More Employees Sue Over Pay

By: Elaina Smiley, Esquire es@muslaw.com

Lawsuits related to wage disputes have increased by 77% over the past four years, according to the National Employment Lawyers’ Association. (NELA), an organization of attorneys who help employees file lawsuits and other actions against employers.

It was about four years ago that the U.S. Department of Labor (DOL) toughened the overtime rules under the Fair Labor Standards Act (FLSA) and since that time, wage-related FLSA lawsuits have ballooned. Besides the dramatic increase in lawsuits, NELA found that DOL has amplified its wage enforcement actions by 11%.

Some common causes for wage-related lawsuits have been:

• Unpaid overtime when employers misclassify employees. Employers often incorrectly assume that paying employees a salary means they do not need to pay them overtime pay.
• Making employees use their own money to buy uniforms or equipment or for other company purposes.
• Not accurately recording time worked or requiring employees to work off the clock.
• Not paying employees for putting on (“donning”) and taking off (“doffing”) safety equipment.
  

The best thing that employers can do to avoid these costly lawsuits is to closely analyze how employees are being paid, confirm that those employees classified as exempt from overtime pay are actually performing job duties that qualify them as exempt under the FLSA. Employers should also conduct regular audits of their policies and procedures to make sure that they are following all FLSA regulations and ensure that all supervisors and managers routinely receive training in what is and is not allowed under FLSA.

Big Change in Employment Eligibility Verification

By: Joel Pfeffer, Esquire jp@muslaw.com

The U.S. Citizenship and Immigration Services has just made a change that affects every employer in western Pennsylvania and across the country.

In early November, the immigration service changed the list of documents that it will allow employers to accept as proof of legal residency for form I-9, which verifies employment eligibility. The change is noted on a brand new I-9 form. The new regulation removes five documents that were previously on the list as okay to accept as proof of identity and employment eligibility. The new form does add one document to the list of approved proofs of identity, the new form I-766, which is a card issued to aliens who are authorized to work temporarily in the United States. Other approved documents include an expired or unexpired U.S. passport and a permanent residence card, among others.

Every employer must have new employees fill our a I-9 form, and then keep it on file for three years after the employee starts or, if the employee leaves before three years is up, an additional year after employment ends. Failure to have completed I-9 forms on file can lead to stiff penalties.

The new form will become effective as soon as a notice is published in the Federal Register, but the immigration service wants employers to start using the new form and protocol right away.

Time Off to Care for Vets

By: Antoinette Oliver, Esquire aco@muslaw.com

When President Bush signed the National Defense Authorization Act (NDAA) early this year, it marked the first ever expansion of the Family and Medical Leave Act (FMLA).

NDAA says that employees who need time off to care for a recovering service member are eligible for up to 26 weeks within a single 12-month period, more than twice as long as the standard 12 weeks of FMLA leave.

The new law defines recovering service member as a member of the armed forces who falls ill or is injured during active duty, and as a result is unable perform his or her duties. To qualify for leave, the employee must be the spouse, parent, child or nearest blood relative of the injured service member.

An employee also can get leave because of “any qualifying exigency” that arises out of a family member’s service in the Armed Forces or because a family member is called to duty. A family member under this provision is limited to spouse, parent or child. Employees who take leave for this “qualifying exigency” reason will be entitled to 12 weeks of FMLA leave. The Department of Labor has not yet announced regulations defining “qualifying exigency”, but employers must act in good faith to comply with the provision until the regulations are released.

The amendments are effective immediately, so employers should update their handbooks and company procedures to comply.

10 Ways to Get an Employer Sued

Join attorney Jane Lewis Volk and paralegal Cherie Mezynski on February 12, 2008 as they present "10 Ways to Get an Employer Sued" at the Pennsylvania Association of Housing and Redevelopment Agencies Legislative Conference. The conference will be held in Harrisburg, Pennsylvania at the Hilton & Towers February 10-13, 2008. To register for the conference please contact the PAHRA at 412-247-0699.

Individual Liability: Under Employment Laws

Please join us on Thursday, February 21, 2008 for our Executive Education Series Roundtable.

Joseph Vater, Jane Lewis Volk and Quinn Johnson of our Employment Law & Employee Benefits Group will lead this interactive roundtable discussion of individual liability under the Pension Protection Act of 2006, Title VII of the Civil Rights Protection Act, Fair Labor Standards Act, Pennsylvania Wage Payment & Collection Law, Pennsylvania Human Relations Act and Family and Medical Leave Act.

Contact Beth Ansell at eaa@muslaw.com or 412.456.2552 for time and location.

Recent Decision Concerning Health Care Insurance Coverage for Medicare-eligible Retirees

By: Jane Lewis Volk, Esquire jlv@muslaw.com
Joseph A. Vater, Esquire jav@muslaw.com

In February 2007, the Third Circuit Court of Appeals issued a decision which affects an employer’s options with respect to the providing of health care coverage for retirees. In AARP v. EEOC, the Court upheld an EEOC regulation that permits an employer to coordinate retirement benefits with Medicare (or comparable state plan) or even eliminate such coverage when government coverage becomes available. The AARP argued that the regulation violated the Age Discrimination in Employment Act (“ADEA”) by making benefit distinctions on the basis of age. The Court ruled that this regulation was reasonable and therefore within the EEOC’s rule-making authority. The regulation was promulgated in reaction to the reality that employers were reducing benefits available to all, rather than bearing the expense of maintaining pre-Medicare benefits for retirees. The EEOC argued that employers are more likely to continue offering retiree benefits to employees under age 65 if they are able to reduce or eliminate benefits for Medicare-eligible retirees. The Court recognized “with some dismay” that the new regulation will allow employers to reduce health benefits to retirees over the age of 65, but saw it as a reasonable exemption from the ADEA which will ultimately “likely benefit all retirees.”

This regulation and the decision upholding it represent a reversal of a 2000 Third Circuit decision, Erie County Retirees Ass’n v. County of Erie.

For more information about the impact of this decision on your health care benefits plan, contact Jane Lewis Volk at jlv@muslaw.com or 412-456-2840 and Joseph A. Vater, Jr. at jav@muslaw.com or 412-456-2827.

Pennsylvania Supreme Court Addresses Unwanted Sexual Advances in a Workers’ Compensation Case

By: Benjamin D. Kerr, Esquire bdk@muslaw.com
Jane Lewis Volk, Esquire jlv@muslaw.com

Under Pennsylvania Workers’ Compensation law, if a claimant is to obtain benefits for a “psychic” injury, he must demonstrate that his injury resulted from abnormal working conditions, not for his subjective reaction to normal working conditions. In January 2007, the Pennsylvania Supreme Court held in RAG (Cyprus) Emerald Resources v. Workers’ Compensation Appeal Board that unwanted sexual advances may constitute abnormal working conditions. The Court held that a western Pennsylvania coal miner who was exposed to unwelcome sexual advances by a same-sex supervisor was entitled to workers’ compensation benefits for psychic harm.

The Supreme Court held that there was no support in the record for the finding that this challenged conduct was “normal in the mining industry.” This decision of the Pennsylvania Supreme Court is significant for, among other principals, reaffirming the need for firm enforcement of an employer’s sexual harassment policy. Workers’ compensation claims may result from failure to prohibit effectively inappropriate sexual activity in the workplace.

For more information about this case or other employment law issues, contact Benjamin D. Kerr at bdk@muslaw.com or 412-456-2589 and Jane Lewis Volk at jlv@muslaw.com or 412-456-2840.