by the worker.
Overtime pay required by the FLSA is “extra pay for hours worked over 40 during a work week. 29 C.F.R. § 778.101 A workweek is any seven consecutive 24-hour periods. 29 C.F.R. § 778.103 The work week may begin at any time of day and any day of the week. 29 C.F.R. § 778.104 Work periods for firefighters, police and hospital workers may vary.
The act specifically directs an employer to pay covered employees one and one-half times their regular hourly rate for hours worked in a work week beyond 40. The time and one-half overtime premium generally is calculated by first determining the regular hourly rate of the employee. This is done by dividing the employee’s total regular pay (including salary, mandatory bonuses, incentive pay, goods, food, lodging, etc.) by the number of hours worked during the work week. 29 C.F.R. § 778.109. The calculation produces an hourly rate that is the basis upon which employers pay time and one-half for hours worked in excess of 40 hours per workweek.
The Equal Pay Act (EPA), 29 U.S.C. § 206(d), enacted in 1963 as an amendment to the Fair Labor Standards Act, prohibits compensation discrimination against employees on the basis of sex when the work is performed under similar working conditions and requires equal skill, effort and responsibility. The provisions of the EPA apply not only to employees covered by the minimum wage and overtime requirements, but to all employees of a covered enterprise. Men are protected under the EPA equally with women. 29 C.F.R. § 1620.1(c).
Under the EPA, a wage differential is permitted between men and women if one of four justifications is shown:
The EPA also prohibits employers from complying with the provisions by reducing the wage rate of any employee. 29 U.S.C. § 206(d)(1) For example, if a woman was being paid $600 for a job found to be equal in skill, effort and responsibility to that of a male being paid $700, the employer would not be permitted to reduce the male employee’s compensation to $600 to comply with the EPA. Administrative enforcement of the EPA was originally delegated to the Secretary of Labor, but in 1979 this responsibility was transferred to the Equal Employment Opportunity Commission. Violators are subject to fines and imprisonment.
The FLSA was amended on July 19, 2010, making changes to the provisions of the Child Labor Law. The new provisions included lifting restrictions limiting the industries 14- and 15-year-olds were permitted to work; establishing new prohibition on youth peddling and setting higher penalties for violations resulting in serious injury or death. Additional information can be found here: https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa [44]
The regulations previously limited the occupations local governments could employ minors as a part of their regular workforce or in a summer jobs for youth program. The FLSA provides that 14- and 15-year-olds may work not only in state and local governments, retail, food service and gasoline service establishments, but also in other environments such as banks, insurance companies, advertising agencies and information technology firms. Additional information can be found at: https://www.dol.gov/whd/regs/compliance/childlabor101.pdf [45] and https://www.dol.gov/agencies/whd/youthrules [46].
Fourteen- and 15-year-olds may now perform “work of an intellectual or artistically creative nature such as computer programming, the writing of software, teaching or performing as a tutor, serving as a peer counselor or teacher’s assistant, singing, playing a musical instrument and drawing. Fifteen-year-olds may now work as lifeguards at traditional swimming pools and certain water amusement park attractions such as wave pools, lazy rivers and baby pools and elevated water slides. Fourteen- and 15-year-olds may load and unload onto and off of motor vehicles “light, non-power driven, hand tools” (such as rakes or shovels) and “personal protective equipment” used as part of their own work, as well as personal items like backpacks or lunch boxes. Fourteen- and 15-year-olds may perform work requiring them “to occasionally enter freezers only momentarily to retrieve items.”
“Minors between 14- and 16-years-old may work outside school hours. Fourteen- and 15-year-olds who are excused from compulsory school attendance may now work at businesses that use machinery to process wood products. They may not work more than eight hours in any one day when school is not in session. They may not work more than three hours in any one day when school is in session. They may not work more than 40 hours in any one week when school is not in session. They may not work more than 18 hours in any week when school is in session. Finally, minors may work only between 7 a.m. and 7 p.m. in any one day, except during the summer (June 1 through Labor Day) when the evening hour is 9 p.m.” 29 C.F.R. § 570.35(a). 29 C.F.R. § 570.35(b) provides an exception to the above restrictions for minors 14 and 15 years of age for “minors who are employed to perform sports concession services at professional sporting events.” 29 C.F.R. § 570.35(b).
The revisions prohibit 14- and 15-year-olds from riding on a motor vehicle “outside of an enclosed passenger compartment” such as a bed of a pickup truck, the running board of a van or the bumper of a garbage truck. These workers may ride inside passenger compartments, but only under specific conditions. The changes also expand the list of prohibited “power-driven machinery” 14- and 15-year-olds are not allowed to operate to include lawn mowers, golf carts, all-terrain vehicles, trimmers, cutters, weed-eaters, edgers, food slicers, food grinders, food choppers, food processors, food cutters, and food mixers. Fourteen- and 15-year olds are specifically prohibited from “catching and cooping” all kinds of poultry in preparation for transport to market.
“Minors between 16 and 18 years of age are also prohibited from working in certain hazardous occupations.” 29 C.F.R. § 570.2(a)(ii). “Minors under 17 years of age are prohibited from driving on public roads as part of employment.” 29 U.S.C. § 213(c)(6). Sixteen- and 17-year-olds may now operate power-driven pizza dough rollers and portable, counter-top food mixers.
There were also changes to the hazardous occupations for 16- and 17-year-olds, most of which are new prohibitions. First, the prohibition against working in logging and in the operation of saw mills is expanded to include working in forest firefighting and other forestry service. While the current regulations prohibit them from operating power-driven hoisting devices, the new regulations expand this to include most work with elevators, cranes, derricks and man-lifts. The meat-processing prohibition was expanded to include working in slaughtering, meat-processing and rendering occupations including poultry slaughtering establishment.
The regulations expand the old prohibition against the operating and unloading of certain paper balers and paper box compactors to “all balers and compactors. The saw and shears prohibition now includes chain saws and other power-driven saws and wood chippers, and abrasive cutting discs. Counter-top Mixers and Pizza Dough Roller are the only areas where DOL relaxed the regulations now allowing 16- and 17-year-olds to operate portable counter-top mixers, such as those used in private homes, and allowing minors to operate certain pizza dough rollers.
The Act, however, continues to provide that 17-year-old workers may drive cars and trucks at work during daylight hours only. They must have a valid driver’s license with no record of moving violations at the time of hire and have completed a state-approved driving school. The vehicle must have a seat belt and the employer must instruct the employee to use it. The vehicle must not weigh more than 6,000 pounds and the driving must not involve towing of vehicles, urgent deliveries, route deliveries or sales. The 17-year-old must not travel more than 30 miles from the place of employment. Finally, the driving must be occasional and incidental to the teen’s employment. The act also restricts the transportation of goods and passengers by 17-year-old drivers.
Minors 16 and 17 years of age may not be employed during those hours when the minor is required to attend class nor between the hours of 10:00 pm and 6:00 am, Sunday through Thursday, preceding a school day. However, if there is a Parental/Consent Form signed, then the minor may work until midnight, but no more than three (3) nights per week Sunday through Thursday.
If a minor is being homeschooled, the same rules apply, unless there is a letter of consent from the parent/guardian conducting the homeschooling. Tenn. Code. Ann. § 50-5-105 (c). Here is a link to parental/consent form: https://www.tn.gov/content/dam/tn/workforce/documents/Forms/CHILDLABORPARENTALCONSENTFORM_Revised10.04.2018.pdf [47]
The FLSA covers a wide range of employees in the public sector. The act does not, however, apply to all employees. Some individuals simply are not covered (non-covered employees). Others, while covered by the act, are exempted from certain provisions (exempt employees).
Non-covered employees are not bound by any provisions of the FLSA. Exempt employees, while covered by the FLSA, are exempt from its minimum wage and overtime provisions. Employers must keep records for non-exempt and exempt employees, however, there are no FLSA record keeping requirement for non-covered employees.
The central overtime provision of the FLSA states that “no employer shall employ any of his employees ... for a work week longer than forty hours unless such employee receives compensation ... at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a). Section 29 U.S.C. § 203(d) of the act defines an employer to include “any person acting directly or indirectly in the interest of an employer in relation to an employee,” including a public agency.
The act defines an “employee entitled to the protection of the act” 29 U.S.C. § 203(e)(2)(C) to include:
(C) any individual employed by a state, political subdivision, or an interstate governmental agency, other than such an individual —
(i) Who is not subject to the civil service laws of the state, political subdivision, or agency;
(ii) Who:
I. Holds a public elective office of that state, political subdivision, or agency;
II. Is selected by the holder of such an office to be a member of his personal staff;
III. Is appointed by such an office holder to serve on a policy making level;
IV. Is an immediate advisor to such an office holder with respect to the constitutional or legal powers of his office; or
V. Is an employee in the legislative branch of that state, political subdivision, or agency.
Elected officials, their personal staffs, policy making appointees, and legal advisors are not covered (non-covered employees) as long as they are not subject to the civil service laws of their state or local government. Therefore, any non-elected individual employed by a municipal government who is subject to a civil service system is covered. According to the DOL regulations 29 C.F.R. § 553.11(c), the term “civil service” refers to:
“... a personnel system established by law which is designed to protect employees from arbitrary action, personal favoritism, and political coercion, and which uses a competitive or merit examination process for selection and placement. Continued tenure of employment under civil service, except for cause, is provided.”
In 1985, a new non-covered employee category was added to 29 U.S.C. § 203(e)(2)(C)(i-v) of the act. The amendment “excluded employees not subject to civil service law who work in the legislative branch of a state or one of its political subdivisions.” Thus, almost all non-civil service employees in the state legislature or county, city council or board are excluded by this provision. Additionally the Department of Labor has determined that “no matter what activity an elected official performs, he/she is not considered an employee for FLSA purposes.” (DOL Wage and Hour opinion letter, December 3, 1986.)
Also not covered by the act are personal staff members who are selected or appointed by elected public officials. According to 29 C.F.R. § 553.11(b), “the term ‘personal staff member’ includes only persons who are under the direct supervision of the selecting elected official and have regular contact with such officials.” “Personal staff member does not include individuals supervised by someone other than the official, even if initially selected for the position by the elected official.” 29 C.F.R. § 553.11(b). Furthermore, to qualify for the exemption, a personal staff member must not be subject to the civil service laws of the employing agency. It would not include all members of an operational unit, since all the members could not have a personal working relationship with the elected official.
To determine whether an employee is a member of an elected official’s personal staff, the Department of Labor (DOL) issued a Wage and Hour Opinion dated December 19, 1974, that provides a test of exclusion based on personal staff membership. Among the tests to be considered are the following:
DOL further elaborated on this issue by stating in an opinion letter dated April 30, 1975, that, “individuals such as pages, stenographers, telephone operators, clerks, typists and others may be considered employees under the act.”
Also classified as non-covered under the act are policy-making appointees. When a publicly elected official appoints an individual to serve on a policymaking level, such an appointed individual is not covered by the act. To fall within the policy-making appointee exception, the staff member must be appointed by and serve solely at the pleasure or discretion of the elected official and must formulate policy rather than simply implement or apply the policy to others. In Elrod v. Burns, 427 U.S. 347, 1976, the courts ruled that “in determining whether an employee occupies a policymaking position, consideration must be given to whether the employee acts as an advisor or formulates plans for the implementation of broad goals.”
Immediate legal advisors to elected officials also are not covered by the act. “Immediate advisors are defined as ‘staff who serve as advisors on constitutional matters or legal matters and who are not subject to the civil service rules of the employing agency’.” 29 C.F.R. § 553.11(d). City attorneys are clearly outside the coverage of the act because they advise on legal matters and generally are not subject to the civil service rules of the organization.
Another group of individuals not covered by the act include bona fide volunteers, independent contractors, prisoners and trainees.
Volunteers:
29 U.S.C. § 203(e)(4)(A) provides that “employee does not include any individual who volunteers to perform service for a public agency that is a state, a political subdivision, or an interstate governmental agency, if:
There are several issues to be evaluated when determining the volunteer status of an individual in the public sector. The first has to do with whether two agencies of the same state or local government constitute the same or separate public agencies. The second issue arises when considering whether the employee is volunteering for the “same type of services” that the individual is employed to perform for the same agency.
The bottom line is that individuals may not volunteer to do what they are otherwise paid to provide. DOL will consider:
Examples of when an employee would not be considered a volunteer are:
A nurse employed by a state hospital who volunteers nursing services at a state-operated clinic (which is not a separate agency); or a firefighter [who] volunteers as a firefighter at the same public agency. (Note: A January 7, 1988, DOL opinion letter stated that a firefighter may volunteer to perform the same services for a different public agency in another jurisdiction without incurring any entitlement to overtime compensation.)
The following employees, however, would be considered bona fide volunteers because they are not engaged in volunteering the “same type of services”:
A city police officer who volunteers as a part-time referee in a city basketball league; or an employee of the city parks department who serves as a volunteer firefighter; or an office employee of a city hospital who volunteers to spend time with a disabled or elderly person in the same institution during off-duty hours.
In several opinion letters, the DOL emphasized that public employees can volunteer for the same agency that employs them if the volunteer position is substantially different from their paid work. An employee cannot be both a “paid” employee and a “non-paid” volunteer while performing the same type of work for the same employer.
Independent Contractors:
Another class of non-covered individuals are independent contractors. As a general rule, independent contractors bid to perform government work and are evaluated based on results rather than their day-to-day operations. Independent contractors control their own workers and must ensure that those workers are compensated in accordance with the FLSA. The legal test that establishes a true independent contractor is called the “economic reality test,” which looks at the degree of control exerted, the worker’s opportunity for profit or loss, the worker’s investment in the business, the permanence of the working relationship and the degree of skill required to perform the work. Doty v. Elias, 733 F.2d 720 (10th Cir. 1984). Failure to meet the economic reality test means the individual is not an independent contractor and must be treated as an employee for FLSA purposes. Other courts have developed similar standards (Donovan v. Dial Am. Marketing Inc., 757 F.2d 1376 (3rd Cir. 1985) and Brock v. Superior Care Inc., 840 F.2d 1054 (2nd Cir. 1988).
The U.S. Supreme Court has on a number of occassions indicated that there is no single rule or test for determining whether an individual is an independent contractor or an employee for purposes of the FLSA. The Courts have held that it is the total activity or situation which controls. Among the factors which the Court considered significant are:
1. The extent to which the services rendered are an integral part of the principal's business;
2. The permanency of the relationship;
3. The amount of the alleged contractor's investment in facilities and equipment;
4. The nature and degree of control by the principal;
5. The alleged contractor's opportunity for profit and loss;
6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor;
7. The degree of independent business organization and operation. (Fact Sheet #13: Employment Relationship Under the Fair Labor Standards Act (FLSA))
There are certain factors that are immaterial in determining if there is an employment relationship. Such facts are the place where work is performed, the absence of a formal employment agreement, or whether an alleged independent contractor is licensed by the State/ or local government, are not considered to have a bearing on determinations as to whether there is an employment relationship. Additionally, the Supreme Court has held that the time or mode of pay does not control the determination of employee status.
The best strategy when hiring an independent contractor is to negotiate a contract that gives the contractor the greatest possible freedom as to the manner and schedule for performing the work. Also, the employing agency should avoid, if possible, long-term or exclusive contracts and other onerous requirements that may be deemed to make the contractor dependent on the business. The contractor should bear all or at least a portion of the risk of loss under the contract and should supply his or her own tools and materials needed to perform the work. Once the work is done, the employing agency should avoid, if possible, any ongoing supervision or direction of the work
Prisoners:
Prisoners who are required to work by or for the government also are not considered employees under the FLSA and need not be paid minimum wage or overtime. Thus prisoners can be worked long hours by a governmental entity without an FLSA violation. Moreover, it is not a violation of the Constitution, since they have no right to any pay. Woodall v. Partilla, 581 F. Supp. 1066, 1074 (N.D. Ill. 1984).
Trainees:
Finally, the last groups of non-covered individuals are trainees. The DOL issued an opinion letter dated January 6, 1969, which established guidelines for determining whether trainees are employees covered by the act.
Whether trainees are employees depend upon all of the circumstances surrounding their activities on the premises of the employer. If all six apply, the trainees are not employees:
The Executive, Administrative, Professional and Computer Employees Exemptions
In addition to certain elected, appointed, and volunteer employees not being covered by the FLSA, other employees are exempt from the minimum wage and overtime provisions of the act. Like non-covered workers, exempt employees are covered by the Equal Pay Act provisions, but unlike non-covered employees they are still covered by FLSA record keeping requirements.
The exemptions we are concerned with relate to executive, administrative, professional and computer employees, and are otherwise known as the “white collar or Executive, Administrative and Professional (EAP) exemptions.” The exemptions are based on the specific job description and duties of the employee involved.
29 C.F.R. § 541.0 of the Fair Labor Standards Act provides “an exemption from the act’s minimum wage and overtime requirements for any employee employed in a bona fide executive, administrative, or professional capacity.” 29 C.F.R. § 541.400 provides “a possible exemption from the minimum wage and overtime requirements for computer system analysts, computer programmers, software engineers, and other similarly skilled computer employees.”
The rules provide three standards to be met for the exemption to apply:
To qualify as an exempt executive, administrative or professional employee, an employee must be compensated on a salary basis at a rate of not less than $684 per week, exclusive of board, lodging or other facilities. The requirement will be met if the employee is compensated biweekly on a salary basis of $1,368, semimonthly on a salary basis of $1,482, monthly on a salary basis of $2,964 or annually on a salary basis of $35,568. The shortest period of payment that will meet this compensation requirement is one week. In the case of computer employees the compensation requirement also may be met by providing compensation on an hourly basis at a rate not less than $27.63 an hour or annually on a salary basis or $57,470.40. (29 C.F.R. § 541.400)
In the case of professional employees, an exception to the salary basis requirement is in effect. It applies to certain professionals. “Among those excluded are teachers (29 C.F.R. § 541.303(d)); employees who hold a valid license or certificate permitting the practice of law or medicine or any of their branches and are actually engaged in the practice; or to employees who hold the requisite academic degree for the general practice of medicine and are engaged in an internship or resident program.
An employee with total annual compensation of at least $107,432 is deemed exempt if the employee customarily and regularly performs any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee. A high level of compensation is a strong indicator of an employee’s exempt status, thus eliminating the need for a detailed analysis of the employee’s duties. This exemption applies only to employees whose primary duty includes performing office or non-manual work. (29 C.F.R. § 541.601)
An employee is considered to be paid on a “salary basis” if the employee regularly receives each pay period, on a weekly or less frequent basis, a pre-determined amount constituting all or part of the employee’s compensation, which is not subject to reduction because of variations in the quality or quantity of work performed. An exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked unless subject to the exemptions provided by the law. (29 C.F.R. § 541.602)
The prohibition against deductions from pay is subject to the following exceptions:
“An employer is not required to pay the full salary in the initial or terminal week of employment.” 29 C.F.R. § 541.602(b)(6). An employer may pay a proportionate part of an employee’s full salary for the time actually worked in the first and last week of employment. In such weeks, the payment of an hourly or daily equivalent of the employee’s full salary for the time actually worked will meet the requirement.
“An employer is not required to pay the full salary for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.” 29 C.F.R. § 541.602(b)(7). Rather, when an exempt employee takes unpaid leave under the act, an employer may pay a proportionate part of the full salary for time actually worked. DOL’s regulations under the FMLA provide that deductions may be made from the salaries of exempt executive, administrative and professional employees “for any hours taken as intermittent or reduced FMLA leave within a workweek, without affecting the exempt status of the employee.” 29 C.F.R. § 825.206(a). Thus, the deduction can be hour for hour.
FMLA regulations state that this special exemption to payment on a salary basis “applies only to employees of covered employers who are eligible for FMLA leave, and to leave which qualifies as one of the four type of FMLA leave.” 29 C.F.R. § 825.206(c). Deductions may not be made from the salary of an exempt employee (1) who works for an employer with fewer than 50 employees; (2) who works at a site with fewer than 50 employees within a 75-mile radius; or (3) where the employee has not worked the required 1,250 hours necessary to qualify for FMLA leave.
When calculating the amount of allowed deduction from pay, the employer may use the hourly or daily equivalent of the employee’s full weekly salary or any other amount proportional to the time actually missed by the employee. A deduction from pay as a penalty for violations of major safety rules may be made in any amount. (29 C.F.R. § 541.602(c))
The regulations allow an employer to provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirements if the employment arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis. Similarly, the exemption is not lost if an exempt employee who is guaranteed at least the minimum weekly required amount paid on a salary basis also receives additional compensation based on hours worked for work beyond the normal workweek. Such additional compensation may be paid on any basis (e.g., flat sum, bonus, straight-time hourly amount, time and one-half or any other basis), and may include paid time off. (29 C.F.R. § 541.604)
The regulations (29 C.F.R. § 541.710) also provide that an employee of a public agency who otherwise meets the salary basis requirements of 29 C.F.R. § 541.602 shall not be disqualified from exemption under 29 C.F.R. §§ 541.100, 541.200, 541.300, or 541.400 on the basis that such employee is paid according to a pay system established by statute, ordinance or regulation, or by a policy or practice established pursuant to principles of public accountability, under which the employee accrues personal leave and sick leave and which requires the public agency employee’s pay to be reduced or such employee to be placed on leave without pay for absences for personal reasons or because of illness or injury of less than one work day when accrued leave is not used by an employee because:
Deductions from the pay of an employee of a public agency for absences due to a budget-required furlough shall not disqualify the employee from being paid on a salary basis except in the workweek in which the furlough occurs and for which the employee’s pay is reduced accordingly. As 29 C.F.R. § 541.710 states, “The special pay deduction rule for public sector employers is based on ‘principles of public accountability’.”
“If an employer discovers it has made deductions from the pay of an otherwise exempt employee that could potentially destroy the salary basis method or payment and, therefore, the exempt status of their employee, the employer that makes improper deductions from the salary shall lose the exemption if the facts demonstrate that the employer did not intend to pay the employee on a salary basis.” 29 C.F.R. § 541.603(a). The employer’s intent is the “central inquiry” in determining whether the exemption should be forfeited. 69 Fed. Reg. 22,179.
The salary basis regulations include a “window of correction” and a “safe harbor,” both of which permit employers to retain the exempt status of their employees in certain situations involving improper pay docking. “Improper deductions from employee salaries that are either isolated or inadvertent will not result in the loss of the exemption if the employer reimburses the employee for such improper deduction.” 29 C.F.R. § 541.603(c). This is called the “Window of Correction.”
“If an employer has a clearly communicated policy that prohibits improper deductions and a complaint mechanism, reimburses employees for the improper deduction and makes a good faith commitment to comply with the FLSA’s salary basis test in the future, the employer will not lose the exemption unless the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints. DOL refers to this new rule as a “safe harbor” provision.” 29 C.F.R. § 541.603(d).
The safe harbor provision applies regardless of the reasons for the improper pay deduction. The safe harbor is available for both improper deductions made because there is no work available and improper deductions made for reasons other than lack of work. DOL has provided a sample policy to help employers comply with the new salary basis test regulations. The written salary basis policy [48] may be included in the employer’s employee handbook or given directly to exempt employees, but there is no indication in the rules that employees must sign that they have received such a policy.
While uncommon in the public sector, bona fide administrative and professional employees may also be paid on a "fee basis", rather than a salary basis. “An employee will be considered to be paid on a fee basis if the employee is paid an agreed sum for a single job regardless of the time required for its completion. A fee is paid for the kind of job that is "unique" rather than for a “series of jobs repeated an indefinite number of times and for which payment on an identical basis is made over and over again.” Payments based on the number of hours or days worked and not on the accomplishment of a given single task are not considered payments on a fee basis. “To determine whether the fee payment meets the minimum salary required for exemption, the amount paid to the employee will be tested by determining the time worked on the job and whether the fee payment is at a rate that would amount to at least $684 per week if the employee had worked 40 hours.” 29 C.F.R. § 541.605.
The Department provides the example of an artist paid $500 for a picture that took 20 hours to complete. Accordingly, this would meet the minimum salary requirement for exemption since the earnings at this rate would yield the artist $1000 if 40 hours were worked and the salary level would be $913. 29 C.F.R. § 541.605(b).
To qualify for exemption under the regulations, the employee also must meet the “duty test.” To qualify, an employee’s “primary duty” must be the performance of exempt work. The term “primary duty” means:
… the principle, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of non-exempt work performed by the employee. 29 C.F.R. § 541.700(a).
The amount of time spent performing exempt work can help determine whether exempt work is the primary duty of an employee. “Employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement. Employees who do not spend more than 50 percent of their time performing exempt duties may nonetheless meet the primary duty requirements if the other factors support such a conclusion.” 29 C.F.R. § 700(b).
