Family and Medical Leave Act (1993)
10 July 2006
Family and Medical Leave Act (1993), 29 U.S.C. §§2601 et seq.
Coverage and Prohibition: Employers with 50 or more employees, and all public agencies and schools, are required to provide eligible employees with up to 12 weeks of unpaid leave in any 12-month period for the following reasons: (1) to care for a newborn child, or upon placement with the employee of a child for adoption or foster care; (2) to care for a spouse, child, or parent who has a serious health condition; or (3) when the employee is unable to work because of the employee’s own serious health condition. A “serious health condition” includes any illness, injury, impairment, or physical or mental condition that involves either inpatient care or “continuing treatment” by a health care provider. The Act defines an eligible employee as one who: (1) has worked for the employer for at least 12 months (not necessarily consecutively); (2) has worked for the employer for at least 1,250 hours in the previous 12 months; and (3) works at, or is assigned to, a worksite with 50 or more employees or within 75 miles of worksites that taken together have a total of 50 or more employees. Employers ordinarily must reinstate employees to the same position or an equivalent position upon return from the leave and employees taking leave under the Act are entitled to receive health benefits during the leave on the same terms as if they had been at work. Additionally, employees returning from covered leave must be reinstated to equivalent benefits without waiting periods or exclusions.
Employers may apply any accrued paid vacation, personal, and sick days toward the 12-week leave of seriously ill employees or of employees caring for a seriously ill family member. Likewise, employees caring for a new child may be required to apply any accrued vacation days or other accrued personal paid leave toward the mandated leave. Leaves may be taken on an intermittent or reduced leave schedule when medically necessary or when the employer agrees to this type of schedule.
Enforcement: The Act is administered by the Department of Labor, Wage and Hour Division, under an approach modeled on the enforcement procedures of the Fair Labor Standards Act (see above). Civil suits may be filed by the Secretary of Labor and individual aggrieved employees.
Remedies: An employee may recover actual monetary losses, such as back pay and benefits, with interest, as well as equitable relief, such as reinstatement or promotion. An employee also can recover an additional amount equal to the employee’s actual losses plus interest if the violation is determined to be willful. Attorneys’ fees and costs also be may awarded.
Related Regulations:
Department of Labor: Family and Medical Leave Act Regulations, 29 C.F.R. Part 825.
Health Insurance Portability and Accountability Act (1996),
30 June 2006
29 U.S.C. §§1181 et seq., and §§1320d et seq.
Coverage and Requirements: The Health Insurance Portability and Accountability Act (“HIPAA”) applies to all health plans covered under the Employee Retirement Income Security Act (“ERISA”) (including self-funded and insured plans) and HMOs. HIPAA’s most important features include: (1) insurance “portability” provisions for employees who leave or lose their jobs; (2) antidiscrimination provisions prohibiting denial of health coverage based on an individual’s “health status;” (3) protections for employers that are part of a multi-employer plan or multi-employer welfare arrangement; and (4) creation of a demonstration program for medical savings accounts.
Among HIPAA’s portability provisions is a requirement that group health plans and health insurers furnish to an individual who loses coverage under a group health plan a certificate documenting the length of the individual’s prior coverage. Both the employer (technically, the group health plan) and the insurer (including an HMO) must provide the certificate; however, if one party provides it, the other party is considered to have done so. The recipient may use this information to limit any preexisting condition exclusion or other restriction under another group health plan.
Perhaps of most significance to employers, however, are regulations issued by the Department of Health and Human Services (“HHS”) to implement the Act’s privacy provisions. These regulations require covered entities (including group health plans, health care clearinghouses, and health care providers) to ensure that consumer health information is not misused or improperly disclosed and to establish clear procedures to protect patient privacy. Most employers (even if they are not a covered entity) that offer welfare benefits to employees under ERISA, whether insured or self-insured, are covered in their role as plan sponsor. The extent of the employer’s obligations will depend upon the functions it performs on behalf of the plan.
