FMLA Regs: Military Leave Goes Mainstream

The days of patchwork state statutory control over military leave for families of soldiers may be finally coming to an end. President Bush recently signed a law that expands FMLA leave to cover family members of injured soldiers coming home from war. That, coupled with new FMLA final regulations from the Department of Labor will hopefully give veterans and servicemembers' families a better understanding of their rights, and give employers a better idea of what they can and cannot allow, without pissing off the Government.

According to the Kansas City Star, the law now gives employees up to 6 months unpaid to care for an injured family member after they get home, and will extend the standard 12-week option to situations where a "qualifying exigency" during active duty service occurs. What's a qualifying exignecy? Wouldn't you like to know. From the article:

Although the latter form of military leave won't become effective until the Secretary of Labor issues regulations defining what a qualifying exigency is, the Labor Department is urging employers to comply with the spirit of the law in the meantime. So employers should use their best judgment about doing so, and "interpret the term broadly...."

The important question in our eyes is whether mental health will be considered a qualified exigency. If not, it's a shame. I know the likelihood of abuse would shoot up, but the benefit of having a parent or sibling or child there for you as you learn to be a civilian again would be incredible. You would think it would be the least the Feds could do, since they're cutting funding for Post-Traumatice Stress treatment, which something like 1 in 7 servicemembers may be coming home with.

Finally, an interesting heads-up: FMLA provisions have always extended to spouses or children caring for family members, and the military provision includes these categories, too, but it also allows the servicemember's nearest blood relative to take off under the Act. This extra category is exclusive to the military portion - the old one is still just spouses and kids.

All the other FMLA regs are coming out, too, but nothing in them is this big (basically, employees are going to have to call and ask for it first - sorry to spoil the suprise), and I have to study for the Bar, so good night for now.

On the web: DOL's announcement/summary of proposed regs.

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“This is unambiguously negative.”

Whoopee, Happy new year. 2008 is looking stellar so far.

The title quote is from the NY Times - it's Mark Zandi, chief economist at Moody's, reacting to the DOL jobs report issued yesterday which shows unemployment at 5% for the first time since 2005 and a mere 18,000 jobs created. 18,000. When I saw it I hoped a decimal place was missing.

But, fear not, you massess of laid-off manufacturing workers! The President says your sacrifice was not in vain! White House spokesman Tony Fratto (Seriously? What happened to Snow? He was two spokesmen ago? And the other one was a chick? Man, I can't keep track anymore...) Anyways, White House Spokesman-of-the-day Fratto said the report was "good news" (no joke) because the country was still creating jobs. From Forbes:

'Anytime that you have more Americans working than you previously had, that is good news and certainly good news for those who have jobs,' Fratto told reporters at the White House....

Ok, I'm not trying to bring down the lucky 18,000 government and food service employees that got paid last month, but when construction and manufacturing industries shed like 80,000 positions (again, no joke), it doesn't take an economist to figure out what's wrong with touting such meager job growth as a success. From the NYT article:

For the third consecutive month, wages grew slower than the pace of inflation, cutting into the real income of many workers. Among rank-and-file workers, who make up more than four-fifths of the labor force, average hourly earnings rose 3.7 percent last year, below the 4.3 percent rise in 2006.

Yeah, "good news" may be a stretch.

Thankfully, we're not running for office, and the job market is merely a contributory factor to employment law, so we can just acknowledge and move on. This is just a friendly heads-up - it's getting pretty recession-y out there, so watch where you step.

More After the Jump...

Big Law speaks...IRS listens

That collective sigh of relief you heard yesterday came from the community of Executive Compensation practitioners in response to the IRS extension of the 409A compliance deadline for nonqualified deferred compensation plans to December 31, 2008.

They have the Major Firms - and their clout with the IRS - to thank.

Buried deep in the 600 pages comprising the American Jobs Creation Act of 2004 (many like to say that the Act did, in fact, create jobs...for lawyers, HA!), are found 6 pages constituting 409A of the Internal Revenue Code. This section of the Code was passed to regulate the elections, distributions, and notice requirements of the nonqualified deferred compensation plans loved so much by executives. Congress passed this portion of the Act because it did not like the fact that these execs retained so much control with respect to this supposedly "deferred" compensation.

Bringing affected plans into compliance has proved to be no small task, however, because of a lack of understanding and the sheer number of affected plans. And it didn't help that the Final Regulations under 409A were just passed in April of this year. Those regulations required compliance by December 31, 2007. However, practitioners remained hopeful (and confident) that this deadline would be extended as it seemed unrealistic. Then, on September 10th, the IRS teased practitioners with Notice 2007-78, which allowed for a documentary compliance extension to December 31, 2008. Unfortunately, what really mattered, operational compliance, was not extended.

