DOL Announces New Test for “Interstate Commerce”, February 16, 2005
The most recent of many new DOL FLSA Opinion Letters (W&H Op. Letter 1/11/05) states that truck drivers moving products from warehouses to other points in the same state can still qualify for the Fair Labor Standards Act's motor carrier exemption if the products originated out-of-state. The letter uses the DOT’s 1992 seven factor test for determining the "fixed and persisting intent" of a shipper that merchandise continue in interstate commerce when moving goods intrastate from storage facilities. The DOT’s factors include:
- shipments based on volume projections of customer demand that is based on some factual basis;
- no processing or substantial product modifications in the storage facility;
- while in the warehouse, the merchandise is subject to the shipper's control and direction;
- tracking systems are used to track and document the shipments in and out of the storage facility;
- the shipper bears the ultimate payment for transportation charges even if the warehouse directly pays the transportation charges to the carrier;
- the warehouse is owned by the shipper; and
- the shipments move through the warehouse pursuant to a storage in transit provision.
Going forward, these factors, along with 10 additional qualifiers, will guide the DOL’s evaluation of interstate commerce when there is no intrastate recipient. These factors and the new tests supersede DOL Opinion Letters dated March 19, 1974, April 1, 1981, Aug. 23, 1982, and Jan. 24, 1985.
Two New FMLA Opinion Letters from DOL, February 15, 2005
In the only guidance on the FMLA coming from the Department of Labor since May 2004, the DOL recently released opinion letters regarding medical documentation and drug testing. The DOL’s Wage and Hour Division issues opinion letters in response to questions it receives about the application of the laws it enforces, including the FMLA and the FLSA.
Medical Documentation
In an Opinion Letter dated October 4, 2004, the DOL looked at an employer’s sick leave policy that required employees absent due to illness to provide "proof of illness" in order to receive paid sick leave. This proof could be required from all employees under the sick leave plan, including those whose absences are covered by the FMLA and who had previously submitted medical certifications.
Employees who took FMLA qualifying leave for their own serious health conditions but who failed or refused to provide the "proof of illness" when requested, could still take unpaid FMLA protected leave, but could not take paid sick leave. They could, however, substitute accrued personal or vacation leave for FMLA qualifying leave absences without being required to provide proof of illness.
The DOL found the policy acceptable under the FMLA, so long as the program was applied uniformly to all absences, and not just those that were FMLA- qualifying. "if the employees may take FMLA leave or substitute accrued vacation or personal leave should they choose not to provide the additional proof of illness required to receive paid sick leave" the plan still complied with FMLA.
Drug Testing
In an Opinion Letter dated October 25, 2004, the DOL confirmed that an employer can request a drug test for employees returning from FMLA-qualifying leave. "Nothing in the FMLA prohibits an employer from requiring an employee to submit to drug testing once the employee has returned to work," DOL said.
California Mandatory Sexual Harassment Training, February 14, 2005
California has passed a mandatory sexual harassment training requirement for supervisors. The California law covers an organization that "regularly has 50 or more workers," whether they are employees or independent contractors. The law's legislative history suggests that this means the employer has at least 50 workers (including part-time workers) regularly working in California during twenty consecutive weeks of the current or the preceding calendar year to have the requirement apply. Here are some FAQs regarding coverage:
Who is covered by the law?
Employers with 50 or more employees and/or independent contractors, agents of such employers, and state and local government entities.
Who has to be trained?
Supervisors – defined under the California FEHA as individuals with the authority to hire, fire, or discipline employees, or to direct employees or adjust their grievances, or to effectively recommend such action.
When do they have to be trained?
Beginning January 1, 2005, current supervisors must be trained within one year unless they have had training after January 1, 2003.
Beginning January 1, 2005, a newly hired or promoted supervisor must be trained within six months.
Beginning January 1, 2006, all supervisors must receive training once every two years.
What kind of training are we talking about?
Two hours of "classroom or other effective interactive training regarding sexual harassment by a person with expertise and knowledge in this area." The training must include practical guidance and examples regarding state and federal laws, including identifying, preventing and correcting sexual harassment, discrimination and retaliation and the remedies available to victims of such behavior.
What if we have fewer than 50 workers at my California location?
The law's legislative history suggests that the employer should have at least 50 workers (including part-time workers) regularly working in California during twenty consecutive weeks of the current or the preceding calendar year to have the requirement apply. Like many things, however, it is not 100% certain that a California court would agree with this interpretation, and an employer who has 50 + workers anywhere could fall within the law. Regardless of it's application, however, the law's requirements will probably be at least one consideration, and possibly the standard, to which an agency or court looks to see whether "all reasonable steps" have been taken to prevent sexual harassment. So, here's another good reason to adopt a regular training component for supervisors.
The DO’s and Don’ts of Using Consumer Reports, February 8, 2005
Employers who use credit reports should be mindful of the legal parameters for using such reports, which are set out in the Fair Credit Reporting Act (FCRA). The FCRA applies when a report is prepared by consumer reporting agencies (CRA)--businesses that assemble such reports for other businesses. The reports usually contain information about personal and credit characteristics, general reputation, and character. A reference provided by an employer is not covered by the law but a reference verified by an employment or reference checking agency (or other CRA) is covered.
For whatever purpose, employers who wish to obtain reports from CRA’s must first notify the individual in writing (in a document consisting solely of the notice) that a credit report may be obtained. The writing must be obtained before a report is requested from a CRA.
If an employer relies on a consumer report and makes an employment decision which results in an "adverse action" (e.g. failure to hire, failure to promote), the FCRA requires the employer to provide the employee of advance notice of the action, provide the person with a copy of the consumer report along with a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act" (which is usually provided to the employer by the CRA). Once the adverse employment decision is implemented, the employer must then provide the individual with the name, address, and phone number of the CRA that supplied the report; a statement that the CRA that supplied the report did not make the decision to take the adverse action, and a notice of the individual's right to dispute the accuracy of any information the agency furnished, and the right to an additional free consumer report from the agency upon request within 60 days.
The failure to follow the FCRA requirements can be costly. Individuals can sue employers for damages in federal court. If successful, they can recover court costs and reasonable legal fees, as well as punitive (penalty) damages if the violation is deliberate.
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