Enforcement: HHS’s Office for Civil Rights is charged with enforcing the privacy regulations. HHS does not have authority to regulate directly organizations in their role as employers, though it does regulate the group health plans sponsored by employers. The Department of Labor enforces HIPAA’s portability requirements on ERISA covered group health plans, including self-insured arrangements. Participants and beneficiaries also may sue to enforce these obligations.
Remedies: The Secretary of HHS may impose against persons who violate the privacy regulations a penalty of no more than $100 per violation not to exceed a total of $25,000 in a calendar year for the same violations. Persons who knowingly and in violation of HIPAA’s privacy requirements disclose individually identifiable health information are subject to fines of up to $50,000, imprisonment for not more than a year, or both. Penalties are more severe for disclosures committed under false pretenses or with the intent to sell, transfer, or use the information for commercial advantage, personal gain, or malicious harm. In addition, the Treasury Department can impose excise taxes against group health plans that fail to comply with the portability provisions.
Related Regulations:
Department of Labor, Employee Benefits Security Administration: Health Coverage Portability, Nondiscrimination, and Renewability - Evidence of Creditable Coverage, 29 C.F.R. §2590.701-5.
HHS: Privacy of Individually Identifiable Health Information, 45 C.F.R. §§164.500 et seq.
Sarbanes-Oxley Act (2002)
30 June 2006
Sarbanes-Oxley Act (2002)
(Corporate and Criminal Fraud Accountability Act), 18 U.S.C. §1514A
Coverage and Prohibitions: The Sarbanes-Oxley Act was passed to help prevent corporate fraud and regulates how publicly traded companies report financial results and disclose executive compensation. The Act also prohibits retaliation against employees of publicly traded companies who complain about or disclose fraud by their employers. Specifically, employers (including their officers, contractors, subcontractors, or agents) may not discharge, demote, suspend, threaten, harass, or discriminate against an employee who takes lawful action to: (1) report; (2) assist in an investigation of; or (3) file, testify or participate in proceedings concerning certain illegal conduct by the employer. Conduct covered by the Act includes activities that the employee “reasonably believes” to be mail, wire, bank or securities fraud or a violation of a Securities and Exchange Commission rule or regulation or federal law related to shareholder fraud. The Act’s protections apply to employees who supply information or assistance to a federal regulatory or law enforcement agency, to a member of Congress or Congressional committee, or to a company supervisor with authority over the employee or authority to investigate, discover, or terminate the reported misconduct. The Act also amends the Employee Retirement Income Security Act (“ERISA”) (see above) to impose heavy criminal penalties on plan administrators who violate ERISA’s extensive reporting and disclosure requirements.
Enforcement: The antiretaliation provisions of the Act are enforced by the Department of Labor’s Occupational Health and Safety Administration (“OSHA”).
Remedies: Employees who face retaliation for protected activities under the Act may file a complaint with the OSHA Area director responsible for enforcement activities where the employee lives or worked, or with any OSHA officer or employee, within 90 days after an alleged violation of the Act occurs. If the Department of Labor takes no action within 180 days, the employee may sue in federal court for reinstatement, back pay with interest, and other compensatory damages including litigation costs, expert witness fees, and reasonable attorney fees.
Related Regulations:
OSHA: Procedures for Handling Discrimination Complaints under Title VII of the Sarbanes Oxley Act, 29 C.F.R. Part 1980.
