New York recently joined Illinois and Delaware on the growing list of states that allow same-sex marriage or civil unions between same-sex partners. Organizations that have operations in one or more of these states have a somewhat more complicated task when it comes to legal compliance since federal law recognizes neither same-sex marriage nor civil union partnerships.
One example of such administrative complexity is under the Family and Medical Leave Act (FMLA) which provides for protected leave and benefits for covered employees who have, among other qualifying events, a need for time off from work to care for an immediate family member, including a spouse, in the case of serious illness. Under this law, the definition of spouse is simply “husband or wife, as the case may be.” Of course, employers may choose to be more generous than the law provides for and institute a policy that includes family leave to care for civil union partners, same-sex marriage partners, or even opposite sex domestic partners, if they wish.
Speaking of FMLA and immediately family members, another issue that will impact employers more and more as the nuclear family continues to diminish as an American norm, is the FMLA amendment that expands the definition of child. In addition to “a biological, adopted, or foster child, a stepchild, a legal ward”, son or daughter refers to “a child of a person standing in loco parentis.” The term, in loco parentis, means “in place of a parent.” In practical terms, this means that if your employee has some parental-type responsibilities for a child, he or she can qualify for FMLA leave the same as a biological parent would. This person might be a grandparent, a civil union partner of the child’s biological or adoptive parent, or even a domestic partner of the child’s biological or adoptive parent. The deciding factor is whether or not the employee plays a parental role with the child. So while a civil union or same-sex marriage partner doesn’t qualify federally as a spouse, the person could still qualify For FMLA leave as related to a child in loco parentis.
It may seem a complicated task to stay abreast of such distinctions which is why it’s so helpful for employers to have HRSentry® at hand. Check under the HR Resources tab, then HR Topic Modules, to find the FMLA kit and other helpful kits to assist you. All the information you need, both federal and state, will be right at your fingertips.
Not unexpectedly, the Supreme Court ruled Monday that the discrimination bias case brought against Wal-mart did not qualify for proceeding further as a class action suit. The case grew from a 2001 suit brought by an individual, Betty Dukes, and involves accusations that the retail giant pays women less and gives them fewer promotions than their male counterparts.
The court did not rule on whether women have been discriminated against, only that they could not sue Wal-mart as a class. The justices split 5 -4 on ideological lines on part of the decision but unanimously found that the plaintiffs’ lawyers had improperly sued under a certain section of class action rules that was not primarily concerned with monetary damages.
This Supreme Court decision reverses a prior ruling by the 9th District Court of Appeals of San Francisco. If allowed to proceed as a class action suit on behalf of 1.6 million current and former female employees, Wal-mart’s already substantial costs would likely have soared into the billions of dollars and it is likely that similar suits would have cropped up against other organizations. While this ruling is a clear victory of sorts for the big box giant and perhaps other large businesses, litigation by at least two of the several plaintiffs may continue individually meaning Wal-mart is not yet off the hook, though it is a decidedly smaller hook than it would’ve been. Wal-mart claims that its policies prohibit discrimination and that it has taken steps since the suit was filed to address problems.
The US Department of Labor (DOL) recently launched its first application (app) for smartphones to help employees keep track of work time. Of course employees have always been free to keep their own records, but it is somewhat telling that the DOL has taken this step to encourage employees to independently track hours worked, breaks taken and overtime. Their web site announcement states: “This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.”
The new app is available in English and Spanish, may be downloaded for free and is currently compatible with the iPhone and iPod Touch. The DOL says it will explore updates to enable similar versions for additional platforms such as Android and BlackBerry. They are also exploring adding features for such items as tips, commissions, bonuses, shift differentials and the like. So this app is destined to become more robust.
You should consider this development a fair warning with at least three takeaways:
1. Carefully analyze all job descriptions to be sure your exempt/non-exempt designations are proper and justified;
2. Make sure employees diligently follow timekeeping procedures; have them sign off that they have not worked additional time that is not being reported to the employer;
3. Be certain employees understand their position’s exempt/non-exempt designation and know to speak with their manager or human resources if they disagree.
It’s unclear what will happen in legal disputes when employer and employee records disagree. What seems to be clear is that without proper recordkeeping by the employer (such as when a position has been erroneously designated as exempt) an employee’s records will weigh in heavily to determine employer liability. So take steps to make sure your timekeeping procedures and records are as impeccable as they can possibly be.
Free Webinar: Join us on April 15th at 2pm for the “Independent Contractors vs Emploees” webinar, presented by Brenda JM Sabin, CBP HRSentry’s Director of Operations and Site Administration. Have you ever been confused as to how you should pay someone who is working for your organization? Are they an employee? Or are they an Independent Contractor? How can you tell the difference? The IRS has several rules on how you need to make that determination! Paying that person incorrectly can have several costly consequences for your organization. Join us for this 1 hr webinar to learn the IRS rules and the penalties involved for not complying! Click here for more information on how to sign up for the “Independent Contractors vs Employees” webinar.
In businesses across the country employees carrying their personal computers into work has become more and more the norm. Supporters of this have been saying for years that it allows them to get more done during the day by helping them to relax and feel a sense of increased familiarity. IT however see’s a much different side of this trend, one that troubles many experts.
According to MySecureCyberspace, “despite taking precautions to secure computer networks, organizations can still be at great risk if they lack measures that protect them from their own employees, a danger known as the insider threat. According to a computer crime survey by the FBI, 44 percent of organizations reported insider attacks in 2005, out of 2,066 organizations surveyed.”
The issue of insider threats are becoming increasingly common with 40% of employees surveyed by In-Stat reporting that they purchase laptops for work on their own. When these devices(including PDA’s and cell phones) connect to the organizations networks they can allow viruses and other security problems in.
Use “Access Control Lists” to police the amount of information and data that employees can access.
Adopt policies that forbid the use of work computers for personal use.
Use encryption internally as well as externally to prevent unauthorized access.
Have tight controls over how employees use computers. For example, some organizations restrict email attachment sizes and run port scans that check what network software is running on employees’ computers. They may monitor the Internet activities of their employees and prevent access to some Web sites.
Conduct stricter background checks on job candidates.
