The calendar now says 2012, but employers may notice that their Family and Medical Leave Act (FMLA) forms from the U.S. Department of Labor (DOL) carry a December 31, 2011, expiration date. What to do? For now, just keep using the old forms.

The DOL’s Wage and Hour Division (WHD) has submitted the forms for medical certification, leave designation, and certification related to service member leave for renewal to the Office of Management and Budget (OMB). Until the OMB approves the documents, you can continue to use the expired forms.

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By Judith E. Kramer
Fortney & Scott, LLC

Update: November 1, 2011: The U.S. Department of Labor has extended the comment period until December 1, 2011.

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Employers worried that they may have misclassified independent contractors may find relief in a new program from the IRS.

The Voluntary Classification Settlement Program (VCSP) was announced September 21 and offers employers the opportunity to get into compliance by making a minimal payment covering past payroll tax obligations rather than waiting for an IRS audit.

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On April 5, the U.S. Department of Labor (DOL) issued a set of final “cleanup” regulations, bringing the existing Fair Labor Standards Act (FLSA) regulations up to date with the technical changes and statutory enactments that have passed over the past few years. For example, the regulations, which took effect today, update figures and computations to reflect the updated federal minimum wage, which increased to $7.25 per hour in 2009.

Yet what is more interesting about these regulations, which were initially proposed in mid-2008, is what they chose not to do. Despite receiving numerous comments over the nearly three-year period during which these proposed regulations were up for review, the DOL simply chose to defer consideration of the more substantive matters that were addressed by the original regulations, reducing the 29-page ruling to little more than technical cleanup.

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An agency Web chat hosted by the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) on Thursday, January 6, provided expected dates for proposed regulations on record-keeping under the Fair Labor Standards Act (FLSA). A Notice of Proposed Rulemaking on the “Right to Know Under the Fair Labor Standards Act” initiative is expected in April 2011.

The proposed rule, which will further the department’s Plan/Prevent/Protect and Openness and Transparency goals, will be drafted to provide workers with essential information about their employment status and earnings, including notification of status as an employee or independent contractor as well as notification of whether the employee is exempt or nonexempt. The rules also may require employers to provide a wage statement containing this or other information to employees each pay period.

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It may soon be easier for employees to find private legal representation after the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) declines to pursue their Fair Labor Standards Act (FLSA) or Family and Medical Leave Act (FMLA) claims. This is thanks to a new collaboration between the WHD and the American Bar Association (ABA) to establish an attorney referral system. Vice President Joe Biden, along with Secretary of Labor Hilda Solis, announced this new “Bridge to Justice” program at a Middle Class Task Force event on November 19, 2010.

Starting December 13, 2010, when workers with FLSA or FMLA claims are told that the WHD is not going to pursue their complaints, they may be given a toll-free number to contact the new ABA-Approved Attorney Referral System. If they call this number, they will be referred to ABA-approved attorney referral service providers in their area.

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This morning, Secretary of Labor Hilda Solis hosted a live webcast promoting the passage of and fielding audience questions about the Paycheck Fairness Act (PFA).

The webcast, which featured Lilly Ledbetter as cohost, emphasized the current administration’s efforts to eliminate wage discrimination while promoting wage transparency in the workplace, noting that passage of the PFA is now the next in a long series of steps toward wage equality.

The PFA would amend the Equal Pay Act of 1963 (EPA) in numerous ways, including: read more…

by Julie K. Athey

The U.S. Department of Labor (DOL) has released a new “administrative interpretation” (AI) that clarifies the circumstances in which an employee may take leave to care for a child for whom they act as a parent but aren’t legally recognized as such. As has been pointed out in numerous press reports over the last couple of days, the ruling appears to grant expanded Family and Medical Leave Act (FMLA) rights to gay and lesbian employees.

Although initial reports made it seem that the administrative interpretation would allow employees to take leave to care for a same-sex partner, the actual ruling is far less dramatic. The DOL explains that its intent is to assist employees and employers in understanding “how the FMLA applies when there is no legal or biological parent-child relationship.” In short, it addresses much broader issues than the circumstances in which an employee may take leave to care for a same-sex partner’s child.

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The U.S. Department of Labor (DOL) is expected to issue guidance on Wednesday that will grant expanded Family and Medical Leave Act (FMLA) rights to gay and lesbian employees. The development, however, may not be as dramatic as it sounds.

Initial overnight reports made it appear that the Obama administration was expanding the FMLA to allow employees to take leave to care for a same-sex partner. However, it appears that isn’t the case. Several new outlets are now reporting that the expansion will apply only to the limited situation when an employee requests leave in relation to the birth or adoption of a same-sex partner’s child.

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Continuing the recently established practice of issuing broadly applicable “Administrator Interpretations” in lieu of wage and hour opinion letters, U.S. Department of Labor (DOL) Deputy Administrator Nancy Leppink has released the second Administrator Interpretation of 2010. The interpretation, issued June 16, clarifies the definition of “clothes” under the Fair Labor Standards Act (FLSA), addressing some inconsistency among prior opinion letters and case law on the topic of donning and doffing protective equipment.

Specifically, the FLSA provides that time spent “changing clothes” at the beginning of the workday isn’t considered compensable time; however, there had been a difference of opinion as to whether “clothes” also included mandatory protective equipment required in some industries — for example, meatpacking and processing. In Administrator’s Interpretation No. 2010-2, Deputy Administrator Leppink examined the FLSA’s statutory language and legislative history to determine that “clothes” refers to apparel, not to mandatory protective equipment such as face shields, sanitary and safety equipment, protective gloves, and arm and belly guards. That means employees who are required by safety laws to don and doff protective gear must be compensated for the time it takes to do so.

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