Work that is “directly and closely related” to the performance of exempt work also is considered exempt work. “The phrase ‘directly and closely related’ means tasks that are related to exempt duties and that contribute to or facilitate performance. ‘Direct and closely related’ work may include physical and/or menial tasks that arise out of exempt duties, and the routine work without which the exempt employee’s work cannot be performed properly (e.g., record keeping, monitoring and adjusting machinery; taking notes; using the computer to create documents or presentations; opening the mail for the purpose of reading it and making decisions; and using a photocopier or fax machine). Work is not 'directly and closely related' if the work is remotely related or completely unrelated to exempt duties.” 29 C.F.R. § 541.703(a).
The use of manuals, guidelines or other established procedures containing or relating to highly technical, scientific, legal, financial or other similarly complex matters that can be understood or interpreted only by those with advanced or specialized knowledge or skills does not preclude exemption under section 13(a)(1) of the Act or the regulations in this part. Such manuals and procedures provide guidance in addressing difficult or novel circumstances and thus use of such reference material would not affect an employee's exempt status. The section 13(a)(1) exemptions are not available, however, for employees who simply apply well-established techniques or procedures described in manuals or other sources within closely prescribed limits to determine the correct response to an inquiry or set of circumstances. 29 C.F.R. § 541.704.
An employee in a bona fide executive capacity is an employee (1) who is compensated on a salary basis at a rate of not less than $684 per week, exclusive of board, lodging or other facilities, (2) whose primary duty is management of the organization in which the employee is employed or of a customarily recognized department or subdivision, (3) who customarily and regularly directs the work of two or more other employees, and (4) who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight. 29 C.F.R. § 541.100(a).
“Management” as defined by the DOL regulation (29 C.F.R. § 541.102) “includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; … appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; providing for the safety and security of the employees or the property; planning and controlling the budget and monitoring or implementing legal compliance measures.” This is not an exhaustive list, and other activities also may be management duties.
29 C.F.R. § 541.103 provides that "the phrase ‘a customarily recognized department or subdivision’ is intended to distinguish between a mere collection of employees assigned from time to time to a specific job or series of jobs and a unit with permanent status and function.” It provides that when an organization “has more than one establishment, the employee in charge of each establishment may be considered in charge of a recognized subdivision of the enterprise.” For example, a large human resources department might have subdivisions for labor relations, pensions and other benefits, equal employment opportunity, and personnel management, each of which has a permanent status and function. A recognized department or subdivision does not have “to be physically within the employer’s establishment and may move from place to place. Continuity of the same subordinate personnel is not essential to the existence of a recognized unit with a continuing function.” Use of a staffing pool, however, does not destroy the exempt employee’s status. The phrase “customarily and regularly” means a frequency that is recurrent and performed every workweek. 29 C.F.R. § 541.701. DOL, in an August 20, 1992, opinion letter, further defined “customarily and regularly” to entail “over a significant time span,” especially in smaller organizations.
The phrase “two or more other employees means two full-time employees or their equivalent.” 29 C.F.R § 541.104(a). “The supervision can be distributed among two, three or more employees, but each such employee must customarily and regularly direct the work of two or more other full-time employees or their full-time equivalent (FTE).” 29 C.F.R. § 541.104(b). “An employee who merely assists the manager of a particular department and supervises two or more employees only in the actual manager’s absence does not meet this requirement. Hours worked by an employee cannot be credited more than once for different executives. Thus shared responsibility for supervision of the same two employees in the same department does not satisfy this requirement. However, a full-time employee who works four hours for one supervisor and four hours for a different supervisor can be credited as a half-time employee for both supervisors” 29 C.F.R. § 541.104(d). In Secretary of Labor v. Daylight Dairy Products Inc., 779 F.2d 784 (1st Cir. 1985), the court stated that a manager who meets the 80 hour rule only 76 percent of the time falls short of the requirement to customarily and regularly supervise 80 employee-hours of work.
The exempt executive employee must have the authority to hire or fire other employees. Alternately, the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. 29 C.F.R. § 541.105. “To determine whether an employee’s suggestions and recommendations are given ‘particular weight,’ factors to be considered include, but are not limited to, whether it is part of the employee’s job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee’s suggestions and recommendations are relied upon.” 29 C.F.R. § 541.105.
“Concurrent performance of exempt and non-exempt work does not disqualify an employee from the executive exemption if the requirements of the Act are met. 29 C.F.R. § 541.106(a). Generally, exempt executive employees make the decision regarding when to perform nonexempt duties and remain responsible for the success or failure of business operations under their management while performing the nonexempt work” while nonexempt employees who perform exempt work generally are directed by a supervisor to perform the work. “An employee whose primary duty is ordinary production work or routine, recurrent or repetitive tasks cannot qualify for exemption as an executive.” 29 C.F.R. § 541.106(a).
DOL regulations (29 C.F.R. § 541.601(b)(4) define a highly compensated employee as one having a “total annual compensation of at least $107,432.” Accordingly, a high level of compensation is a strong indicator of an employee’s exempt status, thus eliminating the need for a detailed analysis of the employee’s job duties.
A managerial employee who is “highly compensated” may qualify as an exempt executive employee under what DOL calls a “short-cut test.” 69 Fed. Reg. 22,174. The total may include several forms of compensation including commissions, non-discretionary bonuses and other non-discretionary compensation earned during a 52 week period, provided that at least $684 per week is paid on a salary or fee basis. (Note: Discretionary bonuses are not included in the definition of total annual compensation.) 69 Fed. Reg. 22,175.
The DOL exemption for the highly-compensated employee is applicable only to employees whose primary duties include performing executive, administrative or professional work. Therefore, “production line workers and non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, construction workers, laborers and other employees who perform work involving repetitive operations with their hands, physical skills and energy” cannot be exempt as “highly-compensated employees” no matter how highly paid they are. 29 C.F.R. § 541.601(d).
DOL’s regulation 29 C.F.R. § 541.3(b)(1) emphasizes that the executive exemption does not apply to non-management law enforcement, fire and emergency personnel. Thus “police officers, detectives, investigators, … inspectors, correctional officers, parole or probation officers, firefighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work” do not qualify for exemption.
Also, 29 C.F.R. § 541.3(a) provides that the executive exemption does “not apply to manual laborers or other blue collar workers who perform work involving repetitive operations with their hands, physical skill and energy. Such nonexempt blue-collar employees gain their skills and knowledge …through apprenticeships and on-the-job training.” Thus non-management production-line employees and non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the Fair Labor Standards Act, and are not exempt under the regulations. Earlier provisions, however, make it clear that blue-collar workers in managerial roles can be exempt.
An employee in a bona fide administrative capacity is an employee (1) who is compensated on a salary or fee basis at a rate of not less than $684 per week, exclusive of board, lodging or other facilities, (2) whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and (3) whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 29 C.F.R § 541.200(a).
An employee may qualify for the administrative exemption if the employee’s primary duty is “the performance of work directly related to the management or general business operations of the employer’s customers.” (Employees acting as advisers or consultants to their employer’s clients or customers may also be exempt.) “The phrase ‘directly related to the management or general business operations’ refers to the type of work performed by the employee… an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.” 29 C.F.R. § 541.201(a).
“Work directly related to management or general business includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, internet and database administration; legal and regulatory compliance; and similar activities.” 29 C.F.R. § 541.201(b).
Exempt administrative workers include not only those who participate in forming management policies or in operating the business as a whole, but it also includes a wide variety of employees who either carry out major assignments in conducting the operations of the business or whose work affects business operations to a substantial degree, even though their assignments are tasks related to the operation of a particular segment of the business. 69 Fed. Reg. 22138. The requirement that the work performed by an exempt administrative employee be “office or nonmanual work.” 29 C.F.R. § 541.200(a)(2) restricts the exemption to “white-collar” employees only. The regulations state specifically that they do not apply to “blue-collar” workers who perform work involving repetitive operations with their hands, physical skill and energy. Employees who use tools to perform their work normally are considered blue-collar workers.
The exercise of discretion and independent judgment involves comparing and evaluating possible courses of conduct and acting or making a decision after the various possibilities have been considered. According to 29 C.F.R. § 541.202(b), factors to consider in determining whether an administrative employee exercises discretion and independent judgment include:
“The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision ... the term discretion and independent judgment does not require that the decision made by an employee have a finality that goes with unlimited authority and complete absence of review.” 29 C.F.R. § 541.202(c).
Closely related to whether the employee exercises “discretion and independent judgment” for purposes of applying the administrative exemption is whether the employee’s decision-making ability is limited by manuals or standard operating procedures. DOL’s revised exemption regulation 29 C.F.R. § 541.704 states:
The use of manuals, guidelines or other established procedures containing or relating to highly technical, scientific, legal, financial or other similarly complex matters that can be understood or interpreted only by those with advanced or specialized knowledge or skill does not preclude exemption under section 13(a)(1) of the act or the regulations in this part. Such manuals and procedures provide guidance in addressing difficult or novel circumstances and thus use of such reference material would not affect an employee’s exempt status. The section 13(a)(1) exemptions are not available, however, to employees who simply apply well-established techniques or procedures described in manuals or other sources within closely-prescribed limits to determine the correct response to an inquiry or set of circumstances.
An administrative employee who is “highly compensated” may qualify as an exempt administrative worker if the employee receives total compensation of at least the 90th percentile and performs only one of the exempt duties or responsibilities. 29 C.F.R. § 541.601(a). Accordingly, the highly-compensated employee likely would need to exercise discretion and independent judgment in order to be exempt.
DOL’s revised regulation (29 C.F.R. § 541.708) states that “employees who perform a combination of exempt duties, as set forth for executive, administrative, professional, and computer employees, may qualify for exemption.” Thus, for example, an employee whose primary duty involves a combination of exempt executive and exempt administrative work would still qualify for exemption.
The professional exemption of the FLSA actually covers three (3) exemptions: one for “learned professionals” one for “creative professionals, and one for the teaching professional.” An individual employed in a bona fide professional capacity is an employee:
To qualify as an exempt “learned professional,” an employee must have a primary duty that requires knowledge of an advanced type in a field of science or learning. DOL regulation 29 C.F.R. § 541.301(b) states “the phrase ‘work requiring advanced knowledge’ means work which is predominately intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment... Advanced knowledge cannot be attained at the high school level.” 29 C.F.R. § 541.301(b). Note that the employee cannot be exempt as a “learned professional” unless the employee’s work requires knowledge of an advanced type. Thus, an employee who has an advanced degree, but whose work does not require that level of education, will not qualify for the exemption.
Included within these requirements is a criterion that the employee’s primary duty must include the “consistent exercise of discretion and judgment.” The regulations do not define “discretion and judgment” as applied to the professional exemption except to say that an exempt learned professional generally uses his or her advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. DOL notes that the “exercise of discretion and judgment” standard under the learned professional exemption is less stringent than the “exercise of discretion and independent judgment” standard under the administrative exemption. 69 Fed. Reg. 22,151, citing De Jesus Rentas v. Baxter Pharmacy Services Corp., 286 F.Supp. 2d 235 (D.P.R. 2003).
“The phrase ‘field of science or learning’ includes the traditional professions of law, medicine, theology, accounting, actuarial computations, engineering, architecture, teaching, various types of physical, chemical and biological science, pharmacy and other similar occupations. The regulations specifically define “field of science or learning” as “occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.” 29 C.F.R. § 541.301(c).
"The phrase ‘customarily acquired by a prolonged course of specialized intellectual instruction’ restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession.” 29 C.F.R. § 541.301(d). The best evidence that an employee meets this requirement is possession of the appropriate academic degree. “The word, ‘customarily’ means that the exemption is also available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degree employee, but who attained the advanced knowledge through a combination of work experience and intellectual instruction.” 29 C.F.R. § 541.301(d). The exemption is not available for “occupations in which most employees have acquired their skill by experience, rather than by advanced specialized intellectual instruction.” This does not allow an employee to qualify as exempt based on equivalent training in the military, technical schools or community colleges.
“To qualify for the creative professional exemption, an employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as opposed to routine mental, manual, mechanical or physical work.” 29 C.F.R. § 541.302(a). “The work performed must be in a recognized field of artistic or creative endeavor. This includes such fields as music, writing, acting and the graphic arts.” 29 C.F.R. § 541.302(b). The exemption does not apply to work that can be produced by a person with general manual or intellectual ability and training. “This requirement is generally met by actors, musicians, composers, conductors, and soloists; painters who at most are given the subject matter of their painting; cartoonists who are merely told the title or underlying concept of a cartoon and must rely on their own creative ability to express the concept; essayists, novelists, short-story writers and screen-play writers who choose their own subjects and hand in a finished piece of work to their employers.” 29 C.F.R. § 541,302(c).
To qualify for the exemption as a bona fide teacher under 29 C.F.R. 541.303, all the following must be met:
There is no minimum salary or salary basis requirement applied to teaching professionals. In addition, there is no minimum educational or academic degree requirements for bona fide teaching professionals in educational establishments. Possession of an elementary or secondary teacher's certificate identities the individuals who are considered with the scope of the exemption for teaching professionals. Also included are employees whose primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment.
A professional employee who is “highly compensated” may qualify as an exempt professional worker under the DOL revised regulations (29 C.F.R. § 601(a); however, the duty test for a highly-compensated professional employee is stricter than the duty test for the other exemptions. Additionally, the salary requirements of this part does not apply to the teaching profession or to the practice of law or medicine 29 C.F.R. § 541,303(d) and 29 C.F.R. § 541,304(d).
The FLSA contains specific exemptions from the minimum wage and overtime provisions for amusement or recreational employees. 29 U.S.C. § 213(a)(3) and 29 C.F.R. § 553.32(e) exempt any employee who:
…is employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center, if (a) it does not operate for more than seven (7) months in any calendar year, or (b) during the preceding calendar year, its average receipts for any six (6) months of such year were not more than 33 1/3 percent of its average receipts for the other six months of such year.
In order to meet the requirements, the establishment in the previous year must have received at least 75 percent of its income within 6 months. The 6 months, however, need not be 6 consecutive months. State and local governments operate parks and recreational areas to which this exemption may apply. 29 C.F.R. § 553.32.
The key point of this test is that the employee must be employed by a seasonal amusement or recreational establishment. Since some governments operate stadiums, convention centers, amusement parks and facilities, and recreational establishments like nature centers, ice skating rinks, state fairgrounds, tennis courts, golf courses, parks, gymnasiums, outdoor and indoor swimming pools, zoos and museums, this exemption from the act can be significant. Office personnel, warehouse workers and similar employees, not employed in the recreational or amusement establishment itself but in the local central administrative office, are not exempt. A 1970 Wage and Hour opinion letter dated July 21, 1970, seems to suggest that only amusement or recreational employees who work in a distinct, separate workplace for the recreation and amusement activities would be covered.
Employees who work as “computer systems analysts, computer programmers, software engineers or other similarly skilled workers in the computer field” are eligible as an exempt professional employee. The exemption applies to “any computer employee compensated on a salary or fee basis at a rate of not less than $27.63 an hour.” 29 U.S.C. § 213(a)(17). The exemption, however, applies “only to computer employees whose primary duty consists of: (1) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; (2) the design, development, documentation, analysis, creation, testing or modifications of computer systems or programs, including prototypes, based on and related to user or system design specifications; (3) the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (4) a combination of the above, the performance of which requires the same level of skills.“ 29 C.F.R. § 541.400(b)(1-4).
The computer exemption “does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs, but who are not primarily engaged in computer system analysis and programming or other similarly skilled computer related occupations also are not exempt computer professionals.” 29 C.F.R. § 541.401.
Computer employees may also be exempt under the Executive and Professional duties exemption if their primary duties includes work such as planning, scheduling and coordinating activities required to develop systems to solve complex business, scientific or engineering problems of the employer of the employer's customers or manages two or more employees and whose recommendations as to the hiring, firing, advancement, promotion or other change of status of other programmers are given particular weight. 29 C.F.R. § 541.402.
The regulations make it clear that the “Executive, Administrative and Professional” exemptions do not apply to “blue collar workers who perform work involving repetitive operations with their hands, physical skill and energy. Such non-exempt blue collar employees gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on the job training, not through the prolonged course of specialized intellectual instruction. Non-management production line employees and non-management employees in maintenance, construction, and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA and are not exempt under this part no matter how highly paid they might be.” 29 C.F.R. § 541.3(a).
The regulations also do not apply to “police officers, detectives, investigators, inspectors, park rangers, firefighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees regardless of rank or pay level who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime, or accident victims, preventing or detecting crimes; conducting investigations or inspections for violations of laws; performing surveillance; pursing, restraining and apprehending suspects; detaining or supervising suspects and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports or other similar work.” 29 C.F.R. § 541.3(b)(1).
Such non-exempt employees “do not qualify as exempt executive employees because their primary duty is not management of the enterprise in which the employee is employed. 29 C.F.R. § 541.3(b)(2). Such employees are not exempt administrative employees because their primary duty is not the performance of work directly related to the management or general business operations of the employer. 29 C.F.R. § 541.3(b)(3) Such employees are not exempt under the professional exemption because their primary duty does not involve the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by prolonged course of specialized intellectual instruction or the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.” 29 C.F.R. § 541.3(b)(4).
The following chart provides an overview of the special categories of employees affected by the Fair Labor Standards Act. The first column lists those employees not covered by the act. The second column lists those employees who are exempt from the overtime provisions but not the record keeping provisions. The third column lists all non-exempt employees who are covered by the overtime and record keeping provisions of the act. Finally, the special category of employees is listed in column four.
There are checklists provided below which will assist you in determining the correct Fair Labor Standards Act category of an employee. There is also a sample Safe Harbor Policy located on page 31.
Employees who meet the five criteria below are bona fide executive employees under DOL’s revised exemption regulations. If any of the questions below are answered in the negative, the employee is not exempt as an executive employee unless he or she is highly compensated.
Employees who meet the four criteria below are bona fide highly compensated executive employees under DOL’s revised exemption regulations.
Employees who meet the four criteria below are bona fide administrative employees under DOL’s revised exemption regulations. If any of the questions below are answered in the negative, the employee is not exempt as an administrative employee unless he/she is highly compensated.
Employees who meet the four criteria below are bona fide highly compensated administrative employees under DOL’s revised exemption regulations.
Employees who meet the criteria below are bona fide learned professionals under DOL regulations. If any of the questions below are answered in the negative, the employee is not exempt as a learned professional employee unless he or she is “highly compensated.”
Employees who meet the criteria below are bona fide highly compensated learned professional employees under DOL’s regulations.
Employees who meet the criteria below are bona fide creative professionals under DOL’s regulations. If any of the questions below are answered in the negative, the employee is not exempt as a creative professional employee unless he or she is “highly compensated.”
(Employees who meet the criteria below are bona fide highly compensated creative professional employees under DOL’s regulations.
The Fair Labor Standards Act (FLSA) is a federal law which requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.
Salary Basis Requirement
To qualify for exemption, employees generally must be paid at not less than $684 per week on a salary basis. These salary requirements do not apply to teachers, and employees practicing law or medicine.
Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. Subject to exceptions listed below, an exempt employee must receive the full salary for any workweek in which the employee performs any work, regardless of the number of days or hours worked. Exempt employees do not need to be paid for any workweek in which they perform no work. If the employer makes deductions from an employee’s predetermined salary, i.e., because of the operating requirements of the business, that employee is not paid on a “salary basis.” If the employee is ready, willing and able to work, deductions may not be made for time when work is not available unless due to public accountability issues.
Circumstances in Which the Employer May Make Deductions from Pay
Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions (see Company Policy on penalties for workplace conduct rule infractions) unless required due to public accountability issues.
Also, the city is not required to pay the full salary in the initial or terminal week of employment; for penalties imposed in good faith for infractions of safety rules of major significance, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act. In these circumstances, either partial day or full day deductions may be made.
It is the city's policy to comply with applicable wage and hour laws and regulations. The improper pay deduction specified in Title 29 of the Code of Federal Regulations § 541.603 may not be made from the pay of employees who are subject to the salary basis test under the Fair Labor Standards Act.
If you believe that any deduction has been made from your pay that is inconsistent with your salaried status, you should immediately contact ___________________ at ___________________.
Every complaint will be resolved within a reasonable time given all the facts and circumstances. If an investigation reveals that you were subjected to an improper deduction from pay, you will be reimbursed, and the city will take whatever action it deems necessary to ensure compliance with the salary basis test in the future.
All employees not exempted or excluded from the FLSA must be paid a minimum wage for all hours worked. 29 C.F.R. §785.5. Hours worked has been defined as “all hours that an employee is ‘suffered or permitted to work’ for the employer.” 29 C.F.R.. § 785.11. Hours worked include any time in which the employee is required to be on the employer’s premises, on duty or at a prescribed work place. 29 C.F.R. § 785.7.
Understanding the concept of “hours worked” is crucial to complying with the FLSA. According to the U.S. Supreme Court (Tn. Coal, Iron & R.R. Co. v. Muscodol Local No. 123, 321 U.S. 590 (1944)), an employee must be compensated for “all time spent in physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” Working time is not limited to the hours spent in active productive labor, but includes time given by the employee to the employer even though part of the time may be spent in idleness. Some of the hours spent by employees, under certain circumstances, in such activities as waiting for work, remaining “on call”, traveling on the employer's business or to and from workplaces, and in meal periods and rest periods are regarded as working time and some are not. 29 C.F.R. § 778.223.
The courts and DOL have recognized that insubstantial or insignificant periods of time outside scheduled working hours, which may not be precisely recorded, may be disregarded in recording working time. 29 C.F.R. § 785.47. The rule applies only where a few minutes of work are involved and where the failure to count such time is due to considerations justified by “operational realities.” Such time is called "de minimis", i.e., minor or trivial. The Portal-to-Portal Act of 1947 helps clarify the working time issue.
Employees, who, with the knowledge or consent of their employer, continue to work after their shifts are over, though voluntarily, are engaged in compensable working time. The reason for the work is immaterial; as long as the employer “suffers or permits” employees to work on its behalf, overtime compensation may be due. 29 C.F.R. § 785.11. This is true whether the work takes place at the place of business or the employee’s home. For example, preliminary activities such as filling out time, material or requisition sheets; checking job locations; removing trash; and fueling cars are all compensable work if done at the employer’s behest and for the employer’s benefit. This broad definition of hours worked may require employers to compensate employees for time worked that the employer may not consider “working time,” such as waiting time, travel time, certain meals and training time.
On-call time is time spent by employees, usually off the working premises, in their own pursuits, where the employee must remain available to be “called back” to work on short notice. 29 C.F.R. § 785.17. The FLSA requires employers to compensate their workers for on-call time when such time is spent “predominantly for the employer’s benefit.” The regulations state that:
“... an employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purpose is working while “on call. An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.”
It is important to note that on-call payments may alter an employee’s regular rate of pay. If the employer chooses to pay the employee for on-call time (for example, a $50 on-call payment per eight hour shift) that would not otherwise be considered hours worked under the regulation, that $50 compensation nevertheless must be included in the employee’s rate of pay calculation for overtime. 29 C.F.R. § 778.221(b). Of course, “all payment for time actually worked must also be included in the regular rate calculation.” 29 C.F.R. § 778.223. Once the employee arrives at work after being called into service, all working time must be compensated. If this pushes the hours worked over 40 in a week or any other permitted schedule, overtime must be paid.
Break periods, such as lunch or dinner meals or rest periods, may or may not be compensable depending on whether the employee is relieved from duty and the amount of time allocated for the activity. The FLSA does not require that employees be given rest periods , but if rest periods are provided, they must be counted as hours worked if they last 20 minutes or less (Mitchell v. Grienetz, 235 F. 2d 621, 13 W.H. Cases 3 (C.A. 10th Cir. 1956)). Coffee and snack breaks are compensable rest periods and cannot be excluded from hours worked as meal periods. Whether rest periods that last longer than 20 minutes are compensable depends upon an employee’s freedom during the breaks. 29 C.F.R. 785.18
“A bona fide meal time, when the employee is completely relieved from duty, is not work time. Short periods, such as coffee breaks or snacks, are not considered meal time. Of course, if an employee works during the meal, the time is compensable. Whether or not an employee’s meal period can be excluded from compensable working time depends on the employee ‘freedom meal test’.” 29 C.F.R. § 785.19(a).
Unless all of the following three conditions are met, meal periods must be counted as hours worked:
“Meal time spent out of town on business trips is not generally compensable time.” 29 C.F.R. § 785.39. If, however, an employee works during his/her meal, such time is compensable. “Any work done voluntarily during meal periods must be counted as compensable working time if the employer knows or has reason to believe the work is being performed. If the employer does not know of the work, and the employee’s work during meal time is essentially de minimis, no compensation is required.” Baker v. United States, 218 Cl. Ct. 602 (1978). “Public agencies may exclude meal time from hours worked on tours of duty of 24 hours or less, provided that the 207(k) employee is completely relieved of duty during the meal period.” 29 C.F.R. § 553.223(b). “The meal period of safety personnel who are on call more than 24 consecutive hours can be excluded from working time under certain criteria.” 29 C.F.R. § 553.223(d).
