Federal
1. Fair Labor Standards Act (“FLSA”) – the health care reform bill signed into law by President Obama recently contains a provision modifying the FLSA. This provision requires employers to provide reasonable breaks for non-exempt nursing mothers to express milk for infants, at least up to a year post-birth. (A non-exempt mother is one whom is covered by the overtime and minimum wage provisions of the FLSA, which can be a difficult determination to make for employees making $455 or more per week. If an employee makes less than $455 per week, she cannot be exempt). Exempt mothers are not entitled to the breaks. The amendment also requires the employer to provide the mother with a private location (not a bathroom) to do so. The statute does not define how long of a break is reasonable, but we expect the U.S. Department of Labor (“DOL”) to issue regulations on that regard in the near future. Illinois has a similar Nursing Mothers in the Workplace Act.
The new health care reform law also amends the FLSA by prohibiting employers from retaliating against employees who report or complain about a violation of the law, so long as their belief in a violation is reasonable. For a report or complaint to be protected, it does not specifically have to reference or invoke the new health care reform law.
The DOL has also launched a new enforcement program to crack down on unpaid internships that violate the FLSA’s minimum wage and/or overtime provisions. As indicated in a new DOL Factsheet 71 (see www.dol.gov/whd/regs/compliance/whdfs71.htm) , almost all unpaid internships will violate the FLSA unless they meet an onerous six-factor test.
2. Family and Medical Leave Act (“FMLA”) – the DOL has issued a new “administrator interpretation” clarifying that the FMLA can apply to employees who do not have a legal or biological relationship with the child for whom they want to care. Specifically, the FMLA applies to any employee standing in loco parentis (“in the place of a parent”) to a child. Depending on the circumstances, this may include same-sex partners who have or adopt a child, an employee who helps care for a grandchild, younger sibling or other relative, and/or an employee caring for the child of an active service member. The FMLA regulations permit employers to require documentation of familial relationships but are silent the type of documentation that might be required for some of these in loco parentis relationships.
3. The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) -- President Obama also recently signed into law the Dodd-Frank Act. One of the key provisions of this act gives significant financial incentives and protections to whistleblowers who report violations of securities law to the Securities and Exchange Commission (“SEC”), including violations of the Foreign Corrupt Practices Act (“FCPA”). The Act requires the SEC to pay eligible whistleblowers between 10% and 30% of total monetary sanctions exceeding $1 million collected from one or more violators. An eligible whistleblower is defined as an individual who provides “original information” to the SEC that results in a successful enforcement action.
The Dodd-Frank Act also creates a private right of action for whistleblowers against employers who discharge, suspend, threaten, harass or discriminate against them for making good faith complaints to the SEC, participating in hearings, making disclosures required by SOX, etc. A claim of retaliation may be brought in federal court and remedies include reinstatement, double back pay with interest, as well as litigation costs, expert witness fees, and reasonable attorney’s fees. Other similar anti-retaliation provisions cover financial service industry employees who make complaints to the Bureau of Consumer Financial Protection or other governmental entities.
Additionally, this act guarantees a right to jury trial and expands covered employees from publicly traded companies, brokerage firms or contractors of publicly traded companies to now include employees of “nationally recognized statistical rating organization[s],” as well as subsidiaries of publicly traded companies in specific instances.
In light of Dodd-Frank Act, employees are much more likely to bypass internal complaint or compliance procedures and make direct reports to governmental entities. Nevertheless, affected companies should continue to encourage the use of internal reporting mechanisms and adopt and follow anti-retaliation policies for employees who avail themselves of such mechanisms. In addition, thorough investigation and responsive action should help lessen substantive penalties and reduce the likelihood of retaliation claims.
Illinois
Effective January 1, 2011, a variety of new laws affecting Illinois employers will go into effect:
1. The Employee Credit Privacy Act – prohibits most Illinois employers from: (a) basing hiring, promotion and firing decisions on an employee or applicant’s credit history; and (b) inquiring about or obtaining a copy of an employee or applicant’s credit history/report. Banks, insurance companies, debt collectors, governmental agencies and law enforcement are excluded from the act. There are some additional exceptions for covered employers in other industries when a satisfactory credit history is a bona fide occupational qualification. The act also contains an anti-discrimination and retaliation provision, which cannot be waived by the employee or applicant. Finally, the act gives employees and applicants a direct cause of action for damages and/or an injunction in state circuit court, and a prevailing plaintiff will be entitled to costs and attorneys’ fees.
2. The Illinois Wage Theft Enforcement Act – this legislation amends the Illinois Wage Payment and Collection Act, and dispenses with the requirement that an employee who is seeking earned wages, bonuses, vacation pay or other compensation make a pre-suit written demand under the Attorneys’ Fee in Wage Actions Act if she hopes to collect her attorneys’ fees. The act also increases civil and criminal penalties for violations, depending on whether the claim is heard before the Illinois Department of Labor or state circuit court.
For more information on Lowis & Gellen LLP’s employment law practice, please contact partner Rob Smeltzer @ (312)456-7952.
