Chapter 16 Selected Employment Benefits and Protections Copyright  2015 McGraw-Hill Education.  All rights reserved.  No reproduction or distribution without the prior written consent of McGraw-Hill Education.

Learning Objectives (1) List the matters regulated by the Fair Labor Standards Act Understand minimum wage and overtime laws, their exemptions and the relationship to states Explain the Family Medical Leave Act, to whom it applies and under what circumstances Explain the legal background of workplace safety, and determine how OSHA has altered this regulatory environment

Learning Objectives (2) Recognize the interplay of the OSHA General Duty clause, specific standards and defenses. Describe the reporting responsibilities of employers under the OSH Act Explain the purposes of ERISA and identify who and what type of entities are covered Describe the minimum ERISA standards for employee benefit plans Understand the roles of COBRA and HIPAA

Show me the Money! (1) Full circle: worker classification still crucial Case: Reich v. Circle C Investments, Inc. Fair Labor Standards Act (FLSA) Law to regulate pay and hours worked passed in 1938, part of New Deal Set standards for minimum wage and overtime pay, regulates child labor, wages and hours Requires recordkeeping on wages and hours Violations are big business: small increments x many hours x many employees in class actions = $$$

Show me the Money! (2) FLSA administered by the U.S. Department of Labor, Wage and Hour Division Sets floor for min. wage and OT rules – states may exceed, but not undercut its provisions Wide variation among states’ coverage Anti-Retaliation Provision Case: Mullins v. NYC Police Department States also have wage and hour provisions administered by comparable state agencies) Your state?

Covered Employees Two types of coverage in FLSA Individual coverage Enterprise coverage FLSA applies to part-time and full-time employees Federal, state and local employees are covered The law also covers domestic service workers Internships pay issue: 6 criteria Exemptions, generally

Minimum Wages Minimum wage laws established to protect workers in unbalanced economy (esp. after Wall Street Crash of 1929) FLSA – employers must pay employees a certain minimum hourly wage $7.25 since 2009, proposal to raise to $9.00 Since 1990: MW up 21%; Cost of Living up 67% Tipped employees or piece-rate vs. hourly rate

Minimum Wages and Overtime Exemptions: general and specific FLSA overtime regulations (circa 2004) Businesses required to review their pay levels and jobs Employees earning up to $23,660 per year ($455/week) automatically entitled to overtime pay Employees who earn at least $100,000 per year and perform some executive, professional, or administrative job duties are automatically exempt from overtime provisions Analysis in-between $23,600 and $100,000

Overtime Provisions The FLSA provisions: Intended in-part to encourage Depression-era hiring Sets standards for the hours constituting a normal workweek for wage purposes Sets wage rates for hours worked over and above the normal week Scenario 1 If an employee works over 40 hours, he or she must be paid time and a half for the time worked in excess of 40 hours

Child Labor Laws FLSA sets minimum age standards for allowing children to work Most cannot work before age 16 Age 18 the minimum for hazardous jobs Certain jobs allowed for children 14-16 that do not interfere with their health, education, or well-being State child labor laws override federal law CA: https://www.dir.ca.gov/dlse/ChildLaborLawPamphlet.pdf Permits, wages, hours, jobs by age, incl. entertainment industry

Family and Medical Leave Act Enacted primarily in response to job retention after having a child General provisions Guarantee job after leave for a birth, an adoption, or care of sick children, spouses, or parents Applies to employers with 50 or more employees within a 75-mile radius Employers can require medical confirmation of an illness Leave is unpaid May need to be rationalized with similar state law coverage Scenario 2

Occupational Safety and Health Act: Safety at Work Statistics 4,383 Americans died from workplace injuries in 2012 3 million suffered nonfatal workplace injuries Workers Comp payments: $1 Billion/Week According to OSHA: OSH Act has helped cut workplace fatalities and injury/illnesses by roughly 2/3 in much larger (but different) American economy Note: Multi-employer worksite coverage: Scenario 3

Defenses to Worker Injury Claims Former defenses made recovery difficult. Led to creation of workers comp laws at state level. Employer’s defense Explanation Contributory negligence Negligence defense based on the injured party’s failure to exercise reasonable care for her or his own safety Assumption of risk Injured party voluntarily exposed herself or himself to a known danger created by the other party’s negligence Fellow servant rule Injury occurred on the job and was caused by the negligence of another employee