Firefighters required to remain at their work station during meal time and obligated to respond to incoming calls are not completely relieved from duty, therefore, their mealtime is compensable. Rotondo v. Georgetown, S.C., 869 F. Supp. 369 (D.S.C. 1994). However, in Albee v. Village of Bartlett, Ill., 861 F. Supp. 680 (N.D. Ill. 1994), the courts determined that occasional interruptions in a police officer’s meal break did not entitle the officer to compensation. The bottom line seems to be whether the officer’s time and attention are occupied primarily by private pursuit (procurement and consumption of food) or whether the officer’s time and attention are taken up primarily by official responsibilities that prevent the officer from comfortably and adequately enjoying the meal.
“If a public agency elects to pay overtime compensation to firefighters and law enforcement personnel in accordance with section 207(k) of the act, the public agency may exclude meal time from hours worked if all the tests in §785.19 above are met.” 29 C.F.R. § 553.223(a). If a public agency elects to use the section 7(k) exemption, “the public agency may exclude meal time from hours worked on tours of 24 hours or less, provided that the employee is completely relieved from duty during the meal period.” 29 C.F.R. § 553.223(b).
With respect to firefighters employed under the section who are confined to a duty station, “meal time cannot be excluded from the compensable hours of work where the firefighter is on a tour of duty of less than or exactly 24 hours.” 29 C.F.R. § 553.223(c). On the other hand, where law enforcement personnel are required to remain on call in barracks or similar quarters, or are engaged in extended surveillance activities (e.g., stakeouts) for 24 hours or less, they are not considered to be completely relieved from duty, and any such meal period would be compensable. In the case of police officers and firefighters who are on a tour of duty of more than 24 hours, meal time may be excluded from compensable hours of work.
“Under certain conditions an employee is considered to be working even though some of his/her time is spent sleeping.” 29 C.F.R. § 785.20. The regulations provide for two general policies regarding sleeping time. The first is for employees whose tour of duty is less than 24 hours. The other is for those employees who tour of duty is 24 hours or more.
For an employee whose tour of duty is less than 24 hours, periods during which the employee is permitted to sleep are compensable working time, as long as the employee is on duty and must work when required. For example, a telephone operator who is required to be on duty for specified hours is working even though the employee is permitted to sleep when not busy answering calls. It makes no difference whether the employee is furnished facilities for sleeping or not. The employee’s time is controlled by the employer. The employee is required to be on duty and working, thus, the time is work time. 29 C.F.R. § 785.21.
“When an employee’s tour of duty is longer than 24 hours, up to eight hours of sleep time can be excluded from compensable working time.” 29 C.F.R. § 785.22(a) The regulations provide that the eight hours of sleep time are excluded if:
There also are special rules for police officers and firefighters who are compensated under the § 207(k) exemption of the act. “For sleep time to be excluded for such employees, they must work a shift of more than 24 hours.” 29 C.F.R. § 553.222(c). Therefore, a tour of duty of 24 hours and 10 minutes is sufficient to constitute “more than 24 hours on duty.” “If the sleep period is longer than eight hours, only eight hours of sleep time can be credited.” 29 C.F.R. § 785.22(a). The regulations provide that “the five hours of sleep do not have to be consecutive and that sleep time does not necessarily have to be at night. Additionally, there must be a voluntary agreement between the employer and employees excluding sleep time. Without an agreement the sleep time must be counted as hours worked.” 29 C.F.R. § 785.22(a).
If the sleep period is interrupted by a call to duty, the interruption must be counted as hours worked. “If the sleep period is interrupted so frequently that the employee cannot get a reasonable night’s sleep (5 hours), then the entire period must be counted as working time.” 29 C.F.R. § 553.222(b).
The regulations (29 C.F.R. § 785.27) identify when an employee’s time spent in training programs, lectures or meetings is compensable. The time cannot be counted as working time if all the following four criteria are met:
“Attendance is not voluntary if it is required by the employer. It is also not voluntary if the employee is led to understand or believe that his/her present working conditions or the continuance of his/her employment would be adversely affected by nonattendance.” 29 C.F.R. § 785.28.
29 C.F.R. § 785.29 establishes “that training is directly related to the employee’s job if it is designed to make the employee handle his/her job more effectively, as distinguished from training the employee for another job, or to a new job or additional skills.” Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee’s job even though the course incidentally improves the employee’s skill in doing regular work. “Attending an independent trade school or pursuing a correspondence course outside regular working hours is not compensable work, regardless of whether it is job related. Taking courses in a public school or training in a government sponsored on-the-job training program is also not compensable.” Price v. Tampa Electric Co., 806 F.2nd. 1551 (1987); 29 C.F.R. § 785.30.
DOL regulations make clear, however, that “attendance at a bona fide fire or police academy or other training facility, when required by the employing agency, constitutes engagement in law enforcement or fire protection activities” as outlined in 29 C.F.R. § 553.226(c). Therefore, basic and advanced training are considered part of the employee’s law enforcement or fire protection activities. Time spent in actual training constitutes compensable hours of work. Time spent studying or in other personal pursuits is not compensable even if the employee is confined to campus or to barracks 24 hours a day. (Wage and Hour Opinion, February 5, 1990) “Police officers and firefighters who attend a police or fire academy or other training facility are not considered to be on duty during the time they are not in class or training, as long as they are free to use such time for personal pursuits.” 29 C.F.R. § 553.226(c). Moreover, re-certification training of paramedics that is state mandated and outside the regular working hours also is non-compensable (Wage and Hour Opinion, February 5, 1990).
Whether travel time is compensable or not depends entirely on the kind of travel involved. The general rule of thumb is that “time spent by an employee in travel as part of the employer’s principal activity must be counted as hours worked.” 29 C.F.R. § 785.38. Under the Portal-to-Portal Act, “the employer generally is not responsible for time spent by the employee in walking, riding, or otherwise traveling to and from the actual place of performance of the principle activities.” 29 U.S.C. § 254(a).
The court have found that “the time actually required to walk the distance between the plant entrance and work stations and back was compensable (Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680(1946) (superseded by statute) Fegley v. Higgins, 19 F.3d 1126, 128 Lab.Cas. P 33,088, 1 Wage & Hour Cas.2d (BNA) 1638, 1994 Fed.App. 0129P (6th Cir.(Mich.) Apr 26, 1994). ” Consequently, excluding normal commuting time, the general rule is that employees should be compensated for all travel unless it is overnight, outside the regular working hours, on a common carrier, or where no work is done. 29 C.F.R. § 785.39. Generally, an employee is not at work until he or she reaches the work site. But “if an employee is required to report to a meeting place where he or she is to pick up material, equipment or other employees, or to receive instructions before traveling to the work site, compensable time starts at the meeting place.” 29 C.F.R. § 785.38.
An employee who drives a company car or vehicle does not have to be compensated for commute time simply because he or she is operating the employer’s vehicle, so long as it is for the employee’s convenience. Field Operations Handbook § 31c01(a). According to the Wage and Hour Letter, April 13, 1995, an employee does not have to be compensated if all of the following conditions are met:
Travel time during the workday might present some problems. When an employee travels from job site to job site during the day and then travels to the place of work, the employee must be compensated for all the travel time. If, however, the employee leaves home on the way to a work site but stops at the home office for his or her own convenience, the time traveling from the office to the site is not compensable. 29 C.F.R. § 785.38. Had the stop been made for the employer’s convenience, the time would have been compensable.
In certain rare emergency situations, the regulations (29 C.F.R. § 785.36) provide that “an employee must be compensated for home-to-work travel time.” Generally, if after completing a day’s work, an employee is called at home and must travel a “substantial distance” to perform an emergency job, the travel time is compensable.
Out-of-town travel is a bit more complicated because DOL takes the position that out-of-town travel is not ordinary home-to-work travel. Because the travel is performed for the employer’s benefit and at the employer’s request, the employee must be compensated. Not all the travel, however, needs to be counted as hours worked. DOL specifically permits the employer to “exclude the travel time between the employee’s home and the airport, bus or railroad station.” 29 C.F.R. § 785.39. The regulations provide that travel time is compensable work time when it occurs during the employee’s regular working hours. “DOL does not count as working time overnight travel that occurs outside of regular working hours as a passenger on an airplane, train, boat, bus, or car and where the employee is free to relax.” 29 C.F.R. § 785.39. It is advantageous to most employers; therefore, to have their nonexempt employees travel after working hours.
“If an employee is required to drive or required to ride as an assistant or helper in an automobile, the employee must be compensated for the travel time” (29 C.F.R. § 785.41) except when the employee is on a bona fide meal break or is provided sleeping facilities. If, however, "an employee is offered the option of public transportation, but chooses to drive, the employer may count as hours worked either the time spent driving or the time that would have had to be counted if public transportation was taken.” 29 C.F.R. § 785.40. If the travel is overnight and done outside work hours, the travel time is not compensable.
Following are examples of working time for which an employee is entitled to be compensated. (This list is not all inclusive.)
Following are examples of work-related matters for which an employee need not be compensated.
The determination of whether show-up, stand-by, on-call or reporting time are compensable is dependent on a number of variables. Employees may be "engaged to wait" or they may be "waiting to be engaged". “If an employee reports for duty and is required to wait before being assigned work or told that no work is available, the waiting time is compensable. In such instances, the employee is "engaged to wait" (29 C.F.R. § 785.14). If the employee reports for duty and is required to wait before work is completed on a vehicle, then that employee is "waiting to be engaged". 29 C.F.R. § 785.15 and 29 C.F.R. § 785.16(b). In either event, the employee is unable to use the time effectively for his/her own purposes. It belongs to and is controlled by the employer.
“Workers, who must ‘stand by’ their posts ready for duty, whether during lunch periods, during machinery breakdowns or during other temporary work shutdowns, must be paid for this time.” 29 C.F.R. § 785.15. Since the employee’s time is controlled by the employer, and the employee is not able to use the time for his/her own purpose, the time is working time.
This rule applies also to employees who work away from the employer’s place of business. “For instance, a repairman is working while he/she waits for the employer’s customer to make the premises ready. The time is working time, even though the employee is allowed to leave the premises or the job site during such periods of inactivity.” 29 C.F.R. § 785.15.
Whether waiting time is compensable depends on the particular circumstances. The FLSA requires compensation for all time during which employees are required to wait while on duty or performing their principle activities. 29 C.F.R. § 785.15. This is particularly true where waiting periods are of such short duration that employees cannot use them for their own benefit.
Under the regulations (29 C.F.R. § 785.16), waiting time by an employee who has been relieved from duty need not be counted as hours worked, if:
A street department employee who must wait for a vehicle to be removed from the road, a firefighter who watches television at the firehouse while waiting for alarms, and a worker who talks to fellow employees while waiting for equipment to be repaired, all are working during their periods of inactivity. The rule applies also to an employee who works away from the employer’s premises.
Employees who wait before starting their duties because they arrived at the workplace earlier than the required time are not entitled to be paid for the waiting time. However, if an employee reports at the required time and then waits because there is no work to start on, the waiting time is compensable work time. 29 C.F.R. § 785.15.
DOL has defined “off duty” as:
... period[s] during which an employee is completely relieved from duty and which are long enough to enable the employee to use the time effectively for his/her own purpose are not hours worked. The employee is not completely relieved from duty and cannot use the time effectively for his/her own purposes unless the employee is definitely told in advance that he or she may leave the job and that the employee will not have to commence work until a specified hour has arrived. 29 C.F.R. § 785.16(a).
The FLSA (29 U.S.C. §§ 206 and 207) requires payment of prescribed wages, including overtime compensation, in either cash or check or similar medium. Overtime compensation must be at time and a half the employees regular rate of pay. The statute allows payment to include the “reasonable cost” or “fair value” of furnishing for an employee with board, lodging or other facilities. 29 C.F.R. § 778.116.
The FLSA does not limit the number of hours that an employee may work, either daily or weekly. It simply requires that overtime pay must be paid at a rate of not less than one and one-half (1½) times the non-exempt employee’s regular rate of pay for each hour worked in a work week in excess of the maximum hours applicable to the type of employment in which the non-exempt worker is engaged. This usually means overtime for hours in excess of 40 hour per week. Of course, overtime payments need not be made to exempt or non-covered workers. Only non-exempt employees are entitled to overtime under the act.
“The FLSA’s workweek for nonexempt employees is generally a fixed period of 168 hours — seven consecutive 24-hour periods” which is established by the employer for each employee. 29 C.F.R. § 778.105. It may begin on any day of the week and at any hour of the day; it need not coincide with the calendar week. “The FLSA also provides for the declaration of a longer work period for law enforcement and fire protection personnel.” 29 C.F.R. § 553.224(a). For the purpose of FLSA compliance, “work period” and “workweek” are identical, with the exception being for public safety.
In computing hours worked, “the FLSA requires that each workweek stand alone.” 29 C.F.R. § 778.104. It does not permit the averaging of hours over two or more weeks, with the exception of police, firefighters, and certain hospital and nursing home employees. This is true regardless of whether an employee works on a standard or swing-shift schedule and regardless of whether he or she is paid daily, weekly, bi-monthly, or on another basis.
While overtime must be calculated on a work week basis, there is no requirement in the FLSA that overtime compensation must be paid weekly. According to the DOL regulations, as a general rule, “overtime earned in a particular workweek should be paid where possible on the regular payday for the period in which such workweek ends.” However, when the correct amount of overtime compensation cannot be determined until later, it is permissible to wait if it is paid as soon after the regular pay period as is practical. Payment should not be delayed beyond the next payday. 29 C.F.R. § 778.106.
When state or local government employees, at their option, work occasionally or sporadically on a part-time basis for the same agency in a capacity different from their regular employment, the hours worked in the different job do not have to be combined with the regular hours for the purpose of determining overtime liability.” 29 C.F.R. § 553.30(a). DOL defines “occasional or sporadic as infrequent, irregular or occurring in scattered instances.” 29 C.F.R. 553.30(b)(1). DOL has determined (29 C.F.R. § 553.30(c)(1)) that hours worked “will be excluded only where the occasional or sporadic assignment is not within the same general occupational category as the employee’s regular work.” Moreover, “the decision to work in a different capacity must be made freely by the employee and without concern, implicit or explicit, by the employer.” 29 C.F.R. § 553.30(b)(2). The employee must be free to refuse to perform the work without fear of sanctions and without being required to explain or justify the decision.
The fact that the activity is recurring, such as at a county fair where a county employee takes tickets or provides security, does not necessarily mean that the activity will not meet the “occasional or sporadic” test. Employment in such activities may be considered occasional or sporadic for regular employees of state and local governments even though the need can be anticipated seasonally. It is important to note that “regular part-time jobs, where the employee works scheduled hours, will not qualify under the occasional and sporadic provisions. Moreover, performance of work similar to work regularly performed, even after regular working hours, will not qualify. In such cases, the hours worked in both jobs must be aggregated and overtime calculated.” 29 C.F.R. § 553.30(b)(3)
The FLSA provides that any individual employed in any capacity by a public agency may agree to substitute, during scheduled work hours, for another employee. Rule 29 U.S.C. § 207(p)(3) and 29 C.F.R. § 553.31(a) provides that employees may work substitution schedules where the substitution is:
The traded time is not considered by the public agency in calculating the hours for which the employee is entitled to overtime compensation. 29 C.F.R. § 553.31(a). In effect, even though a substitution is made, “each employee will be considered to have worked his/her normal schedule.” 29 U.S.C. § 207(p)(3). In addition, “the employer of the employee who performs such substitution work is not required to keep a record of the hours of substituted work.” 29 U.S.C. § 211(c); 29 C.F.R. § 553.31(c).
The FLSA defines “regular rate of pay” as the total of all payments made by the employer to, or on behalf of, an employee. The regular rate of pay may be more than the minimum wage, but it cannot be less.” 29 C.F.R. § 778.107. Following are examples of compensation paid to non-exempt employees that are included in determining the regular rate of pay. 29 C.F.R. § 778 Subpart C:
Additionally, compensation to employees may take the form of employer contributions to employee flexible benefit plans, which are known also as “cafeteria” plans. Cafeteria plans are governed by Section 125 of the Internal Revenue Code. The question of whether cafeteria plan benefits must be included in an employee’s regular rate was addressed in the case of Madison v. Resources for Human Development Inc., Civil Action No. 97-7402 (E.D. Pa. Jan. 8, 1999). In the case, the court ruled that “certain employer contributions to the workers’ cafeteria plans should have been included in the employee’s regular rates.” Principally, this was because the employees were given the choice to receive the employer’s contributions, in whole or in part, in cash. Under FLSA rules (29 C.F.R. § 778.215(a)(5)), “such cash components to benefit plans, including cafeteria plans, are permitted only in limited circumstances,” none of which existed in Madison.
Following are examples of payments that need not be included in the regular rate of pay:
Chapter 32 of the DOL Field Operations Handbook identifies other forms of pay that may be excluded from the computation of the regular rate of pay, including sums paid as gifts, payments for suggestions, new business contest awards, fringe benefits paid in cash, report and call-back pay, reimbursement of employee expenses, and the employer’s share of board and lodging cost.
In most cases “the FLSA does not prohibit deductions from wage payments; however, the regular rates and overtime pay must be figured before deductions are made.” 29 C.F.R. § 778.305. In other words, employee deductions and contributions are permissible, but overtime is calculated on the regular rate before deductions are made. Deductions may be made to wages for the employee’s share of Social Security and unemployment insurance, as well as other federal, state or local taxes, levies or assessments without affecting the minimum wage rate. 29 C.F.R. § 531.38. No deduction can be made for any tax that the law requires be borne by the employer.
If wearing a uniform is required by law or by the employer, the cost of the uniform is considered to be a business expense of the employer. “If the employer requires the employee to bear the cost, then the employer may not reduce the employee’s wage below the minimum wage or cut into overtime compensation required by the act.” W.H. Publication 1428 (Rev. March 1984). If the purchase of a uniform by an employee cuts into the minimum wage or overtime compensation required by the FLSA, the employee must be reimbursed no later than the next regular payday. As long as the employer is continuing to pay in excess of the minimum wage, the employer may prorate deductions for uniforms over a period of paydays.
Following are examples of wage deductions that are to be included in the regular rate.
There are various methods of computing an employee’s regular rate of pay. The regular rate is a rate per hour. The regulations provide guidance on computing regular rates of pay for (1) hourly employees, (2) hourly rate and bonus employees, (3) salaried employees working a fixed workweek of 40 hours, (4) salaried employees paid for all hours worked but working more than 40 hours in a workweek, (5) salaried employees working a fi xed workweek of less than 40 hours, (6) a fixed weekly salary for a fixed workweek of more than 40 hours, (7) semimonthly salary pay, (8) monthly salary pay, (9) irregular hours, (10) piecework, (11) day rate and job rates, (12) an employee working at two or more rates, (13) payments other than cash, and (14) overtime based on authorized basic rates. 29 C.F.R. § 778.109.
Computing Regular Rate of Pay - Hourly Employee
The regular rate for an hourly employee is the hourly rate plus any other form of compensation received by the employee, such as non-discretionary bonuses, shift premiums, etc. For all hours over 40 worked in a week, the employee must be paid at least one and a half (1½) times the regular rate. 29 C.F.R. § 778.110(a).
Example:
An employee is paid $8 per hour. The employee would be paid $12 for each hour worked during the workweek over 40: ($8 X 1.5 = $12). In other words, the employee is entitled to be paid an amount equal to $8 an hour for 40 hours and $12 an hour for any hours over 40.
Computing Regular Rate of Pay - Hourly Rate and Bonus
An employee paid an hourly rate plus a bonus would be paid a regular rate of pay base on the example below. 29 C.F.R. § 778.110(b).
Example:
An employee works 46 hours in a workweek and receives a bonus of $19.20 in addition to earnings at an hourly rate of $7.25 per hour. The regular rate would be $7.67 per hour. This is computed as 46 hours X $7.25 = $333.50 + 19.20 bonus = $352.70. This total divided by 46 hours yields a regular rate of $7.67. The employee would be entitled to receive a total wage of $375.86: (46 hours X $7.67) + (6 hours X $3.84) = $352.82 + 23.04 = $375.86.
Computing Regular Rate of Pay - Salaried Employee Working a Fixed Workweek of 40 Hours
If an employee is employed solely on a weekly salary basis, the regular rate is determined by dividing the salary by the number of hours that the salary is intended to cover. 29 C.F.R. § 778.113(a).
Example:
If an employee is paid a salary of $400 a week to work 40 hours, the regular rate of pay is $10 an hour. If the employee works 48 hours in one week, the employee is entitled to an overtime premium of $15 per hour, which amounts to $120 (8 hours X $15 = $120).
Computing Regular Rate of Pay - Salaried Employee Working More Than 40 Hours a Week
If an employee receives a salary for all hours worked, then the regular rate varies according to the number of hours worked in a week. The employee’s regular rate is determined by dividing the weekly salary and other forms of compensation by the number of hours worked.29 C.F.R. § 778.114.
Example:
If an employee works 50 hours for a weekly salary of $500, the regular rate is $10 an hour. Overtime for this employee is based on half-time and would be $5 an hour for 10 hours, which is $50. The regular rate of an employee who is paid a salary for all hours worked varies each week depending on the hours actually worked.
Computing Regular Rate of Pay - Salaried Employee Working a Fixed Workweek of Less Than 40 Hours
The regular rate for an employee working a fixed workweek of less than 40 hours can be determined in one of two ways depending on the understanding between the employer and the employee. The conventional method is to divide the fixed weekly wage and other forms of compensation by the number of hours in the workweek. 29 C.F.R. § 778.114.
Example:
An employee works a 35-hour workweek for a salary of $300. Under the act, the employee’s maximum straight-time workweek is 40 hours. The employee’s regular rate is $8.57 per hour ($300 divided by 35 hours). If the employee works overtime, he is entitled to $8.57 per hour for hours 36 through 40 and $12.86 ($8.57 X 1½) for each additional hour over 40.
The other method of calculating the regular rate for workweeks of less than 40 hours depends on an agreement between the employer and the employee that the salary paid an employee represents compensation for all hours worked up to 40 per week. Then, the employee can work any amount of time up to 40 hours per week without additional compensation. The rate of pay also would be based upon a 40-hour work week and not the lesser workweek actually labored.
Computing Regular Rate of Pay - Fixed Weekly Salary For a Fixed Workweek of More Than 40 Hours
The regular rate for an employee working a fixed workweek of more than 40 hours is half-time for hours regularly worked over 40 and time and one half for additional hours. 29 C.F.R. § 778.114(b)
Example:
An employee is paid $480 for a 48-hour week. The applicable statutory straight-time workweek is 40 hours. The employee’s rate is $10 per hour ($480 divided by 48 hours = $10). The weekly wage is $520, calculated as: $480 + [(½ X $10) X (48-40)]. For hours worked over 48, the employee must be paid time and a half, or $15 per hour, and is not eligible for half-time pay since the salary did not represent payment for hours worked in excess of 48 per week.
Computing Regular Rate of Pay - Semimonthly Salary Pay
The regular rate for an employee paid a semi-monthly salary is computed by breaking the salary into weekly portions. Thus, the salary is multiplied by 24 (the number of semi-monthly periods in the year) and divided by 52 (the number of weeks in a year). To find the regular rate, divide the weekly salary by the number of hours in a workweek. 29 C.F.R. § 778.113(b).
Example:
If an employee earns $700 semi-monthly and works 40 hours per week, the employee’s regular rate is $8.08: ($700 X 24)/52 = $323.08 weekly rate; $323.08/40 = $8.08 hourly rate.
Computing Regular Rate of Pay - Monthly Salary Pay
To compute the regular rate for an employee who is paid monthly, the employee’s salary must be multiplied by 12 (the number of months in the year) and divided by 52 (the number of weeks in the year). This figure must then be divided by the number of hours in a workweek. 29 C.F.R. § 778.113(b)
Example:
If an employee earns $1,500 a month and has a statutory straight-time workweek of 40 hours, the employee’s regular rate would be $8.65: ($1,500 X 12)/52 = $346.15 per week; $346.15/40 = $8.65 hourly rate. If the employee worked 44 hours in a workweek, the employee would be entitled to overtime pay for four hours at time and a half: ($8.65/2 = $4.33; 4.33 + 8.65 = $12.98 overtime rate), 4 X $12.98 = $51.92. The employee’s salary for the month would be $1,551.92. The employee also might be eligible for half-time treatment if his salary represented all hours worked.
Computing Regular Rate of Pay - Employee Working at Two or More Rates
When, in a single workweek, an employee performs two or more different types of work for which different straight-time rates have been established, the employee’s regular rate for that week can be calculated as the weighted average of such rates. The weighted average is the earnings from all such rates added together, and the total is divided by the total number of hours worked at all jobs. 29 C.F.R. § 778.115.
