Regulatory Updates January 2009

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  • 1. Regulatory Updates And Legislative Outlooks January 2009
  • 2. Conference Call Agenda
    • Review regulatory updates
      • ADAAA
      • FMLA
    • Review outlook on EFCA
    • RESPECT Act
    • Identify next steps and on going communication plan
  • 3. Regulatory Changes
    • ADAAA – Americans with Disabilities Act Amendments
      • Expands the definition of individuals who are considered disabled and protected under ADA
      • Restricts courts ability to consider mitigating measures
      • effective 1/1/09
    • FMLA Amendments – Family Medical Leave Act
      • Several changes in process regarding how FMLA is determined and qualified
      • effective 1/16/09
  • 4. ADAAA Americans with disabilities act amendments act of 2008
    • Congress has clearly expressed their intent to shift the focus of inquiry from “…does the individual have a disability?” to “…has the covered entity complied with their obligations?” As a result, protected classes of physical and mental disabilities will increase in scope and the number and duration of ADA claims will rise
    • Three part test to determine if an individual is covered
        • Physical or mental impairment that substantially limits one or more major life activities
        • A record of such impairment
        • Being regarded as having such an impairment
    • Defined “Major Life Activities” and introduced a new term: “Major Bodily Functions” to further specify what is meant by Major Life Activities
        • Life Activities: Eating, Sleeping, Standing, Breathing
        • Bodily Functions: Digestive, Circulatory, Respiratory, Reproductive
    • Require broad construction of the terms “disability” and “substantially limits” to be as inclusive as possible
    • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active
        • Migraine Headaches
        • Epilepsy
  • 5. ADAAA continued
    • The determination of “substantially limits” must be made without regard to mitigating measures such as medication, equipment, prosthetics, hearing aids, assistive technology, reasonable accommodations or learned behavioral adaptations (ordinary eyeglasses or contacts are excluded)
    • Removed all limitations on the what is meant by “Regarded as having such an impairment.”
      • 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
    • This new definition specifically excludes “transitory and minor” impairments from coverage and defines transitory impairments as those limited to “6 months or less” actual or expected duration
        • Post-operative infection
  • 6. ADAAA continued
    • Strong emphasis on recognizing when entering the interactive process is necessary will increase company supervisory personnel responsibility to know what to listen for and how to respond
        • Migraine Headache
        • Sleep Disorder
    • Greater scrutiny of the interactive process for good faith participation by the employer may require a new approach/procedure – (Guide to the interactive process in Appendix A.1 page 28)
    • Limits employers ability to dismiss cases based upon the severity of impairment
        • High blood pressure
    • Additional care in approaching the way impairments are perceived and regarded – do not treat an individual differently without a formal process
  • 7. ADAAA Summary
    • ADAAA
      • Identify next steps where appropriate
        • Job description review
          • To include physical requirements (see examples in Appendix A.2 pages 29 and 30)
        • Handbook review
          • Not necessary to reference but if there are references, it should be reviewed.
        • Procedures regarding reasonable accommodation
        • Training and education for management (see examples in Appendix A.1 Page 28)
  • 8. FMLA Regulatory Changes
    • Reorganized the rules and clarified many provisions
    • Intention was to ensure the law is working for employees and employers
  • 9. FMLA Specific Provisions
    • Military Caregiver Leave – eligible employees who are family members of covered service members are able to take up to 26 weeks of leave in a single 12 month period to care for a covered service member with a serious illness or injury incurred n the line of duty while on active duty
    • Qualifying Exigency Leave – the normal 12 work weeks leave is available to eligible employees where the “qualifying exigency” arises out of the fact that the eligible employee’s spouse, child or parent is on or has been called to active duty in the US Armed Forces. Examples given:
      • Short-notice deployment; Military events; Childcare and school activities; Financial and legal arrangements; Counseling; Rest and recuperation; Post-deployment activities
  • 10. FMLA Specific Provisions Continued
    • Light Duty – Under the final rule, time spent performing “light duty” work following FMLA leave does not count against an employee’s FMLA leave entitlement
    • Waiver of Rights – Employees may voluntarily settle or release their FMLA claims without court or EEOC approval
        • All Separation Agreements should be revised
  • 11. FMLA Specific Provisions Continued
    • Serious Health Condition
    • Added guidance regarding the definitions of serious health conditions:
      • More than three consecutive, full calendar days of incapacity plus two visits to a health care provider: the two visits must occur within 30 days of the beginning of the period of incapacity and the first visit must take place within 7 days of the first day of incapacity .
