Technology Employment Law

Technology Employment Law

Legal Insight for Technology, Media, and Telecommunications Employers

Digital Investment Advice for Retirement Savings: Does the Robot Know Best?

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Robot Hand Investing on LaptopAs with most aspects of the workplace, employee benefits are going digital.  From online enrollments and administration for all types of benefits, to electronic educational tools, employers are increasingly seeking ways to use new technologies to enhance their benefits programs, increase efficiencies and employee engagement.  Among these innovations is the proliferation of computer-driven, digitally-based investment advisers, or so-called “robo advisers.”  The market for robo-advisers is growing fast with many new companies entering the space with increasing frequency.  Well-established companies are also developing and offering their own automated investment services which can be available to assist individual investors or participants in an employer-sponsored savings plan. Plan sponsors will increasingly be presented with robo-adviser services for their participant-directed retirement plans, and they must be prudently selected.

Robo-advisers are not without their critics.  There is an ongoing debate whether robo-advisers can meet the fiduciary standards of a trained professional who provides investment advice to investors in their best interest.   For example:

  • On March 15, 2016, the Financial Industry Regulatory Authority (FINRA) released a report regarding digital investment advice which raised questions concerning the standard of care that applies to broker-dealers and investment advisers under federal securities laws with regard to investment advice that they provide and the application of same to digital services used either in conjunction with a financial professional or on its own.   The FINRA report recognizes that digital investment advice tools will play a significant role in wealth management and that investor protections must be paramount and should include a foundation for understanding customer needs, with sound methodological groundings and recognition of the tools’ limitations.
  • On April 1, 2016, the Massachusetts Securities Division issued a policy statement and declared that robo-advisers may be inherently unable to act as fiduciaries and perform the functions of a state-registered investment adviser without the necessary due diligence and personalization to act in the best interest of their clients.
  • On April 6, 2016, The Department of Labor also released its final rule regarding investment advice fiduciaries (the “Rule”). The Rule itself continues to come under attack and on June 1, 2016, eight industry and trade groups filed a lawsuit in Texas federal court challenging the Rule and asserting that the DOL overstepped its authority in issuing the Rule, the Rule will increase costs and litigation, and that the Rule will not help investors. (See Chamber of Commerce of the United States of America et al. v. Thomas E. Perez et al., case number 3:16-cv-01476, in the U.S. District Court for the Northern District of Dallas.)  Whether the Rule survives pending challenges remains to be seen.  In the meantime,  robo-advisers that make investment recommendations are fiduciaries under the Rule which provides that fiduciary communications such as recommendations can be initiated by a computer software program.

It is also important to note that while the DOL also released a Best Interest Contract (BIC) exemption from its prohibited transaction rules to allow investment advisers to continue to provide advice and earn compensation such as commissions, sales loads, 12b-1 fees and revenue sharing payments without running afoul of conflicts of interest standards so long as certain requirements are met, this BIC exemption does not apply to the provision of investment advice solely through digital means unless the robo-adviser charges level-fees and is a “level-fee fiduciary.”  It appears that the pre-existing rules for “eligible investment advice arrangements” under Section 408(g) of ERISA provide an alternative path for robo-advisers to follow in order to avoid running afoul of the prohibited transaction rules.

For plan sponsors that desire to incorporate digital investment advice services into their retirement program in the near future, several issues, at a minimum, should be considered, including:

  • Assess the need for investment advice services versus provision of non-fiduciary educational tools, or determine an approach that incorporates both services
  • Ensure that the plan fiduciaries follow an objective process to elicit information necessary to assess the robo-adviser’s qualifications and credentials, quality of services offered and reasonableness of fees and costs charged for the services
  • Evaluate the robo-adviser’s investment approach embodied in the design of the tool
  • Assess whether the digital investment advice tool is paired with access to a human investment professional who is able to assess the plan participant’s needs in a manner that goes beyond the limitations of the digital tool, and, who is trained to utilize the tool effectively
  • Review any conflicts of interests
  • Determine if the robo-adviser charges level fees and meets the requirements of the BIC exemption  or whether it meets the requirements of an “eligible investment advice arrangement” under ERISA which either charges level-fees or uses a compliant computer-model
  • Review service agreements including fiduciary, indemnification, audit, record retention and data privacy and security provisions
  • Confirm that the robo-adviser acknowledges fiduciary status and that the participants are provided with any required disclosures
  • Establish a procedure for prudent ongoing monitoring of the robo-adviser service

For plan sponsors who already offer robo-adviser services to their plan participants, now is the time to review the arrangement under the evolving guidance and implement prudent changes.

In this environment, the fate of the Rule, and the standards for robo-advisers, will continue to evolve and new developments must be monitored.  Whether the robots know best is a question yet to be answered.

Seventh Circuit Court of Appeals Sides with NLRB on Class Action Waivers and Mandatory Arbitration

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Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the technology industry: “Federal Appeals Court Sides with NLRB – Holds Arbitration Agreement and Class Action Waiver Violates Employee Rights and Unenforceable.

