Berens and Tate News NEWS NEWSFLASH VICTORIES CALENDAR REGISTRATION NEWSFLASH If you would like to subscribe to Berens & Tate NewsFlash, please email us at newsflash@berenstate.com June 27, 2008   PAY OUT OF PTO AT TERMINATION   by Chad P. Richter         As many of you know, the Nebraska Supreme Court decided in Roseland v. Strategic Staff Mgmt., 272 Neb. 434 (Oct. 2006), that employers must pay to employees any and all earned and unused vacation at the time of separation of employment.  Following this decision, the Unicameral passed, and the Governor signed into law in March of 2007, an amendment to the Nebraska Wage Payment and Collection Act adopting the Roseland court's finding regarding vacation payout at separation.  Although the amendment requires employers to pay out any earned and unused vacation to employees, the same amendment allows employers discretion to determine by policy or contract whether they wanted to pay earned and unused sick leave at separation.  The 2007 amendment did not address, however, whether employers with Paid Time Off (PTO) programs must treat such benefitted time like vacation and, therefore, pay out unused PTO at separation, or whether they can treat this type of leave similar to sick leave.  Recently, Judge Merritt of the District Court of Lancaster County ruled in Gallentine v. B&R Stores, Inc. (June 18, 2008) that an employer can determine by policy whether PTO must be paid out at separation.  The employer in Gallentine had the following policy:    [u]pon termination associates will be paid for up to a maximum of four weeks (160 hours) of accrued and unused paid time off of their last paycheck.  However, no accrued and unused paid time off will be paid to any associate who (1) fails to give two weeks notice upon resignation; (2) is involuntarily terminated; or (3) has less than the required amount of continuous service as described in the policy.    The District Court ruled that pursuant to the company's policy and the intent of the legislators that drafted the amendment to the Wage Payment and Collection Act, employers' are free to determine by policy whether this should or should not be paid out at an employee's termination.  A copy of the court's decision can be found at: http://www.berenstate.com/Gallentine_v_BR_Stores_ORDER.pdf.  Although this is a District Court opinion and the parties can certainly file an appeal with regard to this issue, we wanted to make you aware of this significant decision.  If you have any questions regarding this decision, please do not hesitate to contact us.   March 28, 2008   NEW FMLA POSTER REQUIREMENT   by Chad P. Richter         The U.S. Department of Labor recently issued a new Family and Medical Leave Act poster that outlines the recent amendments to the FMLA.  As you recall, in January 2008, Present Bush signed into law amendments to the FMLA that provide the following two new types of FMLA leave:    ▪        Extended FMLA leave to care for injured service member.  Employees may take up to 26 weeks of leave to care for spouses, children, parents or next of kin with serious illnesses or injuries incurred during active duty in the armed forces.  This leave is available in only one 12-month period, and any other FMLA leaves in the same period count against the 26-week limit.  ▪        Standard FMLA leave for service-related "exigency."  Employees can use the standard 12 weeks of FMLA leave in any 12-month period to deal with "any qualifying exigency" that arises from a spouse's/child's/parent's active duty in the armed forces, including an order or call to duty.  The 12-week maximum is available every 12 months and is reduced by any FMLA leave taken during the same period.  The DOL says that this service-related leave is not technically effective until the agency defines "qualifying exigency."  Nevertheless, until rules are published, the DOL urges employers to provide the leave to eligible employees. Although the regulations to implement the new FMLA rights are still in the works, the DOL has issued a supplement to the FMLA poster that employers subject to the law must display in the workplace.  Employers must immediately post the notice describing the new family leave rights wherever the FMLA poster is displayed.  The supplemental notice is available for download from the DOL's website at http://www.dol.gov/esa/regs/compliance/posters/fmla.htm       March 7, 2008   IMMIGRATION UPDATE: USCIS PERMITS H-1B CAP FILING FOR APRIL 1st by David Zaritzky Brown     With April 1, 2008 fast approaching, now is the time for companies to review and confirm whether they need assistance with an H-1B filing.  As you may know, there are a limited number of H-1Bs issued each year for first time applicants – 58,200 after subtracting those held open under international treaties.  Additionally there are 20,000 Hs that are exempt from this cap for holders of a U.S. master's degree. Last year the United States Citizenship and Immigration Service (USCIS) filled the quota on the first day of filing – they received double the quota allowance!  A lottery was held to determine which applications would be processed.  