David Sparkman, Editor| Volume 3, Issue 10 | May 31, 2015
One of the most easily abused employee legal protections – and one that can prove dangerous for unprepared employers – is the Family and Medical Leave Act.
Last year we had articles explaining the basics of protecting yourself from employee fraud and dealing with visits by investigators from the Labor Department, which has made FMLA enforcement a priority (AA, 8-30-14, P. 1).
This time around we offer advice on how to stem FMLA fraud in more detail because the problem is not going away anytime soon.
There was a more than 26% jump in FMLA lawsuits in 2014. In 2012, there were 291 lawsuits, in 2013, there were 877 and in 2014, 1,108.
Attorney Jeffrey S. Nowak of the law firm of Franczek Radelet PC, has six important tips for employers to follow.
Supreme Court Hands EEOC Another Rebuff
The U.S. Supreme Court handed the Equal Employment Opportunity Commission another in a long line of court defeats that should be embarrassing for the agency, but in the end the decision does little to help employers.
The High Court rebuffed the commission’s contention that courts could not legally review EEOC conciliation proceedings it is supposed to hold with employers before bringing suit over discrimination allegations.
The 1964 Civil Rights Act requires EEOC to engage in “informal methods of conference, conciliation, and persuasion” with the employer. Only after it determines that conciliation has failed can the EEOC file suit in federal court.
EEOC initially sent a letter to Mach Mining inviting the employer and complainant to participate in informal conciliation and notifying them that a representative would be in touch. However, no discussion or conciliation was ever scheduled.
New Overtime Rule Is Coming, MCs Exempt
Just as the Labor Department is preparing release of new overtime rules that will impact all American employers a federal court has upheld the interstate exemption for commercial drivers even when they are not in interstate service.
DOL has announced that it will release the new overtime regulations on June 18, which President Obama ordered the department to write last year.
The new rules are expected to substantially increase the current $455-per-week minimum salary amount, possibly to a threshold of as much as $1,000 or more a week.
The new rules also are anticipated to contain changes to the duties-related requirements to make them harder to meet, such as by imposing a strict more-than-50% criterion for the amount of time spent in exempt work.
IWLA Presents Menzies Award to Three Leaders
The International Warehouse Logistics Association presented its 2015 Jock Menzies Distinguished Service & Leadership Award to Darby Strickland, the late president of Shippers Warehouse, and Gary Minardi, president of San Jose Distribution Services.
IWLA also presented Paul Delp, president of Lansdale Warehouse Co., and president of ACWI, with the 2015 Jock Menzies Award (AA, 3-31, 15, P. 4). It is the first year IWLA presented its distinguished service award to three people.
IWLA honored Strickland because, as Ken Johnson, the current president of Shippers Warehouse, explained, Strickland’s legacy continues although he passed away in 2009. “Darby was way ahead of his time, a true innovator in business and warehousing and transportation,” Johnson said.
As the founding member of the Texas Warehouse Association, Strickland was known for his efforts in in tax reform, deregulation and labor regulations.
Shippers Pursue House Backing for Rail Reform
A coalition of rail shippers asked the House of Representatives to support rail reform legislation that was earlier introduced in the Senate.
The Senate Commerce Committee on March 25. Introduced by the committee chairman Senators John Thune (R-S.D.) and ranking minority member Bill Nelson (D-Fla.), the measure is awaiting a national infractrusture bill to be attached to as a rider (AA, 4-15-15, P. 1)
The measure would expand the membership of the Surface Transporetation Board from three to five commissioners and streamline is procedures to allow for quicker resolution of rail rate and service issues.
The Association of American Railroads has said it will support the legislation, and 48 industry associations representing shippers have rallied to form a coalition that is pressing for its enactment.
American Chemistry Council President Cal Dooley testified in support of the bill on May 13 before the House Transportation and Infrastructure Rail, Pipelines and HazMat Subcommitte.
“It has become increasingly apparent that the primary means established by Congress to foster a healthy and competitive rail system, the STB is badly in need of reforms that respond to the dramatic change in the freight rail landscape,” Dooley asserted.
Beverage Distributors Are Still OSHA Targets
Do beverage distributors and warehouse operators represent the proverbial “low-hanging fruit” for OSHA enforcement? According to one attorney, that‘s definitely the case.
Why is this happening? “If the distributor has multiple locations, there is a substantial risk that a common error may occur in this five year period,” points out attorney Howard A. Mavity of the law firm of Fisher & Phillips LLP. “That’s why many relatively safe retailer chains have recently been receiving six-figure OSHA citations.”
Once the distributor is cited for one of these common violations, the violation can serve as the basis for a “repeat” OSHA citation of up to $70,000 for five years at any of the employer’s locations in any other Fed-OSHA state, Mavity notes.