Recent HR Updates
Important FMLA Changes
Defense Authorization Act
On January 28, 2008, President Bush signed into law the Defense Authorization Act for FY 2008, which includes provisions that substantially amend the Family and Medical Leave Act of 1993 (FMLA).
Effective immediately, employers must provide up to 26 work weeks of leave to an employee who needs to care for a family member injured while on active duty in the armed forces, including the National Guard. Previously, available time off from work to care for an injured service member was limited to 12 weeks. FMLA caregiver leave is available only during a single 12-month period.
The legislation also permits up to 12 weeks of FMLA leave for a "qualifying exigency" due to an employee's family member being on active duty or being notified of an imminent call to active duty. Previously, employees were only eligible for FMLA leave to care for a newborn or adopted child, to care for a relative with a serious health condition, or if they were themselves in such poor health that they were unable to work.
However, the Department of Labor (DOL) has not yet defined what constitutes a "qualifying exigency", and the provision will not become effective until final regulations are issued by the Secretary of Labor. In the meantime, the DOL is encouraging employers to provide this type of leave to qualifying employees when requested.
Extensis will follow this issue closely to ensure compliance with the revised regulations. If you have any questions, please contact Extensis Human Resources at 888.473.6398 or extensis@extensisnj.com
New Jersey Court Ruling
On December 12, 2007 the Third Circuit Court of Appeals substantially expanded the definition of what constitutes notice of an employee's need for FMLA leave. According to the ruling, Sarnowski v. Air Brook Limousine, even verbal notification to an employer of potential need for eligible leave is sufficient to provoke protection under the Family and Medical Leave Act (FMLA).
James Sarnowski worked for Air Brook Limousine, Inc. as a service manager and received good performance evaluations for several years. In October 2002, he had quintuple coronary artery bypass surgery. Shortly afterward, he received a written performance warning. In April 2003, Sarnowski had an angiogram and was required to wear a heart monitor for a month. He claimed that he informed his supervisors that he might need more surgery depending on the results of the monitoring.
A week later, Air Brook terminated Sarnowski for alleged performance reasons. Sarnowski filed suit in the District Court of New Jersey, claiming that Air Brook had violated the FMLA by terminating him after he notified his supervisor of the medical monitoring and the possibility of additional surgery. The District Court dismissed the suit on Air Brookís motion for summary judgment, noting that Sarnowski had failed to submit a formal leave request. Sarnowski appealed the decision to the Court of Appeals for the Third Circuit, which vacated the lower court's summary judgement and allowed the suit to proceed.
The appeals court ruled that written notice is not necessary and that verbal notice can be sufficient to trigger FMLA protection. According to the Third Circuit, "In providing notice, the employee need not use any magic words. An employee who does not cite to the FMLA or provide the exact dates or duration of the leave requested nonetheless may have provided his employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA."
As a result of this decision, New Jersey employers, managers, and supervisors should recognize that even a verbal communication from an employee may constitute legal notice of need for FMLA leave, regardless of any formal request process in place. The employee does not even have to be sure that leave will be necessary to be afforded FMLA protection.
For more information about recognizing potential triggering events for FMLA leave, please contact Extensis Human Resources at 888.473.6398 or extensis@extensisnj.com
USCIS Announces New Form I-9
Employers now must use a new Employment Eligibility Verification Form (I-9) when hiring new employees, the U.S. Citizenship and Immigrations Services (USCIS) has announced. As of December 26, 2007, the new Form I-9 is the only version that is valid to use for new hires.
Employers are required to complete Form I-9 for each new or rehired employee on or before the first day of employment. Within three business days employers must review the employeeís original document(s) to verify the employeeís identity and employment authorization. Employers are not required to update or re-verify Form I-9 documentation for continuing employees.
Even though the Form I-9 is available in English and Spanish, all new hires must complete the English version (the Spanish version may be used as a translation guide for Spanish-speaking employees).
The content of the new Form I-9 is essentially the same. However, important changes have been made to the list of documents acceptable for demonstrating an employeeís identity and employment authorization.
Noteworthy Changes
- An employee is not required to provide a social security number at the time he/she completes Form I-9. This new instruction allows employers to process Form I-9 for an employee who has yet to receive their social security number.
- Changes to List A. List A indicates the documents that may be used to establish an employeeís identity and employment eligibility and is found on page 2 of the Form I-9. The following five documents may be used to meet List A requirements:
- A U.S. Passport (unexpired or expired);
- A Permanent Resident card (Form I-551);
- An unexpired foreign passport with a temporary I-551 stamp;
- An unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A or I-688B);
- An unexpired foreign passport with an unexpired Arrival - Departure Record (Form I-94) for non-immigrant aliens authorized to work for a specific employer (this typically applies to an employee with H-1B status).
For Assistance and More Information
Extensis will provide and coordinate transition to the new form. The new version of Form I-9 can also be obtained by accessing USCISí web site at http://www.uscis.gov/i-9. Please note that the new version should have the following text at the bottom of the form: "Form I-9 (Rev.06/05/07) N". Please contact Extensis Human Resources at 888.473.6398 should you need more information.