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DOL Finds Mortgage Loan Officers are not Exempt Administrative Employees.
Posted: March 31st, 2010, 1:00am EDT
The U.S. Department of Labor (DOL) recently issued an Administrator Interpretation stating that employees who perform the usual duties of mortgage loan officers are not exempt from the Fair Labor Standards Act's (FLSA) minimum wage and overtime requirements. The DOL determined that these employees do not meet the requirements of the administrative employee exemption because their primary duty is selling mortgage loan products, which does not relate to the internal management or general business operations of the employer. According to the DOL, mortgage loan officers' duties involve the day-to-day carrying out of a financial service company's marketplace offerings and, "thus, fall squarely on the production [rather than administrative] side of the business." -
Recent USCIS Memo on Employer-Employee Relationship Requirements for H-1B Visa Petitions: Regulation by Memorandum?
Posted: March 30th, 2010, 1:00am EDT
Donald Neufeld, Associate Director or Service Center Operations for the United States Citizenship and Immigration Service (USCIS) recently issued a guidance memo to its adjudication officers, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements ("Neufeld Memo" or "Memo"). The Memo clarifies what constitutes a valid employer-employee relationship, in the context of petitions for H-1B visas, which are commonly used by IT staffing agencies and consulting groups for placing skilled workers at third-party worksites.
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Department of Labor Reverses Course: Mortgage Loan Officers Do Not Meet the Administrative Exemption's Requirements.
Posted: March 30th, 2010, 1:00am EDT
On March 24, 2010, the Department of Labor (DOL) abandoned its position on the exempt status of mortgage loan officers as "administrative" employees, vacating an Opinion Letter issued by the Wage and Hour Administrator less than four years ago on September 8, 2006.1 In its earlier September 2006 Opinion, the DOL found that mortgage loan officers generally meet the requirements of the administrative exemption to the federal Fair Labor Standards Act's overtime requirements if they are responsible for acquiring an understanding of a potential borrower's credit history and financial goals in order to advise the borrower regarding loan options; working with the borrower to create a loan package that best meets those goals while complying with lender requirements; and supervising the processing of the transaction to closing. In a new "Administrator's Interpretation,"2 the DOL has now
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Employers Should Be Cautious of New Decision Holding That Severance is Not "Wages" Subject to FICA.
Posted: March 30th, 2010, 1:00am EDT
In United States v. Quality Stores, Inc.,1 a federal district court in Michigan held that severance payments were not wages subject to Social Security and Medicare taxes ("FICA" taxes). This decision appears to conflict with a decision of the Court of Appeals for the Federal Circuit. It also is likely to be challenged by the Internal Revenue Service (IRS). Businesses have reason to be cautiously optimistic, but should be hesitant to stop reporting FICA on severance payments until a more conclusive outcome is reached. Nonetheless, employers that have paid severance in recent years should consider filing protective refund claims with the IRS in order to preserve their rights.
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FLSA Now Requires Breastfeeding Breaks and a Place to Take Them.
Posted: March 30th, 2010, 1:00am EDT
The Patient Protection and Affordable Care Act signed last week by President Obama will affect employers in numerous ways, many of which have not yet been explored in detail, owing to the newness of the law. One provision of the law that is certain to have a very real impact on employers across the country but that we have heard virtually nothing about is Section 4207. Section 4207, titled, Reasonable Break Time for Nursing Mothers amends the Fair Labor Standards Act (FLSA). Because it is born to the FLSA, its provisions apply to almost all employersevery employer engaged in interstate commerce of at least $500,000 per year, hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies.
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Business Not As Usual At Wage Hour Division.
Posted: March 30th, 2010, 1:00am EDT
Since President Obamas inauguration approximately 14 months ago, the Wage and Hour Division of the U.S. Department of Labor had seemed to be asleep: it had issued not a single opinion letter related to the Fair Labor Standards Act. This week, the sleeping giant finally awoke, and employers are unlikely to be pleased with the result. The Division announced that it would be departing from its longstanding practice of publishing opinion letters to provide fact-specific guidance to employers and employees. In the future, requests for opinion letters will be responded to by providing references to statutes, regulations, interpretations and cases that are relevant to the specific request, but without an analysis of the specific facts presented. The Division also withdrew a September 2006 opinion letter that had been favorable to finance industry employers regarding the exempt status of mortgage loan officers and similar positions.
