Workplace FYI - Inside Washington & Beyond – What Employers Need to Know

The US Department of Labor on January 30 released a notice of proposed regulations (NPRM) to implement amendments to the military leave provisions of the Family and Medical Leave Act (FMLA) made by the National Defense Authorization Act for Fiscal Year 2010. The statutory amendments extended the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies due to the servicemember’s deployment; define the deployments covered by the new regulations; and extend FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses. The proposed regulations also include changes concerning the calculation of leave and reorganize and make technical changes to the current regulations covering military FMLA. This NPRM also proposes to amend the regulations to implement the Airline Flight Crew Technical Corrections Act, which established new FMLA leave eligibility requirements for airline flight crewmembers and flight attendants. The Department has indicated that comments will be due to DOL on or before 60 days after date of publication in the Federal Register.

Today, the National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon released his second report describing 14 social media cases, all fact-specific, that his office has reviewed. Half cover questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

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The Solicitor’s Office of the U.S. Department of Labor (DOL), which provides legal services to the Secretary of Labor and the program agencies of DOL, including OSHA, the Wage and Hour Division, and the Office of Federal Contract Compliance Programs (OFCCP), is undergoing a reorganization.   

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The Supreme Court has agreed to hear a case raising the issue of whether pharmaceutical sales representatives (“PSRs”) are exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”).  The Court of Appeals for the Ninth Circuit, in Smithkline Beecham Corp., held that the PSRs were exempt as outside salesmen, thereby creating a split with the Court of Appeals for the Second Circuit, which had previously held in In re Novartis Wage & Hour Litigation that the outside sales exemption did not apply to PSRs. 

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Today, the President acted quickly to sign into law the VOW_ to_ Hire_ Heroes_ Act_of_ 2011.pdf. In one of the few displays of both bipartisan and bicameral actions in recent times, Congress passed the legislation intended to assist unemployed veterans find employment. In a symbolic vote on November 10, the day before Veterans Day, the Senate unanimously passed its bill (95-0), which was based upon the House-passed Veterans Opportunity to Work (VOW) Act.  The House followed quickly to pass that bill on November 16.

The Department of Labor’s Bureau of Labor Statistics (BLS), in its the October 2011 report, showed that the overall jobless rate for veterans, at 7.7%, was lower than the national rate of 9%, but for those who served in Iraq and Afghanistan, the rate was much higher--12.1%.  Some 2/3 of these veterans are under age 35. Breaking the figures down further, Gulf War era II veterans, i.e., those who served since September 2001, who were current or past members of the National Guard or Reserve, suffered a worse unemployment rate in July, of 14%. This was still better than young, male veterans (ages 18-24), who had an unemployment rate of 21.9% in 2010.

The law provides a variety of methods to turn this situation around. Among its key provisions are its increases in education and training, job counseling, transition and placement assistance, and additional help for disabled veterans.  It also amends the Uniformed Services Employment and Reemployment Rights Act (USERRA) to clarify what constitutes a benefit and a hostile work environment.  One of the biggest boosts toward the goal of getting veterans employed is likely the tax credits to be given to employers hiring veterans. The law would provide a tax credit of up to $5,600 for hiring veterans who have been looking for a job for more than six months, a $2,400 credit for veterans who are unemployed for more than 4 weeks but less than 6 months and a tax credit of up to $9,600 for hiring veterans with service-connected disabilities who have been looking for a job for more than six months.