Example: Employee works two jobs (Admin Asst and Janitor). Employee earns $15/hr as Admin Asst for 40 hours of work. The employee earns $9/hr as Janitor for 8 hours week. Total hours worked during workweek is 48. Under the weighted average method, earnings from the Admin. Asst position (40 X $15.00 =$600) is added to earning from the Janitor job (8 X $9.00 = 72.00) to get a total of $672.00. The total is divided by the total hours worked (48 hours) to arrive at the weighted average regular rate of pay of $14.00 per hours.
The earnings total of $672.00 represents the straight-time pay earned for the 48 hours worked, so only half-time pay for the 8 overtime hours is needed to assure that the required time and a half is paid for overtime hours worked. Half-time for the weighted average regular rate is $7.00 per hour ($14.00 ÷ 2), which must be multiplied by the 8 overtime hours ($7.00 x 8 = $56.00) and added to the straight-time pay to get the total pay for the workweek. Therefore, using the weighted average method, total pay for the workweek would be $728.00 (56.00 + $672.00).
Computing Regular Rate of Pay - Irregular Hours
The regular rate for an employee who works irregular hours but is paid a salary on a fixed monthly basis is computed by converting the wages into weekly figures. The regular rate is computed for each week by dividing the weekly wage by the hours actually worked in a week. Overtime must be paid each week without offsetting it from other weeks in which fewer than 40 hours were worked unless the employer is proceeding under the 207(k) exemption for public safety officers or the 207(j) provision for hospitals and nursing homes. 29 C.F.R. § 778.114(b).
Example:
An employee is paid a monthly salary that in February translates to a weekly salary of $500. However, the employee works irregular hours. In week one, the employee works 40 hours. No overtime is due and the employee is paid $500. In week two, the employee works 50 hours. The employee’s regular rate for week two is $10 ($500 divided by 50), and he is entitled to a $50 half-time overtime premium ($10 x ½ x 10). The employee’s total compensation for week two equals $550. In week three, the employee works 40 hours and is entitled to no overtime. In week four, the employee works 48 hours, resulting in a regular rate of $10.41 per hour ($500 divided by 48). The employee is entitled to a half-time overtime premium of $41.64 ($10.41 x ½ x 8). The employee’s total compensation for week four is $541.64. The employee’s salary plus overtime premiums for the month total $2,091.64.
“An employee paid on a hourly basis who performs two or more different kinds of work (multiple jobs) for the same employer, each with different pay scales, may be paid on the basis of regular rates calculated as the weighted average hourly rate earned during the week.” 29 C.F.R. § 778.115. That is, the employees total earnings are computed to include his/her compensation during the workweek from all such rates, and are then divided by the total number of hours worked at all jobs.
Where an employee performs two different jobs for the same employer (dual employment), the hours worked must be combined together to determine what overtime over 40 hours is due. The regular rate should be fixed by one of the procedures previously described. As a general rule, any employee, who works for two different departments of the same city or county government, is a dual employee entitled to payment for which all compensable time has been totaled to determine the overtime rate. This means that employers must check their records carefully, and they must properly compensate such moonlighting or dual employees. “Such employees may agree with his/her employer in advance to be paid overtime for the type of work that is performed during the overtime hours.” 29 C.F.R. § 778.419.
No additional overtime pay will be due under the act provided that these general requirements are met:
When an employee works for two or more separate employers, there normally is no special FLSA problem. Each employer must separately consider and pay overtime for hours the individual worked for that particular employer in excess of 40 hours per week. However, in the case of governments that often work in conjunction with other government organizations, units or department, DOL has stated that “... various departments and agencies of the federal or state government, or of the political subdivisions of a state government, are to be treated as separate employers.” Wage and Hour Opinion Letter dated Aug. 23, 1974.
Even when the employee works for an entirely separate employer, there still may be questions of whether the two employers are so entangled as to create what is called a “joint employment” relation whereby, for the purpose of the FLSA, they are treated as one entity. “The test for joint employment includes (1) sharing employees’ services so as to interchange employees; (2) an employer acting in the direct interest of another employer; (3) and employers who are not so completely disassociated that they are deemed to be under common control and share employees.” 29 C.F.R. § 791.2(b).
In an October 10, 1985, opinion letter, DOL identified the following factors that would support a determination that two or more agencies are separate employers:
If the agencies are found to be separate employers, there still may be a “joint employment relationship” between them. If the agencies are considered joint employers, they are still treated as one under the act. The October 1985 opinion letter identified the following factors as important in determining if a joint employment relationship exists:
A special joint employment provision for law enforcement, fire protection and security correctional employees was added to the FLSA. 29 U.S.C. § 207(p)(1). This provision “allows public safety employees on a voluntary basis, to be employed by special detail to a separate and independent employer in fire protection, law enforcement or related activities without combining together the employees’ hours of work for the two or more employers.” 29 C.F.R. § 553.227. Even if the governing body requires the second employer to hire its public safety employees for particular work or is in any other way involved (for example, approved the job, collects compensation from the second employer, then directly pays the employee), the hours of the public safety employee still are not totaled. Thus, for firefighters and more importantly police, the agency can facilitate the employment of its officers by other separate agencies without creating a joint compensation problem.
“The FLSA permits employers to pay non-exempt employees a fixed salary for a fluctuating workweek and to compensate them for their overtime hours on a ‘half-time’ basis.” 29 C.F.R. § 778.114(a). Under this method, an employee is paid a fixed salary covering whatever number of hours the job demands in a given week. With straight time already compensated in the salary, only one-half the basic rate (half time) must be paid for overtime. The amount of the half-time payment will vary depending on the number of hours worked in excess of 40 hours in the workweek.
An employer may use the half-time method of calculating overtime only if:
“To calculate half-time, one must first determine the regular rate of pay by dividing the weekly salary by the number of hours actually worked during the week. The employee’s half-time premium would be determined by multiplying the regular rate by one-half. Thus the extra half-time pay would be calculated by multiplying the half-time premium by the number of hours over 40 worked in a week.” 29 C.F.R. § 778.114(a).
Example:
A salaried employee works 50 hours in a week at a salary of $500. The employees’ regular rate of pay would be $10 an hour. Under half-time, the employee would be entitled to one-half the $10 regular rate for all overtime hours worked. Thus the employee would be entitled to $5 an hour multiplied by the 10 hours of overtime worked, or $50 in extra overtime pay.
In this example, the half-time overtime premium is $50 while the regular time-and-a-half overtime premium would be $187.50. Thus, half-time pay is considerably more advantageous to the employer. The advantage of half time for the employer becomes greater the more hours that are worked because the hourly premium pay goes down. The disadvantages of using half time include problems of employee morale, difficulty in retaining good personnel, and administrative problems in calculating pay.
Belo Plans are another wage option under the FLSA that can benefit some employers. A Belo Plan is a form of guaranteed compensation that includes a pre-determined amount of overtime. It offers the employee the security of a set weekly income, with the employer able to anticipate and control labor costs and bookkeeping calculations. 29 C.F.R. § 778.404
There are a number of requirements for an enforceable Belo Plan:
Example:
If the parties agree upon a regular rate of $8 an hour and enter into a contract that provides a weekly guarantee of pay for 60 hours per week, every week the employee would be paid the regular rate of $320 ($8 x 40 hours) plus an overtime rate of $240 ($12.00 x 20 hours). Thus, every week, for all work performed up to and including 60 hours a week, the employee would be paid $560. In the event the employee worked more than 60 hours per week, an additional overtime premium would be payable at the $12.00 per hour rate.
Compensatory time (comp time) is time off in lieu of monetary overtime compensation at a rate of not less than one and one-half hours of compensatory time for each hour of overtime worked. By definition it is hours during which an employee is not working, which are not counted as hours worked during the applicable workweek or other work period for purposes of overtime compensation, and for which the employee is compensated at the employee's regular rate.
The law (29 C.F.R. § 553.21) “authorizes a public agency to provide compensatory time in lieu of overtime payments so long as there is an employment agreement or understanding to use comp time. If it was the employer’s practice prior to April 15, 1986, to pay existing employees compensatory time, then that practice shall suffice as an understanding permitting the use of compensatory time.”
“The agreement or understanding to use compensatory time for employees who do not have representation must be arrived at before the performance of the work.” 29 C.F.R. § 553.23(c)(1). “The agreement does not have to be in writing, but a record of its existence must be kept. The agreement doesn’t have to be the same for all employees and the employer does not need to make compensatory time available to all employees.” 29 C.F.R. § 553.23(c)(1).
“The compensatory time that an employee earns constitutes a legal liability for the employer.” 29 C.F.R. § 553.22(a). Employees may accrue up to 240 hours of compensatory time (160 hours actual overtime worked). Employees who work in public safety activities, emergency response activities and seasonal activities may accumulate up to 480 hours of comp time (320 hours actual overtime worked). 29 C.F.R. § 553.22(b).
“An employee who has accrued compensatory time and requests use of the time must be permitted to use the time off within a ‘reasonable period’ after making the request if it does not ‘unduly disrupt’ the operations of the agency.” 29 C.F.R. § 553.25(a). At the same time, the DOL emphasizes that “an employee has a right to use the compensatory time earned and must not be coerced to accept more compensatory time than an employer can realistically, and in good faith, expect to be able to grant.” 29 C.F.R. § 553.25(b).
The FLSA contains a provision (29 U.S.C. § 207(o)(5)) addressing an employer’s general obligation to honor an employee’s request to use compensatory time. The 9th Circuit Court of Appeals, in Collins v. Lobdell, 188 F.3d (1999), affirmed “an employer’s right to compel use of such time.” Then in May 2000, the U.S. Supreme Court resolved the issue, holding that “nothing in the FLSA or its implementing regulations prohibit a public employer from compelling the use of compensatory time.” Christensen v. Harris County, 120 S. Ct. 1655 (May 1, 2000).
Another important issue surrounding compensatory time has to do with payment for unused compensatory time in the event an employee leaves the public agency. According to DOL regulation “payments for accrued compensatory time earned after April 14, 1986, may be made at any time and must be paid at the regular rate earned by the employee at the time the employee receives payment.” 29 C.F.R. § 553.27(b). Upon termination of employment, an employee must be paid for unused compensatory time figured at:
DOL allows the use of “time-off plans.” A “timeoff plan” is very similar to compensatory time but involves leave taken during the same pay period. “State and local governments may use the time-off plan in addition to compensatory time; however, for a public agency that uses the 207(k) exemption for police and fire, time off may be granted in the pay period for which the work is done up to the maximum hours specified in the regulations.” 29 C.F.R. § 553.231(a).
Time-off plans are allowed only under the following conditions (427 U.S. 909 (1976); also Wage and Hour Opinion Letter, Dec. 27, 1968):
Example:
An employee who works 50 hours the first week of a two-week pay period can take off (or be ordered to take off) 15 hours and, accordingly, work only 25 hours the second week without any overtime premium due. If the 50 hours occur during the second week, the overtime premium will be due.
207(k) Exemption
As previously discussed, the executive, administrative and professional exemptions from overtime pay do not apply to police officers, detectives, investigators, inspectors, park rangers, firefighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers, and similar employees regardless of rank or pay level who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of laws; performing surveillance; pursing, restraining and apprehending suspects; detaining or supervising suspects and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work. 29 C.F.R. § 541.3(b)(1). Therefore, unless exempt as bona fide executive or administrative employees, public safety employees are eligible for overtime compensation just as regular non-exempt employees.
The primary duty test prevails in deciding whether the employee is exempt. This is especially the case for employees who have the discretion to perform regular police duties in addition to their executive or administrative duties. The FLSA, however, still provides “an exemption for employees engaged in law enforcement or fire protection activities.”29 C.F.R. § 553.200(a) . If the agency employs fewer than five employees during the workweek (29 U.S.C. § 213(b)(20)), then the full exemption applies. Public agencies not qualifying for the complete exemption may be eligible for a partial exemption as provided in 29 U.S.C. § 207(k). This exemption is commonly known as the “7(k)” or “207(k)” exemption.
The FLSA provides a “complete overtime exemption for any employee of a public agency engaged in law enforcement or fire protection if that agency employs fewer than five (5) employees during the workweek.” 29 U.S.C. § 213(b)(20); 29 C.F.R. § 553.200(a). It does not, however, exempt the public agency from the minimum wage requirements of the law.
“In determining the number of employees in law enforcement and fire protection, each group is considered separately. For example, if an agency has fewer than five fire protection employees but five or more employees in law enforcement activities, it may claim an exemption for the fire protection employees but not for the law enforcement employees. There is no distinction made between full-time and part-time employees and no distinction between employees on duty and those on leave. Volunteers are not, however, counted.” 29 C.F.R. § 553.200(b).
All personnel employed in police, fire or other public safety agencies do not qualify for the 207(k) exemption. Only certain law enforcement and fire protection employees are covered. Non-covered law enforcement and fire protection "civilian" personnel are covered by the normal 40-hour overtime standard of the act. 29 C.F.R. § 553.200(b).
Definition of Employees Covered by 207(k) - Fire Protection Employee
To be covered by the 207(k) exemption for fire protection employees, the regulations state that an employee in fire protection activities means “an employee, including firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel or hazardous material worker, who (29 U.S.C. § 203(y)); (29 C.F.R. § 553.210(a)):
1. Is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or state; and
2. Is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.”
These employees are covered “regardless of whether they are part-time or full-time employees or are temporary or casual workers employed for a particular fire or a particular time period.
This definition means that if your city employs firefighters who also run EMS or rescue calls or are on hazardous materials teams, who meet both the tests established by the amendment, then the 20 percent rule no longer applies to any of the functions specifically mentioned in the definition. It is very important that all fire department employees who are eligible to take advantage of the partial exemption from the overtime provisions of the FLSA meet both the tests. No longer will the number of EMS runs or hours spent on rescue missions threaten to jeopardize the 207(k) status of a firefighter. 29 C.F.R. § 553.212(a).
This new definition has cleared up the conflicting court opinions and the different tests that have been applied to different situations. According to the U.S. Department of Labor, EMS workers who do not meet the tests established by this new law are not subject to the 207(k) exemption and are therefore considered 40-hour employees. Just because an employee works for a local government and engages in fire protection, the employee still is not exempt from the overtime provisions. If EMS workers work for the police department, public works or other such units of the city they cannot qualify for the 207(k) partial overtime exemption. It is important to remember that this revision of the law applies to fire departments.
Another area of concern has been the status of volunteer firefighters. According to an August 7, 2006, DOL Wage and Hour opinion letter to the International Association of Fire Chiefs, any fee paid to a volunteer firefighter is considered nominal as long as the fee does not exceed 20 percent of what that public agency would otherwise pay to hire a full-time firefighter. The implementing regulations at 29 C.F.R § 553.106(e) provide that “a volunteer may be paid only expenses, reasonable benefits or a nominal fee, or any combination thereof, without losing volunteer status. This does not allow a firefighter already on the payroll as a full-time firefighter to respond on his off-duty time as a volunteer. Examples of permissible expenses or benefit payments are described as payment for expenses, such as dry cleaning; an allowance for a requirement, such as a uniform; reimbursement for an out-of-pocket expense, such as transportation; a payment to provide materials, such as supplies; or a payment for benefits, such as participation in group insurance plans.
While the statute and implementing regulations do not define what constitutes a “nominal fee,” the regulations provide guidance for determining whether a fee is nominal and permissible. If a fee is not nominal, the individual does not qualify as a volunteer and is considered an employee who is covered by the FLSA minimum wage and overtime provisions. FLSA Regulation 29 C.F.R § 553.106(e) provides that “the factors to consider in making the determination include but are not limited to:
1. The distance traveled and the time or effort required of a volunteer;
2. The availability — limited or unlimited — of a volunteer to provide services; and
3. The basis — as needed or throughout the year — on which a volunteer agrees to perform services.”
“Also not qualifying for the 207(k) exemption are civilian support employees of fire departments, fire districts or forest services, such as dispatchers, alarm operators, mechanics, camp cooks maintenance workers, clerks or stenographers.” 29 C.F.R. § 553.210(b).
Definition of Employees Covered by 207(k) - Law Enforcement Officer
To be covered by the 207(k) exemption for law enforcement officer, “an employee, regardless of rank or status as trainee, probationary or permanent, must meet all the criteria established by statute.” 29 C.F.R. § 553.211(a):
1. Be a uniformed or plainclothes member of a body of officers and subordinates;
2. Be empowered by status or local ordinance to enforce laws designed to maintain public peace and order, protect life and property form accident or willful injury, and prevent and detect crimes;
3. Have the power to arrest; and
4. Have participated in a special course of instruction or study (or will undergo on-the-job training), which typically includes self-defense, physical training, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics.
“Employees who meet the test are considered ‘engaged in law enforcement activities’ regardless of their rank or their status as trainee, probationary, or permanent employees. Law enforcement employees also meet the test regardless of their being assigned to incidental duties, such as equipment maintenance and lecturing.” 29 C.F.R. § 553.211(b).
“Not eligible for the 207(k) exemption are civilian police department employees who engage in support activities such as dispatchers, radio operators, apparatus and equipment maintenance and repair workers, janitors, clerks and stenographers” (Wage and Hour Opinion, August 21, 1987). “The exemption also does not cover employees in correctional institutions who engage in building repair and maintenance, culinary services, teaching, or psychological, medical and paramedical services.” 29 C.F.R. § 553.211(g). Others not meeting the exemption test also include animal control personnel, civilian traffic employees who direct vehicular and pedestrian traffic at specified intersections or other controlling points, civilian parking checkers who patrol assigned areas for the purpose of discovering parking violations and issuing appropriate warnings or appearance notices, and building guards whose primary duty is to protect the lives and property of persons within the limited area of the building. 29 C.F.R. § 553.211(e).
Some public agencies employ public safety officers who serve as both law enforcement and fire protection personnel. The dual assignment will not defeat the 207(k) or 213(b)(20) exemption provided that the activities performed meet the definition of fire protection or law enforcement. The combined duties should make up at least 80 percent of the employee’s duties. FLSA regulation 29 C.F.R. § 553.213(b) provides that “for employees performing both fire protection and law enforcement activities, the applicable standard is the one that applies to the activity in which the employee spends the majority of work time during the work period.”
The FLSA requires state and local governments using the 207(k) exemption to declare the work period for employees engaged in law enforcement and fire protection. The act does not require the same work period for all law enforcement and fire protection personnel. “Separate work periods can be declared for different employees or groups of employees.” 29 C.F.R. § 553.224(b). The work period chosen, however, need not coincide with the pay period for 207(k) employees.
DOL regulation 29 C.F.R. § 553.230(c) established the table below to set forth the maximum hours for each work period after which law enforcement and fire protection employees are entitled to time-and-a-half overtime pay.
Section 207(k) allows “city and state employers to calculate the pay for non-exempt law enforcement and fire protection personnel based on a maximum 28-day period. It is improper to pay section 207(k) employees for an ‘average’ number of hours worked. For employees engaged in fire protection or law enforcement with a work period between 7 and 28 consecutive days, overtime for the excess hours is based on all hours over the number declared as the work period. A notation in the payroll records, however, must be made that shows the work period for each employee.” 29 C.F.R. § 516.2(a)(5).
The rules for computing a Section 207(k) employee’s regular rate are the same as those applied to all other nonexempt employees. When calculating overtime for 207(k) employees, the employer should not use the 40-hour workweek standard. Instead, the employer should look to the employee’s work period. Overtime pay is then calculated for hours worked in excess of the 207(k) maximum. The rules regulating the definitions of hours worked also apply. If employees are required to arrive at work early, the time is compensable. All time spent by law enforcement personnel in training sessions is counted as hours of work, but they are not compensated for overtime unless the total hours worked exceeds the maximum number of hours in the declared work period.
When off-duty police and firefighters are called back to work, they must be paid at least their regular hourly rate or at time and a half if they fall into an overtime situation. 29 C.F.R. § 553.221(c). Any on-call premium that is paid must be taken into consideration in determining the employee’s overtime rate. 29 C.F.R. § 553.233. A recent Kentucky case emphasized this point. The court of appeals held that any on-call premium provided as an incentive payment is akin to additional compensation (rather than in the nature of a bonus), and as such, the employee would be entitled to overtime calculated at time and a half on the incentive pay based on an hourly rate for the pay period. Kentucky Court of Appeals in City of Frankfort v. James Davenport, et al, No. 2005-CA-0000036-MR.
Volunteer firefighters who are paid by the call or by the hour when called to duty often are referred to by fire departments as “on-call firefighters.” On-call volunteer firefighters do not fall under this FLSA 207(k) exemption unless they are required to stay at the fire station or within a certain distance of the fire station.
“Employers who are subject to the FLSA must keep records for both exempt and nonexempt employees.” 29 U.S.C. § 211(c) and 29 C.F.R. § 516.1(a). There are no civil penalties for employers who fail to keep accurate work records. However, the failure to keep accurate records can expose the employer to FLSA lawsuits brought by employees seeking back wages or overtime. An employee may sue an employer in federal or state court for violating the act.
The regulations do not prescribe a particular order or format in which records should be maintained. “Records may be maintained on paper, microfilm, or an automatic data processing system, provided viewing equipment is accessible and reproductions are identifiable.” 29 C.F.R. § 516.1(a). Additionally, employers may use “any timekeeping method they choose” for keeping track of employees’ hours worked as long as the method is “complete and accurate.”
Record Keeping for Non-Exempt Employees
“Employers covered by the act must keep records for a certain amount of time on wages, hours, sex, and other terms and practices of employment.” 29 U.S.C. § 211(c). Items to be maintained for employees subject to the minimum wage or minimum wage and overtime provisions (29 C.F.R. § 516.2(a)) include:
Employers with comp time arrangements must maintain and preserve records of the number of hours of comp time earned each workweek or applicable work period (the hours must be calculated at a rate of one and a half hours for each overtime hour worked); the number of hours of compensatory time used each work week or applicable work period; the number of hours of comp time paid in cash (the total amount paid and the date of payment should be included); and any written understanding or agreement with respect to earnings and using compensatory time off. If no such written agreement exits, a record of its existence must be kept. For 207(k) employees, the employer must also make a notation on payroll records indicating the work period for each employee. The notation should show the length of the work period and its starting time. 29 C.F.R. § 553.50.
Record Keeping for Exempt Employees
Special records of employers are required where exempt employees are concerned. 29 C.F.R. § 516.3. Almost identical records must be maintained for these bona fide exempt executive, administrative, or professional employees as for those employees subject ot the minimum wage and overtime provisions with the exception of items 6 - 10 above [49].
In addition to full-name, home address, date of birth, sex and occupation, time of day and day of week workweek begins, total wages paid and date of payment and pay period covered by thepayment, the employer must keep records reflecting the basis on which exempt employees are paid. These records must be sufficiently detailed to allow the calculation for each pay period of the employee’s total compensation. 29 C.F.R. § 516.3.
In addition to the general record-keeping requirements, special procedures must be followed for government employees subject to the compensatory time provisions of the act. Employers with comp time arrangements must maintain and preserve records of:
The act requires employers “to preserve, for at least three years, payroll records; certificates, agreements, plans, and notices (all written) including collective bargaining agreements and individual contracts; and sales and purchase records.” 29 C.F.R. § 516.5(b). The act also requires employers “to preserve, for at least two years, basic employment and earnings records; wage rate tables; order, shipping and billing records; and records of additions to or deductions from wages paid.” 29 C.F.R. § 516.6(a).
The regulations require each employer “to keep the required records in a safe and accessible location at the place or places or employment available for inspection.” 29 C.F.R. § 516.7(a). Additionally, “every employer employing workers subject to the FLSA must post, and keep posted, a notice explaining the requirements of the FLSA.” 29 C.F.R. § 516.4. The notice must be posted in a conspicuous place in every establishment where such employees work.
MTAS has created a personnel records retention schedule [50] for some common documents. For additional information, see the Records Retention [51] section of MORe.
Employers are required to maintain additional records for several miscellaneous exemptions. Among the records are:
Enforcement
The FLSA authorizes the Secretary of Labor to initiate investigations to determine whether an employer has violated the provisions of the FLSA. The Department of Labor “may investigate and gather data concerning wages, hours, payment of back wages and other employment practices. They may enter and inspect an employer’s premises and records. They may also ask any question of employees to determine whether any person has violated any provisions of the act.” 29 U.S.C. § 211(a).
DOL has identified the following investigative procedures (WH Publication 1340 (Rev. Aug. 1979)) for a compliance officer to use when conducting an investigation. The compliance officer will:
When all the fact-finding steps have been completed, the compliance officer will ask to meet with the employer or representative about the investigative findings. If no violations are discovered, the employer is told. If violations were found, the employer is told what they are and how to correct them.
“Employees claiming FLSA violations can sue their employer for their unpaid minimum wages or their unpaid overtime compensation and the recovery of back wages and liquidated damages (an amount equal to the wages improperly withheld).” 29 U.S.C. § 216(b). “Class action suits, however, may not be brought under the FLSA, but actions on behalf of all similarly situated employees may be brought against an employer if each party gives consent in writing to become a party and such consent is filed in the court in which the action is brought.” 29 U.S.C. § 216(b).