          • Bicycling accident – two broken arms and in the hospital
          • ACL tear – no visit in the first 30 days
      • More than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment: the first visit to the health care provider must take place within seven days of the first day of incapacity .
          • Lifting – herniated disc – physical therapy
      • Defines “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year.
          • Asthma, Diabetes, Epilepsy, etc.
  • 12. FMLA Specific Provisions Continued
    • Substitution of Paid Leave
      • Employees may take, and employers may require employees to take , any accrued paid vacation, personal, family, or medical or sick leave, as offered by the employer, concurrently with any FMLA leave.
      • All forms of paid leave offered by an employer will be treated the same regardless of the type of paid leave substituted. The employee must follow the same terms and conditions that apply to other employees regarding the paid leave.
        • Maternity is the same as a bypass operation
      • An employee is always entitled to unpaid FMLA leave if he or she does not meet the employer’s conditions for taking paid leave. An employer may waive any procedural requirements for taking any type of paid leave in order to meet either the employee’s desire to substitute paid leave or the employer’s requirement of the use of paid leave.
  • 13. FMLA Specific Provisions Continued
    • Employer Notice Requirements
    • Employers will be required to provide employees with a general notice (Poster and handbook at hire), an eligibility notice, a rights and responsibility notice, and a designation notice. In order to comply employers will be given additional time to provide notice (5 business days, increased from 2) The specific forms are not yet available . ( See Appendix B.1 page which includes a handbook policy which conforms to the requirements of the final rule.)
  • 14. FMLA Specific Provisions Continued
    • Employee Notice Requirements
    • An employee must now follow the employer’s usual call-in procedures for reporting an FMLA absence in unforeseen leave requests, unless there are unusual circumstances. The prior rule allowed up to two days before the employee had to report FMLA absence in unforeseen leave requests.
        • Car accident – in the hospital unconscious
        • Broken ankle while bowling
  • 15. FMLA Specific Provisions Continued
    • Medical Certification
      • The new rules limit what employers may request on the certification to only what is required by the certification form. (Certification of Health Care Provider [WHO-380]; Updated forms are not yet available from the DOL) Additionally, the employee’s direct supervisor may not contact the health care provider. Contact must be made by HR or another manager.
      • Employers may deem that the medical certification is deficient and issue a letter specifying the deficiencies to the employee. ( Please work with Legal in preparing any letters sent for this purpose ) The employee has seven calendar days to cure the deficiency.
          • Form does not indicate a return to work date
      • In “chronic” or unknown duration conditions, the employer may request recertification every six months.
  • 16. FMLA Specific Provisions Continued
    • Fitness for Duty Certifications
    • Employers may require that the certification specifically state that the employee returning to duty after an FMLA leave is able to perform the essential functions of the employee’s job.
  • 17. In Summary
    • FMLA
    • Identify next steps where applicable
      • Update policies and procedures as necessary (see appendix B.2 on page 33 for FMLS policy example. See appendix B.3 and B.4 on page 34 and 35 for PTO Policy example )
      • Educate Leaders/Managers regarding changes (see appendix B.5 on page 36 for talking points to share with leaders)
      • Updated DOL forms will be distributed as soon as they are available (see appendix B.1 on page 32 for a tentative sample form which may change when the DOL releases the final version)
  • 18. Employee Free Choice Act January 2009
  • 19. Known as
    • “EFCA”
    • Employee Fair Choice Act
    • Card Check Legislation
  • 20. What it is
    • Currently not passed but being considered as part of the agenda for the first 100 days of Obama administration
    • Amendment to the National Labor Relations Act
    • Will end employees’ right to a secret ballot election for or against union representation
    • Could Impose an arbitrator’s collective bargaining agreement on employees and employers if the parties cannot agree to terms
        • 90 days after bargaining commences either party may request mediation by they Federal Mediation and Conciliation Service
        • 30 days after the request for mediation, the Service will refer the matter to an arbitration board which will render a decision settling the dispute. The decision will be binding upon both parties for two years.