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Retaliation and the FLSA: U.S. Supreme Court Grants Cert
Posted: March 26th, 2010, 1:00am EDT
Wage-and-hour lawsuits filed under the Fair Labor Standards Act (FLSA), are the hottest thing going for plaintiffs lawyers. And a worst-case scenario for an employer named as a defendant. FLSA cases can be very difficult to defend; the law imposes what is almost strict liability under most circumstances. So, when a court issues a decision in favor of an employer, it is worthy of notice. And when the U.S. Supreme Court grants certiorari of such a decision, its definitely worthy of notice.
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More Men Filing Sexual Harassment Claims.
Posted: March 26th, 2010, 1:00am EDT
I cant say that Im surprised, especially in light of the parallel increase in the number of males who have been laid off or terminated for economic reasons. The unavoidable reality is that individuals are more likely to file a claim or a lawsuit when theyre out of work and, especially, when work is hard to find. Since September 2008, twice as many men have lost their jobs as compared to women. Which could explain the 12% increase in harassment claims brought by men since 2006.
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Class Actions: Employment and Civil Rights.
Posted: March 26th, 2010, 1:00am EDT
Predominance and Related Issues Under Rule 23A Vehicle to Rationalize Class Action Jurisprudence; Sixth Circuit Affirms Denial of Class Action Raising Retiree Medical Benefits; Federal Jurisdiction Remains Under CAFA After Class Certification Denied.
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OFCCP Update.
Posted: March 26th, 2010, 1:00am EDT
As promised, OFCCP Director Patricia Shiu has ramped up enforcement for covered contractors and has expanded the focus of compliance reviews to include a detailed review of contractors' compliance with Section 503 of the Rehabilitation Act and VEVRAA.
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Newly Signed Jobs Bill Provides Tax Breaks to Companies That Hire Unemployed Workers.
Posted: March 25th, 2010, 1:00am EDT
On March 28, 2010, President Obama signed the Hiring Incentives to Restore Employment (HIRE) Act, which contains more than $17 Billion in tax credits aimed to stimulate employment, and includes $20 Billion for highway and transit infrastructure programs. One of the most important provisions for businesses is a tax credit for hiring from the ranks of the unemployed.
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Third Circuit Says Lay Testimony Can Help to Establish Serious Health Condition Under FMLA.
Posted: March 25th, 2010, 1:00am EDT
The Family and Medical Leave Act (FMLA) entitles an eligible employee to 12 weeks of leave, but only if the employee can show that he or she suffers from a serious health condition that makes the employee unable to perform the functions of the position of such employee. The Act defines a serious health condition as an illness or other condition that involves continuing treatment by a health care provider. The regulations related to the FMLA require a showing of at least three days of incapacitation plus treatment by a health care provider, in order to support a claim of serious health condition. However, those regulations do not require or even mention that expert medical evidence is necessary to prove those days of incapacitation, and courts have been left to determine the role that a doctors diagnosis plays in that proof. Recently, the 3d U.S. Circuit Court of Appeals held that a combination of personal and medical testimony regarding the illness of a medical practice receptionist was sufficient to raise a jury issue regarding whether that person suffered from a serious health condition sufficient to support a claim under the FMLA.
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3d Cir. Upholds Discipline of Student Based on Out-Of-School Conduct.
Posted: March 25th, 2010, 1:00am EDT
J.S. v. Blue Mountain School District is a First Amendment claim in the school-law context. The case was filed by J.S., a student at a middle school in Pennsylvanias Blue Mountain School District. The student claimed that she had been suspended for 10 days in violation of her right to free speech. The suspension was in response to a fake MySpace profile the student had created.
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OUTSOURCING HIRING.
Posted: March 25th, 2010, 1:00am EDT
Outsourcing is in. Employers increasingly rely on third parties for human resources tasks such as payroll, benefits and leave administration.
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Department of Labor Issues Revised Model COBRA Notices.
