Remember, to be eligible for FMLA leave, an employee must be employed for at least 12 months and must have worked at least 1,250 hours in the previous 12 months.

In a situation, such as pregnancy, when the employee knows well in advance that leave will be necessary, the 11th Circuit now says that she can make this request prior to meeting those requirements as long as she will meet them when the leave will be taken. The Court reasoned as follows:

Before the Court is the question left open by Walker v. Elmore County Board of Education, 379 F.3d 1249, 1253 (11th Cir. 2004): “whether the FMLA protects a pre-eligibility request for post eligibility maternity leave.” We resolve that question in the affirmative.”

…

Here, it is undisputed that Peredy, at the time she requested leave, was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event, the birth of her child. It is also undisputed that she would have been entitled to FMLA protection by the time she gave birth and began her requested leave.

…

After examining the various elements of the FMLA regulatory scheme, such as the 30-day notice requirement and the DOL implementing regulations, we conclude that allowing the district court’s ruling to stand would violate the purposes for which FMLA was enacted. Without protecting against preeligibility interference, a loophole is created whereby an employer has total freedom to terminated an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA.

To hold otherwise would have allowed employers to terminate employees who had a foreseeable medical condition and gave employers notice of this condition. Clearly, maternity leave is the biggest winner here, but one could foresee other situations where this might occur. All in all, this is a good decision for employees everywhere.

You can read the entire opinion here.

On Friday, President Obama took the first steps in changing this.  From the White House press release:

The White House today will announce new rules proposed by the U.S. Department of Labor that would provide minimum wage and overtime protections for nearly two million workers who provide in-home care services for the elderly and infirmed. Many of these workers provide critical in-home health care services such as tube feeding, wound care, or assistance with physical therapy, and deserve the protections provided under the Fair Labor Standards Act (FLSA). Today’s announcement is the latest in a series of executive actions the Obama Administration is taking to strengthen the economy and move the country forward because we can’t wait for Congress to act.

“The nearly 2 million in-home care workers across the country should not have to wait a moment longer for a fair wage. They work hard and play by the rules and they should see that work and responsibility rewarded. Today’s action will ensure that these men and women get paid fairly for a service that a growing number of older Americans couldn’t live without,” said President Obama.

“The care provided by in-home workers is crucial to the quality of life for many families,” said Secretary of Labor Hilda L. Solis. “The vast majority of these workers are women, many of whom serve as the primary breadwinner for their families. This proposed regulation would ensure that their work is properly classified so they receive appropriate compensation and that employers who have been treating these workers fairly are no longer at a competitive disadvantage. “

The Department of Labor hopes to redefine the companionship exemption.  One of the biggest proposed changes is to no longer allow third-party agencies to claim the exemption. For example, if a staffing agency employs the worker rather than the individual receiving the care, the exemption will no longer apply.

You can’t follow labor and employment law updates lately without discovering something new the National Labor Relations Board is up to. Well now the NLRB is requiring all private-sector employers to notify employees of their rights under the National Labor Relations Act by adding a new posting requirement.  Starting November 14, 2011, all employers will need to post the following notice:

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

“Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.

“Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
• Question you about your union support or activities in a manner that discourages you from engaging in that activity.
• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
• Threaten to close your workplace if workers choose a union to represent them.
• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
• Spy on or videotape peaceful union activities and gatherings or pretend to do so.

“Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

• Threaten or coerce you in order to gain your support for the union.
• Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
• Take adverse action against you because you have not joined or do not support the union.

“If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

“Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s Web site: http://www.nlrb.gov.

You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.

If you do not speak or understand English well, you may obtain a translation of this notice from the NLRB’s Web site or by calling the toll-free numbers listed above.

“*The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

“This is an official Government Notice and must not be defaced by anyone.”

To read more about this requirement, visit the NLRB’s website.

The United States has no federal legislation requiring companies to offer paid vacation days and those that do offer far fewer than their European counterparts.

Should we change this and become more like the rest of the world? Or does this give us an advantage?

This bill, intended to give tax cuts to businesses, will be funded by cutting benefits to the unemployed (to as little as 12 weeks of eligibility) and will make it even harder to obtain benefits in the first place.

Read more about this bill here.

Senate Bill 728 proposes to make changes to Florida’s unemployment laws, making it tougher to receive unemployment benefits. The proposed changes include:

• Requiring those newly receiving unemployment benefits complete a skills assessment.
• Reducing the time one can continue receiving benefits from 26 weeks to 20 weeks.
• Requiring those receiving benefits to take jobs that pay at least 80% of their previous salary during the first 12 weeks and any job paying at least the amount of their unemployment benefits during the final 8 weeks.
• Changing the rule that the law be liberally construed in favor of the claimant so that it would not be construed in favor of either the claimant or the employer.
• Lowering the standard for misconduct, making it harder for terminated employees to collect unemployment benefits.
• Preventing those who have received severance benefits from collecting unemployment.

This comes at a time when Florida’s unemployment rate is 12%. You can read the full text of the bill here.

Proposed “Florida Wage Protection Law” Designed to Preempt Local Ordinances

A proposal for a new law protecting wage theft was introduced by State Rep. Tom Goodson (R-Titusville) appears to be aimed directly at preempting the Miami-Dade county ordinance which protects employees from wage theft.  According to the Florida Independent, the very organization challenging the constitutionality of the Miami-Dade ordinance, the Florida Retail Federation, helped draft the proposed statewide legislation.

You can read the proposed legislation here.

1. there was a joint relationship between a leasing agency and the entity it contracted with;
2. the failure to keep time records, together with Plaintiff’s testimony that she did work overtime, required a denial of summary judgment;
3. employers had constructive knowledge of overtime being worked;
4. and the Fluctuating Work Week (FWW) method of compensation could not be used.

Notably, the Court found that the FWW method of overtime compensation (i.e., that Plaintiff is only owed half-time because she has already been paid straight time for all hours worked) was inapplicable because (a) her salary did not ensure the minimum wage would be met, (b) her hours did not fluctuate, and (c) her salary was not fixed because she recieved bonuses and commisions. The Court rejected Defendants’ argument that the FWW requirements set forth in 29 CFR 778.114 are unnecessary for a half-time theory of overtime calculation and held that Plaintiff, should she prevail at trial, will receive damages equal to time and one-half her hourly rate for all overtime hours worked.

Click here to read the full order.

Plaintiff is represented by the attorneys of Kwall, Showers & Barack, P.A.

Read the full opinion.

Read more about this decision here and here.

One very  troubling aspect of this case is that the defendant apparently did not raised res judicata as an affirmative defense at trial or on appeal.  The Eleventh Circuit raised the issue sua sponte even though the defense was waived by the defendant.

Some USERRA facts:

• It applies to almost all employers regardless of size or interstate commerce;
• Individual liability may exist;
• May apply to temporary, part-time, and seasonal employees as well;
• Has no statute of limitations.

What USERRA does:

• Bans employment discrimination based on past, current, or future military service;
• Grants an employee the right to reemployment upon return from military service under certain conditions;
• Provides added protection for those with service-related disabilities;
• Provides a one-year period upon return in which the employee is protected from discharge under certain conditions;
• Provides protection regarding health insurance and other benefits;
• Prohibits retaliation in connection with asserting USERRA rights.

For more information on USERRA, click here.