Updates
Here are summaries of important legal or procedural changes that affect the latest edition of this product.
If you want to check on the accuracy of any other information in the book, please follow the legal research
instructions in the book or in Nolo's research manual, Legal Research: How to Find and Understand the Law.
NLRB Rules on Use of Company Email for Union Messages
Effective date:
Dec. 16, 2007
The National Labor Relations Board (NLRB) has ruled that companies may ban employees from sending personal email messages, or from sending messages that solicit or proselytize for outside organizations (including union-related messages), without violating the National Labor Relations Act.
In this case, The Guard Publishing Company (.pdf), a divided NLRB also changed the test for determining whether an employer has enforced its policies in a manner that discriminates against union-related activities. The former rule was that an employer that allows employees to use its equipment or other resources for non-work purposes may not discipline employees for using those resources for union-related purposes. The new rule is that an employer may make any number of distinctions -- for example, allowing charitable solicitations while prohibiting solicitations for other organizations, allowing personal messages while prohibiting messages sent on behalf of an organization, and so on -- without violating the law, as long as it doesn't explicitly prohibit only those activities that relate to union issues.
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Recent Developments in Family and Medical Leave
Effective date:
Aug. 8, 2007
The Family and Medical Leave Act (FMLA) -- the federal law that gives certain employees the right to take up to 12 weeks off per year to care for a new child, to care for a seriously ill family member, or to recover from their own serious health condition -- has been controversial since the day it was signed by President Clinton. Advocates for employers have argued that the law is too easily abused and imposes difficult compliance obligations. On the other hand, advocates for employees have said that the law doesn’t go far enough in helping employees balance the demands of work and family, particularly because it requires only unpaid leave.
This debate has only gotten more heated in recent days, as Congress, federal agencies, and advocacy groups have all weighed in with various proposals to limit or extend the FMLA. It’s impossible to predict whether or how the law will change once the dust settles, but one thing’s for sure: This is a key area for HR professionals, business owners, and employees to keep an eye on in 2007. Here are some of the most interesting developments currently afoot.
The Department of Labor’s Report on the FMLA Regulations
In December 2006, the Department of Labor (DOL) -- the federal agency that interprets and enforces the FMLA -- issued a “Request for Information,” asking the public to comment on their experiences with the law. Before this Request was issued, the DOL had said that it was planning to issue new FMLA regulations. In fact, the DOL has said so for years, ever since the U.S. Supreme Court struck down one of the regulations in 2002. Rather than simply issuing new proposed regulations and asking for public comment on those, however, the DOL asked more generally for information on how the FMLA was working and whether any regulatory changes were necessary.
And its request was answered: The agency received more than 15,000 comments on the FMLA. In a June 2007 report summarizing the comments, the DOL noted that these comments generally broke down into three categories:
- thankful letters from employees who had used the law
- requests to expand the law’s coverage (for example, to provide more time off, paid leave, or leave for additional reasons), and
- frustration from employers about problems with attendance and staffing relating to employee use of unscheduled leave for chronic health problems.
The DOL has not yet issued any proposed changes to the regulations, but advocacy groups have pressed for further action. Stay tuned.
Proposed Legislation
Congress has been very busy in this area, as well. There are currently a number of bills pending on family and medical leave, including:
- the Family Leave Insurance Act, which would provide partial wage replacement -- paid out of a federal insurance program funded by the government and payroll taxes on employees and employers -- for up to eight weeks of an employee’s FMLA leave
- the Healthy Families Act, which would require covered employers to give employees up to seven paid sick days per year, and
- the Support for Injured Servicemembers Act, passed by the Senate in early August as part of its reauthorization of the State Children’s Health Insurance Program, which would allow employees to extend their FMLA leave up to six months to care for family members who were injured in military service.
Discrimination Against Caregivers: The EEOC Weighs In
The Equal Employment Opportunity Commission (EEOC) -- the federal agency that enforces laws prohibiting discrimination in employment, including Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act -- recently issued enforcement guidance on discrimination against employees who have caregiving responsibilities.
The EEOC does not enforce the FMLA, and none of the laws for which the EEOC is responsible expressly prohibit discrimination against caregivers. The EEOC was quick to point out that its guidance was not intended to create new rights for employees or a new type of lawsuit. Instead, the guidance highlights ways in which an employer’s decisions regarding employee-caregivers might discriminate based on a protected characteristic. For example, an employer who assumes that new mothers won’t be as dedicated to their jobs or that fathers don’t need to take time off to care for a child is relying on gender-based stereotypes.
What’s Next?
In the coming months, we may -- or many not -- see changes in the FMLA regulations, new laws that affect family and medical leave, and increased enforcement action targeting discrimination against caregivers. While we don’t know exactly what the future holds for family and medical leave, there’s no doubt that this will continue to be a hot topic in the employment law arena.
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Minimum Wage Increase Signed by President Bush
Effective date:
Jul. 24, 2007
On May 25, 2007, President Bush signed an emergency spending bill funding the war in Iraq. That bill also amended the Fair Labor Standards Act to provide for a three-stage increase to the federal minimum wage over the next couple of years.
The minimum wage will increase to:
- $5.85 an hour on July 24, 2007
- $6.55 an hour on July 24, 2008, and
- $7.25 an hour on July 24, 2009.
This law will change not only the federal minimum wage, but also the minimum wage rates of states that base their requirements on the federal law. For example, some states -- such as Texas and Virginia -- simply use the federal minimum wage as the state standard, while others have a state standard that is a set amount more than the federal minimum.
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Iowa, Colorado, and Oregon Prohibit Discrimination Based on Sexual Orientation and Gender Identity
Effective date:
Jul. 1, 2007
Effective July 1, 2007, the state of Iowa prohibits discrimination based on sexual orientation or gender identity.
Effective August 8, 2007, Colorado prohibits discrimination based on sexual orientation or gender identity.
Beginning January 1, 2008, Oregon will also prohibit discrimination on either basis.
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New I-9 Form and Changes to Acceptable Documents
Effective date:
Jun. 5, 2007
The United States Citizenship and Immigration Services office (USCIS) has issued a modified version of Form I-9, which employers must complete to verify an employee's identity and authorization to work in this country. The most significant changes to the form are:
- The list of documents an employer may accept to prove both an employee's identity and eligibility to work in the U.S. (called "List A Documents") has been shortened. For example, employers may no longer accept a certificate of U.S. citizenship or naturalization.
- Employees may not be required to provide their Social Security numbers unless the employer participates in the E-Verify program. (E-Verify allows employers to verify employee eligibility electronically; participation in the program is voluntary.)
You can get a copy of the new Form I-9 and instructions from the USCIS website, at www.uscis.gov. Click on Immigration Forms and then the Employment Eligibility Verification form (Form I-9).
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