An employee may not file a suit if:
When an employee brings a back-pay suit on his own behalf and wins, the court may require the employer to pay the employee’s reasonable attorney fees. The employee may, if successful, also recover court costs, including the employees’ witness fees and other miscellaneous cost of the litigation. “The Secretary of Labor can also bring a lawsuit against an employer on an employee’s behalf for the recovery of back wages and liquidated damages, or for back wages and an injunction enjoining the employer from committing any further violations of the FLSA.” 29 U.S.C. §§ 216, 217. If the Secretary seeks an injunction, the employer cannot be liable for liquidated damages; however, if the employee sues directly, the employee can recover attorney’s fees while the Secretary of Labor cannot.
“The employee or the Secretary of Labor must file suit within two (2) years after a violation occurs, or three (3) years if the employer has willfully broken the law.” 29 U.S.C. § 255. Willful violations occur if the employer knew that its conduct was prohibited by the act or showed reckless disregard for the requirement of the act. “Persons who willfully violate the act are subject to a fine of up to $10,000, or imprisonment for up to six months, or both.” 29 U.S.C. § 216(a). The penalty of imprisonment applies only after two violations are filed by the U.S. Department of Justice. The statute of limitation for criminal prosecution is five years.
The FLSA allows the U. S. Department of Labor to assess civil monetary penalties on employers who willfully violate the act’s minimum wage and overtime provisions not to exceed $1,100 for each violation. 29 U.S.C. § 216(e)(2). “Civil monetary penalties of not more than $10,000 or imprisonment for not more than six months, or both may be assessed for violating section 206 or 207 (minimum wage and overtime provisions).“ 29 U.S.C. § 216(a). The statute of limitation for civil money penalties is five (5) years.” Field Operations Handbook § 52 f14(a)(4).
The FLSA provides that any employer who violates the child labor provisions of the act is subject to civil monetary penalties of $10,000 or $50,000 with regard to each violation that causes the death or serious injury of any employee under the age of 18. Child labor violations (29 C.F.R. § 579.3(a) and 29 C.F.R. § 579.5) include:
Employers have several defenses that may be used in answering FLSA lawsuits. They include an absolute good faith defense, a defense to liquidated damages and the statute of limitation defense. DOL opinion letters also provide much of the guidance for employers with questions about DOL policies and may be an important defense in a lawsuit brought by employees alleging violations of the FLSA.
The Portal-to-Portal Act provides that “an employer will not be liable for back wages if it can establish that its actions were taken in good faith.” Essentially, the absolute good faith defense in the Portal-to-Portal Act (29 U.S.C. § 259(a)) states that:
... no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wage or overtime compensation under the Fair Labor Standards Act of 1938 ... if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the agency of the United States specified in subsection (b) of this section, or any administrative practice or enforcement policy of such agency with respect to the class of employers to which he belonged. Such a defense, if established, shall be a bar to the act or proceeding ...
To use the defense, the employer must establish that it acted in good faith. “Good faith is defined by the regulations as ‘honesty of intention ... no knowledge of circumstances which ought to put him on inquiry’.” 29 C.F.R. § 790.15(a). For an employer faced with an FLSA lawsuit, the absolute good faith defense means that the employer will not be liable for employee back pay, liquidated damages, pre- or post-judgment interest, costs, etc. Instead, the only relief available is that the employer can be enjoined from committing future violations for the FLSA but cannot be punished for past acts.
On April 29, 2010, the Department of Labor announced that it was ending its decades-old practice of issuing opinion letters explaining how the federal wage and hour law applies to specific scenarios faced by employers. The DOL instead will issue occasional broad pronouncements called 'Administrative Interpretations' that will summarize the agency's 'general interpretation' of the FLSA, but will not explain how the law applies to specific facts. On June 27, 2017, the DOL reinstated its wage and hour opinion letters. The department has established a website [52] where the public can see if existing agency guidance already addresses their questions or submit a request for an opinion.
Finally, an employer cannot retaliate against an employee for “whistle blowing”; that is, it cannot discharge an employee for filing a complaint or participating in an FLSA proceeding. The act “forbids any person, including employers, from discharging, retaliating against, demoting, harassing, or in any other manner discriminating against employees for engaging in such a protected activity.” 29 U.S.C. § 215(a)(3). Employers or others who violate the section may face fines of not more than $10,000 or imprisonment for not more than six months or both. 29 U.S.C. § 216(a). Additionally, an employee who suffers discriminatory treatment may seek an injunction ordering the employer to reinstate him.
Settling FLSA cases can pose numerous traps for employers. Private settlements between employers and employees are not necessarily final. The statute provides that the Secretary of Labor “is authorized to supervise the payment of unpaid minimum wage or unpaid overtime compensation owing to any employee, and the agreement to accept such payment acts as a waiver by the employee of further rights upon payment in full.” 29 U.S.C. § 216(c). Additionally, a settlement can be submitted to a court for stipulated judgment in a lawsuit.
In certain cases, the courts have rejected non-DOL supervised settlements. Lynn’s Food Stores Inc. v. United States, 679 F.2nd 1350, 1352-54 (11th Cir. 1982). This fact makes it essential to obtain DOL supervision and blessing for any settlement of FLSA claims. Even where a settlement is rejected, the employer still may use the payments already made as a credit against potential FLSA liability. If an employer is unable, because of financial reasons, to make a full, lump-sum settlement payment for back wages, it is possible to arrange installment payments provided the employer’s agreement to pay in installments is “both reasonable and firm.” U.S. Department of Labor Field Operations Handbook § 53C15. Such installments should be made based on an agreed-upon schedule, and DOL may require the employer to waive the running of any statute of limitation.
“In the event an employee refuses to accept back wages payments or cannot be located, ‘any sums’ not paid to an employee (because of the aforementioned inabilities) within three years shall be payable into the Treasury of the United States as miscellaneous receipts.” 29 U.S.C. § 216(c). Upon settlement of an FLSA claim, the DOL may ask the employer to sign (1) an agreement that stipulates present and future compliance with the FLSA, (2) an agreement to deliver certified or cashier’s checks for back wages, and (3) a waiver of the statute of limitation. Settlement procedures for the FLSA are quite formal, and employers should confer with the city’s attorney prior to attempting any private settlements.
Damages awarded to employees as wages generally are taxable. Liquidated damages awarded to employees, however, are not considered wages for employment under 29 U.S.C. § 216(b), even though they still may be taxable. Keen v. Mid-Continent Petroleum Corp., 63 F. sup. 120 (D. Iowa 1945). The Internal Revenue Service has ruled that “such amounts are income to the employee and thus must be included in their federal income tax returns. Rul. 72-268, 1972-1 CF 313.
Conclusion
The best defense to liability under the FLSA is avoidance. Though not currently among the most litigated federal statutes governing workplace compensation, cities continue to be liable for minimum wage and overtime pay to employees who work beyond the prescribed limits. The act is like a deserted mine field waiting for the uninformed and complacent. The liabilities can be significant to any organization and affect each and every employee in some fashion. Supervisors should be advised to ensure that employees do not work over the limits. Accurate records of hours worked should be maintained.
Before dismissing the act as annoying, remember that its primary objective was to “... eliminate labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers ... without substantially curtailing employment or earning power.” In other words, hire more people and minimize your FLSA exposure.
29 C.F.R. Part 516, Fair Labor Standards Act Regulations, Records to be Kept by Employers.
29 C.F.R. Part 519, Fair Labor Standards Act Regulations, Employment of Full-Time Students at Sub-minimum Wages.
29 C.F.R. Part 520, Fair Labor Standards Act Regulations, Employment under Special Certificates of Messengers, Learners, and Apprentices.
29 C.F.R. Part 525, Fair Labor Standards Act Regulations, Employment of Workers with Disabilities under Special Certificates.
29 C.F.R. Part 531, Fair Labor Standards Act Regulations, Wage Payments under the Fair Labor Standards Act of 1938.
29 C.F.R. Part 541, Fair Labor Standards Act Regulations, Defining and Delimiting the Terms “Any Employee Employed in a Bona Fide Executive, Administrative, or Professional Capacity or in the Capacity of Outside Salesman.”
29 C.F.R. Part 548, Fair Labor Standards Act Regulations, Authorization of Established Basic Rates for Computing Overtime Pay.
29 C.F.R. Part 553, Fair Labor Standards Act Regulations, Application of the Fair Labor Standards Act to Employees of State and Local Government.
29 C.F.R. Part 570, Fair Labor Standards Act Regulations, Child Labor Regulations, Orders and Statement of Interpretation.
29 C.F.R. Part 578, Fair Labor Standards Act Regulations, Minimum Wage and Overtime Violations — Civil Money Penalties.
29 C.F.R. Part 579, Fair Labor Standards Act Regulations, Child Labor Violations — Civil Money Penalties.
29 C.F.R. Part 580, Fair Labor Standards Act Regulations, Civil Money Penalties — Procedures for Assessing and Contesting Penalties.
29 C.F.R. Part 778, Fair Labor Standards Act Regulations, Overtime Compensations.
29 C.F.R. Part 785, Fair Labor Standards Act Regulations, Hours Worked.
29 C.F.R. Part 790, Fair Labor Standards Act Regulations, General Statement as to the Effect of the Portal-to-Portal Act of 1947 on the Fair Labor Standards Act of 1938.
29 C.F.R. Part 791, Fair Labor Standards Act Regulations, Joint Employment Relationships under the Fair Labor Standards Act of 1938.
29 U.S.C., Chapter 8, Fair Labor Standards Act of 1938.
29 U.S.C., Chapter 9, Portal-to-Portal Act of 1947.
Aitchison, William Bruce, The Fair Labor Standards Act — A User’s Manual (1991).
Athey, Julie, Defusing the Overtime Bomb: How to Comply with the FLSA, M. Lee Smith Publishers LLC (1999).
Ginsburg, Gilbert J. Esq. et al., Fair Labor Standards Handbook for State, Local Governments and Schools, Thompson Publishing Group (1998).
Pols, Cynthia M., et. al., FLSA: What It Means, What to Do, International City Management Association and the National League of Cities (1991).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Handy Reference Guide to the Fair Labor Standards Act (White House Publication 1285).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, State and Local Governments under the Fair Labor Standards Act (Fact Sheet No. 007).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Police and Firefighters under the Fair Labor Standards Act (Fact Sheet No. 008).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Deductions from Wages for Uniforms and Other Facilities under the Fair Labor Standards Act (Fact Sheet No. 016).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Exemption for Executive, Administrative, Professional, and Outside Sales Employees under the Fair Labor Standards Act (Fact Sheet No. 017).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Section 13(a)(3) Exemption for Seasonal and Recreational Establishments Under the Fair Labor Standards Act (Fact Sheet No. 018).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Recordkeeping Requirements Under the Fair Labor Standards Act (Fact Sheet No. 021).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Hours Worked Under the Fair Labor Standards Act (Fact Sheet No. 022).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, Overtime Pay Requirements of the Fair Labor Standards Act (Fact Sheet No. 023).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division, 1996 Amendments to the Fair Labor Standards Act (Fact Sheet No. 029).
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division — FLSA Advisor, What Does the Fair Labor Standards Act Require?
U. S. Department of Labor, Employment Standards Administration Wage and Hour Division — FLSA Advisor, What Does the Fair Labor Standards Act NOT Require?
U. S. Department of Labor Website - http://www.dol.gov/ [22]
The Occupational Safety and Health Administration [53] was created in 1970 with the passage of the Occuapational Safety and Health Act of 1970 [54]. OSHA's goal is to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.
Under the Tennessee Occupational Safety and Health Act, T.C.A. § 50-3-104, all cities must comply with occupational safety and health standards or regulations promulgated by this act. The law requires employers, including local governments, to "... furnish to each of his employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or harm ..." and to comply with certain other requirements. T.C.A. § 50-3-105. Cities may elect to be treated as private employers or to establish their own safety and health training programs consistent with state regulations. Municipalities have until July 1, 2006, to make this decision. Municipalities created after July 1, 2004, have two years after their creation to make the election. T.C.A. § 50-3-910(b).
A program must inform employees of state regulations applicable to their work environments and instruct them to recognize and avoid unsafe conditions. If a city establishes its own program, civil penalties will not be imposed against the local government for violations. The state Department of Labor merely inspects for compliance and reports non-compliance. T.C.A. § 50-3-911.
Special federal requirements have recently been enacted regarding employees, such as sewer operators and paramedics, who work in "permit-required confined spaces." Cities must assure that emergency medical technicians (EMTs), public works employees, water and wastewater workers, and others at "high risk" are protected from toxic, explosive, or asphyxiating atmospheres and possible engulfment from small particles such as liquids, grain, or sawdust (29 C.F.R. § 1910.146).
Cities also must adopt and administer an infection control program to eliminate, or at least minimize, worker exposure to bloodborne pathogens, such as the hepatitis B virus and the human immunodeficiency virus (HIV) (29 C.F.R. § 1910.1030). To meet these federal requirements, cities must:
Congress passed the Occupational Safety and Health Act in 1970. The Act allowed states to run their own OSHA program. Currently 28 states have adopted their own OSH plans. TN assumed OSH responsibility in 1973. The final TN state plan was approved by federal OSH in 1985.
Most TOSHA standards and regulations are the same as the federal OSHA regulation. The TN Commissioner of Labor and Workforce Development adopts and the Division of Occupational Safety and Health (TOSHA) enforces the federal occupational safety and health standards codified in Title 29 of the Code of Federal Regulations, Part 1910. The standards apply with respect to all workplaces in the State of Tennessee with a couple of exceptions. The rules of the TN Department of Labor and Workforce Development can be found at: https://www.tn.gov/workforce/employees/safety-health/tosha.html [55].
The Occupational Safety and Health Administration (OSHA) recordkeeping rules (29 CFR Part 1904 - Recording and Reporting Occupational Injuries and Illnesses) require affected employers, to record and report work-related fatalities, injuries and illnesses. The act also prohibits employers from “discriminating against an employee for reporting a work-related fatality, injury or illness”. The provisions protect the employee “who files a safety and health complaint, asks for access to records, or otherwise exercises any rights afforded by the act”. Compliance with the rules does not imply that an employer or employee is at fault, that an OSHA rule has been violated, or that the employee is eligible for workers’ compensation or other benefits (29 CFR 1904.36).
All employers covered by OSHA are covered by the recording and reporting provisions of the act; however, not every employer must keep OSHA injury and illness records. A partial exemption is available based on the number of employees in an entire organization (10 or fewer). The partial exemption, however, does not apply in the public sector. Rule 0800-1-5-.05(1). [56]
Under T.C.A. § 50-3-910, local governments which elect to develop their own program of self-compliance must include in their written notification of such program with the Commissioner an assurance that the program includes provisions for recordkeeping as effective as the provision of T.C.A. § 50-3-701. Such recordkeeping provisions shall comply with Chapter 0800-1-3 Occupational Safety and Health Record-Keeping and Reporting.
Employers subject to the recordkeeping provisions of the act must record any work-related fatality, injury or illness of all employees on the payroll that meets the recording criteria established by the 29 CFR § 1904.4(a), whether they are labor, executive, hourly, salaried, part-time, seasonal, or migrant workers. You must also record the recordable injuries and illnesses that occur to employees who are not on your payroll (as a result of leasing or a temporary employment service) if you supervise them on a day-to-day basis. Self-employed individuals are not covered by the OSHA act or these regulations. 29 CFR 1904.31(a).
The regulations require employers to record all fatalities, injuries and illnesses that are work-related (29 C.F.R. § 1904.5) or that are new cases (29 C.F.R. § 1904.4) resulting in:
An injury or illness is work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. 29 C.F.R. § 1904.5(a). The work environment is by OSHA 29 C.F.R. § 1904.5(1)(b)(1) defined as “the establishment and other locations where one or more employees are working or are present as a condition of employment.” The work environment includes not only the physical location, but also the equipment or materials used by the employee during the course of his/her workday.
An injury or illness is considered pre-existing if it resulted solely from a non-work-related event or exposure that occurred outside the work environment (C.F.R. § 1904.5(b)(5)). The act deems a pre-existing injury or illness “significantly aggravated” if the event results in death, loss of consciousness, one or more days away from work, days of restricted work, days of job transfer, or medical treatment. A case is considered “significantly aggravated” when no medical treatment was needed for the injury or illness before the workplace event or exposure or when a change in medical treatment was necessitated by the workplace event or exposure if the condition’s aggravation would likely not have resulted but for the occupational event or exposure. 29 C.F.R. § 1904.5(b)(4).
According to 29 C.F.R. § 1904.5(b)(2) employers do not have to record injuries or illnesses under the following conditions:
In situations where you have difficulty determining whether the precipitating event or exposure occurred in the work environment or away from work, 29 C.F.R. § 1904.5(b)(3) provides that employers must evaluate the employee’s work duties and environment to determine whether one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.
Another question that often arises is how to handle injuries and illnesses that occur while an employee is traveling. 29 C.F.R. § 1904.5(b)(6) provides that “injuries and illnesses that occur while an employee is traveling are work-related if, at the time of the injury or illness, the employee was engaged in work activities “in the interest of you.” Examples include travel to and from customer contacts; conducting job tasks; and entertaining or being entertained to transact, discuss, or promote business at the direction of you. Injuries and illnesses that occur when the employee is traveling do not have to be recorded if the employee has checked into a hotel or motel for one or more days or has taken a detour for personal reasons.
Injuries or illnesses that occur when the employee is on travel status do not have to be recorded if they meet one of the exceptions listed below. 29 C.F.R. §1904.5)b)(6).
If the employee has… | You may use the following to determine if an injury or illness is work related. |
---|---|
Checked into a hotel or motel for one or more days. | When a traveling employee checks into a hotel, motel, or other temporary residence, he or she establishes a “home away from home.” You must evaluate the employee’s activities after he or she checks into the hotel, motel, or other temporary residence for their work-relatedness in the same manner as you evaluate the activities of a non-traveling employee. When the employee checks into the temporary residence, he or she is considered to have left the work environment. When the employee begins work each day, he or she re-enters the work environment. If the employee has established a “home away from home” and is reporting to a fixed worksite each day, you also do not consider injuries or illnesses work-related if they occur while the employee is commuting between the temporary residence and the job location. |
Taken a detour for personal reasons | Injuries or illnesses are not considered work-related if they occur while the employee is on a personal detour from a reasonably direct route of travel (e.g., has taken a side trip for personal reasons.) |
Injuries and illnesses that occur while an employee is working at home will be considered work-related if the injury or illness occurs while the employee is performing work for pay or commission in the home, and the injury or illness is directly related to the performance of the work rather than to the general home environment or setting. If an employee, for example, drops a box of work documents and injures his/her foot, the case is considered work-related. If an employee is injured because he/she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related. If the employee is electrocuted because of faulty home wiring, the injury is not work-related. 29 C.F.R. § 1904.5(b)(7).
The basic requirement at Section 1904.6(a) states that the employer must consider an injury or illness a new case to be evaluated for recordability if: (1) the employee has not previously experienced a recorded injury or illness of the same type that affects the same part of the body, or (2) the employee previously experienced a recorded injury or illness of the same type that affected the same part of the body but had recovered completely (all signs and symptoms of the previous injury or illness had disappeared) and an event or exposure in the work environment caused the injury or illness, or its signs or symptoms, to reappear.
According to the OSHA Recordkeeping Handbook [57], the term "new case" tends to suggest to some that the case is totally original, when in fact new cases for OSHA recordkeeping purposes include three categories of cases; (1) totally new cases where the employee has never suffered similar signs or symptoms while in the employ of that employer, (2) cases where the employee has a preexisting condition that is significantly aggravated by activities at work and the significant aggravation reaches the level requiring recordation, and (3) previously recorded conditions that have healed (all symptoms and signs have resolved) and then have subsequently been triggered by events or exposures at work. C.F.R. § 1904.6.
Both new injuries and recurrences must be evaluated for their work-relatedness and then for whether they meet one or more of the recording criteria; when these criteria are met, the case must be recorded. If the case is a continuation of a previously recorded case but does not meet the "new case" criteria, the employer may have to update the OSHA 300 Log [58] entry if the original case continues to progress, i.e., if the status of the case worsens. For example, consider a case where an employee has injured his or her back lifting a heavy object, the injury resulted in medical treatment, and the case was recorded as a case without restricted work or days away. If the injury does not heal and the employer subsequently decides to assign the worker to restricted work activity, the employer is required by the final rule to change the case classification and to track the number of days of restricted work. If the case is a previous work-related injury that did not meet the recording criteria and thus was not recorded, future developments in the case may require it to be recorded. For example, an employee may suffer an ankle sprain tripping on a step. The employee is sent to a health care professional, who does not recommend medical treatment or restrictions, so the case is not recorded at that time. If the injury does not heal, however, and a subsequent visit to a physician results in medical treatment, the case must then be recorded.
C.F.R. § 1904.6(b)(1) addresses chronic work-related cases that have already been recorded once and distinguishes between those conditions that will progress even in the absence of workplace exposure and those that are triggered by events in the workplace. There are some conditions that will progress even in the absence of further exposure, such as some occupational cancers, advanced asbestosis, tuberculosis disease, advanced byssinosis, advanced silicosis, etc. These conditions are chronic; once the disease is contracted it may never be cured or completely resolved, and therefore the case is never "closed" under the OSHA recordkeeping system, even though the signs and symptoms of the condition may alternate between remission and active disease.
The final rule provides, at C.F.R. § 1904.6(b)(1), that the employer is not required to record as a new case a previously recorded case of chronic work-related illness where the signs or symptoms have recurred or continued in the absence of exposure in the workplace. This paragraph recognizes that there are occupational illnesses that may be diagnosed at some stage of the disease and may then progress without regard to workplace events or exposures. Such diseases, in other words, will progress without further workplace exposure to the toxic substance(s) that caused the disease. Examples of such chronic work-related diseases are silicosis, tuberculosis, and asbestosis. With these conditions, the ill worker will show signs (such as a positive TB skin test, a positive chest roentgenogram, etc.) at every medical examination, and may experience symptomatic bouts as the disease progresses.
OSHA has completely revised all forms used to report occupational injuries and illnesses. The OSHA 200 - Log and Summary and the OSHA 101 - Supplemental Record have been replaced by the OSHA 300 - Log of Work-Related Injuries and Illnesses, OSHA 300A - Summary of Work-Related Injuries and Illnesses and OSHA 301 - Illness Incident Report. Hard copy forms are available at. An electronic version of the form can be found at https://www.osha.gov/recordkeeping/RKforms.html [58].
To complete the OSHA 300 Log, you must enter information about the business at the top of the form. Then, you must enter a one- or two-line description for each recordable injury or illness and summarize this information on the OSHA 300A at the end of the year. The OSHA 301 Incident Report, or an equivalent form, must be completed for each recordable injury or illness entered on the OSHA 300 Log.
Recordable injuries and illnesses must be entered on the OSHA 300 Log and the 301 Incident Report or equivalent form within seven calendar days of receiving information that an injury or illness has occurred. An equivalent form is one that has the same information, is as readable and understandable, and is completed using the same instructions as the OSHA form it replaces. If a computer can produce equivalent forms when they are needed, you may keep records on the computer system.
There may be situations in which the employee’s name is not on the OSHA 300 Log. These are “privacy concern cases,” and you are obligated to protect the privacy of the injured or ill employee when another employee, former employee, or an authorized employee representative is provided access to the OSHA Log. Employers must keep a separate, confidential list of the case numbers and employee names for the privacy concern cases so they can be updated and provided to government officials as needed.
29 C.F.R §1904.33(a) provides that you must save the OSHA 300 Log, the privacy case list (if one exists), the annual summary, and the OSHA 301 Incident Report forms for five (5) years following the end of the calendar year that these records cover. During the storage period, you must update your stored OSHA 300 Logs to include newly discovered recordable injuries or illnesses and to show any changes that have occurred in the classification of previously recorded injuries and illnesses. 29 C.F.R. § 1904.33(b)(1). If the description or outcome of a case changes, you must remove or line out the original entry and enter the new information. The annual summary is not required to be updated, nor is the OSHA 301 Incident Report. 29 C.F.R. § 1904.33(b)(3).
Tennessee adopts the rules of OSHA, and therefore, employers subject to OSHA's jurisdiction must display the "Job Safety and Health - It's the Law!" poster. Failure to post the notice will result in possible citations. Such notice shall be posted in each establishment where notices to employees are customarily placed. Employers should ensure that these posters are not alterered, defaced or covered by other material.
Download a copy of the Tennessee state poster [59]. It may be used in place of the federal poster.
Download a free copy of the OSHA poster [60].
A work-related injury or illness must be recorded on the OSHA 300 Log if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment unless a specific exception exists. 29 C.F.R. § 1904.7(a).
