Tag: DOL

DOL Institutes Enhanced Password Requirements for Permanent Case Management System (PERM) Users

Greenberg Traurig Law firm

Effective August 25, 2014, the Department of Labor (DOL) has instituted enhanced password requirements for Permanent Case Management System (PERM) users. In the next 90 calendar days, current PERM users will be required to update existing passwords to meet the new security criteria. In addition, all PERM users will be required to update their passwords every 90 days. The DOL sends reminder emails on the 75th, 80th, 85th, 88th, 89th, and 90th day. Users may also choose to update their password at any time prior to expiration. Should the password expire, the user will be required to re-activate the account by identifying himself or herself and answering a secret question correctly. The DOL will send a temporary password for the user to access the PERM account and set up a new password.

The new password must meet the following criteria: 1) 8-15 characters, 2) one special character, 3) one upper case letter, 4) one lower case letter, 4) one number, and 5) no recycling of a prior password used in the past 12 passwords. For detailed instructions regarding the new password rollout, you can review the DOL’s Quick Start Guide.

ARTICLE BY

Emily R. Liss
 
OF 
Greenberg Traurig, LLP

DOL Institutes Enhanced Password Requirements for Permanent Case Management System (PERM) Users

Greenberg Traurig Law firm

Effective August 25, 2014, the Department of Labor (DOL) has instituted enhanced password requirements for Permanent Case Management System (PERM) users. In the next 90 calendar days, current PERM users will be required to update existing passwords to meet the new security criteria. In addition, all PERM users will be required to update their passwords every 90 days. The DOL sends reminder emails on the 75th, 80th, 85th, 88th, 89th, and 90th day. Users may also choose to update their password at any time prior to expiration. Should the password expire, the user will be required to re-activate the account by identifying himself or herself and answering a secret question correctly. The DOL will send a temporary password for the user to access the PERM account and set up a new password.

The new password must meet the following criteria: 1) 8-15 characters, 2) one special character, 3) one upper case letter, 4) one lower case letter, 4) one number, and 5) no recycling of a prior password used in the past 12 passwords. For detailed instructions regarding the new password rollout, you can review the DOL’s Quick Start Guide.

ARTICLE BY

Emily R. Liss
 
OF 
Greenberg Traurig, LLP

Oregon’s Same-Sex Marriage Ban Unconstitutional, Judge Rules

Jackson Lewis Law firm

 

Oregon’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantee of equal protection, newly appointed U.S. District Court Judge Michael McShane has held in a case filed on behalf of four couples in Multnomah County. Geiger v. Kitzhaber, No. 6:13-cv-01834-MC (May 19, 2014).

Judge McShane explained the measure discriminates against same-sex couples. “The state’s marriage laws unjustifiably treat same-gender couples differently than opposite-gender couples. The laws assess a couple’s fitness for civil marriage based on their sexual orientation: opposite-gender couples pass; same-gender couples do not. No legitimate state purpose justifies the preclusion of gay and lesbian couples from civil marriage.”

A state Constitutional amendment, enacted pursuant to a 2004 ballot initiative organized and sponsored by the Defense of Marriage Coalition, had prohibited same-sex marriage, stating that only “marriage between one man and one woman shall be valid or legally recognized as a marriage.” This initiative and the subsequent Constitutional amendment were in response to the Multnomah County commissioner’s decision to issue marriage licenses to same-sex couples. During the Geiger litigation, Oregon’s Attorney General stated she found it impossible to legally defend the ban because “per- forming same-sex marriages in Oregon would have no adverse effect on existing marriages, and that sexual orientation does not determine an individual’s capacity to establish a loving and enduring relation- ship.” With Geiger, and the U.S. Supreme Court’s 2013 decision in United States v. Windsor invalidating the federal Defense of Marriage Act, same-sex marriage is valid under Oregon state and federal law.

Further, although Oregon enacted a domestic partnership law in 2008, the Family Fairness Act, granting domestic partners similar rights and privileges to those enjoyed by married spouses, the Legislature acknowledged domestic partnerships did not reach the magnitude of rights inherent in the definition of marriage. For example, same-sex couples in Oregon were not entitled to the rights or benefits under the federal Family and Medical Leave Act because Department of Labor guidance recognizes same-sex marriage only if valid under the employee’s state of residence. The DOL, however, has proposed a rule expanding the term “spouse” and, if implemented, will recognize same-sex marriages when recognized in the couple’s state of residence or if performed in a state recognizing same-sex marriage. According to the Secretary of Labor, “The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver. Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.” No changes have been proposed, however, for purposes of the Employment Retirement Income and Security Act (“ERISA”), the federal law governing employee benefit plans. The DOL counsels employers that, for purposes of ERISA, same-sex marriage should be recognized if valid in the state it is performed.

While Geiger will simplify the legal landscape, employers should review policies, procedures, and benefit plans closely to ensure that same-sex spouses are treated equally in all respects. In addition, Oregon law further prevents employment discrimination based on sexual orientation and family status. Requiring same-sex couples to “prove their status” or take other similar measures that are not required of opposite-sex couples may increase the risk of potential litigation under these laws.

