SLF LABOR AND EMPLOYMENT ALERT February 2008

Employers May Need to Update Employee Handbooks in Light of Impending U.S. Department of Labor Regulations Pertaining to the FMLA

In light of recent developments under the FMLA, employers may need to consider revising their employee handbooks. On January 28, 2008, the FMLA was amended by the National Defense Authorization Act for FY 2008.  As part of the amendment, Section 102 (“Leave Requirement”) of the FMLA was amended to include the following provision regarding entitlement to leave (new provision in italics):

(a) IN GENERAL.--
                      (1) ENTITLEMENT TO LEAVE.--Subject to section 103, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
…
(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.

On February 11, 2008, the U.S. Department of Labor’s Wage and Hour Division (the “DOL”) published a Notice of Proposed Rulemaking in the Federal Register pertaining to the January 28, 2008, amendments.  Of note, the DOL’s proposed rules address the definition of “qualifying exigencies” as used in the FMLA.  The Notice can be viewed by accessing the following link: http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf.  DOL will receive public comments on the proposed rulemaking until April 11, 2008.To date, the Secretary of Labor has not defined what is considered a “qualifying exigency.”  Until a definition has been finalized, employers who intend to grant family military leave because of a “qualifying exigency” must determine what constitutes a “qualifying exigency.”  Future editions of the SLF Alert will address the final language of the rules with respect to this definition.  For more information on the FMLA amendments, please visit the DOL’s website at http://www.dol.gov/esa/whd/fmla/.

Other Proposed Revisions to the FMLA

On February 11, 2008, the DOL proposed other rule changes contained in the Federal Registrar (Vol. 73, No. 28).  The following issues may be impacted by the proposed rule changes: (1) the Ragsdale decision/penalties; (2) light duty work; (3) waiver of rights; (4) serious health conditions; (5) substitution of paid leave; (6) perfect attendance awards; (7) employer notice obligations; (8) employee notice; (9) medical certification process (content and clarification); (10) medical certification process (timing); (11) fitness-for-duty certifications; and (12) and military family leave (addressed above).  For a breakdown of the proposed changes, please visit the DOL’s Fact Sheet at http://www.dol.gov/esa/regs/compliance/whd/whdfs FMLA_NPRM.pdf. The DOL has also dedicated an entire website on the proposed changes and can be accessed at http://www.dol.gov/esa/whd /FMLANPRM.htm.

Case Law Update:  Recovery Under ERISA for Fiduciary Breach

The United States Supreme Court recently addressed fiduciary breaches by defined contribution pension plan administrators in LaRue v. DeWolff, Boberg, & Associates, Inc.  In LaRue, the Petitioner alleged that his defined contribution pension plan’s interest was depleted because his plan administrator failed to follow his investment directions.  It was alleged that the failure to follow investment directions “amounted to a breach of the fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA).”  The Court ultimately held that “[a]lthough §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, it does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account.”  To view the entire opinion in LaRue, please visit the Supreme Court’s website at http://www.supremecourtus.gov/opinions/07pdf/06-856.pdf.

PAST ISSUES OF SLF LABOR AND EMPLOYMENT ALERT

You may view past issues of the SLF Labor and Employment Alert on the “Publications” page. Links to the 2006 and 2007 Archives are provided below for your convenience.

 

211 East Call Street
Tallahassee, FL 32301
850.205.1996
850.205.3004 FAX