If a work-related injury or illness results in an employee’s death, you must record the incident by entering a check mark on the OSHA 300 Log in the space for cases resulting in death. You must also report any work-related fatality to OSHA within eight hours. 29 C.F.R. § 1904.7(b)(2). (See MTAS-1494.) [61]
If a work-related injury or illness results in days away from work by the employee, you must record the injury or illness if it involves one or more days away with a check mark in the space for cases involving days away and an entry for the number of calendar days away from work in the number of day’s column. If the employee is out for an extended period of time, you must enter an estimate of the days that the employee will be away and update the count when the actual number of days is known. The day the injury or illness occurs is not counted as a day away from work. 29 C.F.R. § 1904.7(b)(3).
If a physician or other licensed health care professional recommends that a worker stay home but the employee comes to work anyway, you must record the injury or illness on the OSHA 300 Log using the check box for cases with days away from work and enter the number of calendar days away recommended by the physician. 29 C.F.R. § 1904.7(b)(3)(ii). The days away must be recorded whether the employee follows the physicians recommendation or not, and you must encourage the employee to follow that recommendation. If you receive two or more physician recommendations, you may make a decision as to which recommendation is the most authoritative and record the case based on that recommendation. If a physician recommends that an employee return to work but the employee stays home, you must end the count of days away from work on the date the physician or other licensed health care professional recommends that the employee return to work.
When a work-related injury or illness results in restricted work or a job transfer but does not involve death or days away from work, you must record the injury or illness on the OSHA 300 Log by placing a check mark in the space for job transfer or restriction and entering the number of restricted or transferred days in the restricted workday column. 29 C.F.R. § 1904.7(b)(4). Restricted work occurs when, as the result of a work-related injury or illness, you keep the employee from performing one or more of the routine functions of the job, or from working the full workday that the employee would otherwise have been scheduled to work. Restricted work also may occur if a physician or other licensed health care professional recommends that the employee not perform one or more routine functions of the job or not work the full workday that had been scheduled. Routine functions are those work activities employees regularly perform at least once a week. 29 C.F.R. § 1904.7(b)(4)(i).
As with days away from work, you do not have to record restricted work or job transfers if you, the physician or other health care professional imposes the restriction or transfer only for the day on which the injury or illness began. 29 C.F.R. § 1904.7(b)(4)(iv). Additionally, if a case involves a worker who works only a partial shift because of a work-related injury or illness, the partial day is recorded as a day of job transfer or restriction for record keeping purposes, except for the day on which the injury occurred or the illness began. 29 C.F.R. § 1904.7(b)(4)(v).
Both job transfer and restricted work cases are recorded in the same box on the OSHA 300 Log. You must count days of job transfer or restrictions in the same way that days away from work are counted. The only difference is that if you permanently assign the injured or ill employee to a job that has been modified or permanently changed in a manner that eliminates the routine functions the employee was restricted from performing, you may stop the day count when the modification or change becomes permanent. You must count at least one day of restricted work or job transfer for such cases. 29 C.F.R. § 1904.7(b)(4)(xi).
Generally, employers must count the number of calendar days the employee is unable to work as a result of an injury or illness, regardless of whether or not the employee was scheduled to work on those days. Weekends, holidays, vacation days or other days off are included in the total number of days recorded if the employee would not have been able to work on those days because of the work-related injury or illness. 29 C.F.R. § 1904.7(b)(3)(iv).
If an employee is injured or becomes ill on a Friday and reports to work on a Monday, and was not scheduled to work on the weekend, you should record this case only if information is received from a physician indicating that the employee should not have worked, or should have performed only restricted work, during the weekend. If so, you must record the injury or illness as a case with days away from work or restricted work and enter the day count, as appropriate. 29 C.F.R. § 1904.7(b)(3)(v). If an employee is injured or becomes ill on the day before scheduled time off, such as a holiday or planned vacation, the same procedures should be followed. 29 C.F.R. § 1904.7(b)(3)(vi).
The total number of days away from work may be capped at 180 calendar days. Employers are not required to keep track of the number of days away from work if the injury or illness lasts more than 180 days. In such a case, entering 180 in the total days away column will be considered adequate. 29 C.F.R. § 1904.7(b)(3)(vii). Additionally, if an employee who is away from work because of a work-related injury or illness retires or leaves the company, you may stop counting days if the reason for leaving is unrelated to the injury or illness. If, however, the employee leaves the company because of the injury or illness, you must estimate the total number of days away or days of restricted/job transfer and enter the day count on the 300 Log. 29 C.F.R. § 1904.7(b)(3)(viii).
In situations where a case occurs in one year but results in days away during the next calendar year, you must record the injury or illness only once. You must enter the number of calendar days away for the injury or illness on the OSHA 300 Log for the year in which the injury or illness occurred. If the employee is still away from work when you prepare the annual summary, you must estimate the total number of calendar days the employee is expected to be away, use that number to calculate the total for the annual summary, and then update the initial log entry later when the day count is known or reaches the 180-day cap. 29 C.F.R. § 1904.7(b)(3)(ix).
If a work-related injury or illness results in medical treatment beyond first aid, you must record it on the OSHA 300 Log. If the injury or illness did not result in death, days away from work, or restricted work or a job transfer, you must check the box for cases where the employee received medical treatment but remained at work and was not transferred or restricted (other recordable cases). 29 C.F.R. § 1904.7(b)(5). An example is a case in which the employee is involved in an accident and is taken to the hospital to have a cut stitched, then returns to work the next day. The employee would have received medical treatment but would not have a lost day of work, restricted work or a job transfer.
Medical treatment means the management and care of a patient to combat disease or disorder. It does not include visits to a physician or other licensed health care professional solely for observation or counseling; conducting diagnostic procedures, such as X-rays and blood tests; the administration of prescription medication used solely for diagnostic purposes (e.g., eye drops to dilate pupils); or first aid. 29 C.F.R. § 1904.7(b)(5)(i).
First aid means the following: 29 C.F.R. § 1904.7(b)(5)(i) (A-N).
29 C.F.R. § 1904.7(b)(5)(v) provides that if a physician or other licensed health care professional recommends medical treatment and the employee does not follow the physician’s recommendation, you must still record the case. As previously stated, you should encourage the employee to follow the recommendation.
If a work-related injury or illness results in loss of consciousness, you must record the work-related injury or illness, regardless of the length of time the employee remains unconscious. 29 C.F.R. § 1904.7(b)(6). Additionally, work-related cases involving a significant diagnosed injury or illness (such as cancer, chronic irreversible diseases, a fractured or cracked bone, or a punctured eardrum) must always be recorded under the general criteria at the time of diagnosis. OSHA considers these types of injuries or illnesses recordable even if medical treatment or work restrictions are not recommended or are postponed. 29 C.F.R. § 1904.7(b)(7).
OSHA regulation 29 C.F.R. § 1904.8 (a) requires employers to record all work-related needle stick injuries and cuts from sharp objects that are contaminated with another person’s blood or other potentially infectious materials as defined by 29 C.F.R. § 1910.1030. Other potentially infectious materials include human bodily fluids, tissues and organs; and other materials infected with the HIV or hepatitis B (HBV) virus, such as laboratory cultures or tissues from experimental animals. 29 C.F.R. § 1904.8(b)(1). You must enter the case on the OSHA 300 Log as an injury. To protect the employee’s privacy, you may not enter the employee’s name on the OSHA 300 Log. If a recorded injury results in a later diagnosis of an infectious blood borne disease, you must update the classification of the case on the OSHA 300 Log if it results in death, days away from work, restricted work, or job transfer. You must also update the description to identify the infectious disease and change the classification of the case from an injury to an illness.
If an employee is splashed or exposed to blood or other potentially infectious material without being cut or scratched, you must record the incident on the OSHA 300 Log as an illness if it results in the diagnosis of a blood borne illness such as HIV, hepatitis B or hepatitis C; or if it results in death, days away from work, work restrictions, or job transfer. Otherwise it is not recorded. 29 C.F.R. § 1904.8(b)(4).
You are not required to record all cuts, lacerations, punctures and scratches. Only those injuries that are work-related and involve contamination with another person’s blood or other potentially infectious materials must be recorded. If a cut, laceration or scratch involves a clean object or a contaminant other than blood or other potentially infectious material, you need to record the case only if it results in death, days away from work, work restrictions, job transfer, medical treatment, or loss of consciousness. 29 C.F.R. § 1904.8(b)(2).
If an employee is medically removed (transferred to a hospital) under the medical surveillance requirement of an OSHA standard, you must record the case on the OSHA 300 Log. 29 C.F.R. § 1904.9(a). The case would be entered as either a case involving days away from work or a case involving restricted work activities. If the medical removal is the result of a chemical exposure, you must enter the case on the OSHA 300 Log by checking the poisoning column. 29 C.F.R. § 1904.9(b)(1). If you voluntarily remove an employee from exposure before the medical removal criteria in an OSHA standard is met, the case need not be recorded. 29 C.F.R. § 1904.9(b)(3).
If any employee becomes occupationally exposed to anyone with a known case of active tuberculosis (TB), and the employee subsequently develops a tuberculosis infection, the case must be recorded on the OSHA 300 Log by checking the respiratory condition column. 29 C.F.R. § 1904.11(a). Before the event is entered on the log, you should have a record of a positive skin test or a diagnosis by a physician or other licensed health care professional in hand.
You do not have to record the case if it can be determined that the employee was not occupationally exposed to a known case of active tuberculosis at the workplace. The case can be removed from the Log if you obtain evidence that the worker is living in a household with a person who has been diagnosed with active TB; the public health department has identified the worker as a contact of an individual with a case of active TB unrelated to the workplace;or a medical investigation shows that the employee’s infection was caused by exposure to TB away from work, or proves that the case was not related to the workplace TB exposure. 29 C.F.R. § 1904.11(b).
If a work-related injury or illness results in a hearing loss, the employee is required to record, by checking the "hearing loss" column on the OSHA 300 Log, all cases in which an employee's hearing test (audiogram) revealed that a Standard Threshold Shift (STS) in hearing acuity had occurred. 29 C.F.R. § 1904.10(a). An STS is defined in 29 C.F.R. § 1904.10(b)(1) as "a change in hearing threshold, relative to the most recent audiogram for that employee, of an average of 10 decibels or more at 2000, 3000 and 4000 Hertz (Hz) in one or both ears."
The recordkeeping rule itself does not require the employer to test employee's hearing. However, OSHA's occupational noise standard (29 C.F.R. § 1910.95) requires employers in general industry to conduct periodic audiometric testing of employees when employees' noise exposures are equal to, or exceed, an 8-hour time-weighted average of 85dBA. Under the provisions of § 1910.95, if such testing reveals that an employee has sustained a hearing loss equal to an STS, the employer must take protective measures, including requiring the use of hearing protectors, to prevent further hearing loss.
OSHA recognizes that there may be situations in which you do not want to put the employee’s name on the OSHA 300 Log for privacy reasons. If that is the case, you may enter the words “privacy case” in the space normally used for the employee’s name. You must keep a separate, confidential list of the case numbers and employee names in order to update the case and provide the information to the government if requested (29 C.F.R. § 1904.29(b)(6)). The following injuries or illnesses must be considered “privacy concern cases:”
The regulations (29 C.F.R. § 1904.29(b)(9)) also provide that if the employer has reason to believe that the employee may be identified from the information on the form, you may use discretion in describing the injury or illness on both the OSHA 300 and 301 forms, even if the employee’s name has been omitted. Enough information, however, must be included to identify the cause of the incident and the general severity of the injury or illness, but you need not include details of an intimate or private nature. (e.g., a sexual assault case could be described as an “injury from assault,” or an injury to a reproductive organ could be described as a “lower abdominal injury”).
If you disclose the OSHA forms to anyone other than government representatives, employees, former employees or authorized representatives (as required by §§ 1904.35 and 1904.4), you must remove or hide the employee’s name and other personally identifying information, except in the following cases:
Within eight hours after the death of any employee from a work-related incident, you must orally report the fatality by contacting Tennessee OSHA at 800-249-8510 or after hours by calling the National OSHA at 800-321-6742. . If the area office is closed, employers may not leave a message on the answering machine, nor fax the area office, nor send an e-mail, but must call the toll-free number for the U.S. Department of Labor OSHA office or the reporting application located on OSHA's public website at www.osha.gov [62]. 29 C.F.R. § 1904.39(b)(1). Only fatalities occurring withing 30 days of the work-related incident must be reported in the above manner.
Within 24 hours of an in-patient hospitalization, amputation, or loss of an eye of as the result of a work-related incident, you must report these events to Tennessee OSHA by completing the online report on the TOSHA website or alternatively, you may call Tennessee OSHA at 1-800-249-9510 or after hours employers also may use the OSHA toll-free central telephone number, 1-800-321-6742 (1-800-321-OSHA). 29 C.F.R. § 1904.39(a). If the hospitalization does not occur within 24 hours of the work-related incident you do not have to report in the above manner. Also, if the hospitalization is for diagnostic testing or observation only, it is exempt from these reporting requirements.
In reporting a fatality or multiple hospitalizations, you must provide the following information: 29 C.F.R. § 1904.39(b)(2)
If you do not learn about a fatality right away, you must make the report within eight hours of the time the incident is reported. In the event of in-patient hospitalization, amputation or loss of an eye, you have 24 hours from the time the incident is reported.
As with other rules, there are exceptions. Employers do not have to report all incidents involving fatalities and hospitalizations resulting from a motor vehicle accident, if the motor vehicle accident occurs on a public street or highway and does not occur in a construction work zone., The injuries, however, must be recorded on the OSHA injury and illness record, if you are required to keep such a record (death, loss of days, restricted duties, transfer, etc.). 29 C.F.R. § 1904.39(b)(3). The same rules apply to incidents involving commercial airplane, train, subway or bus accidents. 29 C.F.R. § 1904.39(b)(4). These exceptions must still be recorded on your OHSA injury and illness records.
At the end of each calendar year, you must review the OSHA 300 Log to verify that the entries are complete and accurate, and must correct any deficiencies identified. You must also create an annual summary of injuries and illnesses recorded on the OSHA 300 Log by filling out the OSHA 300A, certify the summary, and post it for public review. 29 C.F.R. § 1904.32(a).
To complete the annual summary, you must total the columns on the OSHA 300 Log and enter the calendar year covered, any identifying information about the company, the annual average number of employees covered by the OSHA 300 Log, and the total hours worked by all the employees covered by the OSHA 300 Log. If an alternate summary form is used, it must contain the employee access and employer penalty statement found on the OSHA 300A form. 29 C.F.R. § 1904.32(b)(2).
The form must be certified by a municipal executive indicating that he/she has examined the OSHA 300 Log and that he/she reasonably believes that the summary is correct and complete. The municipal executive must be an elected official, the highest ranking official working at the municipality or the immediate supervisor of the highest ranking city/town official. 29 C.F.R. § 1904.32(b)(3).
You must post a copy of the annual summary in each establishment in a conspicuous place where notices to employees are customarily posted. 29 C.F.R. § 1904.32(b)(5). The posted annual summary must not be altered, defaced or covered by other material. The summary must be posted no later than February of the year following the year covered by the records and kept at the posting place until April. 29 C.F.R. § 1904.32(b)(6).
The OSHA 300 Logs, the privacy case list, the annual summary, and the OSHA 301 Incident Report form must be saved for five years following the end of the calendar year that the records cover. During the period of storage, you must update the stored OSHA 300 Log to include newly discovered recordable injuries and illnesses and to show any changes that occurred in the classification of previously recorded injuries and illnesses. If the description or outcome changes, you must remove or line through the original entry and then enter the new information. The annual summary and the OSHA 301 Incident Reports do not have to be updated.(29 C.F.R. § 1904.33)
The OSHA recordkeeping standard requires that employees and their representatives be involved in the recordkeeping system in several ways. You must inform each employee of how he/she is to report an injury or illness and must provide limited access to the injury and illness records for employees and their representatives. 29 C.F.R. § 1904.35(a). A personal representative of an employee or former employee is any person whom the employee or former employee designates in writing as such, or the legal representative of a deceased or legally incapacitated employee or former employee. 29 C.F.R. § 1904.35(b) (2) (ii) .
If an employee or representative asks for access to the OSHA 300 Log and/or the OSHA 301 Incident Report, you must give the requester a copy of the relevant Log and Incident Report by the end of the next business day.
If the authorized employee representative asks for copies of the OSHA 301 Incident Report and is representing the employee under a collective bargaining agreement, you must give copies of those forms within seven calendar days. You are authorized to give the representative only information from the Incident Report section titled “Tell us about the case.” You must remove all other information from the copy of the OSHA 301 form. 29 C.F.R. § 1904.35(b)(2)(v) (B).
You may not charge for copies the first time copies of the records are provided. If one of the designated persons asks for additional copies, you may assess a reasonable charge for retrieving and copying the records. 29 C.F.R. § 1904.35(b)(vi).
Employers are prohibited from discriminating against an employee for reporting a workplace fatality, injury or illness. The employee is also protected who files a safety complaint or ask for access to records. 29 C.F.R. § 1904.35(b)(1) (iv).
When an authorized government representative asks to review the records of the city/town, you must provide copies of the records within four business hours. 29 C.F.R. § 1904.40(a). The regulations, 29 C.F.R. § 1904.40(b)(1), provides that government representatives authorized to receive the records are:
Annually, the OSH Administration sends surveys to organizations in certain industries. If you receive such a survey, you must respond to the survey within 30 days or by the date stated in the survey. 29 C.F.R. § 1904.41(a). Additionally, the Bureau of Labor Statistics may periodically send out an Occupational Injuries and Illnesses Survey, which must be completed and returned promptly. 29 C.F.R. § 1904.42(a).
A new OSHA rule took effect January 1, 2017 that requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. (29 C.F.R.§ 1904.41) Organizations with 250 or more employees at any time during the previous calendar year are required to electronically submit information to OSHA and any employer with 20 or more employees but fewer than 250 at any time and the industry is classified in an industry listed in appendix A to support E [63] of the act. Industries of interest to public sector employers are utilities, urban transit systems, school and employee bus transportation, other transit and ground passenger transportation, waste collection, waste treatment and disposal, museums, and historical sites and similar institutions. Employees to be included in determining employee counts are each individual employed at any time during the calendar year, including full-time, part-time, seasonal and temporary.
Records must be submitted once a year according to the schedule established by the department. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. (29 C.F.R.§ 1904.41(c)).
OSHA provides a secure website that offers options for data submission.
In the March 2012 edition of the Federal Register (77 FR 17574), OSHA published its revisions to the OSHA Hazard Communication Standard (HCS). The revisions align OSHA requirements with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals, commonly called the GHS. To provide time for compliance, OSHA established a phase in program for the requirements over a period of several years. The transition period ended June 1, 2016.
The revisions improve the quality and consistency of hazard information in the workplace, making it safer for workers by providing easily understandable information on appropriate handling and safe use of hazardous chemicals. Two significant changes in the standard require the use of new labeling elements and a standardized format for Safety Data Sheets (SDSs), formerly known as Material Safety Data Sheets (MSDSs). The new label elements and SDS requirements improve worker understanding of the hazards associated with the chemicals in their workplace. The standard applies to all chemicals known to be present in the workplace in such a manner that employees may be exposed under normal conditions or in a foreseeable emergency.
Employers have a duty to provide adequate training on these changes to the communication standards at no cost to all employees (full-time, part-time or temporary). Employers must also include volunteer firefighters for purpose of the training and must train all employees even if the employees are illiterate or have learning disabilities. Employers must also measure the effectiveness of their training by verbal recall and evaluate training through employee interviews.
The employer must maintain SDS for as long as the chemical is used or stored. You must maintain the chemical list for 30 years
Because TN is a federally approved "state-plan" the TN Occupational Safety and Health Act (TOSH Act) adopted the federal OSHA standards but some of the provisions of the TN Hazardous Chemical Right to Know Act are still in effect. Tennessee OSHA (TOSHA) has a video presentation that an agency can download and use for training on the revisions and the GHS. The person who conducts the training should be familiar with OSHA's Hazard Communication Standard. The video (TOSHA Hazard Communications: Protecting Yourself from Chemical Hazards) is available at https://www.youtube.com/watch?v=F41FCs2V5uE [64].
Employers may conduct the training in-house or may contract with someone knowledgeable on the revised OSHA hazard communication standard to conduct the training. The employer must provide training in a manner that is understandable by each employee, which means the employer must consider and accommodate limitations such as language, vocabulary, and literacy. Employers are still required to do annual training on hazard communication (HAZCOM) in addition to these new requirements.
Employers must train their employees on the new label elements and the SDS format. This training is necessary to protect themselves from chemical hazards in the workplace. It is critical that employees understand the new label and SDS formats. Training is also required at the time an employee is assigned to work with any hazardous chemical and whenever a new hazard is introduced into the employees work area.
The list below contains the minimum required topics the training.
The employer must provide annual training and maintain records of the training that include:
The training records must be maintained for the period of employment + 5 years and must identify the following:
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 43, was signed into law by President William Clinton on October 13, 1994, and modified in 1996, 1998, 2000, 2004, 2005, 2009 and 2013. It is the latest in a series of laws designed to protect veterans’ employment and reemployment rights going back to the Selective Training and Service Act of 1940 and the Veterans’ Reemployment Rights Act (VRRA) to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (20 CFR Sec.1002.2). The purpose of the Act was to protect certain rights and benefits for employees and establish specific duties for employers affecting veteran employment, reemployment, and retention.
On Jan. 28, 2008, President George W. Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181. Among other things, section 585 of the NDAA amended the Family and Medical Leave Act of 1993 (FMLA) to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 work weeks of leave (paid or unpaid) to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who undergoes medical treatment, recuperation or therapy, is in an outpatient status, or is on the temporary disability retired list, for a serious injury or illness.” The NDAA also allows an employee to take FMLA leave for “any qualifying exigency arising out of the fact that the spouse, or a son, daughter or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”
On Oct. 28, 2009, President Barack Obama signed a defense-spending bill into law that also contained amendments to the Family and Medical Leave Act (FMLA). The National Defense Authorization Act for Fiscal Year 2010 (NDAA 2010) expanded FMLA provisions relating to “qualifying exigency leave” and military caregiver leave, both of which now include time off to care for veterans.
The general military leave law provides four basic entitlements to employees returning from active service:
Under USERRA, re-employment rights are required for any person who is absent from work because of service in the uniformed services. The "uniform services" consist of the following (20 CFR 1002.5(o)):
USERRA requires that returning service members be re-employed in the job they "would have attained" had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. 38 U.S.C. § 4316(a). Additionally, returning employees are entitled to any other benefits not based on seniority. 38 U.S.C. § 4316(b).
All employers are required to notify employees of their rights under USERRA. The notice must explain what rights and protections employees have under the Act, including the right to re-employment after uniformed service, freedom from discrimination and retaliation for serving in uniform and certain health insurance protections (38 U.S.C § 4334).
The U.S. Department of Labor, Veterans Employment and Training Service (VET) has prepared a poster that may be used to fulfill the requirements. It can be downloaded from https://www.dol.gov/vets/programs/userra/USERRA_Private.pdf [65].
“Service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service, including [38 USC. § 4303(13) & (16)]:
According to a Thompson Publishing Company’s Special Report, "Return from Duty, Return to Work: Understanding the Employer’s New USERRA Obligations" (2006), there is no exclusion for executive, managerial, or professional employees. The law even protects temporary, part-time, probationary, and seasonal employees, as well as employees on strike, layoff, or leave of absence. It does not, however, apply to individuals who act as independent contractors rather than as employees.
20 CFR, § Sec. 1002.18 provides that "an employer 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 membership, application for membership, performance of service, application for service,or obligation for service in the uniformed services". The Act also prohibits employers from taking actions against an individual for any of the activities protected by the Act, whether or not he or she has performed service in the uniformed services. The Thompson Publishing Company Report also provides that it is illegal for an employer to “retaliate against someone who exercises his or her rights under USERRA”.
The law requires all affected civilian employees to provide their employers with advance notice (written or oral) of their military service orders. 32 CFR Part 104 was revised to provide that "although oral notice is allowed pursuant to USERRA, written notice of pending uniformed service provides documentary evidence that this basic prerequisite to retaining reemployment rights was fulfilled by the service member and serves to avoid unnecessary disputes". [32 CFR § 104.6(a)(2)(iii)(A)(2)]. Section (3) recommends that the advance notice be provided at least 30 days prior to departure.
The notice can also be provided by an “appropriate officer” of the Department of Defense. An "appropriate officer" is a commissioned, warrant, or non-commissioned officer authorized to give such notice by the military service concerned. No notice, however, is required if military necessity prevents giving advance notice or if giving notice is impossible or unreasonable. [38 USC. § 4312(a)(1)].
Employees may also need additional time off before starting military service. 20 CFR § Sec. 1002.74 of the regulations recognize that absences for military service may include a period of time between the date the employee leaves the job and the date the employee actually begins service. In addition, the Thompson Publishing Company Report suggests that “employees may need intermittent time off from work prior to military service for brief periods to put their affairs in order, for example, to interview child care providers, meet with bank officers regarding financial matters, or seek assistance for elderly parents”.