Mei Fung So contributed to this article. 

ARTICLE BY

Scott Oborne
Bryan P. O’Connor
Roger S. Kaplan
 
OF
Jackson Lewis P.C.

Settlement Between U.S. Department of Labor and Oregon Blueberry Growers Vacated

Varnum LLP

In 2012, the Department of Labor accused Oregon blueberry growers of employing “ghost workers” resulting in minimum wage violations. The DOL then issued what is known as a “hot goods order” to block shipment of their product to market until the violations were remedied.  This, of course, created an untenable situation for the blueberry producers as their products were highly perishable. With no real alternative, the blueberry growers signed consent agreements with the DOL, in which they agreed to substantial fines and waived their rights to contest the allegations.

The blueberry growers later challenged the consent judgment and in January a federal magistrate judge agreed with the growers finding that “the tactic of putting millions of dollars of perishable goods in lock up was unlawfully coercive.” That decision was upheld just last week by the United States district judge. Invaliding consent judgments, particularly those with the federal government, is extremely difficult and rarely happens. But in this case, the combination of over-the-top, coercive of tactics by the DOL, as well as the court’s view that there was little or no evidence of underlying labor violations to begin with, paved the way for the growers in this case.

Article By:

Aaron M. Phelps
Of:
Varnum LLP

School is Almost Out and Summer Interns are (Still) In

MintzLogo2010_Black

With the Memorial Day weekend approaching, many people are looking forward to hitting the beach, firing up the grill and polishing off their golf clubs, which are, for many Northeasterners, covered in cobwebs after this long winter. For employers, summer often means the arrival of (potentially unpaid) interns.

We have written before about the recent wave of high-profile wage and hour class actions lawsuits from interns. Last week, just in time for the arrival of the newest batch of summer interns, a New York federal judge conditionally certified an FLSA class of approximately 3,000 interns of Warner Music Group who were allegedly misclassified as exempt from minimum wage and overtime requirements. The recent litigation has also prompted new legislation to protect interns, including a New York City law aimed at ensuring that unpaid interns will have the right to sue if they are harassed or discriminated against by an employer.

Still, many companies cannot resist the temptation of free or relatively cheap temporary labor, and, in a still-rebounding economy, job-seekers continue to look to internships to build their resumes and gain experience. So, what can a company do in order to ensure a smooth, issue-free summer with its interns?

  • The first and most obvious answer is to treat interns as temporary employees. Have interns track time like any other non-exempt employees. Pay them at least minimum wage for all hours worked and overtime for any hours worked over 40 per week (assuming they do not meet some exemption from the minimum wage and overtime laws). Comply with all state laws regarding working and meal breaks. This approach will alleviate the vast majority of legal issues with respect to employing summer interns.
  • Require interns to attend the same non-discrimination, non-harassment trainings as other employees. Draft job descriptions for interns and set appropriate expectations for the program. Have clear policies, including a policy regarding expected conduct at work-related social events, which interns are required to review and acknowledge in writing.
  • If you decide against paying interns, you should carefully review intern program to ensure that it is legally compliant with appropriate wage and hour laws. In order for an intern to be legally unpaid under federal law:
  1. The intern experience must be similar to training given in an educational environment;
  2. The internship must be for the benefit of the intern (meaning they gain tangible training, experience, etc.);
  3. Interns may not displace or supplant regular employees, or perform duties traditionally rendered by regular employees;
  4. The company must not get any immediate advantage from the intern’s activities;
  5. The intern must not be entitled to a job at the end of the internship; and
  6. The company and the intern should have a written agreement (or an understanding at the absolute minimum) that the intern is not entitled to receive remuneration for his/her work.

According to the Department of Labor, if any one of these criteria is not met the company must pay the intern for all time worked. Some states have their own laws regarding interns, so make sure you are in compliance with those laws as well.

If your summer intern program begins soon after Memorial Day, now is the time to review you policies. A little bit of preparation can ensure a sunny summer for all.

Article By:

Jillian M. Collins
Of:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Mind Regulations When It Is Time To Mine

McBrayer NEW logo 1-10-13

The Department of Labor recently issued a reminder to employers involved in themining industry. As spring (slowly) approaches, surface mines will reopen. As miners head back to the job site and prepare equipment for the new season, potential for injury is high.

Of the 12,000 metal and nonmetal mines overseen by the Mine Safety and Health Administration (“MSHA”), almost half are operated on a seasonal basis, closing for winter when conditions make operations too difficult. According to MSHA information, injuries at seasonal mines climb sharply in the spring. MSHA is vested with the power to enforce compliance with mandatory safety and health standards as a means to eliminate fatal accidents; to reduce the frequency and severity of nonfatal accidents; to minimize health hazards; and to promote improved safety and health conditions in the Nation’s mines.

Miner operators and managers should review safety information available at http://www.msha.gov and take the time to educate employees on the numerous hazards associated with the job. Always keep in mind that employers are responsible for providing a safe workplace; employee injuries are not only detrimental to operations, but can be costly – both financially and reputation-wise.