Veterans Benefits Improvement Act of 2004
30 June 2006
Uniformed Services Employment and
Reemployment Rights Act (1994)
(as amended by the Veterans Benefits Improvement Act of 2004),
38 U.S.C. §§4301 et seq.
Coverage and Prohibition: The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) applies to all employers. The Act replaces the Veterans’ Reemployment Rights Act and the Military Selective Service Act and prohibits employers from discriminating in employment and from retaliating against any person for reasons related to past, present, or future service in a “uniformed service.” The USERRA statute defines covered service to include voluntary and involuntary active duty, active duty for training, initial active duty for training, inactive duty training, and full-time National Guard duty. Covered service also includes any absence needed to perform funeral honors duty or for an examination to determine whether a person is fit to perform military duty. The “uniformed services” are the Armed Forces and their reserves, the Army and Air National Guards during active and inactive duty training or full-time National Guard duty, the Public Health Service commissioned corps, and others that the President may designate during war or emergencies. The USERRA provides that an employer must grant a leave of absence for up to five years to any person who is absent from a job because of service in the uniformed services, and that the employer usually must reinstate the veteran to the position he would have held if his employment had not been interrupted by military service, or to an equivalent position. In addition, employees taking military leave are entitled to continue their health insurance coverage (generally at their own expense) for up to 24 months.
After completing military service, the veteran must notify the pre-service employer that he intends to return to work. Different notification periods and reinstatement rights apply, depending on the length of military service. The Act also protects returning veterans from discharge without cause for a period of time after reemployment, except for veterans whose service was for less than 31 days.
Organizations are not required to reemploy returning veterans if: (1) the employee’s pre-service employment was “for a brief, nonrecurrent period” and there was no reasonable expectation of employment that would continue indefinitely or for a significant period; (2) the employer’s circumstances have changed so that reemployment would be unreasonable or impossible; or (3) the employment of a veteran with a service-incurred or aggravated disability would cause undue hardship to the employer after reasonable efforts to accommodate the disability. Furthermore, an individual’s rights under the USERRA cease if the person is separated from military service with a dishonorable or bad conduct discharge.
Enforcement: The Act is administered by the Department of Labor. Individual employees may ask the Secretary of Labor to conduct investigations. If efforts at voluntary settlement with a private employer are unsuccessful, the Secretary may refer the case to the Attorney General. Civil suits may be filed by the Attorney General or individual aggrieved employees.
Remedies: An employee may recover actual monetary losses, such as back pay and benefits, as well as equitable relief, such as injunctions. An employee also may recover an additional amount equal to the employee’s actual losses if the violation is determined to be willful. Attorneys’ fees, witness fees, and costs may also be awarded.
Related Regulations:
Department of Labor, Veterans’ Employment and Training Service: Proposed Rules Under USERRA, 69 Fed. Reg. 56,265 (2004) (to be codified at 20 C.F.R. Part 1002) (proposed Sept. 20, 2004).
Summer Dress Code Challenges
27 June 2006
THIS WEEK’S E-TIP: Summer Dress Code Challenges
Has your workplace gone too casual this summer? Find out five tips for
getting employees to cover up tattoos, remove visible body piercings,
and just plain dress appropriately.
Download your free policy writing and revision kit (12 pages).
Includes:
- Model Policy Statement - written in plain English ready to go policy language,
- Management Rationale - background information and best
HR practices - References for Legal Counsel - detailed documentation of
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To get your complimentary dress code policy, go to:
http://ppspublishers.com/ezdcdress.htm
It’s summertime, and employees across the country are rolling up their
sleeves and maybe even showing their bare legs at work. But are they
exposing too much? Are you seeing more skin, tattoos, and piercings
than you think is appropriate?
Don’t despair. You have considerable flexibility when it comes to setting your dress code policy.
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The Legal Basics of Dress Codes
It is a surprise to many employers, but discrimination laws generally do not restrict your right to determine appropriate workplace dress. In fact, you have a lot of discretion in setting appearance standards.
For example, you typically may impose rules and guidelines that have a basis in social norms, such as those prohibiting tattoos, body piercing, or earrings for men. While tattoos and piercings may be examples of employee self-expression, they generally are not recognized as indications of religious or racial expression and typically are not protected under federal discrimination laws.
Even if a religious belief regarding body art is assumed, most courts have agreed that the duty to accommodate religious dress issues is fairly limited and often will uphold an employer’s dress code when based on clearly expressed business interests.
