I
Chapter VII
Regulation of the Employment Relationship
In addition to those federal and state statutes reviewed in the preceding chapters, there remain several very important laws governing the work relationship. These laws address matters such as minimum wages, overtime compensation, and retirement. Also - and in a significant way - these laws deal with broader social issues such as child labor and family care.
It is likely that the laws most immediately affecting workers are those governing wages and hours of employment. Both the Fair Labor Standards Act ( FLSA ) (enacted in 1938) and the corresponding Rhode Island wage laws deal with, among other things, minimum wages, overtime pay, and child labor.
Regulation of the employment relationship extended beyond the walls of the workplace once again in 1993 with the passage of the Family and Medical Leave Act ( FMLA ). This Act enables qualified employees to take extended leave from work to care for themselves or to tend to ailing family members.
Finally, the Employee Retirement Income Security Act ( ERISA ), enacted in 1974, extends protection to employees and their beneficiaries beyond the life of the employment relationship. Intended to protect the interest of employees by protecting their pensions, ERISA establishes the minimum standards and outlines the requirements pension plans must meet.
These laws, as well as several others, are covered more fully below.
What laws govern wages?
Wages are governed by two sets of laws: the federal law ( Fair Labor Standards Act , 29 U.S.C. §201, et seq. ), and the corresponding state wage laws (R.I.G.L., Title 28, various chapters) . With certain exceptions, workers are covered under both laws, with the federal law providing a floor, or minimum standard which states must meet or exceed.
Since the current federal minimum wage for covered, non-exempt employees is $5.15 per hour, no state could provide less, although any state could provide more. Rhode Island's current minimum wage is $7.10 per hour.
Of course, workers can contract for a wage greater than the minimum wage ; however, they cannot contract for less. See, Travis v. Ray , 41 F. Supp. 6, 1 WH Cases 802 (DC WKy 1941); Barrentine v. Arkansas-Best Freight System , 615 US 1194, 24 WH Cases 1284 (1981).
What is the relationship between the wage laws and collective bargaining agreements?
The wage laws establish the minimum to which all covered workers are entitled. They cannot be waived or reduced. But the minimums established by the law can be enlarged upon by a collective bargaining agreement. So, for instance, while the statutory overtime rate is 150 percent of the regular rate , a union and an employer could agree that overtime will be paid at a rate of 200 percent of the regular rate . And while federal and state laws mandate overtime after 40 hours, many collective bargaining agreements have provisions that require overtime before 40 hours have been worked.
Whom do the wage laws cover?
The short answer is that those persons who have an employment relationship with their employer are covered by the Act unless they are expressly exempted by the Act or are excluded by a court decision. Since the Act only covers those persons who have an employment relationship with their employer, independent contractors are not covered. Nevertheless, the wage laws have extensive coverage.
With respect to employees, the federal law is very broad and covers all employees - unless specifically exempted - of certain enterprises. The law covers workers:
• engaged in interstate commerce;
• producing goods for interstate commerce; and,
• handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person.
With respect to employers, the federal law is equally broad and covers:
• those enterprises whose gross sales or business is not less than $500,000;
• enterprises engaged in the operation of a hospital or similar facility in which patients (the aged, for instance) are cared for on the premises; and,
• enterprises that are an activity of a public agency.
Rhode Island law uses a very broad understanding of the terms employer and employee. Unless otherwise exempted, the Rhode Island minimum wage and overtime wage laws cover everybody working for "any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer, in relation to an employee."
What are minimum wages ?
Minimum wages are the gross minimum hourly rates employers must pay covered workers. Once again, where the state minimum wage exceeds the federal - as is the case in Rhode Island - the greater wage prevails.
Along with the payment of wages, every employer also must provide a statement showing the date of the pay period, hours worked, total earnings, and itemized deductions.
What are the overtime requirements of these laws?
Once again, except for those exemptions identified in each law, both the federal and the state laws require overtime pay at a rate of not less than one and one-half times the regular rate of pay after 40 hours of work in a workweek.
Can a worker be required to work more than forty hours in one week?
Yes. Neither federal nor state laws place any restrictions on the number of hours an adult employee can be required to work. However, limitations on compulsory overtime are often established by collective bargaining agreements.
Does the employer have to pay for all hours worked?
Yes. Employees must be paid for all hours worked, even if the employees are required to work before or after scheduled hours.
Who qualifies for overtime under the FLSA ?
Under the rules expected to become effective August 23, 2004, workers earning less than $23,660 per year or $455 per week are guaranteed overtime protection.
The new regulations retain certain so-called "white collar" exemptions. To be considered exempt, employees must meet certain minimum tests related to their primary job duties and, in most cases, must be paid on a salary basis at not less than minimum amounts as specified in the regulations.
What exemptions from overtime are provided under the FLSA ?
The exemptions are:
• executive,
• administrative,
• professional and creative professional,
• outside sales,
• computer employees, and
• certain highly compensated employees
The minimum salary required for most exempt employees is $455 per week "free and clear," that is, it cannot include the value of non-cash items provided by an employer to the employee such as meals and lodgings. The salary must be a predetermined amount which cannot be reduced because of variations in the quality or quantity of the work performed by the employee.
Are any deductions permitted that would not cause the loss of an exempt status?
Yes. Employees don't have to be paid for any week in which they do not work. Also, the exempt status will not be lost if an employer made a deduction in full-day increments for any of the following reasons:
- Because the exempt employee was absent from work one or more full days for personal reasons other than sickness or disability;
- Because the exempt employee was absent from work for one or more full days due to sickness or disability if deductions are made under a bona fide plan, policy, or practice of providing wage replacement benefits for such absences;
- In order to offset payments received for jury duty, witness fees, or military pay;
- By imposing a penalty in good faith for a violation of safety rules of major significance; and,
- By imposing an unpaid disciplinary suspension of one or more full days for violations of workplace conduct rules (such as a prohibition on sexual harassment or workplace violence).
Also, a proportionate part of an employee's full salary may be paid for time actually worked in the first and last weeks of employment, as well as for unpaid leave taken under the Family and Medical Leave Act.
Is there any penalty if an employer makes an improper deduction?
It will depend whether the employer has an actual practice of making improper deductions. If the employer does, the exemption will be lost for the relevant time period, and overtime will be due to the affected employee and all employees in the same job classification working for the same manager responsible for the improper deduction.
Will an inadvertent improper deduction result in a loss of the exemption?
No. If the improper deduction is isolated or inadvertent, it will not result in the loss of the exemption, provided the employee is reimbursed.
What is the duties test ?
The duties test identifies the duties for each exemption. The employee must perform the duties indicated in order to be exempt. In no case is an exemption determined by the job title. The Department of Labor website provides detailed explanations for the following duties and each of the key terms. The website also provides a number of examples illustrating the duties.
The executive employee exemption applies if all of the following conditions are met:
- The employee is compensated in a salary or fee basis at a rate of not less than $455 per week;
- the employee's primary duty must be management;
- the employee must customarily and regularly direct the work of two or more full-time (or the equivalent thereof) employees; and,
- the employee must have authority to hire or fire other employees, or the employee's recommendations regarding hiring, firing, advancement, promotion or any other change of status is given particular weight.