1. Fair Labor Standards Act (“FLSA”) – the health care reform bill signed into law by President Obama recently contains a provision modifying the FLSA. This provision requires employers to provide reasonable breaks for non-exempt nursing mothers to express milk for infants, at least up to a year post-birth. (A non-exempt mother is one whom is covered by the overtime and minimum wage provisions of the FLSA, which can be a difficult determination to make for employees making $455 or more per week. If an employee makes less than $455 per week, she cannot be exempt). Exempt mothers are not entitled to the breaks. The amendment also requires the employer to provide the mother with a private location (not a bathroom) to do so. The statute does not define how long of a break is reasonable, but we expect the U.S. Department of Labor (“DOL”) to issue regulations on that regard in the near future. Illinois has a similar Nursing Mothers in the Workplace Act.
The new health care reform law also amends the FLSA by prohibiting employers from retaliating against employees who report or complain about a violation of the law, so long as their belief in a violation is reasonable. For a report or complaint to be protected, it does not specifically have to reference or invoke the new health care reform law.
The DOL has also launched a new enforcement program to crack down on unpaid internships that violate the FLSA’s minimum wage and/or overtime provisions. As indicated in a new DOL Factsheet 71 (see www.dol.gov/whd/regs/compliance/whdfs71.htm) , almost all unpaid internships will violate the FLSA unless they meet an onerous six-factor test.
2. Family and Medical Leave Act (“FMLA”) – the DOL has issued a new “administrator interpretation” clarifying that the FMLA can apply to employees who do not have a legal or biological relationship with the child for whom they want to care. Specifically, the FMLA applies to any employee standing in loco parentis (“in the place of a parent”) to a child. Depending on the circumstances, this may include same-sex partners who have or adopt a child, an employee who helps care for a grandchild, younger sibling or other relative, and/or an employee caring for the child of an active service member. The FMLA regulations permit employers to require documentation of familial relationships but are silent the type of documentation that might be required for some of these in loco parentis relationships.
3. The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) -- President Obama also recently signed into law the Dodd-Frank Act. One of the key provisions of this act gives significant financial incentives and protections to whistleblowers who report violations of securities law to the Securities and Exchange Commission (“SEC”), including violations of the Foreign Corrupt Practices Act (“FCPA”). The Act requires the SEC to pay eligible whistleblowers between 10% and 30% of total monetary sanctions exceeding $1 million collected from one or more violators. An eligible whistleblower is defined as an individual who provides “original information” to the SEC that results in a successful enforcement action.
The Dodd-Frank Act also creates a private right of action for whistleblowers against employers who discharge, suspend, threaten, harass or discriminate against them for making good faith complaints to the SEC, participating in hearings, making disclosures required by SOX, etc. A claim of retaliation may be brought in federal court and remedies include reinstatement, double back pay with interest, as well as litigation costs, expert witness fees, and reasonable attorney’s fees. Other similar anti-retaliation provisions cover financial service industry employees who make complaints to the Bureau of Consumer Financial Protection or other governmental entities.
Additionally, this act guarantees a right to jury trial and expands covered employees from publicly traded companies, brokerage firms or contractors of publicly traded companies to now include employees of “nationally recognized statistical rating organization[s],” as well as subsidiaries of publicly traded companies in specific instances.
In light of Dodd-Frank Act, employees are much more likely to bypass internal complaint or compliance procedures and make direct reports to governmental entities. Nevertheless, affected companies should continue to encourage the use of internal reporting mechanisms and adopt and follow anti-retaliation policies for employees who avail themselves of such mechanisms. In addition, thorough investigation and responsive action should help lessen substantive penalties and reduce the likelihood of retaliation claims.
Illinois
Effective January 1, 2011, a variety of new laws affecting Illinois employers will go into effect:
1. The Employee Credit Privacy Act – prohibits most Illinois employers from: (a) basing hiring, promotion and firing decisions on an employee or applicant’s credit history; and (b) inquiring about or obtaining a copy of an employee or applicant’s credit history/report. Banks, insurance companies, debt collectors, governmental agencies and law enforcement are excluded from the act. There are some additional exceptions for covered employers in other industries when a satisfactory credit history is a bona fide occupational qualification. The act also contains an anti-discrimination and retaliation provision, which cannot be waived by the employee or applicant. Finally, the act gives employees and applicants a direct cause of action for damages and/or an injunction in state circuit court, and a prevailing plaintiff will be entitled to costs and attorneys’ fees.
2. The Illinois Wage Theft Enforcement Act – this legislation amends the Illinois Wage Payment and Collection Act, and dispenses with the requirement that an employee who is seeking earned wages, bonuses, vacation pay or other compensation make a pre-suit written demand under the Attorneys’ Fee in Wage Actions Act if she hopes to collect her attorneys’ fees. The act also increases civil and criminal penalties for violations, depending on whether the claim is heard before the Illinois Department of Labor or state circuit court.
For more information on Lowis & Gellen LLP’s employment law practice, please contact partner Rob Smeltzer @ (312)456-7952.
No comments:
Post a Comment