We again expect that all regular H filings will need to be filed on April 1 and undergo a lottery selection.  Additionally, since the 20,000 master's degree Hs disappeared in less than a month last year, we expect these to be used within the first day or two.  Internally, we are planning to file all of our Hs on March 31, 2008 and view anything filed later as too late to meet the cut-off.  As a result, it is important to examine whether your company has any needs for an H status for any employees. The H-1B is a specialty occupation visa status reserved for positions that have a minimum requirement of a bachelor's degree (or equivalent) based on the employer's standard hiring practice or the general requirements for the position or industry.  Most professional occupations qualify for H-1B consideration.  Common H positions are found in most industries and include:  software engineers, financial managers, scientists, marketing managers, sales engineers, accountants, and operations managers, etc. H-1B applications filed with the government on April 1st are for Hs that will commence on October 1, 2008.  Thus, anyone requesting an H now, will need to wait until October 1, 2008 before it is effective.   March 5, 2008   EMPLOYER ALERT--DISCRIMINATION CLAIMS RISE SIGNIFICANTLY   by Christopher E. Hoyme     Today, the Equal Employment Opportunity Commission (EEOC) released its compilation of annual statistics for 2007.  Alarmingly for employers, these figures for the private sector show:   The largest annual increase in charges filed since the early 1990s. The largest volume of discrimination charges filed in the last five years. Charges related to race, retaliation, age, disability, national origin, religion and pregnancy discrimination all rose by at least 10 to 15 percent. For the first time in history, charges related to retaliation exceeded all other discrimination categories other than race. The EEOC recovered approximately $345 million in total monetary relief on behalf of charging parties. The EEOC filed 336 lawsuits against employers, including 116 class actions on behalf of alleged victims of discrimination or discriminatory policies. According to Commission Chair Naomi C. Earp, "Corporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively.  To ensure that equality of opportunity becomes a reality in the 21st century workplace, employers need to place a premium of fostering inclusive and discrimination-free work environments for all individuals." The EEOC's message is clear.  To proactively respond to this increase in potential exposure, all employers should consider an expedited audit of their anti-discrimination training, policies and practices.  If you have questions about reducing your employment practices liability or conducting an audit of your personnel policies, please contact Berens & Tate, your labor and employment law specialists. For additional information regarding this data, please go to the EEOC website at www.eeoc.gov.   February 11, 2008   DOL ISSUES PROPOSED RULE MODIFYING FMLA REGULATIONS   by Timothy D. Loudon           The Department of Labor's Wage and Hour Division is proposing its first major tune-up of the FMLA regulations since issuing its final rule in April 1995.  The notice of proposed rulemaking was published today in the Federal Register.  Following a 60-day comment period, the DOL has vowed to issue its final rule during the remaining months of the Bush Administration.  Among other things, the proposed rule amplifies upon the current regulations governing:  (1) employee notice requirements applicable to the taking of intermittent leave; (2) the employer's ability to contact the employee's healthcare provider directly to obtain clarification or authentication of documentation submitted by the employee; and (3) the frequency in which an employer may request recertification of a serious health condition. The proposed rule also suggests modifications to the original rule's provisions addressing fitness-for-duty examinations, light duty work, substitution of paid leave, and the ability of an employee to waive FMLA claims without DOL involvement.  Finally, the proposed rule seeks public comment on the new military family leave provisions that were enacted into law on January 29, 2008. We will be analyzing the impact of the proposed rule in a future edition of Laborwatch.  In the meantime, you can access the proposed rule directly on the Internet at the following address: http://www.gpoaccess.gov/fr/index.html.   By clicking on the "browse" button, you will be able to access links to the published materials located at FR 7876 ? 8001.   February 4, 2008   EXPANSION TO FMLA LEAVE EFFECTIVE IMMEDIATELY   by Kenneth M. Wentz III     Effective January 28, 2008, the Family and Medical Leave Act permits eligible employees to take job protected family medical leave due to demands related to active military service or care for a family member who was injured while serving in the military. The first new type of leave, entitled "active duty leave," requires employers with 50 or more employees to provide eligible employees with up to 12 weeks of unpaid leave a year for a "qualifying exigency" connected to the active duty status of an employee's spouse, child, or parent.  "Exigency" has not yet been defined. The second type, entitled "caregiver leave," entitles eligible family members to take up to 26 weeks of unpaid leave to care for a wounded servicemember.  "Caregiver leave," however, is only available during a single 12-month period.  Family members included as "caregivers" include spouse, child, parent or next of kin ("nearest blood relative").  To qualify, the wounded servicemember must have a "serious illness or injury" incurred while on active duty. The new regulations include additional requirements, such as the option of the employee to take either leave on an intermittent or reduced schedule basis.  An employee requesting leave under either provision may, upon request, provide a certification for servicemember family leave.  Employers can also require an employee to provide "reasonable and practicable" notice of foreseeable leave. The full text of the January 28th expansion to FMLA leave can be found at http://www.dol.gov/esa/whd/fmla/.  Additionally, don't forget that, beginning February 1 of each year, covered employers with 10 or more employees must post the OSHA-required Form 300A, which summarizes an employer's reportable injuries and illnesses for the prior year.  The form can be found at http://www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf and the posting period is February 1 through April 30.  Keep in mind that even if the employer had no reportable injuries/illnesses in the prior year, the Form 300A still must be posted. If you have questions about the FMLA expansion, the posting of OSHA Form 300A, or related compliance issues, please contact Berens & Tate, your labor and employment law specialists. December 14, 2007 NEW I-9 FORM TAKES EFFECT DECEMBER 26, 2007 by Kenneth M. Wentz III     The U.S. Citizenship and Immigration Services (USCIS) released a revised Form I-9, Employment Eligibility Verification, as published in the Federal Register on November 26, 2007.  After December 26, 2007, employers who fail to use the newly amended Form I-9 may be subject to applicable civil penalties as enforced by U.S. Immigration and Customs Enforcement of the Department of Homeland Security.  Changes to the I-9 Form include, among other things, the list of acceptable forms of identification. Employers do not need to, and should not, complete the new I-9 Form for current employees for whom there is a properly completed I-9 Form on file.  However, employers must use the new I-9 for any re-verification of employment authorization as needed on or after December 26, 2007. You can download the new form at: http://www.uscis.gov/files/form/i-9.pdf A more detailed analysis of the new I-9 form can be found in the upcoming December edition of Laborwatch.  If you have questions about the revised I-9 Form or related immigration compliance issues, please contact Berens & Tate, your labor and employment law specialists. August 20, 2007 ICE ISSUES FINAL RULE ON NO-MATCH LETTERS   by Timothy D. Loudon     In the wake of Congress' failed efforts to implement immigration reform this year, the Department of Homeland Security, U.S. Immigration and Customs Enforcement ("ICE"), has decided to forge ahead with its guidance on how employers should respond to the receipt of "no-match" letters from the Social Security Administration or Department of Homeland Security.  The agency's Final Rule, which takes effect September 14, 2007, provides a "safe harbor" for those employers who follow the detailed procedures outlined in the rule. Specifically, employers who receive a no-match letter will have 30 days to verify whether the mismatch was the result of a record-keeping or other clerical error on the part of the employer.  If this does not resolve the discrepancy, the employer is required to notify the employee of the mismatch and ask him or her to resolve any remaining discrepancies with the SSA.  If the matter still remains unresolved at the conclusion of 90 days, the employer and employee will have three days to complete a new I-9 form, during which time the employee must present alternative documentation verifying his or her identity and/or authorization to work in the United States.  If the employee is unable to do so, the employer must choose between terminating the employee or facing the risk of civil and criminal penalties.  In any event, the safe harbor will not excuse employers who knowingly employ unauthorized aliens. Check out the following Web site for the full text of the Final Rule: http://www.dhs.gov/xlibrary/assets/ice_safeharbor_no-match_finalrule_2007-08.pdf The Firm | Recruitment | Laborwatch | Berens and Tate News | Contact | Sitemap | Home © 2006 Berens and Tate, PC, LLO * 10050 Regency Circle, Suite 400 * Omaha NE 68114 * (402) 391-1991. All Rights Reserved. The Firm | Recruitment | Laborwatch | Berens and Tate News | Contact | Sitemap | Home © 2007 Berens and Tate, PC, LLO * 10050 Regency Circle, Suite 400 * Omaha NE 68114 * (402) 391-1991. All Rights Reserved.