The administrative employee exemption applies if all of the following conditions are met:
- The employee is compensated in a salary or fee basis at a rate of not less than $455 per week;
- the employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and,
- the employee's primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
The professional employee exemption applies if all of the following conditions are met:
- The employee is compensated in a salary or fee basis at a rate of not less than $455 per week;
- the employee's primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
- the advanced knowledge must be in a field of science or learning; and
- the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
The creative professional exemption applies if all of the following conditions are met:
- The employee is compensated in a salary or fee basis at a rate of not less than $455 per week; and,
- the employee's primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
The computer employee exemption applies if all of the following conditions are met:
- The employee is compensated in a salary or fee basis at a rate of not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;
- the employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing certain specified duties.
The outside sales exemption applies if all of the following conditions are met:
- The employee's primary duty must be making sales as described in the FLSA , or obtaining orders or contracts for services of for the use of facilities for which consideration will be paid by the client or customer; and,
- the employee must be customarily and regularly engaged away from the employer's place of business.
The highly compensated employee exemption applies to employees performing office or non-manual work, paid a total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary basis or fee) if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee.
Are there occupations to which the exemptions will not apply?
Yes. The exemptions do not apply to manual laborers or other "blue collar" workers. Non-management employees in production, maintenance, construction and similar occupations (such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, laborers) are entitled to minimum wage and overtime pay under the FLSA protection no matter how highly they may be paid. Nor do the exemptions apply to occupations such as police officers, state troopers, deputy sheriffs, detectives, highway patrol officers, investigators, inspectors, probation and parole officers, correctional officers, fire fighters, park rangers, paramedics, emergency medical technicians, rescue workers, ambulance workers, hazardous materials workers, and similar employees.
Conversely, some employees (teachers, doctors, and lawyers) are exempt no matter what their pay.
Who is exempted from coverage under the Rhode Island minimum wage law?
The Rhode Island minimum wage law does not apply to:
• workers in domestic service;
• those employed by the United States;
• those engaged in the activities of an education, charitable, religious, or nonprofit organization where the employer-employee relationship does not exist or where the services rendered to the organization are voluntary;
• newspaper deliverers on home delivery;
• shoeshiners;
• caddies;
• pin setters;
• theater ushers;
• traveling salespersons;
• outside salespersons;
• persons employed by his or her child or spouse;
• children under 21 employed by his or her parent;
• individuals employed between May 1 and October 1 in a resort establishment which serves meals to the public and which is open for business not more than six months of the year; and,
• camp employees where the camp does not operate for more than seven months in any calendar year unless the camp on an annual, full-time basis employs such employees.
Who is exempted from coverage under the Rhode Island overtime pay law?
Employees excluded from the Rhode Island overtime pay law include:
• employees of summer camps when such camps are open no more than six months of the year;
• police officers, firefighters, and rescue service personnel employed by cities and towns;
• employees of the state or political subdivision of the state who, through an agreement with the employer, choose to receive compensatory time off;
• employees employed in an executive, administrative, or professional capacity (as defined by the FLSA );
• any salaried employee of a nonprofit national voluntary health agency who may elect to receive compensatory time off for hours worked in excess of 40 hours per week;
• employees whose qualifications and maximum hours of service are established by the Secretary of Transportation pursuant to 49 U.S.C. § 3102;
• salespersons, partspersons, or mechanics primarily engaged in the sale and/or servicing of automobiles, trucks or farm implements employed by nonmanufacturing sellers to the extent that such employers are exempt under the federal Wage-Hour and Equal Pay Act , 29 U.S.C. § 201 et. seq. and 29 U.S.C. § 213(b)(10), provided that the employee's wages when computed on an hourly basis, calculate to the standard one and one-half the hourly rate for hours worked in excess of 40 for the workweek; and,
• employees employed in agriculture and nurseries.
In addition to the exemptions, are there any exceptions to the FLSA minimum wage requirements?
Yes. The FLSA has specific provisions for some workers. Exceptions to the FLSA minimum wage requirements apply in certain instances to:
• workers with certain disabilities;
• full-time students under age 19 years working in non-profit religious, educational, library, or community service organizations;
• employees under age 20 in their first 90 days of employment;
• tipped employees; and,
• vocational education students.
Special rules regarding overtime apply to state and local government employment involving fire protection and law enforcement activities, and volunteer services.
What is meant by the term regular rate ?
The FLSA uses the term regular rate in connection with overtime pay. The Act defines the regular rate as "all remuneration for employment paid to, or on behalf of, the employee" except for payments made to the employee for time not worked by the employee or if the payment is not based on hours worked, quantity produced, quality produced, or efficiency. The regular rate is calculated before any deductions from wages are made. Where an employee is compensated solely by an hourly wage, the employee's regular rate will be the same as the hourly wage.
Certain supplemental payments must also be included in the calculation of the regular rate . These include:
• bonuses and incentive payments based on the quality or quantity of work performed or based on efficiency;
• bonuses that depend on hours worked;
• commission payments;
• payments for meals, lodging, and facilities; and,
• shift differentials.
While the FLSA requires that certain supplemental payments be included in the calculation of the regular rate , there are other supplemental payments that are excluded when calculating the regular rate . They include:
• discretionary bonuses,
• gifts, and
• certain employee benefit plan contributions
What sources of income are creditable toward the federal minimum wage ?
The FLSA requires employers to include in the employees' regular rates the reasonable cost of certain employer-provided lodgings, meals, and facilities furnished to the employees - unless these are specifically excluded under the terms of a collective bargaining agreement.
An employer can only count the value of lodgings, meals, or facilities toward wages if they are customarily furnished to the employee. Furthermore, these employer-provided extras may be counted as wages only where they are for the convenience of the employee and are accepted voluntarily. In any case, the reasonable cost cannot be any more than the actual cost to the employer.
Tools of the trade, the cost of laundering uniforms, transportation costs, sleeping facilities where the employee is required to be on duty for an extended period (See, Bailey v. Pilots' Assn. , 406 F.Supp. 1302, 22 WH Cases 723 (DC EPa 1976)), and transportation costs (See, Donovan v. Harper , 26 WH Cases 1089 (DC WLa 1984)) are excluded when calculating the employee's minimum wage .
Can an employee voluntarily agree to work for less than the minimum wage ?
Unless a worker fits into one of the categories for which either the FLSA or Rhode Island law permits a subminimum wage , a worker cannot work for less than the minimum wage . Even where the law allows for some voluntary deductions from an employee's pay (such as union dues), wages are not permitted to dip below the minimum.
The FLSA does provide for the employment of certain individuals at wage rates below the minimum. These individuals include student-learners (vocational education students), as well as full-time students in retail or service establishments, agriculture, and institutions of higher education. Also, persons whose earning or productive capacity is impaired by a physical or mental disability may be employed at wage rates below the minimum. Such employment is permitted only under certificates issued by the Wage-Hour Division of the Department of Labor.
The FLSA also allows for a minimum wage of not less than $4.25 an hour for employees under 20 years of age during their first 90 consecutive calendar days of employment with an employer. However, employers are prohibited from taking any action to displace or partially displace (i.e., reduce hours, wages, or benefits) employees working at the regular rate in order to hire employees at the youth minimum wage .
Rhode Island law permits a subminimum wage in several instances:
• certain disabled workers
• full-time students under age 19 years in certain professions
• tipped employees
• student learners and apprentices
• minors, 14 and 15 years of age, working less than 24 hours in a workweek
Whether a worker with a disability may be hired at a rate below the minimum will depend upon the degree of impairment and will require a special license issued by the Department of Labor and Training.
What does the law say about employees who receive gratuities (tips)?
The FLSA permits an employer to reduce the minimum wage paid to an employee, but the employer must pay at least $2.89 an hour in direct wages and those wages plus tips must equal the minimum wage of 7.10 per hour.
The law applies to wages paid to a salesperson, too. In such cases, the earned commissions coupled with the wage paid must equal at least the current minimum wage . In similar fashion, the earnings of employees compensated on a piece rate must average out to at least the minimum wage .
Is there any penalty under Rhode Island law for the payment of substandard wages?
Yes. The Rhode Island Department of Labor and Training may bring criminal action against any employer who pays substandard wages to an employee. Penalties include both fines (up to $500.00) and imprisonment (of not less than 10 days and up to 90 days) for each week an employer fails to pay the applicable minimum wage.
Can an employer require that an employee work on a Sunday or a holiday?
Under the FLSA there are no special provisions regarding weekend work.
Under Rhode Island law, any work that is performed on Sunday or holidays is voluntary on the part of the employee. If an employee works on a Sunday or a holiday, then the employer must pay the employee at one and a half times their normal rate of pay. Certain employers, such as restaurants, pharmacies, and health facilities, are exempt from this requirement.
Are employers required to pay a minimum number of hours per day?
There is no requirement for an employer to pay a minimum number of hours in a day under the FLSA.
Under Rhode Island Law if an employer either requests or permits an employee to report for duty at the beginning of a work shift and does not provide that employee with at least three hours work, the employee must still be paid for three hours at his or her regular rate .
Does the employer have a time limit on when it must pay wages to its employees?
Yes. Every employer is obligated to establish a regular payday and each payday must fall within nine days of the end of the payroll period for which wages are computed. The employer must provide the employee with:
• a statement of the hours worked by the employee (except certain exempt employees) during the pay period;
• a record of deductions from the employee's gross pay;
• and, for employers engaged only in the commercial construction industry, a record of the employee's hourly regular rate of pay.
How frequently must wages be paid?
Except for special rules surrounding separation of employment and industrial disputes, Rhode Island law provides that every employee - other than public employees and employees of religious, literary, or charitable corporations - shall be paid weekly, unless the employee's compensation is fixed at a biweekly, semi-monthly, monthly, or yearly rate.
If an employer sells, merges, liquidates or moves its business out of state, is the employee still entitled to wages?
Yes. Under Rhode Island law, in such circumstances all wages earned by employees become due immediately and must be paid within 24 hours. In addition, if the employee has been employed for at least one year, any holiday time, vacation time and insurance benefits due to the employee under a collective bargaining agreement or company policy are considered unpaid wages and also become due and payable within 24 hours.
What happens to any earnings in the event of an industrial dispute?
Any wages or compensation earned, but not paid at the time of suspension of work activity, must be paid, without any reduction, at the next regular payday.
Is an employee that quits entitled to payment of any accrued vacation?
Not under the FLSA. Under Rhode Island law as long as the employee has been employed for at least one year, any vacation time accumulated under a collective bargaining agreement, company policy or any other arrangement between the employer and the employee shall be considered wages and must be paid to the employee on the next regular payday.
What if an employer owes the worker wages, but has filed for bankruptcy?
A worker may be able to file as a creditor in bankruptcy court and receive at least a portion of the back wages.
Who must pay for a pre-employment physical?
If an employer requires an applicant to get a physical, the employer must pay whether or not the prospective employee is hired.
Are workers entitled to any rest periods or meal breaks?
There is no requirement under the FLSA for any rest periods or meal breaks. However any break under 20 minutes must be paid.
Under Rhode Island law employees are not entitled to any breaks.
Are workers entitled to any paid holidays or vacations?
There are no federal or state laws that guarantee workers paid holidays or vacations. However, paid holidays and vacations may be established by a collective bargaining agreement, a contract, or a company policy.
Do employees have a right to review their own personnel files?
Yes, provided that the employee has submitted a written request and provided the employer with at least seven days advance notice. Under this arrangement, the employee has the right to inspect his or her personnel file up to three times a year in the presence of an employer or employer's designee.
While an employee is not entitled to make any copies of, nor remove his or her personnel file from the immediate place of inspection, if permitted to do so, he or she may be charged a reasonable fee for the copies.
However, the employee's right to examine his or her personnel file does not apply to records of an employee relating to the investigation of a possible criminal offense or records prepared for use in any civil, criminal, or grievance proceedings, any letter of reference, recommendations, managerial records kept or used only by the employer, confidential reports from previous employers, and managerial planning records.
Can an applicant be charged a fee in order to file an application with a potential employer ?
No. Employers who do charge a fee can be fined.
Is it permissible to do assembling or processing work for an employer at one's home?
No. It is illegal for employers and employees to do assembling or processing of materials for an employer in the home.
Can an employee or job applicant be required to take a lie detector test?
No employer can require an employee to take a lie detector test as a condition of employment or continued employment.
Are there any legal restrictions on drug and alcohol testing?
Yes. However, a distinction must be made between drug testing prospective employees and drug testing current employees as a condition of continued employment . For the most part, the former is permitted with certain restrictions, while the latter is prohibited with certain exceptions.
Under what circumstances can prospective employees be tested for drugs?
Prospective employees may be subjected to blood or urine testing if:
• the applicant has been offered the job conditioned on a negative test result;
• the test is conducted privately; and,
• positive tests are confirmed by certain recognized technology.
Public employers - except where the applicants are seeking employment as police officers, firefighters, correctional officers, and wherever else required by federal law - cannot require such testing.
What is the law regarding drug testing as a condition of continued employment?
Generally, drug testing as a condition of continued employment is illegal unless :
• the employer has reasonable grounds to believe based on specific objective facts that an employee's illegal drug use is impairing the employee's ability to do the job;
• the employee is tested privately;
• employees testing positive are not terminated on that basis, but are instead referred to a substance abuse professional for assistance;
• positive tests are confirmed by certain recognized technology;
• the employee is advised of and has the opportunity to have the sample tested by an independent testing facility, at the employer's expense;
• the employer provides the employee with an opportunity to explain the results;
• the employer has promulgated a drug abuse policy consistent with the law; and,
• the employer keeps the results of any tests confidential except where disclosure is permitted by law.
When an employee testing positive is referred to a professional for assistance, additional testing may be required by the employer in accordance with the referral. If testing indicates any continued use of controlled substances despite treatment, the employee may be terminated.
Employers in violation of Rhode Island law are subject to both fines and imprisonment.
Can an employer require either an employee or an applicant to submit to genetic testing?
No. Genetic testing is not permitted as a condition of employment. Nor may it affect the terms, conditions, or privileges of employment.
Can an employer electronically monitor workers or workers' electronic communications?
In many respects the law is just starting to develop in this area. So far what is clear is that case law distinguishes public employment from private employment.
Although Rhode Island has a statute that prohibits the interception of wire, electronic, or oral communication, the law contains an exception. Communications intercepted by a telephone or telegraphy instrument furnished by a provider of wire or electronic communication service when used in the ordinary course of business are not prohibited.
The Omnibus Control and Safe Streets Act of 1968 (the "Wiretap" Act ) (18 U.S.C. §2510, et seq. ) prohibits all private individuals and organizations, including employers, from intercepting wire, oral, or electronic communications of others. However, this law contains an extension phone exemption , which enables employers to monitor employee conversations by listening on an extension to the employer's telephone system if the monitoring is done in the ordinary course of the employer's business and if employees are advised that their conversations may be monitored. If the call is of a personal nature, the employer must disconnect immediately and cannot use information gained from such against the employee.
Much of the case law focuses on the issue as to whether the employees had a reasonable expectation of privacy which the employer's actions violated and the results have not always been consistent. See, Bohach v. City of Reno , 932 F. Supp 1232 (D. Nev. 1996); Vega-Rodriguez v. Puerto Rico Telephone Co. , 110 F.3d 174 (C.A.1 1997); McVeigh v. Cohen , 983 F. Supp. 215 (D.D.C. 1998); Smyth v. Pillsbury Co. , 914 F. Supp. 97 (E.D. Pa. 1996).
Employees should assume that email on the company's computer might be viewed. Employers have a right to search company email because the communications - if used for the employer's business - constitute company property.
The American Civil Liberties Union of Rhode Island (ACLU) at 831-7171 can help workers with questions and can provide workers with a free brochure titled "Your Rights to Workplace Privacy in Rhode Island."
Do temporary workers have any rights?
Yes. Temporary workers are covered by many of the laws already reviewed, such as the laws on discrimination and wages. But temporary workers were specifically addressed in Rhode Island's Job Description Notification law.
That law provides that before any temporary employee is given any new job assignment - even if the assignment is with the same contracting company - employment agencies must provide the employee with the opportunity to see and have a copy of a written notice about the job. The notice must include:
• a job description with classification requirements;
• estimated longevity of the assignment;
• information concerning any job hazards; and,
• anticipated pay rate, benefits and work schedules.
The law requires that the employment agency keep a copy of the job description on file for a period of one year. A notice of this law must be posted and maintained at all employment agencies where workers can view it.
Can temporary workers join unions?
Temporary workers can join an existing union at the company where they are working at if the company - and not the temporary agency - supervises the employee, such as assigning projects or providing discipline. The National Labor Relations Board announced that it would decide such instances on a case-by-case basis.
What is the Family and Medical Leave Act ?
The Family and Medical Leave Act ( FMLA ) was passed by Congress and signed into law with the express purpose of helping workers "balance the demands of the workplace with the needs of families" in order "to promote the stability and economic security of families" and "to promote national interests in preserving family integrity." To accomplish those ends, the Act allows employees to take leave from work:
• because of the birth of a child of the employee and in order to care for such child;
• because of the placement of a child with the employee for adoption or foster care;
• in order to care for the spouse, or child, or parent, of the employee, if such spouse, child, or parent has a serious health condition;
• because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
FMLA leave is available equally to both male and female employees. For instance, a father is entitled to take leave for the birth of a child, just as the mother is eligible.
The Rhode Island Parental and Medical Leave Act allows for leave to care for a mother-in-law or father-in-law, in addition to the other family members listed under the federal law.
Can an employee take leave to attend the school-related activities of his or her child?
Yes. Under the Rhode Island Parental and Medical Leave Act , an eligible employee may take up to ten hours leave during any 12-month period to attend school conferences or other school-related activities for a child of whom the employee is a parent, foster parent or guardian. The employee must provide twenty-four hours notice.
What is the relationship between the FMLA , Rhode Island's Parental and Medical Leave Act , employer benefits, and collective bargaining agreements?
Essentially, FMLA benefits can be enlarged upon by the state, by the employer, or by a collective bargaining agreement, but they cannot be reduced. The FMLA provides that the Act shall not supersede any provision of state or local law that provides greater family or medical leave protection. And employers must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA .
See the discussion on page 68 regarding overlapping provisions of the FMLA and the ADA.
How much leave is an individual entitled to take?
Under the FMLA , an eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period for any one of the foregoing reasons, while the Rhode Island law provides that an eligible employee is entitled to up to 13 consecutive work weeks within 2 calendar years.
Whom do these laws cover?
Covered employers under the FMLA include:
• any enterprise that is engaged in commerce or an activity which affects commerce, and employs at least 50 employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
Also included are:
• the U.S. Government;
• state governments and the political subdivisions of the state; and,
• interstate governmental agencies.
Public agencies, unlike other covered enterprises, are covered by the FMLA regardless of the number of employees and not subject to the threshold of 50 employees on the payroll each day for 20 or more weeks in a year. There are certain limitations to coverage for employees of the U.S. Government. See, 5 C.F.R. Part 630, Subpart L and 29 C.F.R. 825.109
Under the FMLA covered employees include:
• those employees who have been employed by a covered employer for at least 12 months by the employer from whom leave has been requested; and
• have been employed for at least 1,250 hours of service with that employer during the previous 12 months; and
• have been employed at a worksite where the employer within 75 miles of that worksite employs 50 or more employees.
Special rules apply to employees of local educational agencies, and both public and private elementary and secondary schools.
In connection with FMLA employee eligibility, it is important to note that some courts have strictly construed the Act and refused to expand eligibility. These courts have held that at least part of one Department of Labor regulation (29 CFR 825.110(d)) that had the effect of expanding eligibility is unenforceable. See, Brungart v. Bellsouth Telecommunications, Inc. , 231 F.3d 791 (CA 11, 2000) cert. denied 121 S.Ct. 1998; Dormeyer v. Comerica Bank-Illinois , 223 F.3d 579 (CA 7, 2000).
Covered employers under the Rhode Island Parental and Family Medical Leave Act include:
• any person, sole proprietorship, partnership, corporation, or other business entity that employs 50 or more employees;
• the state of Rhode Island, including all three branches of government and state departments and agencies;
• city and municipal agencies that employ 30 or more employees; and,
• any person who acts in the interest of an employer.
Covered employees include:
• employees who have been employed by the same employer for 12 consecutive months.
What is a key employee under the FMLA ?
The Act defines a key employee as a salaried FMLA -eligible employee who is among the highest paid 10 percent of all employees employed by the employer within 75 miles of the employee's worksite. Key employees have limited rights under the Act.
Key employees must be provided written notice of their status from the employer. This notice must also inform the key employee of the employee's limited rights to reinstatement and maintenance of benefits following leave should the employer determine the employee's FMLA leave would cause substantial and grevious economic injury to the employer's operations.
How does the FMLA define the terms spouse , parent , and son or daughter ?
Spouse means husband or wife as defined or recognized under state law where the employee resides. This includes common law marriages where such is recognized.
Parent means biological parent or one who stands or stood in loco parentis to an employee, but does not mean "in-law."
Son or daughter means a biological child, an adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under age 18, or age 18 or older and incapable of self care because of mental or physical disability .
As noted above, the Rhode Island Parental and Family Medical Leave Act does permit leave to care for a mother-in-law or father-in-law, so despite the limits in the FMLA , a Rhode Island employee can take leave to care for his or her mother-in-law or a father-in-law.
How is incapable of self-care because of mental or physical disability interpreted?
An individual is regarded as incapable of self care because of mental or physical disability if that person requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living or instrumental activities of daily living . Activities of daily living include hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, taking public transportation, paying bills, and using a telephone.
What is meant by a serious health condition ?
For FMLA purposes, a serious health condition is one that requires:
• inpatient care in a hospital, hospice, or residential medical care facility; or
• continuing treatment by a health care provider in connection with certain periods of incapacity (continuing, episodic, and permanent incapacity), including periods of incapacity due to pregnancy or for parental care.
How does the Rhode Island Parental and Family Medical Leave Act define serious illness ?
The Rhode Island law defines serious illness as a "disabling physical or mental illness, injury, impairment, or condition that involves inpatient care in a hospital, a nursing home, or a hospice, or outpatient care requiring continuing treatment or supervision by a health care provider."
What does it mean that the employee is unable to perform the functions of the position of the employee ?
This term means that the employee is either unable to work at all or is unable to perform any one of the essential functions of the employee's position as the term is defined by the Americans With Disabilities Act ( ADA ), 42 U.S.C. 12101, et seq. , and the regulations at 29 C.F.R. Sec. 1630.2(n).
The essential functions of the employee's job are determined either when notice for leave is given or when the leave commences, whichever is earlier.
Is FMLA leave or Rhode Island Parental and Family Medical Leave Act leave paid or unpaid?
Generally, leave under each Act is unpaid, although each Act permits eligible employees to substitute paid leave for FMLA or Rhode Island Parental and Family Medical Leave Act leave. If an employee does not elect to use paid leave, the employer may require it, nonetheless. In such cases, earned or accrued vacation, personal or family leave, medical or sick leave may be substituted for any otherwise unpaid leave.
It remains the employer's responsibility to designate leave - paid or unpaid - as FMLA -qualifying, and to give notice of the designation to the employee.
May an employer deduct hourly amounts from an exempt employee's salary, when providing unpaid leave under FMLA , without jeopardizing the employee's exempt status?
Yes. When providing an exempt employee with unpaid FMLA leave, an employer may deduct an hourly amount from an exempt employee's salary for any hours taken as intermittent or reduced schedule FMLA leave without affecting the exempt status of the employee. It is unlikely that this exception to the full-day increment reduction rule for exempt employees will change with the new rules.
What are the notice requirements for FMLA leave?
Where the leave is foreseeable (such as in the case of an expected birth or foster care placement), the employee must provide the employer with at least 30 days advance notice before FMLA leave is to begin. Where 30 days notice is not practicable or the need for leave is not foreseeable, notice must be given as soon as practicable.
Employees need not expressly assert rights under the Act or even mention the FMLA , but may only state that leave is needed. The employer is expected to obtain any additional information via informal means.
Regulations (devised by the Secretary of Labor to carry out the Act) also require employers, once they have acquired the knowledge that leave is being taken for FMLA purposes, to promptly notify (within two business days) eligible employees that the leave will be counted as FMLA leave.
Previously, the regulations prohibited an employer that failed to designate an employee's leave as FMLA leave from retroactively designating it as such. However, the U.S. Supreme Court in Ragsdale v. Wolverine World Wide, Inc. , 535 U.S. 81 (2002) criticized the Secretary of Labor's regulation because it penalized the employer for failure to give notice even when that lapse did not cause the employee to suffer any loss. The Court found that the regulation established an irrebutable presumption that the employer's lapse impaired the employee's exercise of FMLA rights and, therefore, was inconsistent with the Act. However, the Court did not dismiss entirely the possibility that an employer's failure to provide notice that leave was designated as FMLA leave might burden the employee's exercise of rights under the FMLA and that such failure might be actionable.
What are the notice requirements for Rhode Island Parental and Family Medical Leave Act leave?
The law is similar to the federal law and requires at least 30 days notice unless prevented by medical emergency from giving notice.
Is it necessary to take all the FMLA leave at one time?
That depends on the reason for the leave. Leave for the birth of a child or to care for a child following birth or leave for placement of a child with the employee for adoption or foster care cannot be taken intermittently or on a reduced leave schedule unless the employer agrees with such a schedule.
However, leave to care for a qualified family member or for the employee may be taken - subject to certain notice requirements - intermittently (i.e., a few hours for medical exams, hospitals, or doctor visits) or on a reduced leave schedule. The medical need must be such that it is best accommodated through an intermittent or reduced leave schedule.
The Rhode Island law does not allow for intermittent leave status, but, once again, an eligible employee gets the greater benefit of the two laws and may be eligible for intermittent leave under the FMLA .
If leave is taken for the birth of a child or for placement (either adoption or in foster care), when must such leave be concluded?
Leave under either of these circumstances expires at the end of the 12-month period beginning on the date of the birth or placement.
If a husband and wife are employed by the same employer, is each entitled to FMLA leave?
A husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken:
• for the birth of the employee's child or to care for the child after birth;
• for the placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement; or
• to care for the employee's parent with a serious health condition.
This limitation (a total of twelve weeks of leave) applies only to the foregoing reasons as long as the husband and wife are employed by the same employer.
If the husband and wife both use a portion of the total 12-week FMLA leave entitlement for one of the foregoing purposes, each would be entitled to the difference between the amount he or she has taken individually and the 12 weeks for FMLA leave for a purpose not included in the foregoing list.
Example: If each spouse took six weeks leave for the birth and care of a healthy newborn child, each could use the remaining six weeks to care for his or her own serious health condition or to care for a parent or child with a serious health condition.
If a husband and wife are employed by the same employer, is each entitled to leave under the Rhode Island Parental and Family Medical Leave Act ?
Yes and without the limitations contained in the FMLA . Under the Rhode Island law, both the husband and wife could each take up to 13 weeks leave during a 24-month period and the leave periods may be simultaneous.
Is an employee entitled to benefits while on FMLA leave?
Yes. During any period of FMLA leave, employers are required to maintain the employee's group health benefits on the same conditions as coverage would have been provided had the employee not been on leave. For instance, if an employee had family coverage before taking FMLA leave, such coverage must continue so long as the employee is otherwise eligible during FMLA leave.
Similarly, if the employer changes benefit packages, an employee on FMLA leave would be entitled to the changed benefits.
Finally, any share of group health premiums that would normally have been paid by the employee were the employee not on leave will remain the responsibility of the employee during the leave period.
This rule, which requires employers to treat employees on FMLA leave as they would have had the employees not been on leave, applies to terminating health benefits, too. Except to the extent that the employer is limited by the Consolidated Omnibus Budget Reconciliation Act of 1986 ( COBRA ) (29 U.S.C. §1161, et seq. ) and in the cases of certain key employees, an employer's obligation to maintain health benefits during FMLA leave ceases if and when the employment relationship would have terminated if the employee had not taken leave.
An employer may recover its share of the health plan costs during a period of unpaid FMLA leave from an employee if the employee fails to return to work after the leave expires. There are exceptions to this, however. The employer cannot recover its share where the employee does not return because of:
• the continuation, recurrence, or onset of a serious health condition of the employee or the employee's family member which would otherwise entitle the employee to FMLA leave; or
• other circumstances beyond the employee's control. (The U.S. Department of Labor provides several examples of circumstances deemed beyond the employee's control, including (1) where an employee's spouse is unexpectedly transferred to a job location more than 75 miles from the employee's worksite; and, (2) where an employee is laid off while on leave.)
If an employer elects to maintain other benefits - such as life insurance or disability insurance - for the employee during the FMLA leave period, the employer may, at the conclusion of the leave, recover the costs incurred for paying the employee's share of any premiums whether or not the employee returns to work.
Is an employee entitled to benefits while on Rhode Island Parental and Family Medical Leave Act leave?
Yes. The employer must maintain existing health benefits for the employee during leave just as if the employee had continued in employment. Prior to the leave, the employee must pay the employer a sum equal to the health insurance premium during the leave period. This sum must be returned to the employee within ten days of his or her return to work.
May an employer transfer an employee to a different position in order to accommodate intermittent leave or reduced schedule leave?
Yes. An employer may require an employee who will be out on either intermittent leave or reduced schedule leave to take another position during the period of the intermittent or reduced schedule leave. It must be a position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position.
Also, while the alternate position must have equivalent pay and benefits, it does not have to have equivalent duties. An employer cannot transfer an employee to an alternate position in order to discourage the employee from taking leave or if such a transfer - even though temporary - would create a hardship for the employee.
When must an employee provide medical certification for FMLA leave?
An employer may require medical certification to support a request by an employee for FMLA leave for the serious illness of a child, spouse, parent or the employee's own serious illness. An employer must give notice of a requirement for medical certification. An oral request is sufficient.
When the leave is foreseeable and at least 30 days notice has been provided, the employee should provide the medical certification before the leave begins.
An employer may also request medical certification after leave has begun if the employer has reason to question the appropriateness of the leave or its duration.
Under what circumstances may a covered employer delay FMLA leave?
There are limited circumstances under which an employer may refuse to provide FMLA leave:
• If an employee fails to give notice in a timely fashion when the need for FMLA leave is foreseeable, the employer may delay the taking of FMLA leave until 30 days after the date the employee provides notice; or,
• If an employee fails to provide the requested medical certification in a timely fashion, an employer may delay the continuation of the leave until the documentation is provided. If the employee never provides the requested documentation, the leave is not FMLA leave.
An employer may require an employee on FMLA leave to report periodically on the employee's status and intention to return to work. If an employee unequivocally advises the employer either before or during the taking of leave that the employee does not intend to return to work, and the employment relationship is terminated, the employee's entitlement to continued leave, maintenance of health benefits, and restoration ceases unless the employment relationship continues, for example, by the employee remaining on paid leave.
Finally, an employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA 's job restoration or maintenance of health benefits provisions.
What are the employee's rights upon returning to work from FMLA leave?
Once the employee no longer needs to continue FMLA leave and is able to return to work on a full-time basis, the employee must be placed in the same or equivalent job as the job he or she left when the leave commenced. The position must provide equivalent pay, benefits, and working conditions. Duties and responsibilities should be substantially equivalent and should demand similar skills, effort, and authority.
If a returning employee is unable to perform an essential function of the position because of a physical or mental disability, the employee has no right to restoration to another position under the Act; however, the Americans With Disabilities Act may control the employee's rights.
If an employee is no longer qualified because, as a result of the FMLA leave, the employee was unable to attend a necessary course, or the employee needs to renew a license, the employee must be given a reasonable opportunity to fulfill those conditions upon return to work.
What are the employee's rights upon returning to work from Rhode Island Parental and Family Medical Leave Act leave?
They mirror the rights of the employee returning from FMLA leave. The employee is to be restored to the position held by the employee when the leave commenced, or to a position with equivalent seniority, status, employment benefits, pay, fringe benefits and service credits.
Are there limitations on an employer's obligation to reinstate an employee?
Yes. An employee's right to reinstatement is no greater than the employee would have enjoyed had the employee not been on FMLA leave. So, for instance, if a shift were eliminated, an employee returning from leave would not be entitled to return to that shift. An employer denying reinstatement bears the burden of proving that an employee seeking reinstatement would not otherwise have been employed at the time reinstatement is requested.
Key employees may be denied reinstatement if it is necessary to prevent "substantial and grievous economic injury to the operations of the employer."
Who enforces the FMLA and what options are available to employees who believe their rights under the FMLA have been violated?
The U.S. Department of Labor (401-528-4431) is responsible for administering and enforcing the FMLA by investigating and resolving complaints of violations concerning this law. Employees who believe that their rights under the Act have been violated have the choice of:
• filing, or having another person file on his or her behalf, a complaint with the Secretary of Labor; or
• filing a private lawsuit pursuant to Section 107 of the FMLA .
If an employee files a private lawsuit, it must be filed within two years after the last action which the employee contends was in violation of the Act, or three years if the violation was willful.
Who enforces the Rhode Island Parental and Family Medical Leave Act and what options are available to employees who believe that their rights have been violated?
The Rhode Island law is enforced by the R.I. Department of Labor and Training, Labor Standards Division (401-462-8850). The law provides that either an employee or the Director of the Department of Labor and Training may bring a civil action in superior court.
In lieu of a suit - or at least one possible remedy short of a suit - an employee may give notice of an alleged violation to the Director of the Department of Labor and Training. The Director, in turn, will serve written notice on the employer and give the employer an opportunity to be heard. If the Director finds that the employer has violated the law, he or she may issue those orders deemed necessary to protect the rights of employees.
Does the employer have an obligation to inform workers of their rights under the FMLA ?
Yes. The Act requires employers to post and keep posted, in a conspicuous place, summaries of the pertinent provisions of the Act and information pertaining to the filing of a charge. Failure to comply with this provision of the Act may result in a fine.
What happens when FMLA provisions overlap with ADA protections?
The short answer is that an employer must consider the employee's rights under each statute and provide the employee with the greater benefits. The U.S. Equal Employment Opportunity Commission provides some useful examples (modified here):
Example One. An employee with an ADA disability needs 15 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks leave (and 13 weeks under Rhode Island's statute), so this period of leave constitutes both FMLA leave and a reasonable accommodation . Under the FMLA , the employer could deny the employee leave beyond the 12 th week (and beyond the 13 th week under Rhode Island law), but because the employee is also covered under the ADA , the employer cannot deny the request for additional leave unless it can show undue hardship . The employer may consider the impact on its operations caused by the initial absence, along with other undue hardship factors.
Example Two. An employee with an ADA disability has taken 10 weeks of FMLA leave and is preparing to return to work. The employer wants to put her in an equivalent position rather than her original job. Although this is permissible under the FMLA , the ADA requires that the employer return the employee to her original position. Unless the employer can show that this would cause an undue hardship , or that the employee is no longer qualified for her original position (with or without a reasonable accommodation ), the employer must reinstate the employee to her original position.
How can an employee get information on the healthcare coverage provided through employment?
Employees are entitled to a summary plan description of their health benefits. This information should be available to you from your plan administrator, human resources coordinator, or your union representative.
What is the Health Insurance Portability and Accountability Act ?
The Health Insurance Portability and Accountability Act of 1996 ( HIPAA ) amended the Employment Retirement Income Security Act ( ERISA ). The amendment provides protections to workers that improve the portability and continuity of health care coverage. Among other protections provided by the 1996 law, HIPAA limits exclusions for preexisting medical conditions, provides new rights that permit individuals to enroll for healthcare coverage when they lose other healthcare coverage, prohibits discrimination in enrollment and in premiums charged to employees and their dependents based on health status.
What are the limits on exclusions for preexisting illnesses under HIPAA ?
HIPAA permits the exclusion of preexisting conditions under certain conditions and for a limited time.
Preexisting conditions which may be excluded are those preexisting conditions for which medical advice, diagnosis, care or treatment was recommended or received within the 6-month period ending on the individual's enrollment date. An individual's enrollment date is either the first day of coverage, or, if there is a waiting period, the first day of the waiting period.
If an individual had a preexisting medical condition, but has not received any medical advice, diagnosis, care or treatment for it within the 6 months period, the condition cannot be excluded.
In addition to the above, p reexisting condition exclusions cannot be applied to:
• pregnancies,
• newborn, adopted child under age 18, or a child under 18 placed for adoption (so long as the child became covered within 30 days of birth, adoption or placement for adoption and did not incur a subsequent 63-day or longer break in coverage), or,
• genetic information in the absence of a diagnosis.
A healthcare plan must inform the enrollee or prospective enrollee if the plan has a preexisting condition exclusion period. Furthermore, the plan can only exclude coverage for a preexisting condition after the individual has been notified.
The maximum length of a preexisting condition exclusion period is 12 months after the enrollment date or 18 months in the case of a late enrollee. The exclusion period must be reduced by the length of the individual's prior creditable coverage, provided there has been no "significant break in coverage" (63 days). Individuals who lose coverage, or become entitled to continued coverage under COBRA , or lose coverage under COBRA should automatically receive a certificate from their employer or former employer indicating their creditable coverage.
What is creditable coverage?
Most healthcare coverage would qualify as creditable coverage. This includes coverage under a group health plan (such as Blue Cross or United Healthcare), continued coverage under COBRA , Medicaid, and Medicare.
What rights does HIPAA provide to individuals to enroll for healthcare coverage when they lose other healthcare coverage?
HIPAA does guarantee access to qualified individuals. To be qualified, an individual must:
• have had coverage for at least 18 months with the most recent period of coverage being under a group health plan;
• not have had their group coverage terminated because of fraud or nonpayment of premiums;
• be ineligible for COBRA continuation coverage or have exhausted their COBRA benefits; and
• not be eligible for coverage under another group health plan, Medicare, or Medicaid or have any other health insurance coverage.
The insurance is provided at a cost to the individual.
What are the health-related status factors?
The health factors are health status, medical condition (including both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insurability, and disability.
HIPAA 's non-discrimination provisions prohibits a group health plan from excluding enrollment based on these factors.
Can an individual be required to pass a physical examination before being enrolled in a group health plan?
No. You cannot be required by a group health plan to pass a physical examination before enrolling.
Is there any assistance available to the children of workers who experience a temporary reduction in income (i.e., a job loss)?
Yes. Such children may be eligible for health coverage through the combined federal/state Children's Health Insurance Program (CHIP). For more information call 1-877-KIDS NOW (1-877-543-7669). The website is www.insurekidsnow.gov.
What is COBRA ?
The Consolidated Omnibus Budget Reconciliation Act of 1985 ( COBRA ) provides dislocated workers with the right to continue healthcare coverage previously provided by the employer. Employers with 20 or more employees are required to provide COBRA coverage.
Does the employer have to provide notice of COBRA to employees?
Yes. The employer must provide employees notice of entitlement to COBRA coverage and will generally do so when the employee is hired.
When the employee is no longer eligible for health coverage either through termination or a reduction in hours that causes the employee to lose coverage, (each a triggering event), the employer must provide the employee or former employee with notice regarding his or her rights to a continuation benefits through COBRA.
The employer must also notify the plan administrator within 30 days after the triggering event. The plan administrator must then provide notice to the individual employee of the employee's right to elect COBRA coverage. This notice must be provided by the plan administrator within 14 days after the administrator has received notice from the employer and the employee must respond to this notice and elect COBRA coverage by the 60th day after the written notice is sent or the day health care coverage ceased, whichever is later or lose all rights to COBRA benefits.
Spouses and dependent children covered under an individual's health plan have an independent right to elect COBRA coverage upon the individual's termination or reduction in hours.
What does COBRA coverage cost?
Generally, COBRA coverage will cost an individual the full amount of the premium - either single plan or family plan - plus a two-percent administrative cost. Though it is costly, individual's continuing their coverage through COBRA will pay group premium rates rather than the more costly individual premium rate.
How long does COBRA coverage last ?
Generally, coverage will last up to eighteen months.
Does COBRA coverage continue if an employer declares bankruptcy?
COBRA is coextensive with the employer's coverage. If the employer's health plan ceases, COBRA coverage ceases. However, if the employer offers another plan, coverage may continue.
What is the Whistleblower law?
The Whistleblower law (R.I.G.L. §28-50-1, et seq.) is intended to protect employees - and independent contractors - who report violations of state or federal laws or regulations from retaliation. In general terms, the Rhode Island law prohibits retaliation:
• because an employee or a person acting on the employee's behalf reports or is about to report to a public body, or to the employee's employer or supervisor, a violation of state or federal law;
• because the employee is requested by a public body to participate in an investigation or hearing held by the public body or court; or,
• because the employee refuses to violate or assist in violating a federal, state, or local law.
Enforcement is through civil action.
Must an employer permit an employee time away from the job for jury duty?
Yes. Employers must permit employees called for jury duty to serve. Furthermore, an employee cannot be penalized with the loss of position, denial of wage increase, promotion, longevity benefit or denied any other benefits that he or she would have been entitled to receive except for the fact that they were serving jury duty.
Must an employer pay wages to an employee who is on jury duty?
Not in all cases. Unless there is a company policy, contract, or collective bargaining agreement that specifically requires the payment of an employee's wages while that employee is serving jury duty, Rhode Island employers are not obligated to make such payments.
What job protections do military veterans have?
The Uniformed Services Employment and Reemployment Rights Act ( USERRA ) (38 U.S.C. §43) provides extensive job and benefit protection for veterans and members of Reserve components. USERRA expands upon the protections offered veterans and Reserve members contained in the Veterans' Reemployment Rights ( VRR ) statute, which it replaces.
Briefly, USERRA :
• extends the length of time that an individual may be absent from work because of a military commitment while still retaining reemployment rights;
• covers accommodations employers must make for disabled veterans;
• requires employers to provide training in certain instances to returning veterans; and,
• outlines terms for the continuation of health insurance and pension plan coverage for individuals on active military service.
How long may an individual be absent from work because of military service and still retain reemployment rights?
The Act provides that an individual may be absent from work for military duty and retain reemployment rights for up to five years. There are exceptions to this five-year limit that will extend the time frame. These include:
• initial enlistments lasting more than five years;
• periodic training duty; and,
• involuntary active duty extensions and recalls, especially during a time of national emergency.
How long does a returning veteran have to apply for reemployment after release from active duty?
That will depend upon how long the employee was away for active duty. The longer the period of active duty, the longer the period a returning employee will have to apply for reemployment. For service of:
• less than 31 days, the employee must return at the beginning of the next regularly scheduled work period on the first full day after release from the service (taking into account travel time and a rest period);
• more than 30 days, but less than 181 days, the employee must submit an application for reemployment within 14 days of release from the service;
• more than 180 days, an application for reemployment must be submitted within 90 days of release of service.
Rhode Island law (R.I.G.L. §30-21-1) allows employees 40 days after discharge from military service to apply for reemployment. It is likely that were an employee to rely on USERRA and apply for reemployment after the 40 th day permitted by Rhode Island law, but before the deadline established by federal law, the veteran would be entitled to the greater benefit of the federal law.
Do these time limits apply to disabled veterans?
No. The Act provides additional protection for disabled veterans. An employee recovering from injuries received while on active duty may have up to two years to return to his or her job.
Does USERRA protect a worker's status and benefits while the worker is on active duty?
Yes. Returning service members are to be reemployed in the job that they would have held, but for the interruption of military service. That means they are entitled to the same seniority, status, pay, rights and benefits they would have enjoyed had they not been called to active duty.
What training and accommodations for returning veterans does USERRA require?
The Act requires employers to make reasonable efforts to accommodate disabled veterans. It also requires employers to make similar efforts, such as training or retraining, to enable returning veterans to refresh or upgrade their skills in order to help them in qualifying for reemployment. Finally, it provides for alternative reemployment positions if the returning employee cannot otherwise qualify for the job he or she would have held, but for the interruption of military duty.
Are employers required to continue health insurance on employees on active military service?
Once again, it depends upon the length of military service. Employees on military duty:
• of less than 31 days continue to be covered by employer-sponsored health care plans as though the employee had not been called to active duty;
• of more than 30 days may elect to continue employer-sponsored health care for up to 18 months; however, they may be required to pay up to 102 percent of the full premium.
Must an employee give notice of upcoming military duty?
USERRA requires employees give advance notice to their employers of upcoming military duty obligations unless giving such notice is impossible, unreasonable, or precluded by military necessity.
Does active duty time count toward employment time for FMLA purposes?
Yes. According to the Department of Labor, the active military service time should be credited toward the 12-month threshold and the 1250 hours-of-service requirement to determine whether the employee meets those eligibility requirements.
Who handles violations of USERRA ?
The Department of Justice, through the Veterans' Employment and Training Service provides assistance to all persons having claims under USERRA.
Is there a resource available to individuals called to active duty which will provide information about employer provided pensions and benefits?
Yes. The Department of Labor's Veterans' Employment and Training Service (VETS) has such information and may be accessed through the VETS website.
Is an employer required to give notice of plant closings or layoffs?
Employers covered by the Worker Adjustment and Retraining Notification Act ( WARN ) must give notice to affected employees for certain plant closings and layoffs, unless the reason for the closing or layoff fits within one of the exceptions to the notice requirement. (29 U.S.C. §2101, et seq. ; 20 C.F.R. 639) WARN was instituted to provide protection to workers, their families, and communities by requiring covered employers to provide 60 days notice of plant closings and massive layoffs .
What employers are covered?
Employers are covered if they have 100 or more employees, excluding those who have worked less than 6 months in the last 12 months and those employees who work an average of less than 20 hours a week. Public employers that provide public services are not covered.
What constitutes a plant closing under WARN ?
A plant closing occurs when a facility is closed for more than 6 months, or when 50 or more employees lose their jobs during any 30-day period at the single site of employment.
What constitutes a massive layoff under WARN ?
A massive layoff occurs when a layoff of 6 months or longer affects 500 or more workers or at least 33 percent of the employer's workforce when the layoffs affect between 50 and 499 workers. The number of affected workers is the aggregate laid off during a 30-day, or in some instances, a 90-day period.
Will WARN always require notice to the employees?
No. WARN does not apply to the closing of a temporary facility. Also, where a company is failing or has unforeseeable business circumstances or where it has been harmed by natural disaster, the Act provides for less than 60-days notice.
What are the penalties for a violation of WARN ?
Penalties include back pay and benefits for each employee for the violation period, up to 60 days. Employers are also subjected to civil penalties. Enforcement of the Act is private, so, in order to gain relief, either the employees or their representatives - as well as local governments - must bring either individual or class action suits in the U.S. District Court.
How does the law protect a worker's pension?
In response to pension abuses over the years, Congress enacted the Employee Retirement Income Security Act ( ERISA ) in 1974 in order to protect the interests of employees and their beneficiaries.
ERISA covers both employee welfare plans (which may include medical coverage, disability benefits, prepaid legal services, and vacation pay) and pension plans. The Act recognizes two types of pension plans:
• Defined benefit plans which ensures employees and their beneficiaries a predetermined monthly income for life; and,
• Defined contribution plans in which the employer contributes a fixed amount into the retirement account, which is invested on behalf of the employee who will later receive the proceeds from the investments.
Defined benefit plans are insured against failure and administered by the Pension Benefit Guaranty Corporation ( PBGC ). Defined contribution plans are not. If an employer encounters financial difficulties and cannot adequately fund the pension - with the end result being an underfunded pension - the PBGC will assume responsibility as trustee of the plan and pay benefits.
How does ERISA protect an employee's pension contributions?
ERISA imposes significant demands on persons who seek to qualify as fiduciaries (i.e., persons exercising discretionary authority or control over the plan). The Act details prohibited conduct for fiduciaries and the penalties for engaging in prohibited conduct. Enforcement of provisions pertaining to these duties is the responsibility of the Department of Labor and participants and their beneficiaries.
Further protections apply to those plans qualifying for special tax treatment. These are referred to as minimum requirements. These include:
• minimum funding requirements to protect against any unfunded liabilities;
• vesting schedules designed to protect a worker from losing accrued benefits; and,
• a summary plan description , which outlines all-important aspects of the pension plan, including procedures for presenting claims.
Minimum vesting and participation requirements are enforced by the Internal Revenue Service. Enforcement and administration of ERISA is the responsibility of the Employee Benefits Security Administration (EBSA). Employees are entitled to a summary annual report of their plan's annual finances. Employees should also be provided with a statement showing how much money is in the pension account and the value of the employee's pension benefit.
What are some of the other labor laws governing employment?
There are several federal laws that govern employment. These laws are enforced by the Wage and Hour Division of the U.S. Department of Labor. They include:
• Davis-Bacon and Related Acts which require payment of prevailing wage rates and fringe benefits on federally-financed or assisted construction projects;
• Walsh-Healy Public Contracts Act which requires payment of minimum wage rates and overtime pay on contracts to provide goods to the federal government;
• Service Contract Act which requires payment of prevailing wage rates and fringe benefits on contracts to provide services to the federal government.
Rhode Island law also provides for the payment of prevailing wages on certain public works projects. The guidelines are those contained in Davis-Bacon and related acts. All contractors bidding on public works projects paid with taxpayer dollars over the amount of $1,000 must comply with the prevailing wage laws.