20 CFR § Sec. 1002.74 also suggests that the amount of time an employee may need to prepare for military service will vary. “Relevant factors include:
The Act established that the length of time an individual may be absent from work for military duty and retain re-employment rights is not to exceed five years. 38 U.S.C. § 4312(a)(2). Upon completing service in the uniformed services, the employee must notify the pre-service employer of his/her intent to return to the employment position by either reporting the work or submitting a timely application for re-employement. The time depends on the length of the employee’s military service as outlined in 20 C.F.R. § 1002.115) below:
Service of fewer than 31 days (or any length of the absence that was for an examination to determine fitness to perform military service): The employee must report back to work not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the military service and the expiration of eight hours after a period allowing for safe transportation from the place of military service to the employee’s residence. So, if an employee completes his or her period of service and arrives home at 10 p.m., an employer cannot require the employee to report to work until the beginning of the next full regularly scheduled work period that begins at least eight hours after arriving home (in this example, no earlier than 6 a.m. the next morning). If it is impossible or unreasonable for the employee to report in that time frame through no fault of his or her own, the employee must report to work as soon as possible after the expiration of the eight-hour period.
Service for more than 30 but fewer than 181 days: The employee must submit an application for re-employment (written or oral) no later than 14 days after completing service. If this is impossible or unreasonable through no fault of the employee, the employee must submit the application no later than the next full calendar day after it becomes possible to do so.
Service for more than 180 days: The employee must submit an application for re-employment (written or oral) no later than 90 days after completing service.
In 2011, 38 U.S.C. § 4312 was amended by Pub.L. 112-81, § 575(3), and states the following:
(f) A person who submits an application for reemployment shall provide to the person’s employer (upon the request of such employer) documentation to establish that—
(A) the person’s application is timely;
(B) the person has not exceeded the service limitations set forth in subsection (a)(2) (except as permitted under subsection (c)); and
(C) the person’s entitlement to the benefits under this chapter has not been terminated pursuant to section 4304 [66].
(2) Documentation of any matter referred to in paragraph (1) that satisfies regulations prescribed by the Secretary shall satisfy the documentation requirements in such paragraph.
However, under subsection (3),
(A) Except as provided in subparagraph (B), the failure of a person to provide documentation that satisfies regulations prescribed pursuant to paragraph (2) shall not be a basis for denying reemployment in accordance with the provisions of this chapter if the failure occurs because such documentation does not exist or is not readily available at the time of the request of the employer. If, after such reemployment, documentation becomes available that establishes that such person does not meet one or more of the requirements referred to in subparagraphs (A), (B), and (C) of paragraph (1), the employer of such person may terminate the employment of the person and the provision of any rights or benefits afforded the person under this chapter.
(B) An employer who reemploys a person absent from a position of employment for more than 90 days may require that the person provide the employer with the documentation referred to in subparagraph (A) before beginning to treat the person as not having incurred a break in service for pension purposes under section 4318 (a)(2)(A) [67].
Subsection (f)(4) provides that an employer may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not then readily available. 38 C.F.R. § 4312(f)(4). Documents that satisfy the requirements of USERRA (20 C.F.R, Sec. 1002.123) include the following:
Exceptions to the five-year service limitation include situations in which initial enlistments last longer than five years, periodic training is required, or there are involuntary active-duty extensions or recalls, especially during a time of national emergency. 38 U.S.C. § 4312(c). Additionally, employees recovering from injuries received during the service or training may have up to an additional two years to return to their jobs. 38 U.S.C. § 4313(e).
An employer is not required to re-employ a returning service member if the employer’s circumstances have so changed as to make re-employment impossible or unreasonable 20 C.F.R. 1002.139(a). Thompson Publishing Company’s Report provides a excellent example. The employer would not be required to create a useless job or reinstate an employee after a reduction in the workforce that reasonably would have included the service member. The employer cannot, however, refuse to re-employ the service member just because another employee was hired temporarily during the service member’s absence.
20 C.F.R. § 1002.139 (c) and 38 U.S.C. § 4312(d) (1)(c) also provide that an employer is not required to re-employ a returning service member if the position vacated by the service member was for a brief, non-recurrent period and there was no reasonable expectation that the employment would continue indefinitely or for a significant period.
Re-employment must occur as soon as practicable under the circumstances of each case. Absent unusual circumstances, reemployment must occur within two weeks of the employee’s application for reemployment. For example, prompt reinstatement after a weekend National Guard duty generally means the next regularly scheduled working day. On the other hand, prompt reinstatement following several years of active duty may require more time, because the employer may have to reassign or give notice to another employee who occupied the returning employee’s position. 20 C.F.R. § 1002.181.
38 U.S.C. § 4313(a)(1) provides that after military service of less than 91 days, the military service person is entitled to reinstatement in the “escalator position,” to the position in which he or she would have been employed if not for the interruption in employment. 20 C.F.R. § 1002.196(b) provides that the employer must make reasonable efforts to help the employee become qualified for that position. 20 C.F.R. § 1002.196(c) also provides that if the employee cannot become qualified for that position, the employee is entitled to the position in which he or she was employed when military service started. If the employee is not able to perform the duties of the escalator position or the pre-service position, after reasonable efforts by the employer, the employee must be reemployed in any other position that is the nearest approximation first to the escalator position and then to the pre-service position.
After military service of more than 90 days, an employee is entitled to reinstatement in the escalator position, however, 20 C.F.R. § 1002.191 provide that upon the specific circumstances the employer may have the option, or may be required, to re-employ the employee in a position other than the escalator position. The employer must make reasonable efforts to help the employee qualify for one of those positions. 20 C.F.R. § 1002.197(a). If the employee cannot become qualified, the employee is entitled to be placed in any other position that is the closest approximation to the escalator position. 20 C.F.R. § 1002.197(b). If there is no such position for which the employee is qualified, the employer must place the employee in any other position that is the closest approximation to the pre-service position. 20 C.F.R. § 1002.197(c).Note: The employer is not required to reemploy the employee on his or her return from service if he or she cannot, after reasonable efforts by the employer, qualify for the appropriate reemployment position. 20 C.F.R. § 1002.198.
The Thompson Publishing Company article states that “employers may treat missed opportunities for promotions differently, depending on whether the promotions are automatic or, as with many white collar jobs, based primarily on the employer’s discretion.” If an opportunity for promotion or eligibility for promotion that the employee missed during service is based on a skills test or examination, then the employer should give him or her a reasonable amount of time to adjust to the employment position and then give a skills test or examination. No fixed amount of time for permitting adjustment to reemployment will be deemed reasonable in all cases. 20 C.F.R. § 1002.193(b).
The Department of Labor (DOL) acknowledges that if a promotion is not based simply on seniority or other forms of automatic progression, but depends on the employer’s discretion, a re-employed veteran would have to demonstrate that it was reasonably certain that he or she would have received the benefit if he or she had remained continuously employed. 20 C.F.R. § 1002.194.
Employers must make “reasonable efforts” to allow the returning service member to qualify for the position to which the employee is entitled. “Reasonable efforts” include training and retraining that does not place an undue hardship on the employer. 20 C.F.R. § 1002.5(i). "Qualified" means that the employee has the ability to perform the essential tasks of the position. The employee's inability to perform one or more non-essential tasks of a position does not make the employee unqualified. The employer, however, is not required to re-employ an individual into a position that he/she is not qualified to perform.
An employee leaving a job for military service is not required to decide at that time whether he or she intends to return to the employer upon completion of military service but can defer that decision until after completing service. 20 C.F.R. § 1002.88. The employer may, however, prohibit the individual from seeking employment with a competitor. The burden of proving that the employee does not intend to seek re-employment with that employer following military service still rest with the employer. The individual must provide “clear, written notice” of their intent not to return to the employment of the organization. Even with such notice, the employee does not losses rights and benefits to re-employment after completing service.
Under USERRA, employee can obtain employment with a different employer while waiting for reinstatement without giving up re-employment rights with the first employer. But if this alternative employment during the application period violates the pre-service employer’s employment policies (such as a city’s prohibition against second jobs) to such a degree that it would be just cause for discipline or termination, then there is no right to re-employment. 20 U.S.C. § 1002.120. Additionally, a returning employee loses his or her re-employment rights if he or she is discharged from military service for
USERRA establishes re-employment rights to a job but does not require that employers pay employees their regular pay while absent for military service, although employers may choose to do so. 20 U.S.C. § 1002.7(c). Some employers provide “differential pay,” which is the difference between the employee’s military pay and civilian pay. Differential pay is not required but it is “a generous show of support by employers for their employees who are in service to the nation. 20 U.S.C. § 1002.7(d) also provides that if an employer provides additional benefits such as full or partial pay when the employee performs service, the employer is not excused from providing other rights and benefits to which the employee is entitled under the act.
Under Tennessee state law, however, eligible service members are entitled to 20 days of paid leave per year for active duty. T.C.A. § 8-33-109. If an employee has not used his military leave during the year, he is entitled to the first 20 days of his service at full pay. Whether the organization supplements the difference between an employee’s military pay and regular pay is a decision the employer can make. T.C.A. § 58-1-109 also provides that reservists called to duty by the governor “... in case of invasion, disaster, insurrection, riot, attack, or combinations ...” shall be paid from appropriated funds by the military. No member shall receive less than $50 per day. No member shall receive less than $55 per day when called to active duty in cases of grave emergencies.
20 U.S.C. § 1002.149 provides that an employer must treat an employee during his or her period of military service as being on furlough or leave of absence. The employee is entitled to the non-seniority rights and benefits that the employer generally provides to other employees who are on furlough or leave of absence with similar seniority, status, and pay. The non-seniority rights and benefits are those that the employer provides to similarly situated employees by an employment contract, agreement, policy, practice, or plan.
During an employee’s leave of absence for military service, decisions about employee benefits must be made. USERRA provides for health insurance continuation coverage, but employees may elect to continue their health plan coverage while in the military. The plan must permit the employee (and dependents, if the plan offers dependent coverage) to elect to continue the coverage for a period that is the shorter of the following two periods: the 24-month period beginning on the date on which the employee’s absence begins, or the period beginning on the date on which the employee’s absence begins and ending on the date on which the employee fails to return to the job or apply for re-employment. 20 C.F.R. § 1002.164(a).
20 C.F.R. § 1002.166 provides that the amount the employee must pay for continuing health coverage varies according to how long the employee is absent. If the individual’s military service is fewer than 31 days, health coverage should be provided as if the employee had remained employed, and the employer cannot require the employee to pay more than the employee’s share (if any) for coverage. If the military duty exceeds 31 days, the employee must be offered continued health care and may be required to pay up to 102 percent of the full premium (the employee’s share plus the employer’s share) for coverage. In any case, the payment obligation begins on the 31st day of absence. On return from service, health insurance must be reinstated, and a waiting period or exclusions for preexisting conditions cannot be imposed. 38 C.F.R § 4317(b).
Pension plans that are tied to seniority are specifically covered by the law. The law provides that while away performing military service, the employee must be treated as not having incurred a break in employment. The military service also must be considered service for an employee for vesting and benefit-accrual purposes. C.F.R. § 1002.259. The employer is liable for continuing to fund the plan and any resulting obligations. C.F.R. § 1002.261.
If an employer offers a defined contribution plan, once the employee is re-employed, the employer must allocate its make-up contribution, the employee’s contribution, and the employee’s elective deferrals in the same manner that it would allocate these amounts for other employees. For defined benefit plans, the employee’s accrued benefits will be increased for the period of service once he or she is re-employed and, if applicable, has re-paid any amount previously paid to the employee and made any employee contributions that are required under the plan. 20 C.F.R. § 1002.265(b).
A re-employed service member has the right to make contributions or elective deferrals but is not required to do so. The employee’s right to make up missed contributions is conditioned on continued employment with the post-service employer. 20 C.F.R. § 1002.265(c). Employee contributions to a pension plan that is not dependent on employee contributions must be made within 90 days following re-employment or when contributions are normally made for the year in which the military service was performed, whichever is later. 20 C.F.R. § 1002.262(a).
If employers match employee contributions, the re-employed service member may make his or her contributions or deferrals during the period starting with the date of re-employment and continuing for up to three times the length of the employee’s immediate past period of military service, but the re-payment period may not exceed five years. Employer contributions that are contingent on employee contributions or elective deferrals must be made according to the plan’s terms. 20 C.F.R. § 1002.262(b).
38 U.S.C. § 4318 provides that the re-employed person is entitled to any accrued benefits from the employee’s banked benefits. Vacation and sick leave accrual generally are not tied to seniority: however, if an employer allows employees to accrue vacation while on leave without pay, the employee in military service is entitled to the same benefit. USERRA provides that service members must, at their request, be allowed to use any vacation leave that had accrued before beginning their military service instead of unpaid leave. The employer, however, cannot force the employee to use vacation leave for military service. 38 U.S.C. § 4316(d). The employee is not entitled to use accrued sick leave unless the employer allows employees to use sick leave for any reason or allows employees on comparable furlough or leave of absence to use accrued paid sick leave.
The National Defense Authorization Act for FY 2010 established new benefits for service members and their families. FMLA now allows eligible employees to take time off for family emergencies resulting from a covered spouse, parent, or child being called to active military duty in the Armed Forces, including members of the National Guard or Reserve (called “qualifying exigency leave”) and for emergencies resulting from the need to care for family members who become seriously ill or injured in the line of duty during active military service.
Qualifying exigency leave allows eligible employees of covered employers to take up to 12 weeks of FMLA leave arising from the fact that their spouse, child, or parent is on active duty or called to active duty in the armed forces in support of a “contingency operation.” The qualifying exigency leave applies to families of members of any regular component of the armed services. An eligible employee whose spouse, parent or child is a member of the Armed Forces may take FMLA leave for a qualifying exigency related to the fact that they are deployed with the Armed Forces to a foreign county.
The regulation 29 C.F.R. § 825.126(b) contains a specific list of reasons for qualifying exigency leave. They include:
Employees seeking qualifying exigency leave must give reasonable and practical notice if the exigency is foreseeable. The notice must (1) inform the employer that a covered family member is on active duty or call-to-active duty status, (2) give a listed reason for leave, and (3) give the anticipated length of absence. 29 C.F.R. § 825.302(c).
Regulation 29 C.F.R. § 825.309(d) provides that the employer may require certification for qualifying exigency leave by requiring the employee to provide a copy of the service member’s active duty orders; for example a DOL form WH-384 may be used for qualifying exigency certification. The regulations also allow employers to verify with a third party that an employee met with the third party (e.g., a teacher) during qualifying exigency leave.
The National Defense Authorization Act (NDAA) for FY 2010 also established a new “military caregiver” leave category. This type of leave allows an eligible employee to take up to 26 work weeks of leave during a 12-month period to care for a covered service member. 29 C.F.R. § 825.127 redefines a covered service member as the employee's spouse, son, daughter, or parent on active duty or call to active duty status. The employee may be a spouse, parent, child, or next of kin of the service member.
A veteran is considered a covered service member if he or she meets both of the following:
The military caregiver regulations also establish a new category of eligible employees called “next of kin.” Next of kin excludes a service member’s spouse, parents or children, and is defined in 29 C.F.R. § 825.122(e) as the following blood relatives, in order of priority:
If no designation of a next of kin is made, and there are multiple family members with the same level of relationship to the service member, all such family members shall be considered the covered service members next of kin and may take FMLA leave to provide care, either consecutively or simultaneously. The service member, however, may designate any specific blood relative as “next of kin” in writing. Employers can ask employees for reasonable documentation of family relationships; however, a single statement will suffice.
The NDAA establishes a different calendar for military caregiver leave. Military caregiver leave begins with the first date of caregiver leave and ends 12 months later This differs from the regular FMLA year and if an employee takes military caregiver FMLA leave, the employer will have to track FMLA use under the two calendars. The DOL’s regulations state that “once an employee takes military caregiver leave and has begun to use that type of FMLA during the military FMLA year, he/she can take a maximum of 26 weeks of FMLA leave for any purpose during that 12 month period. If he/she takes non-military FMLA leave during the military FMLA year to take care of his/her own serious health condition that counts against the maximum 26 weeks of FMLA leave the service member is entitled to during that 12 month period.” The employer continues to count the service member’s FMLA leave against his or her entitlement as measured during the regular FMLA year as well. 29 C.F.R. § 825.127(c)(1).
The maximum of 26 weeks of caregiver leave may be taken in a single block, reduced leave schedule or intermittently during the employee’s military FMLA year. Military caregiver leave cannot be carried over from year to year; it runs during a single 12-month period. It is possible, however, for an eligible employee to take more than one military caregiver entitlement because this type of leave, according to the regulations, applies on a per-service-member, per-injury basis in a single 12-month period.
Dual employment in the case of spouses working for the same employer can result in further complications if they wish to take military caregiver FMLA leave. The employees may be limited to a combined total of 26 work weeks of leave during the single 12-month period if the leave is taken for the birth of a child or to care for a child after birth, for placement of a child for adoption or foster care or to care for the child after placement, to care for the employee’s parent with a serious health condition, or to care for a covered service member with a serious illness or injury. 29 C.F.R. § 825.127(d).
NDAA 2010 also expanded the definition of a “serious injury or illness” to include care for covered service members whose pre-existing injury or illness was aggravated in the line of duty (29 C.F.R. § 825.127(a)(1)) on active duty in the Armed Forces and manifested itself before or after the member became a veteran, and is:
Previously, the law allowed military caregiver leave only for serious injury or illness incurred while on active duty that rendered the service member medically unfit to perform the duties of his office, grade, rank, or rating and for which he was undergoing medical treatment, recuperation, therapy, or outpatient treatment.
To account for the covered veterans, the new 2013 changes also expand the list of health care providers who are authorized to complete a certification for military caregiver leave, the information required on the certification forms, and the acceptable documentation employees may provide to substantiate the leave.
Employers may require certification of the need for caregiver and qualifying exigency leave using the DOL forms. The qualifying exigency form can be found at http://www.dol.gov/whd/forms/WH-384.pdf [68]. The certification for serious injury or illness of a covered service member form can be found at http://www.dol.gov/whd/forms/WH-385.pdf [69].
Employees seeking to use military caregiver leave must follow existing FMLA notice rules, including the requirement to work with employers to schedule leave without unduly disrupting operations.
A summary of the revised bill may be found at https://www.govtrack.us/congress/bills/111/hr2647/summary [70] or you can find the actual legislation at: http://www.justice.gov/crt/military/statute.htm [71] . Copies of the required USERRA posters can also be obtained from the U.S. Department of Labor at www.dol.gov/vets/programs/userra/poster.htm [72].
Additional information about the act may be obtained from the U.S. Department of Labor’s Veterans’ Employment and Training Service at 800-336-4590 or on the Internet at http://www.dol.gov/vets/index.htm [73] . The Employer Support of the Guard and Reserve (ESGR), Veterans’ Employment and Trainings Service (VETS) and the National Veterans Training Institute (VTI) have developed an on-line introduction to the rules utilizing an e-Learning course entitled USERRA 101. The course is free but individuals must register at: https://www.esgrevents.org/courses [74].
In Tennessee, you can contact the Region IV representatives of the Veterans’ Employment and Training Service for more information at the following locations:
Veterans’ Employment and Training Service
U.S. Department of Labor
P.O. Box 280656
Nashville, Tennessee 37228-0656
(615) 736-7680
(615) 741-1962
(615) 736-5037
Fax: (615) 741-4241
Veterans’ Employment and Training Service
U.S. Department of Labor
1309 Poplar Ave.
Memphis, Tennessee 38104-2006
(901) 543-7853
Fax: (901) 543-7882
Veterans’ Employment and Training Service
U.S. Department of Labor
350 Pageant Lane, Suite 406
Clarksville, Tennessee 37040
(931) 572-1688
Fax: (931) 648-5564
Purpose of GINA: To prohibit discrimination on the basis of genetic information with respect to health insurance and employment
Employers: Applies to employers with 15 or more employees 180 days to file a charge
Federal Employees: 45 days to contact EEOC
Covered Entities: Employers such as employment agencies, labor organizations, and joint labor-management training and apprenticeship programs
Effective Dates: GINA is not retroactive.
Law passed: May 21, 2008
Effective for health insurers: May 21, 2009
Effective for employers: November 21, 2009
EEOC’s final regulations effective: January 10, 2011
On May 21, 2008, President George W. Bush signed the Genetic Information Nondiscrimination Act (GINA) into law. GINA at 42 U.S.C. 2000(ff) et seq., is an important bill because it protects employees and applicants from discrimination based on their genetic information as it pertains to health insurance coverage and employment in all 50 states. The late Senator Ted Kennedy called it “the fi rst major new civil rights bill of the new century. (Public Law 110-233, 122 Stat. 881, codified at 42 U.S.C. § 2000(ff) et seq.)
GINA was enacted by Congress after the scientific community celebrated several critical successes in the field of genetics (notably, the decoding of the human genome and the creation and increased use of genomic medicine). With science advancing, so did the likelihood of a misuse of genetic information resulting in discrimination based on one’s genetic status, or the genetic health of one’s family. GINA was created to address concerns of the public about whether they may be at risk for losing employment opportunities, or being denied health insurance coverage when a genetic condition is known or determined during the course of employment or insurance coverage.
The intent of GINA was to limit the ability of employers and insurers to request, require, or purchase genetic information of individuals or their family members. GINA prohibits employers from using genetic information on applicants and employees (current and former) to make employment decisions. This includes labor union members and apprentices, and trainees.
GINA amended the Employee Retirement Income Security Act (ERISA), the Public Health Services Act (PHSA), the Health Insurance Portability and Accountability Act (HIPAA), and the Internal Revenue Code. GINA provisions were written with consideration of the named laws and final regulations are developed and enforced by Health and Human Services (HHS), the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC).
The ramifications for GINA violations are available under Title VII. GINA does not supersede state or local laws that may provide greater protection. Often times, GINA works concurrently with other federal laws such as HIPAA, and the Americans with Disabilities Act (ADA), and the Affordable Care Act (ACA).
HIPAA
In 1996, HIPAA was passed to address concerns about discrimination based on a person’s health information. According to medscape.com, “HIPAA was the first step toward restricting the use of genetic information by limiting its use in setting insurance premiums and determining a person’s eligibility for health insurance coverage.” However, HIPAA did not prevent health insurers from charging a higher rate for a group by raising the premium when it learned that covered employees had a genetic disease or disorder. HIPAA did limit insurance companies from collecting genetic information, or requiring that a person take a genetic test before issuing health coverage. (Dale Halsey Lea, “The Genetic Information Nondiscrimination Act (GINA): What it Means for Your Patients and Families: Before GINA: The Need.”)
What is genetic discrimination?
Genetic discrimination is similar to other forms of discrimination - where people are treated unfairly because of their DNA (likelihood of getting certain diseases) or family history of a disease.
What does GINA consider family?
For purposes of GINA, consider any family members who are dependents of the primary individual (employee or applicant) as a result of marriage, birth adoption, or placement for adoption and through fourth-degree blood relatives. If the degree of blood is unknown, it is safest to assume they are protected under GINA.
Employment and GINA
Title II of GINA prohibits covered entities from improper use of genetic information in employment including the application process. Employers are prohibited from using individuals’ genetic information when making employment decisions such as: hiring, promotion, termination, or placement determinations. GINA sends the message that an employee or applicant’s genetic information is off limits and can in no way impact an employment decision.
The law was designed to help ease concerns and encourage people to pursue genetic testing without fear of discrimination or retaliation. Prior to GINA, many Americans were simply afraid to get a genetic test for fear that their insurance would be canceled or that the results would be released to their employer, who would use it against them in the workplace. More specifically, GINA prohibits employers and covered entities from:
Covered Genetic Information
According to EEOC, genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as family history and information about the manifestation of a disease or disorder that pertains to a person’s family members such as family medical history. Family history is included in the definition of genetic information because risk factors are often determined based on family history of diseases. Genetic information may also include a person’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using assisted reproductive methods. (eeoc.gov; http://www.eeoc.gov/laws/types/genetic.cfm [75])
Genetic tests typically look at an individual’s DNA/RNA. Genetic tests look for changes in a person’s genes or changes in the level of structure of key proteins coded by specific genes. Some types of genetic testing may be: gene tests, chromosomal tests, or biochemical tests.
Genetic tests can include, but may not be limited to:
Examples of Tests Covered by GINA:
Genetic testing is generally used to:
While genetic testing can be a stressor, it often provides a measure of relief because individuals no longer have to live with the uncertainty that comes with not knowing if they are gene positive. Additionally, it may allow for a longer, healthier life span due to experimental medical treatments, and healthy living behaviors that may lead a person to taking steps to lower his or her chance of developing a disease.