OSH Act General Provisions Section 5(a) The employer must comply with all the safety and health standards dictated by the Department of Labor The employer must furnish a workplace free of hazards (General Duty Clause) OSHA creates specific regulatory standards of safety for thousands of workplace conditions General Duty Clause fills-in the gaps between specific standards

Enforcement procedures (1) Responsibility for enforcing the acts rests with OSHA under the auspices of the Department of Labor OSHA conducts routine inspections in certain high-risk industries, based on reporting stats Penalties and “abatement orders” are assessed in connection with an inspection officer’s report Employers covered by the Act must maintain records for OSHA compliance

Enforcement Procedures (2) Employees must be informed of their OSHA rights by their employer Occupational Safety and Health Review Commission Willful violation Increase in fines Definition of “willful”

Specific Standards Physical layout of the worksite Training Medical examinations Setting standards Voluntary compliance programs Emergency temporary standards Continual-training requirement

General Duty Clause, Defenses Employer requirement – A place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm to the employee Instances when employer is not held responsible Recklessness Safety requirement is not economically feasible ‘Greater hazard’ defense

Other Provisions Intentional Acts Compensatory and punitive damages Workplace Violence: “Zero tolerance” policy Bullying (contrast harassment) Legal liability and higher worker compensation costs if left uncontrolled Retaliation OSH Act – Prohibits retaliation against whistleblowers

ERISA: Will It Be There When I Retire? Many firms offer employees retirement plans, health care, and other employee benefits Employee Retirement Income Security Act (ERISA) 1973 Protects pension benefits of workers Government entities, churches, non U.S. residents, or independent contractors not covered Passed in response to looting of benefits funds

ERISA Covers employee benefits (welfare) plans and retirement or pension plans Eligibility requirements for employee benefit plans Welfare plans (not all benefits covered) Retirement or pension plans (non-qualified plans) Establishes requirements for managing and administering pension and welfare plans Case: Varity Corp. v. Howe

Retirement or pension plan ERISA Terminology Key Terms Explanation Employee benefit plan Contractual obligation by which an employer or an employee organization agrees to provide retirement benefits or welfare benefits to employees and their dependents and beneficiaries Retirement or pension plan Provides for compensation at retirement or deferral of income to periods beyond termination of employment Defined contribution Retirement plan where the benefit payable to a participant are based on the amount of contributions and earnings on such contributions Defined benefit Retirement plan where the benefit payable to a participant is defined up front by a formula, the funding of which is determined actuarially

Fiduciary Duty of Administrators Fiduciary: Someone who has discretionary authority over the investment or management of plan assets on behalf of others Fiduciary requirements Loyalty Exclusive purpose Prudence Diversification Compliance with plan documents

Reporting and Disclosure Required information Summary plan description (SPD) Annual report with the DOL ERISA was amended by the Pension Protection Act (PPA) of 2006 Eligibility and Vesting Rules Benefit plans – 100 percent non-forfeitable after three years of employment

Funding Requirements for Defined Benefit Plans Minimum standards Accruals of benefits based on service in each year Amortization of any prior service or actuarial gains or losses on investment over a set period of years Pension Benefit Guarantee Corporation (PBGC) ERISA litigation Fiduciary liability The Worker, Retiree, and Employer Recovery Act

‘COBRA’ and ‘HIPAA’ Consolidated Omnibus Budget Reconciliation Act COBRA Applies to group health plan (20≥ employees) 18 mos. coverage post-termination at ‘retail’ rates Health Insurance Portability and Accountability Act promote standardization and efficiency in the health care industry HIPAA privacy rules General obligations of covered entities

Enforcement of ERISA Employers have the right to reduce or modify employee benefits Unless it is prohibited by contractual obligations Similarly situated participants must be treated alike ERISA claims – may be asserted under the Age Discrimination in Employment Act (ADEA) Case: Central Laborers’ Pension Fund v. Heinz

Management Tips Inadequately administered wage-and-hour systems are costly: ensure proper classification, hours recording, break times, exemptions treatment Be certain to extend FMLA and state leaves to covered workers Worker safety: give priority to prevention Monitor compliance with ERISA regulations, including COBRA and HIPAA