Finally, a letter was sent to the IRS signed by most major law firms asking for a realistic extension to the end of next year. The IRS listened. On Monday, Notice 2007-86 was published and, among other things, it finally extended the deadline for documentary and operational compliance until the end of next year. Until the deadline comes, plans may rely on "good-faith" compliance with the regulations.

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Supremes October Term Blatantly Discriminates Against the Young

The 2007-2008 Term is officially in full swing, so we thought we'd better do our blogitory duty and sum up the Supreme Court's October Docket for you.

We were a little worried about this term. There's been all this talk about the Roberts Court being more interested in business cases, but before last Tuesday the Court had only granted cert to two employment cases, which is pretty low. On 9/25, however, the Supremes tripled their employment-law workload, bringing the total up to seven. That may still seem low, but it's actually a lot compared to past sessions.

We've pored over all the records [read: scanned BNA summaries* while drinking] to bring you as in-depth an analysis as possible, and one thing is very obvious about the new Supreme Court: they are really, really worried about growing old. (Maybe send a gift with that Petitioner's brief?)

An explanation and the case summaries is after the jump.
[*BNA Labor Report - subscription req'd.]


With three employment cases having something to do with the Age Discrimination in Employment Act, and an ERISA case about who can sue for botched 401(k) investments, the Silver Set is definitely taking center stage (for employment cases, which means "far-left stage past the bathrooms" to everybody else).

There's Kentucky Retirement Sys. v. EEOC, a 6th Circuit case that mashes the ADEA, pension benefits and state public employment into one giant mess. This one could be big - the question presented:

Whether any use of age as a factor in a retirement plan is “arbitrary” and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act?

Federal Express v. Holowecki involves whether an "intake questionnaire" and affidavit submitted to the EEOC can be considered a discrimination charge under the ADEA even when the aged discriminitee didn't mean it to. Administrative procedure is obviously the coolest area of the law, so we're sure this will get tons of press.

Gomez-Perez v. Potter asks whether the ADEA prohibits federal employers from retaliating against employees who complain of age discrimination. What? This is a question? Apparently - the 4th Circuit held the ADEA doesn't protect federal employees like it does private ones. Plus, it's not like the government feels the need to live up to its rules for the private sector in other areas... God, it never stops sucking to work for the government, does it?

The term's token ERISA case is a potential barn burner - LaRue v. DeWolff, Boberg & Associates will settle the question of whether the totalitarian regime that is ERISA allows an employee to sue for losses based on his employer's failure to carry out his 401(k) investment instructions. The case got interesting when LaRue moved to dismiss after the Court granted cert, noting that the plaintiff took all the funds out of his 401(k) while the case was pending at the circuit court. The amici came out of the woodwork, and the Court recently denied the motion. For real, keep an eye on this one.

There are two other cases - Sprint/United Management v. Mendelsohn and CBOCS West v. Humphries - that raise game-changing issues in evidence and retaliation, and a state/federal jurisdiction case that is hiding an eminent judicial figure. Since none of them have anything to do with old folks, and this post is getting so dang long, we'll save these three cases for their own post later today.

Finally, the Court denied cert. in Jennings v. Dorrance, the discrimination case against the UNC soccer coach filed by former players. That sends it back to the District Court for trial. It's title IX, which is outside our purview (or interest, honestly) but we knew we'd get emails if we didn't put it in here.

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HEADS UP: Wage Garnishment Changes

[ed. note: Any time we find something that might be of note to employers or practicioners we'll do our best to put it up here. We'd really like to have a catchy title to accompany all of these snippets, but the clever engine's not turning over for us today. If you've got a good label, title, etc. drop us a line. In the meantime...]

Heads up to Illinois employers - the State's changing wage deduction rules.

The Governor’s getting a piece of proposed legislation on his desk this morning that would alter post-judgment enforcement. The changes notably include:

- Removing the judicial discretion in wage-deduction orders – deductions would automatically be the lesser of (a) 15% of the weekly gross income or (b) the amount of net income above 45 times the current minimum wage (which just went up to $7.50).

- Allowing judgment creditors the option of taking conditional judgments against employers who stop deducting wages without a valid excuse, but the bill would also require creditors to certify the remaining balance in garnishment proceedings before the employers are obligated to pay.

- Changing the employer fee from either $12 or 2% to just 2%. No option.

If the bill gets signed it will go into effect Jan. 1, 2008.

Illinois Senate Bill SB0229

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