For example, in Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004), the First Circuit addressed whether an employer was required to exempt a cashier from its dress code policy prohibiting facial jewelry (except earrings) and allow her to wear facial piercings as an accommodation. The employee claimed that her religious practice as a member of the Church of Body Modification required she wear the piercings uncovered at all times.
The court accepted that the cashier was protected by Title VII of the Civil Rights Act, without specifically discussing the sincerity of her beliefs, and only ruled on whether her requested exemption from the dress code was an undue hardship. The court found that the exemption would be an undue hardship to the employer because it would “adversely affect the employer’s public image,” and the employer had a legitimate business interest in cultivating a professional image.
However, certain dress and appearance restrictions relating to physical characteristics may be discriminatory if they adversely impact a particular group of employees (such as women, minorities, or disabled individuals) or interfere with employees’ observances of religious practices, such as head coverings. In addition, you may not completely prohibit the wearing of union insignias.
For example, dress codes that have no basis in social customs, that differentiate significantly between men and women, or that impose a greater burden on women usually are not upheld. The Seventh Circuit determined over 25 years ago in Carroll v. Talman Federal Savings & Loan Ass’n, 604 F.2d 1028 (7th Cir. 1979), cert. denied, 445 U.S. 929
(1980), that an employer’s policy requiring all female tellers, office workers, and managerial employees to wear a uniform was discriminatory because male employees in the same positions only were required to wear customary business attire.
So, there are some legal constraints you need to consider and, to protect against charges of discrimination, your best bet is to impose only standards that have some legitimate business justification. Still, even with this limitation, you have substantial discretion to set and enforce reasonable dress codes.
Addressing Tattoos, Piercings, and Too Much Skin
Even the most casual organizations have expectations that employees will use common sense in choosing business attire. If you are finding the limits of good taste being tested as the result of summer fashions, make sure your dress code policy covers these five points:
- Prominently state your business justification for the dress code policy. Generally, employers have three business-related reasons for implementing dress codes:
– to present or create a professional or identifiable appearance to customers, suppliers, and the public;
– to promote a positive working environment and limit distractions caused by outrageous, provocative, or inappropriate dress; and
– to ensure safety while working. - Make sure you set some parameters defining what is appropriate warm-weather casual attire in order to prevent sloppy appearances. For example, your policies should specify whether “casual” means dress slacks and collared shirts or jeans and T-shirts. In addition, if you don’t want employees to wear shorts, sleeveless shirts, or sundresses, include these restrictions in the policy. Further, if your office does not observe casual dress every day, you should identify which days are designated
for casual dress. Address tattoos and body piercings if they are not appropriate for
your workplace. Most employers that have policies dealing with these issues limit restrictions to employees who have contact with the public, and only require that the tattoos and piercings not be visible. - Identify what standards apply for employees who meet customers or attend outside meetings. Employers often require employees who have regular contact with the public to dress more professionally, particularly if the workplace dress code is casual. So make sure employees know what dress is appropriate for these jobs.
- Give contact information so employees know where to go for more guidance on what is appropriate dress under your policy. Your HR Manager should be prepared to answer questions about the dress code, as well as determine when violations occur.
Consistent Enforcement of Dress Codes Key
Hot weather and summer fashions can test any dress code policy. For some reason, the heat of the season is capable of causing even the most modest and normally well dressed of employees to push the envelope and come to work in outfits better suited for the beach or a pool party.
So, you need to be prepared to deal with this reality by distributing and explaining your policy to employees and by enforcing it when there are violations. Be very clear about your standards and the consequences of violations. You may not be able to insure good fashion choices, but you can at least get your employees to think twice before wearing flip-flops and cutoffs to work.
Subscribers to the Personnel Policy Manual and HR Policy Answers on CD can find more information on dress code policies and legal issues in Personal Appearance of Employees (Dress Code), Chapter 802
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