Article by:
Brandon K. Johnson
 
Of:
McBrayer, McGinnis, Leslie and Kirkland, PLLC

Keeping Current – Recent Changes in Employment Laws

vonBriesen

Is your FMLA policy up to date?

The federal Family Medical Leave Act regulations were revised in 2013, primarily to expand the circumstances under which employees can take military leaves. For example, leave is now available to care for covered veterans and for service members or veterans who aggravated an existing illness or injury while on active duty (as opposed to suffering a new injury while on duty). Qualifying exigency leave is now also available to care for a covered service member’s parent.

The Department of Labor is increasing the number of complaint-driven on-site audits it conducts under the FMLA. Auditors will come in with a checklist of updates they expect to see in an employer’s FMLA policy to comply with the 2008 and 2013 regulatory changes, as well as the DOL’s informal guidance. Having updated policies will show an auditor or investigator that you are up to speed on the latest changes in the law and may lend credibility to your FMLA practices.

If you are a federal contractor, are you preparing to comply with the new OFCCP regulations regarding veterans and individuals with disabilities?

The Office of Federal Contract Compliance (“OFCCP”) issued regulations in 2013 substantially increasing the obligations of federal contractors relating to veterans and individuals with disabilities. Many of these new requirements, including language to be included in all job postings and subcontracts, go into effect March 24, 2014. Additional requirements go into effect at the start of an employer’s next plan year after March 24, 2014, but may require substantial planning in advance. For example, federal contractors will now be required to conduct statistical analysis of the number of veterans and disabled individuals in their workforce, much like what was already required for race and gender. This requires inviting individuals to self-identify as a veteran or disabled. The regulations require this invitation be made to all applicants and again to those offered jobs. It also requires that an employer’s existing work force be invited to self-identify as disabled every five years. Tracking this information can be complicated, as it must be kept separate from general personnel files and treated as confidential. This is not only required by the regulations but is also essential to avoid increased risk of discrimination claims on the basis of disability.

Companies that provide products or services under contracts with the federal government should review their obligations to ensure they are complying with these new OFCCP regulations.

Was your employee terminated for misconduct or “substantial fault” on the job?

Wisconsin’s 2013 Budget Bill made changes to the statutes governing unemployment insurance, which took effect January 5, 2014. Even before these changes, employees would be ineligible for unemployment insurance benefits if they were terminated for misconduct. The definition of misconduct previously came from case law. The new statute defines misconduct and includes examples, which include:

  • Two or more absences (without notice or without valid reason) in 120 days, unless employer policy is more generous
  • Falsifying business records

The statute also adds a second basis under which employees may be disqualified for benefits, if they are terminated for “substantial fault” in their performance. This still does not disqualify an employee from unemployment benefits for minor infractions or inadvertent errors, but on its face it would disqualify an employee who was terminated for major failures. This basis is largely undefined and untested, so we will have to monitor the decisions of administrative law judges and the courts to determine how it will be defined in practice. The updated statutes also narrow the circumstances in which an employee can quit his/her job and still qualify for unemployment benefits.

These changes may mean that employers are more likely to prevail if they challenge a former employee’s unemployment compensation claims. This may be of particular benefit to non-profit employers who participate in the unemployment insurance system as reimbursing employers, and therefore pay dollar-for-dollar on each unemployment claim.

Article by:

Sarah J. Platt

Of:

von Briesen & Roper, S.C.

Department of Labor Revises Conflict Disclosure Requirements for Labor Union Officials

Barnes & Thornburg LLP‘s Labor and Employment Law Department recently posted in the National Law Review an article about the United States Department of Labor’s Office of Labor-Management Standards adopted a final rule revising the information that union officials must disclose on Form LM-30, the Labor Organization Office and Employee Report.:

 

 

On Oct. 26, 2011, the United States Department of Labor’s Office of Labor-Management Standards adopted a final rule revising the information that union officials must disclose on Form LM-30, the Labor Organization Office and Employee Report. The new rule reverses the rule published by the agency in 2007 that significantly expanded the financial disclosure requirements of union officials. Effective Nov. 25, 2011, union officials are now required to disclose only payments and interests that involve “actual or likely” conflicts between the official’s personal financial interests and his or her duties to the union. The DOL explains that such conflicts include “payments, interests and transactions involving the employers whose employees the union represents or actively seek to represent, vendors and service providers to such employers, the official’s union or the union’s trust and other employers from which a payment could create a conflict.” The new rule applies to reports required by union officials with fiscal years beginning on or after Jan. 1, 2012.

Use of Form LM-30 for reporting purposes began in 1963 pursuant to Section 202 of the Labor-Management Reporting and Disclosure Act. Although the reporting requirements for Form LM-30 were significantly expanded in 2007, the DOL had issued a non-enforcement policy in 2009 that allowed filers to use either the 2007 expanded version of Form LM-30 or the 1963 version of the Form to disclose potential conflicts.

© 2011 BARNES & THORNBURG LLP