Posted: March 25th, 2010, 1:00am EDT
The Department of Labor (DOL) has issued revised model COBRA notices due to the most recent changes affecting the COBRA subsidy originally enacted by the American Recovery and Reinvestment Act of 2009 (ARRA). The Temporary Extension Act of 2010 (TEA) extended the period during which an individual could qualify for the subsidy through March 31, 2010. Additionally, TEA, unlike ARRA, allows individuals whose first qualifying event was a reduction in hours but were later terminated during the period from March 2, 2010 through March 31, 2010 to qualify for the subsidy.
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What The Health Care Legislation Will Mean For You As An Employer.
Posted: March 25th, 2010, 1:00am EDT
On Sunday night, the House of Representatives passed the Patient Protection and Affordability Act (H.R. 3590), the Senates health care reform bill. President Barack Obama signed the bill into law today. Highlights of the bill that will be of interest to employers are detailed below. The effective dates of the various provisions are also included.
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Altering the ADA Disparate Impact Defense.
Posted: March 25th, 2010, 1:00am EDT
In this attorney-authored article, Allan G. King, a shareholder in Littler's Dallas office, discusses a rule proposed by the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act. The article outlines the changes affecting employers and discusses some of the issues stemming from the proposed rule.
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Health Reform Briefing Update.
Posted: March 25th, 2010, 1:00am EDT
On Sunday, March 21, the House passed the Patient Protection and Affordable Care Act (HR 3590) (PPACA), which was previously passed by the Senate on Christmas Eve. President Obama signed the bill into law yesterday, meaning the reform of the health care system has officially begun.
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Obama's HIRE Act -- Explaining The Tax Provisions.
Posted: March 25th, 2010, 1:00am EDT
President Obama signed the Hiring Incentives to Restore Employment Act (the HIRE Act) on March 18, 2010. The HIRE Act provides $18.6 billion in tax provisions including $13 billion in tax breaks for hiring and retaining qualified workers. Additionally, the HIRE Act increases the expensing limitations under Section 179 of the Code for 2010 and expands the Build America Bonds program. Congress offset the costs of these tax benefits by increasing the disclosure and withholding requirements for certain foreign accounts and assets, increasing certain estimated tax payments for large corporations, and delaying the implementation of a law intended to help multinational taxpayers avoid double taxation on interest income. This Alert summarizes many of the tax provisions in the HIRE Act.
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Health Care Reform Enacted.
Posted: March 25th, 2010, 1:00am EDT
On March 21, 2010, the U.S. House of Representatives passed two pieces of health care reform legislation. First, the House passed the Patient Protection and Affordable Care Act (the "Act"), which was previously passed by the U.S. Senate on Christmas Eve 2009. The Act was signed into law by President Obama on March 23, 2010, enacting extensive changes to the country's health care system.
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Summary of HIRE Act.
Posted: March 24th, 2010, 1:00am EDT
The IRS has issued a News Release explaining the new tax benefits that were part of the Hiring Incentives to Restore Employment (HIRE) Act. For each worker retained for at least one year, the employer will be entitled to a general business credit of up to $1,000 on its 2011 income tax return, as well as relief from certain employment taxes. These benefits are available to employers who hire and retain certain unemployed workers after Feb. 3, 2010 and before Jan. 1, 2011.
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Beware the Costs of Hiring Excluded Individuals.
Posted: March 24th, 2010, 1:00am EDT
The Department of Health and Human Services Office of Inspector General (OIG) is continuing to emphasize enforcement of False Claims Act issues concerning billing related to excluded individuals. Last year, the OIG collected over $2 million in settlements in 17 matters related to the employment or contracting of excluded individuals. These settlements demonstrate that the OIG continues to concentrate enforcement in this area.
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Health Care Reform What are Key Considerations for Employers?
Posted: March 24th, 2010, 1:00am EDT
After more than a year of debate over reforming our nation's health care system, on March 23, 2010, President Obama signed into law The Patient Protection and Affordable Care Act (PPACA). Enactment of a package of amendments to this legislation through a separate bill, the Health Care and Education Affordability Reconciliation Act of 2010, is expected later in the coming week. With a price tag of $938 billion, health care reform legislation is expected to reduce the number of uninsured individuals by 32 million, leaving about 23 million nonelderly residents uninsured.
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How The Health Care Reform Law Impacts Employers.