    • Strengthens penalties against employers for Unfair Labor Practices during the card signing campaigns
  • 21. Current Outlook
    • Passed the House in 2007 by a wide margin and stalled in the Senate
    • It is Big Labor’s number one legislative priority
    • President-elect Obama has committed himself to the proposal and passing the house is virtually ensured
    • Outlook in Senate is less certain but looking more possible
  • 22. RESPECT Act Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers
    • Organized Labor is pushing legislation to change the definition of supervisor as defined by NLRB
    • Constricts the definition of “supervisor” to an employee who spends more than 50% of their time engaged in supervisory functions
    • Could expand the Collective Bargaining Unit
  • 23. What should we do now?
    • Company executives, managers and supervisors should have common philosophy towards unionization, and should be comfortable articulating it
    • Consider including language in new employee orientation materials, employee handbooks, workforce training programs and other communications (see appendix c.1 page 38 for positive employee relations language)
      • Pass language by legal to ensure the language passes NLRB and applicable state labor laws
    • Conduct Employee Issue and Satisfaction audits
      • Analyze information and communicate results and action items (see appendix c.2 page39 for example)
    • Review Employment policies
      • Visitors in the workplace, open door policy, alternative dispute policy, non solicitation policies, ensure everyone is aware and enforces the policies (see appendix c.3 page40 for handbook example of these policies)
    • Get involved – contact your senators and representatives using SHRM HR Voice as a conduit ( see appendix c.4 page 41 for more information )
  • 24. What should we do now?
    • Strengthen Positive employee relations stance and educate leaders and employees
      • Explain to employees what the union authorization card is, what it means when it is signed, and provide examples
      • Let employees know that organizers might approach them at home, on property, in public places and in the presence of others employees, pressuring them to sign the card
      • Discuss the fact that the union will provide little information about their track records in other workplaces, or about their business in general
      • Educate them so they can ask the right questions before deciding whether to sign
      • Let them know they will NOT have a chance to change their minds later, and the company will not be able to intervene
  • 25. Resources Available
    • Blyth Legal and HR teams
      • Blyth Corporate Call late January
    • SHRM HR Toolkits and Webcasts
    • Local SHRM Chapter Meetings
    • Local Legal Seminars
      • Jackson Lewis ( http://www.jacksonlewis.com/ ) ( See appendix C.5 page 42 for a recent Jackson Lewis Presentation)
      • Local Law Firm Presentations regarding regulatory changes and legislative outlook
  • 26. QUESTIONS
  • 27. Appendix A ADAAA Resources
  • 28. Appendix A.1
  • 29. Appendix A.2 Sample Physical Requirements for Job Descriptions
    • Example 1: Maintenance Associate PartyLite
    • PHYSICAL DEMANDS The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. This job requires heavy lifting and ability to work in high places. Must be willing to work overtime.
    • WORK ENVIRONMENT The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. Duties involve working inside and outside year-round, in all types of weather
    • Example 2: Photo Shoot Merchandising Associate PartyLite
    • PHYSICAL DEMANDS: The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. Physical demands. Must be able to lift 50 pounds.
    • WORK ENVIRONMENT: The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.