Predictive testing can show which individuals have a higher chance of developing a disease or condition before symptoms appear. This is commonly being used for breast cancer and diabetes. Predictive testing does not conclusively provide answers, but simply looks at genetic risk factors that make one more likely to inherit a disease.
On May 17, 2016, the U.S. Equal Employment Opportunity Commission (EEOC or the Commission) issued a final rule to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs. A notice of proposed rulemaking (NPRM) was previously issued on October 30, 2015. The final rule says employers may provide limited financial and other inducements (also called incentives) in exchange for an employee's spouse providing information about his or her current or past health status as part of a wellness program, whether or not the program is part of a group health plan.
The term "wellness program" generally refers to health promotion and disease prevention programs and activities offered to employees. Some wellness programs are part of an employer-sponsored group health plan, and other wellness programs are not tied to group health plans.
EEOC's GINA regulations say that "genetic information" includes, among other things, information about the "manifestation of a disease or disorder in family members of an individual." (The term "past or current health status" is used in these questions and answers, rather than the term "manifestation of disease or disorder.") Family members include certain blood relatives, like parents, grandparents, and children, but also include spouses and adopted children.
There is an exception to GINA's general prohibition against acquiring genetic information of applicants or employees where employers offer voluntary health or genetic services to employees or their family members. Some employers want to offer inducements for employees and their family members to answer questions about their health or to take medical examinations as part of a wellness program. This rule clarifies that an employer may offer a limited incentive for an employee's spouse to provide information about the spouse's current or past health status as part of a voluntary wellness program.
This rule applies only where a portion of the inducement offered within a wellness program is for an employee's spouse to answer questions about his or her current or past health status or to take a medical examination. GINA does not apply to inducements made available in exchange for an employee's spouse engaging in certain activities that do not require obtaining information about current or past health status, such as attending a weight loss or nutrition program or exercising a certain amount each week.
(Excerpted from: https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm [76])
Not Included
GINA does not include protection from genetic discrimination in life insurance, disability policies, or long-term care coverage. GINA does not cover an individual’s manifested disease or condition from which an individual is experiencing symptoms, has been diagnosed or for which the individual is being treated.
Where GINA Does Not Apply
GINA does not apply to members of the United States military, veterans receiving health care through the Veteran’s Administration, or to the Indian Health Service. GINA does not apply to Federal Employees Health Benefit Plans.
Interaction with State Laws
The federal law sets a minimum standard of protection that must be met. Some states may have additional laws granting them protection, and this federal law does not weaken the state laws.
Harassment
The law makes it clear that a covered entity may not discriminate on the basis of genetic information regarding any aspect of employment. Additionally, the law forbids harassment based on a person’s genetic information or the person’s family genetic information. Similar to other types of harassment, the law does not prohibit light hearted teasing or off-hand comments, or isolated incidents that are not serious in nature. Harassment is illegal when it is so severe and pervasive that it creates a hostile or offensive work environment or when the harassment results in adverse employment decisions. A harasser may be a colleague, supervisor, client, customer, or vendor.
Retaliation
Covered entities must be careful about retaliation in the workplace. GINA makes it illegal to retaliate against any applicant or employee for filing a charge of discrimination or participating in a discrimination investigation or lawsuit.
Labor Organizations
A labor organization may not exclude or expel from membership, or otherwise discriminate against a person because of genetic information.
It is generally unlawful for a covered entity to get genetic information. There are six exceptions to the law:
Genetic information does not include information about gender or age. Routine tests such as cholesterol tests, liver function tests, CBC panels, and HIV tests are not covered. HIV is not itself human DNA and measuring its presence does not constitute a genetic test under the law. Additional items not protected are: DNA analysis of infectious agents such as bacteria, viruses and fungi.
Per EEOC, an employer, employment agency, labor organization, or joint labor-management committee shall not be considered to be in violation of this title based on the use, acquisition, or disclosure of medical information that is not genetic information about a manifested disease, disorder, or pathological condition of an employee or member, including a manifested disease, disorder, or pathological condition that has or may have a genetic basis.
These provisions do not:
FMLA, ADA and Workers’ Compensation commonly intersect with GINA because employers frequently handle medical information in the course of administering FMLA, ADA and Workers’ Compensation.
When employers requests medical information in the course of administering ADA and FMLA, there is a potential to obtain information that could be protected by GINA, including genetic information such as: results of genetic tests for cancer genes, hereditary diseases, and other disorders.
Results of genetic information on family members are also protected under GINA. GINA protections include requests for genetic information by an employer about an employee or his family member as well as genetic information regarding a fetus or embryo. It also includes the manifestation of a disease or disorder of that may pertain to an employee or his family member. As a general rule when employers specifically ask for pertinent medical information for purposes of FMLA/ADA, the employer is acting in good faith for business and will likely fall under the GINA exception protection provision that will cover them in cases of inadvertent acquisition.
When using ADA/FMLA forms, or requesting medical information, be sure to provide a disclaimer stating you are not soliciting genetic test results from employees or their family members or any information that may not be applicable to the ADA/FMLA/Workers’ Compensation statutes. Under FMLA, if an employee is seeking leave to care for a family member an employer will have access to a family member’s health information that may be protected under GINA (family history of medical information specifi cally). This is a limited exception and only applies to an employee’s family member which may include family history information. So in this case, under FMLA; an employer could legally receive information on a family member’s medical history information. Note: This exception does not apply to the employee’s request for their own serious health condition.
The regulations make it clear that the employer is required to take certain steps to make sure employee medical requests do not seek genetic information.
GINA makes clear that if a covered entity acquires genetic information in response to a lawful request for medical information the acquisition of that medical information will not generally be considered a violation of GINA unless the individual directs the employer in writing or verbally not to request genetic information. In other words, the employer needs to explicitly state that genetic information on health care certification forms is not needed. Otherwise the employer may be creating a situation where it is likely to acquire genetic information under GINA, and this information may not be protected under the inadvertent acquisition clause. Regarding Workers’ Compensation, the EEOC states that “genetic information” does not include the fact that an individual has a diagnosed disease, disorder, or pathological condition therefore it is not likely that an employer dealing with workers’ compensation injuries would need genetic information to assist in defense of a claim.
Employers have the right to ask applicants and employees to undergo job-related physical and mental evaluations to determine fitness for duty. At a health exam a physician will often ask about family history. While this is important for the health provider in making assessments and recommendations, this information does not need to be shared with employers and is not relevant to fit for duty exams. In fact, employers should state upfront that they do not want to receive any information that may be protected under GINA, unless otherwise lawfully allowed and applicable under a federal, state, or local law or in the course of voluntary wellness programs. It is not relevant to employers that an employee has a family history of breast cancer, genetic diseases, or diabetes.
What is relevant is whether the employee can perform the essential functions of the job either with or without accommodation. Employers should instruct health provider offices to not include family history or genetic information on the forms that are returned to the employer. In the event that the employer handles a large quantity of these medical forms, the employer should consider having someone, who is well versed in GINA, screen all forms when they come in to the employer prior to distribution to the appropriate department. This may apply to ADA, FMLA and other health forms as well.
Health Insurers
Health insurers may not require individuals to provide their genetic information or the genetic information of a family member to the insurer for eligibility, coverage, underwriting, or premium setting standards. Health insurers may not request or require that an individual or an individual’s family member undergo a genetic test.
Research Exception
There is a research exception. For joint research activities covered by health insurers and other external research entities, a health insurer in either the group or individual market may request, but not require, in writing that an individual undergo a genetic test. The individual may voluntarily elect to participate in such a genetic test, but noncompliance must have no negative affect on the premium or enrollment status of the individual. Genetic information may only be used for research. Genetic information may not be used for underwriting purposes.
Confidentiality
An individual’s medical information must be maintained in separate files and be kept confidential. Genetic information may not be disclosed except at the individual’s written request or in response to a court order. In addition an employer may be required to provide information to federal, state or local authorities.
Jane Doe, a senior accountant with Company X was fired after her employer learned she was the primary caregiver of a mother with Huntington’s disease. Huntington’s disease carries a 50 percent chance of developing the disease when one parent is gene positive. Because of her family history, Jane has a 50 percent chance of developing the disease. Shortly after she filed FMLA papers to care for her ill mother, Jane was terminated.
John Brow, a radiologist tech at Community Hospital was diagnosed with colon cancer and took leave from work to receive treatment and recover. When John returned to work, he was told he would have to undergo a medical examination. John was told that if he refused to submit to the examination he would be terminated. John later learned that his employer was administering genetic tests to employees without their consent to identify a possible genetic predisposition to cancers as a defense to workers’ compensation claims.
Sara Jones, a receptionist at a corporate headquarters for a sports company was undergoing genetic testing to see if she had a high risk of inheriting breast cancer, a disease which took her mother and aunt last year. Sara tested positive for a mutation in her genes showing she would likely inherit this form of cancer. Her employer then drastically increased her health insurance premiums in response to the genetic tests results.
Mitch Evans, a firefighter with the local fire department carries a gene for a rare syndrome that can cause sudden cardiac death. At open enrollment the following year Mitch switched group insurance companies. His new plan found out about the genetic syndrome and refused to cover him.
These are all examples of a covered entity acting in such a way that appears to be a violation of GINA.
Enforcement
GINA is enforced by several federal agencies. These agencies include: HHS, DOL, the Department of the Treasury (DOT), and EEOC. Corrective actions could potentially be taken, and financial penalties may apply for those who violate GINA.
(Primary source: http://www.dol.gov [77])
Q: Genetic information includes information about an individual’s genetic services and tests. What do these include?
Genetic services mean genetic tests, genetic counseling, or genetic education. Genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, if the analysis detects genotypes, mutations, or chromosomal changes. A genetic test does not include an analysis of proteins or metabolites directly related to a manifested disease, disorder, or pathological condition. Therefore, some examples of genetic tests are tests to determine whether an individual has a BRCA1, BRCA2, or colorectal cancer genetic variant. In contrast, an HIV test, complete blood count, cholesterol test, liver function test, or test for the presence of alcohol or drugs is not a genetic test.
Q: Genetic information includes an individual’s genetic tests and information about the manifestation of a disease or disorder in an individual’s family member. A genetic test does not include an analysis of proteins or metabolites that is directly related to a manifested disease, disorder, or pathological condition. What is a manifested disease?
A manifested disease is a disease, disorder, or pathological condition for which an individual has been or could reasonably be diagnosed by a health care professional (with appropriate training and expertise in the fi eld of medicine involved). A disease is not manifested if a diagnosis is based principally on genetic information. For example, an individual whose genetic tests indicate a genetic variant associated with colorectal cancer and another that indicates an increased risk of developing cancer, but who has no signs or symptoms of disease and has not and could not reasonably be diagnosed with a disease does not have a manifested disease.
While plans and issuers are prohibited from adjusting group premiums or contributions based on genetic information, plans and issuers can increase the premium or contribution based on the manifested disease or disorder of an individual enrolled in the plan. This is becauseinformation about an individual’s manifested disease or disorder is not genetic information with respect to that individual.
Q: Can an individual’s doctor or other health care provider request that the individual undergo a genetic test?
Generally, yes. GINA prohibits a group health plan from requesting or requiring an individual or a family member of an individual undergo genetic tests. Nonetheless, under GINA, a health care professional who is providing health care services to an individual can request that an individual undergo a genetic test. A health care professional includes but is not limited to a physician, nurse, physician’s assistant, or technicians that provide health care services to patients. For example, if during the course of a routine physical exam, a physician learns that an individual has family medical history indicating a potential risk for Huntington’s disease, the physician can recommend that the individual undergo a related genetic test. This would not violate GINA. This would be true even if the doctor were employed by an HMO, so long as the physician was providing health care services to the individual for whom the genetic test was recommended.
Q: Can a health plan obtain the results of a genetic test to make a determination regarding payment of a claim for benefi ts under the plan?
Generally, yes. If a plan conditions payment for an item or service based on medical appropriateness and the medical appropriateness depends on the genetic makeup of the patient, then the plan is permitted to condition payment for the item or service on the outcome of a genetic test. The plan may also refuse payment in that situation if the patient does not undergo the genetic test. The plan may request only the minimum amount of information necessary to make a determination regarding payment.
Q: If a plan normally covers mammograms for participants and benefi ciaries starting at age 40, but covers them at age 30 for individuals with a high risk of breast cancer, may the plan require that an individual under 40 submit genetic test results or family medical history as evidence of high risk of breast cancer, in order to have a claim for a mammogram paid?
Generally, yes. Under GINA, a plan may request and use the results of a genetic test to make a determination regarding payment, as long as the plan requests only the minimum amount of information necessary. Plans may also request genetic information for the purpose of determining the medical appropriateness of a treatment or service. Because the medical appropriateness of the mammogram depends on the patient’s genetic makeup, the minimum amount of information necessary for determining payment of the claim may include the results of a genetic test or the individual’s family medical history.
Q: Can a plan request that a participant or beneficiary undergo a genetic test for research purposes?
Under GINA, a plan is permitted to request, but not to require, that a participant or beneficiary undergo a genetic test for research purposes if the following four requirements are met:
Q: Can a plan require an individual to complete a health risk assessment (HRA) prior to or as part of the enrollment process for the plan?
GINA prohibits a plan from collecting genetic information (including family medical history) prior to or in connection with enrollment. Thus, under GINA, plans and issuers must ensure that any HRA conducted prior to or in connection with enrollment does not collect genetic information, including family medical history.
Under GINA, there is an exception for genetic information that is obtained incidental to the collection of other information, if 1) the genetic information that is obtained is not used for underwriting purposes and 2) if it is reasonable to anticipate that the collection will result in the plan receiving health information, the plan explicitly notifies the person providing the information that genetic information should not be provided. Therefore, a plan conducting an HRA prior to or in connection with enrollment, should ensure that the HRA explicitly states that genetic information should not be provided.
Q: Can a plan require that an individual complete a health risk assessment (HRA) that requests family medical history in order to receive a wellness program reward, such as a financial incentive, in return for the completion of the HRA?
GINA prohibits a plan from collecting genetic information (including family medical history) prior to or in connection with enrollment; or at any time for underwriting purposes. Because completing the HRA results in a reward, the request is for underwriting purposes and is prohibited. A plan may use an HRA that requests family medical history, if it is requested to be completed after and unrelated to enrollment and if there is no premium reduction or any other reward for completing the HRA.
A plan may offer a premium discount or other reward for completion of an HRA that does not request family medical history or other genetic information, such as information about any genetic tests the individual has undergone. The plan should ensure that the HRA explicitly states that genetic information should not be provided. This is because GINA provides an exception for genetic information that is obtained incidental to the collection of other information, if 1) the genetic information that is obtained is not used for underwriting purposes and 2) if in connection with any collection it is reasonable to anticipate that health information will be received, the collection explicitly states that genetic information should not be provided. Plans may use two separate HRAs; one that collects genetic information, such as family medical history, which is conducted after and unrelated to enrollment and is not tied to a reward, and another HRA that does not request genetic information, which can be tied to a reward. In addition, under GINA group health plans may also reward
Q: Is there an exception to GINA for small plans?
No. There is no exception for very small health plans or those less than two participants.
Q: How many employees does an employer have to employ to be covered under GINA?
Employers who have 15 or more employees working for at least 20 or more calendar weeks in the current or preceding calendar year.
Q: Who is considered a covered family member under GINA?
Any person who is within a fourth-degree relation of the individual. The EEOC’s proposed regulations further define “family member” as a person who is or becomes related through marriage, birth,adoption, or placement for adoption.
Q: When can an employer, employment agency, labor organization or training program have access to genetic information?
When the information is publicly available or when the information is provided inadvertently as part of the person’s medical history or the medical history of a family member. Another possibility is when the person’s written authorization is obtained as part of an employer-sponsored genetic monitoring program concerning toxic substances in the workplace. In addition, when the employer offers health or genetic services, including services offered as part of a wellness program which includes the person’s written authorization. Lastly, where the employer operates as law enforcement and requires the person’s DNA for quality control purposes in the forensic lab or human remains identification settings.
For more information on GINA, visit http://www.eeoc.gov/laws/types/genetic.cfm [75].
On April 6, 2015, Governor Haslam signed Public Chapter 80 (SB1058/HB994) into law. This legislation, which became effective on July 1, 2015, provides employment protection for employees of both public and private employers who possess valid handgun carry permits and do the following:
a. Park their motor vehicle in a location where it is authorized to be;
b. Store their firearm and/or ammunition in the motor vehicle where it is kept from ordinary observation while the permit holder is in the vehicle; and
c. Store their firearm where it is kept from ordinary observation and locked within the trunk, glove box, or interior of the person’s motor vehicle or a container securely affixed to such motor vehicle if the permit holder is not in the motor vehicle.
Effective July 1, 2015 and thereafter, employers no longer have the ability to take adverse employment action against employees solely because the employee possesses, stores or transports firearms or firearm ammunition on or in the employer’s parking lots, if the employee adheres to the requirements set out above. Additionally, if adverse employment action is taken in violation of this legislation, the employee has the right to sue the employer. Below is a summary of the legislation.
For purposes of the legislation, “[e]mployee” is defined as a natural person who performs services for an employer for valuable consideration and who possesses a valid handgun carry permit recognized in this state. “Employer” is defined as a person, association, or legal or commercial entity receiving services from an employee and, in return, giving compensation of any kind to the employee.
The law provides that no employer shall discharge or take any adverse employment action against an employee solely for transporting or storing a firearm or firearm ammunition in an employer parking area in a manner consistent with § 39-17-1313(a). An employee discharged, or subject to an adverse employment action, will have a cause of action against the employer to enjoin future acts in violation of this section and to recover economic damages plus reasonable attorney fees and costs. Jurisdiction will be the chancery or circuit court having jurisdiction in the county where the alleged employment action occurred.
In any action brought pursuant to this section, the employee shall have the burden of establishing a prima facie case of discharge, or adverse employment action, based solely on the employee’s transporting or storing a firearm or firearm ammunition in the employer’s parking area in a manner consistent with § 39-17-1313(a). If the employee satisfies this burden, the burden shall then be on the employer to produce evidence that one (1) or more legitimate reasons existed for the employee’s discharge or adverse employment action. The burden on the employer is one of production and not persuasion. If the employer produces such evidence, the presumption of discharge, or adverse employment action, raised by the employee’s prima facie case is rebutted, and the burden shifts to the employee to demonstrate that the reason given by the employer was not the true reason for the employee’s discharge, or adverse employment action, and that the stated reason was a pretext for discharge or adverse employment action.
The allocations of burdens of proof set out apply at all stages of the proceedings, including motions for summary judgment. The employee at all times retains the burden of persuading the trier of fact that the employee has been the victim of discharge, or adverse employment action, based solely on the employee’s adherence with § 39-17-1313(a). The employee has one (1) year from the date of termination of employment, or the date of the adverse employment action, to file an action pursuant to this section.
The legislation also provides some protection to employers from potential liability through language that reads “the presence of a firearm or ammunition within an employer’s parking area in accordance with § 39-17-1313 does not by itself constitute a failure by the employer to provide a safe workplace.”
Finally, the legislation makes it clear that except as provided in § 39-17-1313 for parking areas, none of the language in Tenn. Code Ann. Section 50-1-312 is to be construed as prohibiting an employer from prohibiting firearms or firearm ammunition on any other part of the employer’s premises.
Links:
[1] https://www.mtas.tennessee.edu/reference/service-animals-sec-35136
[2] http://www.ada.gov/service_animals_2010.htm
[3] https://www.tn.gov/health/health-program-areas/fhw/bf/breastfeeding-laws.html
[4] http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as
[5] https://www.eeoc.gov/policy/docs/accommodation.html
[6] http://www.ada.gov
[7] http://askjan.org
[8] http://doa.alaska.gov/ada
[9] http://www.eeoc.gov
[10] https://www.mtas.tennessee.edu/reference/expanded-family-medical-leave-fmla-under-ffcra
[11] http://www.dol.gov/whd/fmla/spouse/index.htm
[12] https://www.dol.gov/whd/fmla/forms.htm
[13] http://www.dol.gov/whd/regs/compliance/whdfs28g.pdf
[14] http://www.dol.gov/whd/fmla/index.htm
[15] https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/gina
[16] http://www.eeoc.gov/laws/regulations/gina-background.cfm
[17] http://www.dol.gov/whd/fmla
[18] http://www.dol.gov/whd/fmla/fmla-faqs.htm
[19] https://www.dol.gov/agencies/whd/fmla/pandemic
[20] https://www.dol.gov/general/topic/health-plans/cobra
[21] https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/cobra
[22] http://www.dol.gov/
[23] http://www.law.cornell.edu/cfr/text/26/54.4980B-0
[24] http://cciio.cms.gov/programs/protections/cobra/cobra_fact_sheet.html
[25] https://www.uscis.gov/i-9-central/handbook-employers-m-274
[26] https://www.uscis.gov/i-9
[27] https://www.uscis.gov/i-9-central/complete-and-correct-form-i-9
[28] https://www.uscis.gov/sites/default/files/files/form/m-274.pdf
[29] https://www.uscis.gov/i-9-central/form-i-9-desktop-widget-download
[30] https://www.uscis.gov/i-9-central/132-list-b-documents-establish-identity
[31] https://www.uscis.gov/i-9-central/133-list-c-documents-establish-employment-authorization
[32] http://uscis.gov/i-9-central
[33] http://www.uscis.gov/i-9-central
[34] https://e-verify.uscis.gov/enroll/
[35] https://www.uscis.gov/e-verify/publications/manuals-and-guides/publications-manuals-and-guides
[36] http://www.uscis.gov/e-verify/e-verify-webinars/take-free-webinar
[37] http://www.uscis.gov/files/form/i-9.pdf
[38] https://ecfr.io/Title-16/pt16.1.698#ap16.1.698_13.f
[39] https://ecfr.io/Title-16/pt16.1.698#ap16.1.698_13.g
[40] https://ecfr.io/Title-16/pt16.1.698#ap16.1.698_13.h
[41] http://www.ftc.gov/credit
[42] http://www.federalreserveconsumerhelp.gov/
[43] mailto:ConsumerHelp@FederalReserve.gov
[44] https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa
[45] https://www.dol.gov/whd/regs/compliance/childlabor101.pdf
[46] https://www.dol.gov/agencies/whd/youthrules
[47] https://www.tn.gov/content/dam/tn/workforce/documents/Forms/CHILDLABORPARENTALCONSENTFORM_Revised10.04.2018.pdf
[48] https://www.dol.gov/whd/regs/compliance/overtime/modelPolicy_PF.htm
[49] https://www.mtas.tennessee.edu/reference/records-non-exempt-employees
[50] https://www.mtas.tennessee.edu/reference/Personnel
[51] https://www.mtas.tennessee.edu/reference/retention-schedules
[52] http://www.dol.gov/whd/opinion/
[53] https://www.osha.gov/
[54] https://www.osha.gov/laws-regs/oshact/completeoshact
[55] http://share.tn.gov/sos/rules/0800/0800-01/0800-01-01.20160713.pdf
[56] http://publications.tnsosfiles.com/rules/0800/0800-01/0800-01-05.pdf
[57] https://www.osha.gov/enforcement/directives/cpl-02-00-135
[58] https://www.osha.gov/recordkeeping/RKforms.html
[59] https://www.tn.gov/content/dam/tn/workforce/documents/majorpublications/requiredposers/TOSHA_Poster_Legal_Size.pdf
[60] https://www.osha.gov/Publications/poster.html
[61] https://www.mtas.tennessee.edu/reference/fatalities-and-multiple-hospitalizations
[62] http://www.osha.gov
[63] https://www.ecfr.gov/cgi-bin/text-idx?SID=8040638218eb88b6bccce0d7377b5d38&mc=true&node=ap29.5.1904_142.a&rgn=div9
[64] https://www.youtube.com/watch?v=F41FCs2V5uE
[65] https://www.dol.gov/vets/programs/userra/USERRA_Private.pdf
[66] http://www.law.cornell.edu/uscode/text/38/4304
[67] http://www.law.cornell.edu/uscode/text/38/4318
[68] http://www.dol.gov/whd/forms/WH-384.pdf
[69] http://www.dol.gov/whd/forms/WH-385.pdf
[70] http://www.govtrack.us/congress/bill.xpd?bill=h111-2647&tab=summary
[71] https://www.justice.gov/servicemembers/uniformed-services-employment-and-reemployment-rights-act-1994-userra
[72] http://www.dol.gov/vets/programs/userra/poster.htm
[73] http://www.dol.gov/vets/index.htm
[74] https://www.esgrevents.org/courses
[75] http://www.eeoc.gov/laws/types/genetic.cfm
[76] https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm
[77] http://www.dol.gov
DISCLAIMER: The letters and publications written by the MTAS consultants were written based upon the law at the time and/or a specific sets of facts. The laws referenced in the letters and publications may have changed and/or the technical advice provided may not be applicable to your city or circumstances. Always consult with your city attorney or an MTAS consultant before taking any action based on information contained in this website.
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