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Welcome to your virtual HR Department. At the Maine Corner Store, we understand how important each employee is to a small company—and how difficult it is to keep up with all the latest HR issues, from managing Millenials to hiring online to keeping payroll taxes straight. Our HR bloggers have experience in companies of all sizes, so they can answer your questions today and as you grow.

Wednesday, February 16, 2011

Family Medical Leave Act

Posted by Sarah Conroy on 2/16/2011 11:47:00 AM

It is both a pleasure and honor to offer some information on Human Resources for the Maine State Chamber’s business community on a regular basis as a part of the Chamber’s new Maine Corner Store blog. I will be happy to answer questions at anytime on content as well as to take requests on future content. Please don’t hesitate to contact me using the information below. I look forward to your feedback!
Heads Up!
You may have recently heard about Governor LePage’s executive order to suspend Maine’s “misclassification” task force. This task force was examining how to ensure that de facto employees were classified as employees and independent contractors were also classified properly. Because the administration is looking at regulations, this topic will likely be addressed in the streamlining of labor regulations. Because one of the expressed goals of the LePage administration is to default to federal laws wherever possible and appropriate, it is worth a look at what the federal Department of Labor (DOL) is up to.
The DOL has a new approach called “Plan/Prevent/Protect.” This puts the onus on employers to ensure employees’ workplace rights are not violated. DOL rulemaking is underway with enforcement to follow to ensure employers are implementing plans to comply with the requirements. Two areas with increased oversight are the misclassification of nonexempt employees as exempt under the FLSA and the misclassification of employees as independent contractors. While it is unclear at this time how the DOL’s own review of its overlapping regulations will play out, employers are wise to look at how they are classifying employees to ensure that no back overtime wages are due or, in the case of an employee who had been misclassified as an independent contractor, whether statutory benefits are due. This applies particularly if you are a co-employer, hire a lot of temporary, part-time or seasonal employees.
I would be happy to furnish the tools currently available to help you test your positions and otherwise prepare for compliance, just contact me using the information below and tell me how I might assist. We do expect that we will be hearing a lot about independent contractor testing during Maine’s upcoming regulatory review process, so please check back for more information.
Family Medical Leave Act (FMLA)
In 2008 the DOL revised the Family Medical Leave Act to include new processes for requesting and substantiating leave among other requirements. There were also a few changes to the FMLA entitlements. A refresher:
  • In 2008, two new qualifying circumstances for FMLA were added – “qualifying exigency leave” and “military caregiver leave.”

    Exigency Leave: Family members of the Reserves or National Guard called to active duty were granted up to 12 weeks of leave for urgent “qualifying exigencies” related to a reservist family member’s (spouse, son, daughter, or parent) call to active service. 2010 Changes -- Expands the qualifying exigency leave benefits to include family members of active duty service members as well as reservists.

    Caregiver Leave: Family members were eligible for up to 26 weeks of unpaid leave to care for a family member (spouse, son, daughter, parent, or next of kin) who is injured while serving on active military duty. 2010 changes expands the caregiver leave provision to include veterans who are undergoing treatment for conditions occurring any time during the five years preceding the date of treatment.
As Maine has its own FMLA laws with different requirements, it is important to consider both when an employee requests leave. If you have an employee handbook, it should spell out the policy and be updated as the law evolves. It is unclear whether Maine will decide to sync its FMLA statute to the federal one. Since the employee thresholds are lower for Maine (15 employees v. 50 at the federal level), it is likely to be left as is because of Maine’s small business climate. To reconcile to the federal level would leave many employees ineligible for leave.
Sarah Conroy, SPHR, CEBS SHRM
Maine State Government Affairs Director

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Wednesday, February 16, 2011

Employment Law

Posted by Sarah Conroy on 2/16/2011 11:28:00 AM

It is both a pleasure and honor to offer some information on Human Resources for the Maine State Chamber’s business community on a regular basis as a part of the Chamber’s new Maine Corner Store blog. I will be happy to answer questions at anytime on content as well as to take requests on future content. Please don’t hesitate to contact me using the information below. I look forward to your feedback! 
Employment Law
For this first effort, I thought we should focus on a couple of recent employment law changes raising questions in small businesses around our fair state.
As you may recall, Maine passed PL 84, An Act To Facilitate Lactation at the Workplace by New Mothers, in the last legislature. The law requires employers to provide adequate unpaid break time or permit an employee to use paid break or meal time each day to express breast milk for her nursing child for up to three years following childbirth. The employer must also provide a clean room or other location, other than a bathroom, where an employee may express breast milk in privacy.
Depending on your business, this may be very easy or can be challenging to implement. For example, if a nursing mother travels for her position, what constitutes compliance?
Your obligation as an employer is to ensure that your employees are aware of the law and that you are responsive to employee requests to use it. This can take many forms and your efforts to work with employees to suit their needs go a long way in ensuring the act is honored. If you have not already included notice of this act in your employee handbook, please consider adding it now.
There is a similar federal provision with different requirements that was passed as a part of the Affordable Care Act (Healthcare Reform) in 2010. Employers in Maine must follow the most generous of the two laws, in this case mostly Maine’s, for all Maine based employees. The federal requirement applies to those covered by the Fair Labor Standards Act and requires a break be provided whenever required, whereas the Maine law specifies “adequate” breaks only. This means nonexempt employees would be allowed the “whenever” standard, not just the “adequate” standard.
The LePage administration’s Red Tape Audit is looking at streamlining Maine’s laws and dovetailing them with federal law where appropriate and feasible. It is not clear at this point whether this will be one of the laws addressed since it has a federal counterpart with a lower threshold for compliance. We will keep an eye on this for you.
Speaking of recent Maine law, the 124th Legislature also passed PL 29– An Act to Ensure Fair Pay – This amended Maine’s equal pay law and requires that employers not prohibit employees from disclosing their own wages or from inquiring about another employee’s wages if the purpose of the disclosure or inquiry is to enforce their rights under the law. There is no obligation upon the employer to disclose wages. So what does this mean? It means you needn’t specifically notify your employees of this right, but it is recommended that if you have had a policy or practice in the past to prohibit employee discussion of wages that you eliminate it. A look at your current handbook as well as notice to all supervisors who might need to know is suggested.
How about employee benefits? A couple recent changes to keep in mind, besides all the health care reform changes.
Retirement plans: The Employee Benefits Security Administration (EBSA) clarified the definition of plan fiduciary and you will want to be aware of you responsibilities in this area. In addition, new burdens for employers on their participant-directed retirement plans (401Ks and other defined contribution plans) including participant education and disclosure of all plan fees and expenses. These are employer responsibilities that go beyond the services typically performed by Maine’s brokers so just make sure you have a resource to assist you.
Have a wellness plan? If so, be sure to comply with new GINA and HIPAA rules on how you may gather and share medical information.

Sarah Conroy, SPHR, CEBS SHRM
Maine State Government Affairs Director

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Information on this site is intended to provide guidance, not legal advice. Since exact language and definitions of key terms are critical to understanding the requirements of legislation, rules or laws, we encourage you to read each carefully. Articles, blogs, and information offered here may be reprinted with attribution given to “the Maine Corner Store, a program managed by the Maine State Chamber of Commerce.” Please address comments to Melanie Baillargeon, director of communications, by calling (207) 623-4568, ext. 110, or by emailing

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