  • 30. Example 3 Christmas Card Consultant Miles Kimball
  • 31. Appendix B Family Medical Leave Act Resources
  • 32. Appendix B.1
  • 33. Appendix B.2
  • 34. Miles Kimball Full Time PTO Policy Appendix B.3 1/5/09 FULL TIME 3.02 PAID TIME OFF (PTO) A team member can take PTO for vacation, illness, personal business, family emergencies, or any other reason. Sometimes team members need to take time off from the job for situations that do not always fit traditional time-off categories, such as when a child or parent is ill or attending school functions. When team members face these types of situations, they often need to make difficult choices between coming to work and taking care of others needs. Miles Kimball Company PTO is your time to use as you see fit. Our PTO program encourages team members to plan ahead and schedule time off, resulting in fewer unscheduled absences. This helps the company to avoid understaffing problems, lower service quality, lost revenue, customer dissatisfaction, and decreased morale and productivity from team members covering for absent co-workers. For every year you work, you earn PTO, determined by the following schedule: Years of Service Days of PTO 0-4 15 (120 hours) 5-11 20 (160 hours) 12+ 25 (200 hours) PTO accumulates during the calendar year. Although team members earn PTO throughout the year, they are eligible to use PTO effective January 1st, of each calendar year. However, if a team member's employment is terminated with MKC, PTO will be pro-rated. Any used but unearned PTO will be deducted from a team member's final paycheck. Any earned but unused PTO will be paid out on the final paycheck. During the first calendar year of employment, PTO will be pro-rated by full weeks of service. Team members hired before July 1st will have that year accrue towards years of service for PTO. Team members hired after June 30th will not have that year accrue towards years of service. PTO does not continue to accrue while on an extended, four weeks or longer, absence. Any earned PTO not used by the end of the calendar year will be forfeited, with the exception of up to two days of PTO, which can be carried over into the first quarter of the next calendar year. Any PTO time carried over into the first quarter of the next year must be used by March 31st or forfeited. PTO should be requested from your team leader as far in advance as possible, with a minimum of 24 hours advance notice of the day you would like to take off. The team leader will then review your request for approval. Each department will have a pre-defined "blackout period" during its busiest season of the year, when no scheduled PTO may be granted. PTO can be taken in either four hour (half-day) blocks or eight hour (full-day) blocks, or other increments as approved by the team leader. PTO is not included as hours worked when determining overtime pay. 3.02.1 CHANGING STATUS FROM PART-TIME TO FULL-TIME Upon being hired into a full-time position any earned year round part time (RPT) PTO from the prior year will be added to the prorated full-time PTO schedule, not to exceed 15 days (120 hours) of PTO eligibility. 3.02.2 CHANGING STATUS FROM FULL-TIME TO PART-TIME Upon transferred into a RPT position the team member will receive the greater of the following two options: 1. Prorated full-time PTO from current year, based off the date of transfer to part-time status. 2. PTO granted based off of the RPT PTO schedule, which is based off hours worked in the previous calendar year.
  • 35. Miles Kimball Part Time PTO Policy Appendix B.4 1/5/09 PART TIME: 3.02 PAID TIME OFF (PTO) A RPT team member can take PTO for vacation, illness, personal business, family emergencies, or any other reason. Sometimes team members need to take time off from the job for situations that do not always fit traditional time-off categories, such as when a child or parent is ill or attending school functions. When team members face these types of situations, they often need to make difficult choices between coming to work and taking care of others needs. Miles Kimball Company PTO is your time to use as you see fit. Our PTO program encourages team members to plan ahead and schedule time off, resulting in fewer unscheduled absences. This helps the company to avoid understaffing problems, lower service quality, lost revenue, customer dissatisfaction, and decreased morale and productivity from team members covering for absent co-workers. PTO will be prorated based on the number of hours worked in the previous calendar year, determined by the following schedule: Hours of Service Hours of PTO 1906 44 1733 40 1560 36 1386 32 1213 28 1040 24 866 20 693 16 520 12 346 8 173 4 RPT team members will be notified of their PTO balance in March. Team members must be actively at work as of March 1st to be considered a RPT team member. If a team member's employment is terminated with MKC, any unused PTO will be paid out on the final paycheck. PTO remaining at the end of February will be paid out. PTO should be requested from your team leader as far in advance as possible, with a minimum of 24 hours advance notice of the day you would like to take off. The team leader will then review your request for approval. Each department will have a pre-defined "blackout period" during its busiest season of the year, when no scheduled PTO may granted. PTO can be taken in either four hour (half-day) blocks or eight hour (full-day) blocks, or other increments as approved by the team leader. PTO is not included as hours worked when determining overtime pay. 3.02.1 CHANGING STATUS FROM PART-TIME TO FULL-TIME Upon being hired into a full-time position any earned RPT PTO from the prior year will be added to the prorated full-time PTO schedule, not to exceed 15 days (120 hours) of PTO eligibility. 3.02.2 CHANGING STATUS FROM FULL-TIME TO PART-TIME Upon transferred into a RPT position the team member will receive the greater of the following two options: 1. Prorated full-time PTO from current year, based off the date of transfer to part-time status. 2. PTO granted based off of the RPT PTO schedule, which is based off hours worked in the previous calendar year.