Posted: March 24th, 2010, 1:00am EDT
Declared virtually dead a month ago, the House approved on March 21 (by a 219 to 212 vote) the Patient Protection and Affordable Care Act, H.R. 3590 or the Senate Bill. The 2,409-page Senate Bill passed in the Senate on December 24, 2009. The Senate Bill was signed into law by President Barack Obama on March 23. It already is subject to numerous states legal challenges, including one brought by twelve State Attorney Generals alleging the law is unconstitutional.
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Appeals Court Dismisses Employee's ADA Claim of Denial of Accommodation during Drug Test.
Posted: March 24th, 2010, 1:00am EDT
Reversing a jury verdict for an employee claiming that he was denied a reasonable accommodation of his shy bladder syndrome during a random government-mandated drug test, a federal appeals court in New York has held that because the employee was offered the opportunity but failed to qualify for his vessels captains license even with the accommodation he sought, he became unqualified to perform the essential functions of his job. Accordingly, there was no violation of the Americans with Disabilities Act. Kinneary v. City of New York, No. 08-1330-cv, 2010 U.S. App. LEXIS 5688 (2d Cir. Mar. 19, 2010). The Second Circuit has jurisdiction over Connecticut, New York, and Vermont.
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Senators Schumer and Graham Release Immigration Reform Framework.
Posted: March 24th, 2010, 1:00am EDT
Senators Charles E. Schumer (D-NY) and Lindsey O. Graham (R-SC) have outlined their vision and framework for immigration reform, proposing the use of biometric identifiers for better verification of employment authorization and expressing concern for the burden placed on employers under current law. The Senators, in a statement issued on March 18, 2010, acknowledged, Our immigration system is badly broken. Although our borders have become far more secure in recent years, too many people seeking illegal entry get through. We have no way to track whether the millions who enter the United States on valid visas each year leave when they are supposed to. And employers are burdened by a complicated system for verifying workers' immigration status.
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Health Care Reform Enacted: Reconciliation Continues.
Posted: March 24th, 2010, 1:00am EDT
On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (the Patient Protection Act or Act). This legislation was originally passed by the U.S. Senate on December 24, 2009 and was approved by the U.S. House on March 21, 2010. On March 21st, the House also passed and sent to the Senate certain changes to the Patient Protection Act that are embedded in the Health Care and Education Affordability Reconciliation Act of 2010 (the Reconciliation Bill). The Senate has begun debate on the Reconciliation Bill, and that debate continues.
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Ninth Circuit Attempts to Navigate Through Commuting Time and Off-the-Clock Work Issues.
Posted: March 23rd, 2010, 1:00am EDT
The Ninth Circuit Court of Appeals made a "round trip" on several travel time issues when it recently issued a second opinion regarding whether commute time in company-provided vehicles and some related activities were work time under federal and California law. In Rutti v. Lojack Corporation (9th Cir., No. 07-56599, Mar. 2, 2010), a divided Ninth Circuit panel withdrew its August 21, 2009, opinion. In the original opinion the court of appeals had affirmed the district court's holding that the home-to-work commute by a technician in a company vehicle was not compensable work time under either federal or California law. Reversing course, the divided panel held that, while the commute was not compensable under the federal Employee Commuter Flexibility Act (ECFA),1 it nevertheless may be compensable under California law. Although this subsequent opinion is less favorable to California employers on the commuting time issue, the opinion continues to provide helpful guidance under federal law on the commuting-time issue as well as whether work-related activities are compensable or de minimis.
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Newly signed "jobs bill" provides tax breaks to companies that hire unemployed workers.
Posted: March 23rd, 2010, 1:00am EDT
On March 18, 2010, President Obama signed the Hiring Incentives to Restore Employment (HIRE) Act, which contains more than $17 Billion in tax credits aimed to stimulate employment, and includes $20 Billion for highway and transit infrastructure programs. One of the most important provisions for businesses is a tax credit for hiring from the ranks of the unemployed.
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Work-Life Balance Update.
Posted: March 23rd, 2010, 1:00am EDT
Work-life balance is a hot topic in the world of workplace initiatives. Its so hot, in fact, that it can be difficult to keep up with the latest developments. Here are a few items to get you started: