Louisiana employers and employers across the country are required to protect a worker’s privacy. The federal Health Insurance Portability and Accountability Act (HIPAA) requires that healthcare providers, insurance companies, pharmacies and others keep a patient’s medical information private. Employers who are self-insured are covered under HIPAA, too.

What does “private” really mean? It means that information about a person’s medical status cannot be shared with anyone. Healthcare providers must obtain written consent before sharing a patient’s medical information with other health providers, including other physicians and medical insurance companies.

In fact, anyone who handles or deals with a worker’s medical information is required to maintain confidentiality of that information. That means that employers and HR professionals must safeguard this information. Even the person who collects the payments for group health insurance must keep that information private.

Medical information or status encompasses anything about an employee’s physical or mental health, healthcare, healthcare payments, etc. None of this information can be shared, whether on paper, on the computer or communicated verbally.

For example, Suzy consults her Human Resources professional about group health insurance benefits. During this discussion, Suzy reveals she has a lump in her breast, which could be breast cancer. That HR pro cannot tell anyone about Suzy’s condition, or even say that Suzy may be very ill.

Sharing medical information except to treat a patient is also prohibited by HIPAA. That means that managers, supervisors and employers cannot consider an employee’s medical status when making employment decisions such as hiring, advancement or training.

Several states have enacted laws that add additional privacy. In Alaska, an employer must obtain written permission to perform DNA testing. Arizona employers may, in some cases, disclose medical records or information, such as to an ambulance attendant transferring the patient.

California’s law books contain at least five different laws protecting an employee’s privacy.

Note that state laws are allowed to enforce more stringent confidentiality guidelines, but they cannot provide less protection than the federal laws.

An employee with a serious health condition, or who needs to care for a family member with a serious health condition is, in most cases, eligible for federal FMLA leave.

FMLA (Family and Medical Leave Act of 1993) provides eligible employees with up to 12 weeks of unpaid, job-protected leave for one of three reasons.

1. The employee’s own serious health condition.
2. The employee to care for a spouse, parent or child (under 18) with a serious health condition.
3. To care for a newborn child, a newly adopted child or a newly placed foster child. (Leave is allowed within the child’s first year of birth or placement.)

FMLA applies to employers with 50 or more employees within 75 miles.

Several conditions may be classified as “serious health conditions” under FMLA. Some examples include:

• Mental illness such as bipolar disorder and depression
• Drug addiction and alcoholism
• Pregnancy
• Cancer, stroke and heart attack
• Any health condition that requires hospitalization, surgery, or continuing medical treatment, may also be considered a serious health condition.

Some states have established their own maternity or family leave laws, but Mississippi has not. Therefore, Mississippi employers must follow the FMLA guidelines.

FMLA allows an employee to take this leave once every 12 month period, and the employer must give the worker a job upon his or her return from leave. Usually, the job is the same, but can also be a similar position with comparable job duties, benefits and wages. A worker on FMLA cannot be terminated while on leave, nor can the absence be counted as non-attendance for disciplinary reasons.

For example, Jose works as a manager in a retail store and takes FMLA leave to care for his mother after she has a stroke. Unfortunately, during his absence, the store burned down. Jose still has a job. When he returns from leave, he is assigned to a new store and given the same hours, benefits and duties as his old position.

State and federal agencies have been cracking down on Florida employers regarding wage and hour issues. Under particular scrutiny are misclassification of employees as independent contractors, exempt status and overtime.

An example is a recent case heard in the 5th Circuit Court of Appeals, where the court overturned a lower court ruling and found for the defendant.

In Gagnon v. United Technisource Inc. (UTI), Timothy Gagnon, a skilled aircraft painter, filed a wage complaint against Florida employer UTI for unpaid overtime. Mr. Gagnon had worked for over a year for $5.50 per hour, plus a $12.50 per hour per diem, which capped at $500, for a job that paid $18 per hour at that time. Gagnon also received $20 per hour for overtime pay.

UTI argued that by law they were only required to pay 1.5 times the employee’s “regular hourly rate” of $5.50, which resulted in $8.50 per hour. They had paid Mr. Gagnon nearly three times that amount. The court agreed.

The court of appeals disagreed and was particularly suspicious of the cap on the per diem. The U.S. Department of Labor regulations mandate that any per diem paid be included in the “regular hourly rate” for overtime calculation. In addition, under the Fair Labor Standards Act (FLSA), an employee cannot bargain away rights to minimum wage or overtime.

The judges stated, “The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments. The ‘regular rate’ becomes a mathematical computation once the parties have decided on the amount of wages and the mode of payment, which is unaffected by any designation to the contrary in the wage contract.”

According to their ruling, if Mr. Gagnon worked 40 hours per week, he earned $220 in wages + $500 per diem = $720, or $18 per hour. He was entitled then to 1.5 x $18, or $27 per hour for overtime.

This federal ruling affects employers and employees in Florida and nationwide.

Many Delaware employees wonder what the law is regarding paid holidays. One company might give 5 paid holidays while another gives 10.  Is there a federal law establishing the specific paid holidays for employees? 

The answer is no.  There is no federal law that requires U.S. employers to provide employees with paid time off on holidays. In fact, a company is within its legal rights to require employees to work every day, 365 days a year. 

According to the Society of Human Resource Management, however, the majority of companies in the U.S. provide their workers with 5-10 paid holidays a year. The most common holidays and their dates in 2011 are: 

• New Year’s Day Saturday Jan. 1, 2011
• Martin Luther King, Jr. Day Monday Jan. 17, 2011
• Washington’s Birthday Monday Feb. 21, 2011
• Memorial Day Monday May 30, 2011
• Independence Day Monday July 4, 2011
• Columbus Day Monday Oct 10, 2011
• Veterans Day Monday Nov 11, 2011
• Thanksgiving Thursday Nov 24, 2011
• Labor Day Monday Sept. 5, 2011
• Christmas Day Sunday Dec. 25, 2011
• New Year’s Day Sunday Jan 1, 2012 

Another question Delaware workers often ask involves the legal rate of “holiday” pay or wages at a premium rate for employees who work on paid holiday. There is no federal law setting a specific rate for “holiday” pay. In fact, there is no federal law that requires premium pay at all. Policies regarding holidays and holiday pay are set by the individual employer. 

There are a few states, such as Rhode Island, which mandate employees in certain industries be paid a premium for working holidays and/or Sundays. The usual rate for this premium is time-and-a-half. The majority of states, however, do have such a law.  

Federal law establishes holidays for employees of the federal government. These are the dates when many government offices such as the post office are closed. Many employers also follow a similar schedule, although they are not legally required to do so. 

The federal HIPAA (Health Insurance Portability and Accountability Act) prohibits providers within the healthcare field from sharing medical information on that person with written consent. HIPAA covers “third party administrators” as well. Workers who collect group health insurance payments or counsel about benefits are prohibited from sharing that information with anyone.

Whether a person’s medical status is on paper, communicated verbally or is on a computer, it must be kept private.

To illustrate, consider Melissa, who has been just diagnosed with a serious illness. She discusses her situation with her HR benefits coordinator to better understand her options regarding group health insurance. That benefits coordinator cannot share the information about Melissa’s health with anyone. He or she is prohibited by law to even say that Melissa is ill.

That means that employers, HR professionals, insurance companies, physicians, nurses, pharmacies, employers and other who deal with medical information cannot share that information with anyone. This information includes anything regarding an employee’s physical health, mental health, healthcare and payments for healthcare.

In addition, HIPAA prevents sharing medical information for other reasons than treating the patient. An employer cannot utilize an employee’s medical status as a determining factor when making employment decisions, such as training and promotions.

HIPAA is only one of the federal laws that protect an employee’s privacy. ADA and some state law have added additional guidelines and mandates.

Of the states with additional privacy laws, California, tops the list with at least five different laws protecting employee medical information. In Colorado, the state enacted the Colorado Open Records Act, which protects specific types of records such as HIV tests and mental health records. The Hawaii Information Privacy Act prohibits private entities from collecting any medical information without prior written consent.

Note that a state law can require more stringent guidelines, but cannot provide less protection than the federal laws.

When conducting an on-site compliance inspection in awarding federal contracts, inspectors will, as part of their routine inspection, check that the employer has properly displayed the NLRA (National Labor Relations Act) posters.

Every Wisconsin federal contractor is obligated to display a NLRA poster under Executive Order 13496. Companies that post employee notices online must post the NLRA information, too. Online posting alone, however, is not sufficient.

The U.S. Department of Labor issued a recent directive mandating that in addition to the electronic information, the physical NLRA poster must also be displayed in conspicuous locations in the workplace.

The NLRA poster provides workers with information about union rights, including their right to join, form or assist a union. Also displayed on the poster are their rights about entering into collective bargaining agreements with their employer. To assist the workers in understanding these rights, the poster lists examples of legal and illegal contracts and provides contact information for the National Labor Relations Board (NLRB) for complaints and questions.

EO 13496 also requires employers to provide a NLRA poster in another language if significant portions of the employees do not understand English. The poster must be in a language understood by these workers.

Wisconsin employers, and employers across the nation, can obtain posters online at www.laborlawcenter.com.

As of June 21, 2010, employers must include specific language that outlines the posting obligations and includes the text of the employee notice. The contract must refer to 29 CFR Part 471, Appendix A to Subpart A. Inspectors, in addition to verifying that posters are being properly displayed, have the right to inspect all contracts.

Many employers display these posters in common work areas, on employee bulletin boards or in employee break rooms. Other suitable locations include Human Resources and personnel offices where other employment posters and legal notices are displayed.

Ohio, like many other states without a family or maternity leave law at the state level, must follow the guidelines for federal FMLA leave.

FMLA (Family and Medical Leave Act of 1993) provides Ohio employees with up to 12 weeks of unpaid, job-protected leave per 12 month period. This federal law applies to employers with 50 or more employees within 75 miles.

This type of leave is granted for one of three reasons:

• The employee’s own serious health condition.
• The employee needs to care for a spouse, parent or child (under the age of 18) with a serious health condition.
• To care for a newborn infant, a newly adopted child, or a foster child who has been newly placed in his or her home. (This leave is granted within the child’s first year after birth or placement).

Classification as a “serious health condition” includes conditions such as cancer, heart attack and stroke. In addition, drug addiction, alcoholism and mental illness (such as depression or bipolar disorder) are serious health conditions under FMLA. Pregnancy, too, is classified as a serious health condition for FMLA leave.

While on FMLA, the employer must continue to pay its portion of the worker’s group health insurance as it was paid while the employee was actively on the job. The employee, too, may be required to continue to pay their portion of the premium.

The job-protected clause under FMLA stipulates that when an employee returns from leave, he or she must be given the same job, or a position with comparable salary, duties and benefits. In addition, the employee cannot be terminated while on FMLA leave, nor can the absence be used for disciplinary situations.

For example, consider Jose, a manger of a retail store. He takes several weeks of FMLA leave to care for his father who had a heart attack. While Jose is on leave, the store burns down. When Jose returns, he must be given a similar job, so he is assigned to a new store with the same hours, pay and benefits as his old job.

Georgia employers need to be aware of several recent courts cases involving companies attempting to artificially lower the hourly wage for straight time to avoid paying overtime.

The 5th Circuit Court of Appeals recently heard the case of Gagnon v. United Technisource. In this case, when United Technisource Inc. (UTI) hired Timothy Gagnon, a highly skilled aircraft painter, the prevailing wage for that job was $18 per hour. Instead, UTI offered Gagnon a mere $5.50 per hour, with a $12.50 per hour per diem that capped at $500. In addition, Mr. Gagnon was offered $20 per hour for hours in excess of 40 hours per week.

Gagnon accepted this offer and worked for UTI for over a year before filing a wage complaint for unpaid overtime. That was UTI’s first error. Under the Fair Labor Standards Act (FLSA) an employee cannot waive rights to minimum wage or overtime. In the court case, UTI argued that the law required only $5.50 x 1.5 = $8.25 per hour overtime and Gagnon received almost three times that amount. A lower court found for the company.

The 5^th Circuit Court, however, found that if Mr. Gagnon worked 40 hours per week, his wages were $220 +$500 per diem = $720, or $18 per hour. Therefore, he was entitled to 1.5 times the “regular hourly rate” of $18, or $27 per hour for overtime. The court was also suspicious of the per diem cap. That was UTI’s second error. Under the U.S. Department of Labor regulations, any per diem paid to an employee must be included in the worker’s “regular hourly rate” to calculate overtime.

The judges found in favor of Mr. Gagnon and awarded nearly $65,000 in unpaid overtime, damages and lawyer’s fees. The willful attempt of UTI to avoid paying overtime costs of approximately $8,000 cost them over 8 times that amount.

In a similar suit in 2006, the court ruled that commissions and sales bonuses must be included in the “regular hourly rate” for Wal-Mart employees, resulting in a multi-million-dollar award.

Ever wonder why so many holidays fall on Monday in Oklahoma and other states? The reason is the Uniform Monday Holiday Act of 1968 (UMHA). This federal law was enacted in 1971 and provided several “floating” Monday holidays. For example, Memorial Day is officially the 30^th of May, Columbus Day is October 12^th, and Washington’s Birthday is February 22. Prior to the UMHA, these holidays were celebrated on those specific dates, no matter what day of the week they occurred. Now, these holidays are celebrated on the nearest Monday, providing uniformity (and a three day weekend for employees). 

Ever notice that not all companies provide the same paid holidays for their employees? 

That’s because providing paid holidays to workers is solely the discretion of the individual employer. There is no federal law requiring a U. S. company to provide employees with paid time off on a holiday. In fact, there is no federal law requiring businesses to observe any holidays at all. It is completely legal for a company to remain open and conduct business 365 days a year. 

So, how does an Oklahoma employee know which, if any, holidays he or she is entitled to? The most common practice, according to the SHRM (Society for Human Resource Management) is to provide 5 to 10 paid holidays per year. The most common paid holidays are New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas Day. Each employer is free to set its own holidays, but the majority observes at least 5 of the ones mentioned, and provides workers with the written holiday policy in the employee handbook. 

Paid holidays for employees of the federal government are established by federal law. Many companies use the federal holiday schedule as a template for their own holiday policy. Each state government, however, sets the holidays for its state government employees. These holidays can vary widely. For example, Rhode Island celebrates Victory Day, Massachusetts celebrates Patriots Day and Maryland celebrates Maryland Day.

Recent court rulings show that state and federal agencies are coming down hard on employers regarding wage and hour issues, including misclassifying employees as independent contractors, exempt status and now overtime. An example is a recent case in the 5^th Circuit Court of Appeals.

This case involved Maryland employer United Technisource Inc (UTI), and aircraft painter, Timothy Gagnon. When Mr. Gagnon was hired, the prevailing rate for a highly skilled aircraft painter was $18 per hour. UTI, however, offered Gagnon only $5.50 per hour with a $12.50 per hour per diem. The per diem capped at $500 or exactly 40 hours in the payroll week. In addition, Gagnon was offered $20 per hour for hours in excess of 40 hours per week.

Gagnon accepted this offer and worked for UTI for over a year before filing a wage complaint for unpaid overtime. UTI argued that the law required overtime be paid as 1.5 times Gagnon’s hourly rate of $5.50, which was $8.25 per hour. Instead, they had paid Gagnon nearly three times that amount. Initially, the lower court found for the company.

The court of appeals disagreed. The judges ruled that if Mr. Gagnon worked 40 hours per week, he earned $220 plus $500 per diem for a total of $720. Dividing by 40 gives an hourly rate of $18.00 per hour. His overtime rate, therefore, should have been 1.5 times his “regular hourly rate” of $18 or $27 per hour.

The judges followed the U. S. Department of Labor regulations, which mandate that any per diem rate be included in the “regular hourly rate” for overtime calculations. In addition, under FLSA (Fair Labor Standards Act), an employee cannot bargain or waive rights to minimum wage or overtime.

Ironically, UTI’s attempt at avoiding paying overtime cost them more. The court awarded Mr. Gagnon $9,500 in unpaid overtime plus damages and over $55,000 in attorney’s fees. That means that UTI paid nearly $65,000 to avoid paying approximately $8,000 in overtime payments.

The NLRA (National Labor Relations Act) poster lets workers know they have the legal right to join a union, form a union or assist a union. The poster also includes information about entering into collective bargaining agreements with the employers, and lists examples of legal and illegal contracts. Displayed along with these examples is the information on how to contact the NLRB (National Relations Labor Board) for questions or complaints.

Every federal contractor in South Carolina must display a NLRA poster. Simply posting the notice electronically isn’t sufficient, either. According to a directive recently released by the U. S. Department of Labor, the employer must also display the physical poster in addition to providing the information online. Companies can obtain the appropriate posters at www.laborlawcenter.com.

All labor law posters, including the NLRA, must be posted where each employee can have access to it. Usually, posters are displayed in an employee break room, on employee bulletin boards or in common work areas. Posters may also be found in Human Resources or personnel offices where other legal notices or employment posters are posted. Inspectors include checking for NLRA posters as part of their routine in on-site compliance inspections when awarding contracts. By prominently displaying the NLRA poster, the employer is in compliance with Executive Order 13496.

If a significant portion of the employees do not speak English, the employer is required by EO 13496 to supply the poster in a language other than English that is understood by employees.

As of June 21, 2010, employers awarded with federal contracts must display specific language that outlines the posting obligations and includes the text of the employee notice. The contract must cite 29 CFR Part 471, Appendix A to Subpart A. In addition to verifying that posters are being displayed, compliance officers have the right to inspect all contracts.

Tennessee does not have its own family or maternity leave laws at the state level, so employers must follow the guidelines of the federal FMLA.

FMLA (Family and Medical Leave Act of 1993) provides employees with unpaid, job-protected leave for up to 12 weeks every12 month period. FMLA also guarantees that the employee will still have a job when he or she returns to work. This federal law doesn’t mandate that employers keep a worker’s job open during FMLA leave, but that the employee is given either the same job or one with comparable duties, salary and benefits upon his or her return.

FMLA also mandates that a Tennessee employee on FMLA leave cannot be terminated. Nor can the worker’s absence be counted as non-attendance for disciplinary reasons.

Employers with 50 or more workers within 75 miles are covered by FMLA. Workers for these companies may take FMLA leave for one of three reasons:

1. The employee has a serious health condition.
2. The employee must care for a spouse, parent of child (under 18) who has a serious health condition.
3. The employee has a newborn baby, has newly adopted a child, or a foster child has been newly placed within his or her home. (Applies to the child’s first year after birth or placement).

Under FMLA, “serious health condition” applies to many different situations. Mental illness such as bipolar disorder and depression may be serious health conditions, as well as drug addiction and alcoholism. Pregnancy is considered a serious health condition, as are cancer, stroke, heart attack, etc.

In addition, a health condition which requires continuing medical treatment, hospitalization or surgery may be classified as a serious health condition.

While on FMLA leave, the employee’s group health insurance must be continued as it was when the worker was actively on the job. The employer is required to continue to pay its portion of the premium, and the employee may be required to pay his or her portion, as well.

A few Idaho employers have been manipulating hourly wages to avoid paying overtime. Federal and state agencies have been getting tough with employers on overtime issues, and with misclassifying employees as exempt or as independent contractors.

A recent overtime case was heard by the 5^th Circuit Court of Appeals, which overturned the lower court’s ruling in Gagnon v. United Technisource Inc. After working for UTI for over a year, Timothy Gagnon filed a wage complaint against UTI for unpaid overtime. When UTI hired Timothy Gagnon, a highly skilled aircraft painter, the usual pay for that job was $18 per hour. Yet, UTI offered Gagnon $5.50 per hour with a $12.50 per hour per diem. The per diem capped at $500, or exactly 40 hours. For hours in excess of 40 in one week, UTI offered Gagnon $20 per hour.

In the lower court case, UTI argued that the law required only $5.50 x 1.5 = $8.25 per hour overtime, and Gagnon was being paid almost three times that amount. The lower court agreed.

The Court of Appeals disagreed, and was especially suspicious of the capped per diem rate, because U. S. Department of Labor regulations requires any per diem to be added to the employee’s “regular hourly rate” to calculate overtime. Therefore, if Gagnon worked 40 hours per week, he earned $220 in wages + $500 per diem for a total of $720 or $18 per hour. His overtime should have been calculated at 1.5 X $18 or $27 per hour.

The judges ruled that “The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments. The ‘regular rate’ becomes a mathematical computation once the parties have decided on the amount of wages and the mode of payment, which is unaffected by any designation to the contrary in the wage contract.”

Gagnon was awarded over $60,000 in damages, attorney’s fees and unpaid overtime.

This ruling affects employees in Idaho and across the nation.

Employees might wonder, “What are the paid holidays in Virginia for 2011? The answer depends upon the employer.  

There is no federal law which requires an employer anywhere in the U.S. to observe any holiday, nor is there a federal law requiring employees be provided with paid time off on holidays. Employers are not legally required to pay a premium rate to an employee who works on a holiday. 

Paid holiday policies, and any premium pay rates connected to them, are determined independently by each company. 

A few states, including Rhode Island, have established state laws that employees in certain industries by paid a premium for working on Sunday and on some holidays. Usually the pay rate is 1.5 times the employee’s normal pay rate, also known as time-and-a-half.  

The majority of states, however, do not have such a law, and holiday policies are determined by the employers. 

The most common practice, however, is to provide 5 to 10 holidays each year. According to the Society for Human Resource Management (SHRM), the most common holidays are New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas Day. 

There are companies that recognize other holidays, including Martin Luther King Jr. Day, President’s Day and Columbus Day. Other companies give Christmas Eve and the day after Thanksgiving off. Still others allow a worker to take a paid day off for his or her birthday. 

Federal holidays are determined by the federal government for government employees. Many companies follow a similar schedule, but they are not required by law to do so. In fact, there is wide variation among states about which holidays are observed. For example, Illinois celebrates Lincoln’s Birthday, Alaska celebrates Seward Day, and some areas of Louisiana close government offices on Mardi Gras. 

Here’s an interesting side note: The Uniform Monday Holiday Act of 1968 established the “floating” Monday holidays like Memorial Day and Columbus Day. Prior to this law, Memorial Day was celebrated on May30th, whether it fell on a Tuesday or a Thursday.

According to the federal IRCA (Immigration Reform and Control Act), it is a crime for an employer to knowingly hire someone who is not legally authorized to work in the United States. Employers, however, often unintentionally violate this law when they hire a worker whose I-9 documents seem legitimate and then discover months later the documents were forged.

Since is it also a federal crime to continue to employ undocumented workers in Georgia, the employee is usually terminated.

Georgia employers have encountered this problem. Often, when the worker was hired, he or she produced convincing fake documents. Then after an on- the-job injury, during medical treatment of workers’ comp proceedings, the documents are discovered to be forgeries.

There are an estimated 3 million undocumented immigrants in California and Texas. These numbers are important, because many states have enacted laws allowing these illegal immigrants workers compensation benefits if they’re injured on the job.

In Utah, Texas, Florida and New York, there are laws which specifically grant undocumented workers the rights to worker’s comp when they are injured in the workplace. In Georgia, Oklahoma, Nebraska, North Carolina and five other states, the law establishes that is illegal to deny an employee workers’ comp simply because they are undocumented and illegally employed.

Along those same lines, several FLSA (Fair Labor Standards Act) court rulings have found that undocumented workers are entitled to back wages for overtime.

Two states, however, have taken the opposite approach. In Arizona and Wyoming, undocumented workers are not considered to be employees. Since they aren’t employees, they can’t be eligible for worker’s comp. The basis of these state laws is the definition of employee itself. For a person to become an employee, or to enter into an employment contract, they must be legally able to do so. Undocumented workers are not considered legally able to enter into a contract, so they cannot be employees.

In the past, a South Carolina supervisor or manager who verbally abused all employees was not guilty of discrimination or of creating a hostile work environment. They were simply bad managers.

A hostile work environment occurred when the subject of abuse was targeted because of their sex, race, religion, or any of the other groups protected under federal law. A classic example of the definition is the female firefighter who received photos of naked women in her inbox every day for six months. She was the target of these photos simply because she was female.

Because these abusive supervisors didn’t target one particular group, they avoided legal repercussions.

A recent 2^nd Circuit Court of Appeals ruling, however, will change that. Employers in South Carolina with “equal opportunity harassers” as supervisors may still be guilty of creating a hostile work environment for those employees. Because this was a federal case, it has implications for employers across the nation.

The relevant case, Kaytor v. Electric Boat Corp., Daniel McCarthy made suggestive remarks to his administrative assistant, Sharon Kaytor, about her body and her scent. When she rejected his advances he threatened to kill her.

One day Ms. Kaytor left work early for a gynecologist appointment. McCarthy made vile remarks. On Administrative Assistants’ Day, he gave her a suggestive note and a pussy willow plant. Kaytor told him she was going to report the incident to Human Resources, and McCarthy threatened to kill her.

Kaytor reported the incident, and was illegally transferred to another engineer, who reported to McCarthy, and treated her badly.

The lower court initially found McCarthy was an “equal opportunity harasser” and that no jury would rule his actions as discriminatory against Ms. Kaytor’s gender, because he harassed other female employees and male employees as well.

On appeal, however, the 2^nd Circuit Court ruled overturned that ruling and found that McCarthy’s sexual slurs and threats were because of Ms. Kaytor’s gender, created a hostile work environment and constituted illegal discrimination.

It is unknown at this point whether the case will be taken to the Supreme Court. Employers, however, should take action and either retrain or weed out abusive supervisors.

In what is considered a landmark case, the judge ruled that the OFCCP could not continue to ask for more and more information to audit. Instead, the original audit scheduling letter set limits on which documents the agency could review. Therefore, the audits performed by the OFCCP were not unlimited in scope.

The case involved the Dallas plant of Frito-Lay, which is headquartered in Dallas. In July, 2007, the OFCCP requested applications, affirmative action plans and other hiring related documents for 2006 through June of 2007. The OFCCP stated that these documents showed a hiring pattern with an adverse impact on women. The agency requested information through December of 2007, and from July 13, 2005 to December 31, 2005.

Frito-Lay complied with this request. Later, on November 10, 2009, when OFCCP requested even more data, naming the period of January 1, 2008 to October 31, 2009, Frito-Lay refused. The snack food company’s attorneys argued that by requesting this information OFCCP was illegally extending the scope of the information beyond the date of the original letter.

OFCCP replied that the adverse and disparate impact in hiring gave them the right, and the duty, to investigate the subsequent period.

The judge found in favor of Frito-Lay. Citing the comments on regulations by the U.S. Department of Labor, the administrative law judge noted that in these comments, the DOL provided assurances that audit would not continue forever. Therefore, the OFCCP, via its own agency’s regulations, could not extend the July 2007 investigation beyond that date.

In other words, the agency could not provide notice of audit on events that had not yet occurred.

David Cohen, a consultant for DCI Consulting Group in D.C., said, “If the OFCCP drags the case on, it can’t ask for more data.”

This is good news for federal contractors in Washington and throughout the nation.

In recent litigation between the U.S. Department of Labor and Novartis Pharmaceutical Corp., DOL’s increase in strictness regarding interpreting federal regulations came to light. The specific regulations involved were the federal guidelines governing salaried exempt employees. Of particular interest were the occupations of outside salespeople and exempt administrators.

DOL issued an opinion during this litigation that pharmaceutical representatives did not qualify under FLSA as outside people, or as exempt administrators. This opinion was a direct result of the more stringent interpretation by DOL. The opinion continued to explain that pharmaceutical reps do not qualify, because they are not legally allowed to sell or to take orders for the medications they represent.

These representatives do not qualify as exempt administrators, either, because they do not exercise independent judgment in matters of significance. Pharmaceutical reps make their own schedules and appointments and work with little to no supervision. They do not act independently, however. Instead they implement detailed company policy in nearly every aspect of their position.

Along with the increased strictness in interpreting the regulations, DOL is also taking action against employers who do not adhere to the rules. The department is operating under a backlog of opinions on these issues, but once the backlog is cleared and the opinions signed, they will carry the force of the law. Courts must defer to DOL opinions.

As a result, Illinois employees would be wise to pay attention to DOL opinions. Illinois employers would be wise to do the same, and to examine the duties of their salaried exempt employees. An employee whose duties do not comply with the strictest interpretation of the regulations should probably be reclassified as non-exempt.

Gregory Jacob, a Washington, D.C. attorney commented that this recent DOL ruling will make it much harder for an employee to qualify as an exempt administrator. In addition, there is speculation that DOL may narrow this definition even further in the future.

Parents and guardians in several states, including California, Illinois and Colorado, are allowed to take unpaid leave to attend school events, such as parent-teacher conferences.

California parents, guardians and grandparents with custody of K-12 children may school visitation leave, too. In fact, California has two separate school visitation leave laws. One applies to all employers and requires employees be given unpaid leave for disciplinary events at school, such as suspension.

The other California law applies to employers with 25 or more workers at the same location. Parents, guardians and grandparents with custody of K-12 children may take leave for classroom events, including concerts art shows, school plays and sporting events. Children in licensed daycare are covered by this law, too. The time off is limited to 8 hours per month and 40 hours per year. The time can be unpaid, PTO (Paid Time Off), vacation time or comp time as long as the worker adheres to the company’s leave policies For families where both parents work at the same company, the law currently allows only parent to take leave.

The law in Colorado, the Academic Activities Leave Law, provides workers in businesses with 50 or more workers up to 6 hours per month. This law applies to parents and guardians of children in kindergarten through 12^th grade. The time must be taken in 3 hour increments and cannot exceed 18 hours per year. Supervisory employees are not eligible.

Illinois parents and guardians are allowed to take up to 8 hours of unpaid leave.

Texas parents and guardians may take school visitation leave, but only the employees who work for the Texas state government.

Not all states mandate that employers provide leave for school visitation. Utah, Arkansas, Tennessee and Utah do not require employers to provide school visitation leave for their employees, but they do recommend it.

Some undocumented workers in Missouri may qualify for workers’ compensation benefits. In Texas, New York, Florida and Utah, the state laws specifically grant undocumented workers the right to collect workers’ compensation benefits when they are injured at work. In nine other states, including Louisiana, New Jersey and Connecticut, state laws mandate that an employee cannot be denied workers’ comp based solely on being an illegally employed undocumented worker.

Under the federal Immigration Reform and Control Act or IRCA, it is a crime to knowingly hire anyone who is not authorized to work in the United States, so employers require workers to provide proof of ability to work. This proof is shown via I-9 forms, where the worker provides documents validating his or her legality to work in this country. Unfortunately, employers still unknowingly hire undocumented workers, because the workers often provide convincing fake documents.

Many Missouri employers have endured such an unnerving experience. The revelation often occurs after the undocumented worker is injured at work and files for workers’ compensation benefits. During the medical treatment or workers’ comp proceedings, the employee is discovered to be an illegal immigrant and not authorized to work in the U.S. Because it is also a crime to continue to employ an undocumented worker, the employee is usually terminated.

In many states, however, the terminated employee may still qualify for workers’ comp. Texas, Florida, Utah and New York specifically grant undocumented workers the right to collect worker’s compensation benefits when they are injured on the job. In Oklahoma, North Carolina, Georgia and 6 other states, the courts have ruled that an undocumented worker cannot be denied workers comp simply because he or she was illegally employed.

There are two states, however, that have a completely different perspective. In Arizona and Wyoming, undocumented workers are not entitled to worker’s comp. According to these state laws, illegal immigrants cannot legally enter into an employment contract, and therefore cannot be employees. As a result, they are not entitled to workers’ compensation benefits.

A recent case in the federal 2^nd Circuit Court of Appeals may change the perception of creating a hostile work environment. Kaytor v. McCarthy ruled that although Daniel McCarthy verbally abused and threatened employees of all races, sex and color, that did not excuse him from guilt of sex discrimination. The court found his sex-specific insults to his administrative assistant, Sharon Kaytor were indeed based on her gender.

This ruling may prove to be a landmark in the fight against discrimination, because prior to this case, “equal opportunity harassers” like McCarthy were considered crass, rude and abusive, but not guilty of creating a hostile work environment. Instead, managers like McCarthy were excused from legal repercussions simply because they didn’t specifically target one protected group with their abuse.

The Kaytor v. Electric Boat Corp., (McCarthy’s employers) case did find however, that sex-specific insults and comments could create a hostile work environment, even when coming from an “equal opportunity harasser”.

The incidents took place in 2004 when McCarthy was going through a divorce. He made suggestive comments and inappropriate remarks about Kaytor’s body and her scent. She rejected him. He then threatened to choke her or kill her–threats which he made to other employees.

On Administrative Assistants’ Day, however, McCarthy gave Ms. Kaytor a pussy willow plant and a sexually suggestive note. Kaytor told him she was going to report the incident to Human Resources. McCarthy again threatened to kill her if she did.

When Ms. Kaytor filed the report, Electric Boat Corp. illegally transferred to another engineer who also treated her badly. This engineer also reported directly to McCarthy.

The lower court considered McCarthy an “equal opportunity harasser” and determined a jury would not believe his remarks to Ms. Kaytor to be based on her sex. The 2^nd Circuit Court disagreed, stating that McCarthy had based his comments on Ms. Kaytor’s gender and had created a hostile work environment.

Employers in Kentucky need to be aware of this ruling, and understand that habitually abusive managers could be guilty of creating a hostile work environment, which constitutes illegal discrimination.

Colorado federal contractors and federal contractors across the U. S. will be happy to learn that audits performed by the Office of Federal Contract Compliance Programs (OFCCP) are limited in scope.

According to the ruling by the administrative law judge in a recent court case, OFCCP cannot extend an investigation beyond the date set in the original audit scheduling letter.

The case, considered a landmark, involved the Dallas plant of Frito-Lay, which is headquartered in Dallas. In July of 2007, the OFCCP requested several hiring documents, including applications and affirmative action plans for the plant for 2006 through June of 2007. According to the auditing agency, these documents showed a pattern of adverse impact on the hiring of women. After this discovery, the OFCCP requested information through December of 2007, plus for the period of July 13, 2005 to December 31, 2005. Frito-Lay complied.

On November 10, 2009, OFCCP requested even more information, this time from January 1, 2008 to October 31, 2009. Frito-Lay’s attorneys argued that the agency was unlawfully extending the scope of the investigation beyond the original scheduling letter date. As a result, Frito-Lay did not provide the documentation.

OFCCP replied that the discovery of the disparate information not only gave them the right to investigate subsequent periods, but it was also their duty to do so.

The judge agreed with Frito-Lay. He also noted that in comments on its regulations, the U.S. Department of Labor provided assurances that audits would not continue without end. Therefore, as dictated by its own agency’s rules, the OFCCP originally launched in July of 2007 could not be extended beyond that date. That means that the OFCCP could not provide notice that they would audit events that have not yet occurred.

As stated by consultant David Cohen of DCI Consulting Group in Washington, D.C., “If the OFCCP drags the case on, it can’t ask for more data.”

The U.S. Department of Labor handles about 10% of the wage and hour enforcement in this country. That may not seem to have much of an impact, but many states utilize the federal regulations as the blueprint for their own guidelines regarding exempt salaried employees.

That is why it’s of utmost importance that Nebraska employers and employees pay attention to the Department of Labor opinions.

Recently, the DOL has taken a more stringent approach when interpreting the regulations regarding exempt salaried employees. In addition, the department is taking action against employers that cross the line. Of particular interest is the exempt status of salaried outside salespeople and of administrators.

According to a recent opinion issued by the DOL, pharmaceutical reps do not qualify under FLSA (Fair Labor Standards Act) as salaried exempt outside salespeople. The opinion arose during litigation with Novartis Pharmaceutical Corp. The opinion stated that the reps do not qualify because they are not legally allowed to sell or to take orders for the medications they represent. These employees do act with little to no supervision, but they follow company policy in almost every aspect of their job.

An argument could be made that since the reps create their own schedules and make their own appointments, they would qualify as exempt administrators. According to DOL, however, that assumption is incorrect. To qualify as exempt, administrators must be capable of exercising independent judgment in significant matters of operation. Pharmaceutical reps do not have that capability.

This ruling of the DOL will have far reaching effects on U.S. employers, particularly the drug companies. It is also possible that the regulations may be interpreted even more strictly in the future. According to Washington, D.C attorney, Gregory Jacob of Winston & Strawn, the recent DOL ruling makes it increasingly difficult for any employee to be classified as an exempt administrator.

There are many states in the U.S. that provide employees with time off to attend school events. Among those states are North Carolina, Minnesota, Massachusetts and Nevada. In these states, a parent or guardian of a kindergarten through grade 12 child may take leave for parent-teacher conferences and classroom events.

The school visitation law in Illinois allows parents and guardians up to 8 hours of unpaid leave for parent-teacher conferences, or when there is a problem at school requiring the parent’s attendance. This includes disciplinary matters, suspensions and expulsions.

Texas has a school visitation law, too, but it only extends to employees of the Texas state government.

Louisiana and Utah do not require employers to provide the school visitation leave, only recommend it.

California, however, has two different school visitation laws. One applies to employers with 25 or more employees at the same location. Under this law, guardians, parents and grandparents with custody of children in K-12 may take time off for art shows, school plays and other events. The workers may take up to 8 hours per month and no more than 40 hours per year. The employees may use unpaid leave, vacation time or Paid Time Off (PTO), as long as they do so according to the employer’s policies. If both parents work for the same employer, only one of them is allowed to take the leave. This law also applies to children in licensed daycare.

The other school visitation law in California applies employers of all sizes. Under this law, employers must grant unpaid leave to parents to attend suspension or expulsion hearing, and other disciplinary events.

For employers with 50 or more workers in Colorado, the Academic Activities Leave Law permits K-12 parents and guardians to take up to 6 hours of unpaid leave per month. The leave can be paid leave, too (except for supervisory employees) and must be taken in 3 hour increments for no more than 18 hours per year.

Undocumented workers in Kansas may qualify for workers’ compensation in some cases. In Arizona and Wyoming, courts ruled that an undocumented worker does not qualify for workers’ comp. According to these findings, an illegal immigrant cannot legally enter into an employment contract, and therefore is not an employee.

Other states, however, have laws that do entitle undocumented workers to workers’ comp. Texas, Utah, Florida and New York, for example, specifically grant the right to collect workers’ compensation benefits to undocumented workers injured on the job.

Georgia, Ohio, Oklahoma, Louisiana, and five other states have ruled in their courts that an employee cannot be denied worker’s comp based solely on the fact that he or she was unlawfully employed.

Employers in Kansas have experienced the shock of discovering that an employee whose I-9 documents seemed legitimate presented fake documents at hiring and is in fact illegal. These discoveries often occur when a worker is injured in the workplace and then files a claim for workers’ comp. During medical treatment or worker’s comp proceedings, the true identity of the employee is revealed along with the revelation that he or she is not authorized to work in the U.S.

To knowingly hire an employee who cannot legally work in this country, is a crime under the IRCA, the federal Immigration Reform and Control Act. Continuing to employ an undocumented worker is also a crime, so the employee is usually terminated.

The terminated employee may still be eligible for workers’ comp. In addition, under FLSA (Fair Labor Standards Act) court rulings, the employee could be entitled to back wages for overtime.

The concern regarding undocumented workers is not trivial. There are approximately 3 million undocumented immigrants in just Texas and California. Employers, therefore, should be vigilant when checking proof of ability to work in the United States, so that they avoid unknowingly violating IRCA by hiring an illegal immigrant.

A recent case has interesting implications for workers in Mississippi. In 2004, David McCarthy, an employee at Electric Boat Corp. was going through a divorce and began verbally abusing all of his employees, regardless of sex, color or race. Because he did not target a specific protected group, he was not considered guilty of creating a hostile work environment.

To constitute a hostile work environment, an employee must be the target of abusive behavior based on religion, sex, color, etc. A classic example is the female firefighter who received photos of naked women in her inbox every day for six months. She was subjected to this behavior simply because she was female.

Under this definition, McCarthy would be considered a crass, rude manager, but not guilty of discrimination.

The 2^nd Circuit Court of Appeals, however, ruled McCarthy had indeed created a hostile work environment for his administrative assistant, Sharon Kaytor.

McCarthy verbally abused male and female employees, and in addition made inappropriate and suggestive remarks to Ms. Kaytor about her body and scent. When she refused his advances, McCarthy threatened to choke or kill her. In addition, he gave Kaytor a pussy willow plant and a sexually suggestive note on Administrative Assistants’ Day. Ms. Kaytor said she was going to report the incident to Human Resources, and McCarthy once again threatened to kill her.

Unfortunately for Ms. Kaytor, when she filed the report the company did not reprimand McCarthy, but instead illegally transferred her to another engineer–who treated her badly and reported directly to McCarthy.

The case went to court, and the lower court found McCarthy innocent of creating a hostile work environment, because he was an “equal opportunity abuser”. The 2^nd Circuit Court of Appeals disagreed. They ruled that McCarthy’s remarks were based on Kaytor’s gender, and elevated the situation to a hostile work environment. The court also highlighted a previous case which found that it would be a great injustice to allow a harasser to get away with sex discrimination by occasionally harassing a male employee.

Employers in Mississippi should be aware of this ruling and weed out or retrain this type of supervisor.

Michigan federal contractors that prefer not to be the subject of unending audits will be happy with a recent ruling regarding the OFCCP (Office of Federal Contract Compliance Programs).

The good news revolves around the scope that the OFCCP has when conducting an audit, and will also affect federal contractors across the country.

As a result of a landmark case involving the Frito-Lay plant in Dallas, Texas, the judge found that OFCCP could not continue to ask for more information to audit. The court found that the original audit scheduling letter set limits on what documents would be available to the government agency.

The audit began in July of 2007 when the OFCCP requested applications, affirmative action plans and hiring documents for the Dallas plant for 2006 through June 2007. After viewing these documents, OFCCP claimed they found a pattern of adverse impact on the hiring of women. The agency then requested more information for the period from July 13, 2005 to December 31, 2005 and through December of 2007. Frito Lay complied.

OFCCP requested more records on November 10, 2009. This time they wanted to view information from January 1, 2008 to October, 31, 2009.

Frito-Lay refused. The company’s attorneys argued that the OFCCP was unlawfully extending its investigation beyond the date of the original letter. OFCCP’s reply was that they had the right and duty to investigate the subsequent period due to the discovery of the disparate impact on hiring..

The judge ruled in favor of Frito-Lay. He noted that in its comments on its regulations, the U.S. Department of Labor provided assurances that compliance reviews would not be unending. As a result, he found that the OFCCP, as defined by its own agency’s regulations, could not extend its investigation beyond the original July 2007 launch date.

David Cohen, a consultant with DCI Consulting Group in Washington, D.C., added, “If the OFCCP drags the case on, it can’t ask for more data.”

In recent litigation with Novartis Pharmaceutical Corp. the U.S. Department of Labor issued an opinion that pharmaceutical reps do not qualify as outside salespeople under FLSA (Fair Labor Standards Act).

According to the DOL, pharmaceutical reps cannot legally sell their merchandise nor can they take orders for the medications. Despite the fact that they work under little supervision, they do not make independent judgments. Rather they implement detailed company policy in almost every aspect of their job.

Some may argue that the reps qualify as exempt administrators, because they set their own schedules and make their own appointments. That is part of their duties, but it isn’t enough to qualify under FLSA. To be exempt, administrators must be able to exercise independent judgment on important matters. Pharmaceutical reps do not have that capability within their job description.

This recent ruling by the DOL is an example of that department’s increase in strictness when interpreting regulations regarding salaried exempt employees. This increase stringent policy is particularly prevalent regarding outside salespeople and administrators that are classified as exempt.

There is speculation that DOL may become even more stringent in their interpretation of these regulations. Currently, DOL has a backlog of opinions, but once those are signed, they will carry the full force of the law.

Since the courts must defer to U.S. Department of Labor opinions, New York employers and employees would be wise to be aware of these changes. In addition, companies should revisit the duties of their exempt salaried employees to make sure those duties meet with DOL regulations.

DOL opinions, such as with Novartis Pharmaceutical Corp., will have far reaching effects, particularly on U.S. drug companies.

The DOL only handles about ten percent of the wage and hour enforcements in the United States, which doesn’t seem like a lot. Many states, however, use the federal regulations as a blueprint for their state’s salaried exempt regulations.

Employers in several states, including Minnesota, Massachusetts, Rhode Island, Vermont and Nevada, are required to provide employees with unpaid leave to attend school events.

California has instituted two school visitation laws which prevent businesses from taking negative action against workers who take time off for classroom events. One of the laws applies to employers of every size. Under this law, a parent or guardian are entitled to take unpaid leave to attend disciplinary events such as expulsion.

The other California school visitation law applies to employers with 25 or more workers. Parents, guardians and grandparents of children with kindergarten through grade 12 aged children may take time to attend concerts, art shows and other school events. The law applies to children in licensed daycare, as well. There are some limitations to how much time can be taken. Employees may take up to 8 hours per month and 40 hours per year. The time doesn’t have to be unpaid, but can also be PTO, vacation time or comp time. If both parents work for the same company, however, only one of them may take leave.

Colorado parents and guardians with children in K-12 may take 6 hours per month, in 3 hours increments, for a total of 18 hours per year. The relevant law is the Colorado Academic Activities Leave Law, and applies to employers with 50 or more workers. Paid leave may be substituted for the unpaid school visitation leave, but supervisory employees are not eligible.

Illinois’ state law allows parent and guardians to take up to 8 hours of unpaid leave.

Texas provides school visitation leave, but only for employees who work for the Texas state government.

A few states, including Arkansas, Tennessee, Utah and Louisiana, do not require employers to provide school visitation leave. They recommend it, but there is no legal mandate to do so.

Many South Dakota companies have experienced an injured employee filing for worker’s compensation, and then discovering that the worker was an illegal immigrant.

Employers could be unaware that a worked was illegal, because often the employee presented convincing fake documents when hired. Then, during medical treatment or worker’s compensation proceedings the employee was discovered to be an illegal immigrant and not authorized to work in the U.S.

It is a crime for an employer, under the federal Immigration Reform and Control Act (IRCA), to knowingly hire someone who is not legally permitted to work in the United States. Companies, however, unintentionally violate the law when they hire a worker whose I-9 documents seem legitimate, and later learn the documents were forged. Since it is a crime to continue to employ undocumented workers, the worker is terminated.

Regardless of their illegal status, undocumented workers, including those employees who have been discovered and terminated, are still entitled to workers’ compensation benefits in many states.

State laws in New York, Texas, Utah and Florida specifically grant undocumented workers the right to collect workers’ comp when they are hurt on the job. Courts in Connecticut, Georgia, Nebraska, Oklahoma and New Jersey have ruled that an employee cannot be denied workers’ comp solely on the basis of being an illegal immigrant.

Arizona and Wyoming, on the other hand, ruled that a worker who is an illegal immigrant cannot enter into a contract for employment. Therefore, that worker is not an employee. Oklahoma, Connecticut, Texas and Louisiana heard the same argument, but did not accept it.

Arizona and Wyoming laws serve as a contrast to court rulings on FLSA (Fair Labor Standards Act) which have found that an undocumented worker is entitled to back wages for overtime, even if that worker should never been employed in the first place.

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