Regardless of the industry or size of the business, employers are responsible for the correct classification of their workers. Failure to correctly classify a worker as an employee or independent contractor can make the mistaken employer responsible not only for the worker’s back employment taxes, but also penalties, warns the IRS.

This morning the U.S. Supreme Court upheld President Obama’s Health Care Affordability Act. The court essentially ruled its penalty provisions were akin to a tax. So what does this mean for insurance brokers and their clients? Here are a few of my quick thoughts:

Some unexpected but welcome news for New York State employers: an amendment to the Labor Law that loosens restrictions on employers’ ability to make authorized deductions from employees’ wages.

This morning, a divided Supreme Court issued a 5-4 decision written by Justice Alito upholding decades of industry practice and finding that the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives (PSRs).  The Court decided unanimously that the Department of Labor’s (DOL) amicus curiae briefs in which it first articulated its position that the outside sales exemption should not apply to PSRs should not be provided any “especially favorable weight.”

Paid vacation leave constitutes a form of wages. Because the right to accrue paid vacation vests as the employee renders services, employees “earn” a portion of their annual vacation accrual each day they work.

Companies should make certain that their vacation policies are clear. In California, employers may not implement “use it or lose it” vacation-time policies, but employers can place reasonable caps on vacation.

Three large trade groups representing millions of the country’s businesses and employers entered the appellate fray last Thursday with their filing of an amicus brief before the Sixth Circuit in EEOC v. Peoplemark, Inc. As we previously reported here andhere, EEOC v. Peoplemark stems from a Michigan district court’s underlying decision to award approximately $750,000 in attorneys' fees and costs against the EEOC, as a result of the agency’s failed discrimination suit against defendant Peoplemark, Inc. The trade groups’ amicus submission adds to the growing chorus of voices expressing growing intolerance for the EEOC's overly zealous enforcement tactics in large-scale pattern or practice cases.  

Cal/OSHA announced that it is investigating two suspected heat related deaths in the construction and agriculture industries that occurred over the past month. This news is a stark reminder that employers must be vigilant in complying with California’s heat illness prevention standard.

The most recent suspected fatality occurred on June 1 and involved a 56-year-old farm worker who collapsed while pruning fruit trees. According to Cal/OSHA, the man was working in high-heat conditions at the time of the collapse. The other case involved an 18-year-old masonry worker who fell unconscious as the crew was cleaning up for the day and died the next day.

HRWatchdog previously reported that CAL/OSHA kicked off its 2012 heat illness prevention campaign. Employers with outdoor workers must remember that high-heat provisions apply whenever temperatures reach 95 degrees and include extra precautions, such as ensuring effective communication, observing all employees for signs of heat illness, closely supervising new employees and frequently reminding employees to drink water.

In announcing its investigation, Cal/OSHA said its staff will enforce compliance with the state’s high-heat standard through scheduled inspections and local “heat wave” inspections when temperatures rise dramatically. The agency will provide statewide heat illness prevention training through September. For more information, visit Cal/OSHA’sHeat Illness webpage.

The U.S. Justice Department (DOJ) postponed the implementation of rules on disabled access to commercial swimming pools under the Americans with Disabilities Act (ADA). The DOJ announced that existing facilities do not have to be equipped with handicapped-accessible entry until Jan. 31, 2013. This is the third extension of the compliance deadline. 

The DOJ took hotels, community pools, water parks, and health clubs by surprise early this year when it issued a technical guidance that required fixed, built-in pool lifts for the disabled at existing pools. 

Previously, the understanding was that fixed pool lifts would only be required at newly constructed pools. The fixed pool lift requirement raised concerns over safety (children diving off the lifts), costs and ability to comply within the timeframe provided. 

Fixed lifts often require extensive construction and electrical work. Concern was also expressed over whether an adequate supply of pool lifts was available. A groundswell of complaints flooded in from hoteliers and others who operate commercial swimming pools. 

The extension applies only to existing swimming pools, wading pools and spas. It does not apply to pools and spas that are being newly constructed or altered. Newly constructed pools or altered facilities are subject to a March 15, 2012, compliance deadline. 

The DOJ also issued a new guidance document related to its interpretation of the requirements for pool and spa accessibility. 

The California Assembly passed a bill that would create a mandated leave benefit different from federal law. AB 2039 (Swanson; D-Alameda) significantly expands the type of individuals or circumstances under which employees can take a 12-week, protected leave of absence under the California Family Rights Act (CFRA).

Current Law
Currently, CFRA requires an employer with 50 or more employees to allow an employee who worked at least 1,250 hours to take up to 12 weeks of leave in a 12-month period for his/her own serious medical condition, for the birth or placement of a child, or to care for the serious medical condition of a child, (under 18 years of age or adult dependent), spouse, or parent.

The current definition of “parent” includes step-parents as well as individuals who stand in place of a parent, “in loco parentis,” to the child. 

Expansion of CFRA
AB 2039 seeks to expand CFRA by allowing an employee a protected leave to care for adult children, parents-in-law, grandparents and siblings.

Given that the individuals proposed by AB 2039 are not covered by the federal Family and Medical Leave Act (FMLA), an employee could use his/her 12 weeks of CFRA to care for the serious medical condition of a parent-in-law, then take another 12-week leave under FMLA to care for the medical condition for his/her spouse, child or parent.

Leave Already Protected
The new burden that AB 2039 creates is unnecessary. The proposed category of individuals that AB 2039 seeks to include under the protections of CFRA is generally already protected. A grandparent or step-parent who stands in loco parentis to a child, can already take a protected leave of absence under CFRA to care for that child, and vice versa. There is no need to create another exception for the parent-in-law, daughter in-law, or son-in law to also be able to take leave. 

The Acting General Counsel for the National Labor Relations Board (NLRB) issued athird report on employee use of social media.