  • 36. Appendix B.5
  • 37. Appendix C EFCA Resources
  • 38. Positive Employee Relations Language
    • We believe in treating each other with respect and fostering an atmosphere of caring, open communication, and candor
    • We believe in maintaining positive relations with our employees through open dialogue, valuing their contributions and recognizing their work
    • As a team member, you will be a contributor to our success, no matter what your role is. In return, you can expect to join a winning organization that really cares about its employees. Our core value system is based on fairness and mutual respect. We believe in offering a positive working environment where employees and management work together by engaging and focusing on meeting our strategic goals
    Appendix C.1
  • 39. Appendix C.2 Miles Kimball Employee Satisfaction Survey
  • 40. Appendix C.3
  • 41. Appendix C.4 SHRM HR Voice Information EFCA http://www.shrm.org/government/hrvoice/alerts_published/1CMS_020897.asp SHRM Home  >  Governmental Affairs  >  HR Voice Federal Legislative Action Alert! YOUR ASSISTANCE IS NEEDED! The U.S. Senate will soon consider the Employee Free Choice Act, a bill that would take away the private ballot voting rights of American workers in union organizing campaigns. The U.S. House of Representatives has already passed H.R. 800 , the Employee Free Choice Act, by a vote of 241-185 on March 1. However, the vote total was actually much more favorable than expected, thanks to the more than 4,000 letters sent by SHRM members to their U.S. Representatives ! We are asking for your help again—this time, to express your views to the U.S. Senate. Sen. Edward Kennedy (D-MA) is expected to introduce a Senate version of the bill as early as next week. Senator Kennedy is the Chairman of the Senate Health, Education, Labor and Pensions Committee, which is the committee that will consider the legislation in the next few weeks. Please take this opportunity TODAY to write your senators and urge them to NOT CO-SPONSOR and to VOTE NO on the Employee Free Choice Act. Background Under the National Labor Relations Act (NLRA), employees are currently able to form or join a union in two ways: 1. Private ballot election administered by the National Labor Relations Board (the Board), or the 2. Submission of signed authorization cards to the Board from a majority of employees in a bargaining unit. The latter process is known as “card-check,” which is similar to signing a petition in favor of a union. In most cases, employees and employers agree to hold an election. After an election, the Board reviews the results and certifies the union as the bargaining representative if a majority of employees voted in favor of the union. Legislation The Employee Free Choice Act, the bill that will be introduced soon by Senator Kennedy, would amend the NLRA to change the way workers choose to become part of a union. The proposed measure would effectively eliminate the secret ballot election during union organizing campaigns by requiring the Board to certify any union that secures a simple majority of signatures through the card check process. If the Employee Free Choice Act becomes law, employees would lose their right to a Federal government-administered, private ballot election. Moreover, since the bill would make public an employee’s position on a union to both their co-workers and employer, it could make the workplace more hostile by exposing employees to coercion from both proponents and opponents of the union. SHRM’s Position SHRM opposes the Employee Free Choice Act because it would take away the right of employees to a federally supervised, private ballot in union elections. SHRM is a member of the Coalition for a Democratic Workplace , a partnership of employee and employer organizations that are advocating on behalf of workers’ right to a secret ballot when they are deciding whether or not to join a union. Specifically, SHRM opposes the bill based on the following provisions of the legislation: • Union Certification through Signed Authorization Card —The bill would force employees to make public their decision on whether or not to support a union. Under the bill, their decision would be made known to union officials, their employer and their co-workers. HR professionals are deeply concerned that, by eliminating the secret ballot, the bill would actually take away an employee’s private and “free choice,” expose employees to coercion and promote a threatening work environment for employees. • First Contract Arbitration —The bill would effectively send any bargaining disputes to binding arbitration after 120 days—90 days of negotiations and 30 days of mediation on a first contract. HR professionals believe that mandatory binding arbitration is unnecessary because it would provide motivation for either a union or employer to engage in bad faith bargaining until the end of the 90-day period, thus allowing an arbitrator to impose unwanted employment conditions on both employees and management. Action Needed Write or call your elected officials in Washington today! Your legislators need to know your views on this important matter before the private rights of employees are further harmed. To write your elected official using HRVoice , follow these steps: 1) Log onto SHRM Online by clicking here. 2) Sign in using your member number and last name. 3) Click on “Governmental Affairs,” then go to “HRVoice” on the left side of your screen. 4) Choose “Write your elected officials.” 5) Click on “OPPOSE the Employee Free Choice Act” under the heading “Take Immediate Action on these Hot Issues.”               
  • 42. Appendix C.5 Jackson Lewis “EFCA: The Time for Awareness and Prevention is Now