Following is an excerpt:

The US Court of Appeals for the Seventh Circuit in Chicago has now sided with the National Labor Relations Board (NLRB or Board) in its decision in Lewis v. Epic Systems Corporation, and found that an employer’s arbitration agreement that it required all of its workers to sign, requiring them to bring any wage and hour claims that they have against the company in individual arbitrations “violates the National Labor Relations Act (NLRA) and is unenforceable under the Federal Arbitration Act FAA).” …

The decision of the Seventh Circuit, finding that the Board’s view was not inconsistent with the FAA, sets the ground for continued uncertainty as employers wrestle with the issue.  Clearly, the question is one that is likely to remain open until such time as the Supreme Court agrees to consider the divergent views, or the Board, assuming a new majority appointed by a different President, reevaluates its own position.

Read the full post here.

Update on DOJ Website Accessibility Regulations and Mobile Accessibility: Employer Considerations

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Our colleagues Joshua Stein, co-chair of Epstein Becker Green’s ADA and Public Accommodations Group, and Stephen Strobach, Accessibility Specialist, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry:  “DOJ Refreshes Its Efforts to Promulgate Title II Website Accessibility Regulations and Other Accessible Technology Updates – What Does It All Suggest for Businesses?”

Following is an excerpt:

On April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year. Instead, citing a need to address the evolution and enhancement of technology (both with respect to web design and assistive technology for individuals with disabilities) and to collect more information on the costs and benefits associated with making websites accessible, DOJ “refreshed” its regulatory process and, instead, on May 9, 2016, published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the federal register. …

The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities. …

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

Read the full post here.

Maryland Expands State Equal Pay Act and Broadens Employees’ Right to Discuss Wages

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Maryland has now joined New York and several other states that have recently passed legislation expanding state equal pay laws and/or broadening the right of employees to discuss their wages with each other (often called “wage transparency”). The Equal Pay for Equal Work Act of 2016 (“Act”), signed by Governor Hogan on May 19, 2016 and set to take effect October 1, 2016, amends Maryland’s existing Equal Pay law (Md. Code, Labor and Employment, §3-301, et seq.), which applies to employers of any size, in several significant aspects.

First, as to the equal pay provisions, the Act:

  • Extends the protections of the law to differentials based on gender identity as well as sex.
  • Bars discrimination not only by paying less for work at the same establishment of comparable character or on the same operation, but also by ‘providing less favorable employment opportunities.”
  • Defines “providing less favorable employment opportunities” to include assigning or directing an employee into a less favorable career track; failing to provide information about promotions or advancement in the full range of career track offered by the employer; or otherwise limiting or depriving an employee of employment opportunities that would otherwise be available but for the employee’s sex or gender identity
  • Expands the definition of “same establishment” to include any workplace of the same employer located in the same county.
  • Adds a new exception for a system that measures performance based on quality or quantity of production.
  • Explicitly allows an employee to demonstrate that an employer’s reliance on one of the now seven exceptions is a pretext for discrimination.

Second, on the apparent theory that if employees gather more information on wages, employers will be more likely to decrease or eliminate wage disparities, the Act adds an entirely new provision that bars employers from prohibiting any employees from inquiring about, discussing, or disclosing the employee’s wages or those of another employee, or requesting that the employer provide a reason for why the employee’s wages are a condition of employment. It also bars any agreement to waive the employee’s right to disclose or discuss the employee’s wages. In particular, an employer may not take any adverse employment action against an employee for:

  • Inquiring about another employee’s wages;
  • Disclosing the employee’s own wages;
  • Discussing another employee’s wages if those wages have been disclosed voluntarily;
  • Asking the employer to provide a reason of the employee’s wages; or
  • Aiding or encouraging another employee’s exercise of rights under this law.

However, an employer may in a written policy provided to each employee establish reasonable workplace limitations on the time, place and manner for inquiries relating to employee wages, so long as it is consistent with standards adopted by the Commissioner of Labor and Industry and all other state and federal laws. (For example, under the National Labor Relations Act, rules limiting discussions to non-working time have been held valid). For example, a limitation may include prohibiting discussion or disclosure of another employee’s wages without that employee’s prior permission, except where the employee has access to that information as part of the employee’s essential job functions and uses it to respond to a complaint or charge, or in furtherance of an investigation, proceeding, hearing or action under the Act. Violation of such a policy may be a defense for adverse action.

The Act expressly does not, however, require an employee to disclose his or her wages; diminish employees’ rights to negotiate the terms and conditions of their employment, or the rights provided under any other provision of law or collective bargaining agreement; create an obligation on any employer or employee to disclose wages; permit disclosure without written consent of an employer’s proprietary information, trade secret information, or information otherwise subject to a legal privilege or protected by law; or permit disclosure of wage information to a competitor.

These provisions enlarging employee sharing of wage information are similar to rules that have long existed under the National Labor Relations Act for employees other than managers and supervisor, and recently promulgated by Executive Order 13665 (April 8, 2014) as to employees of federal contractors. These rights are now expanded to all Maryland employees.

The Act further expands the remedies for violation of the equal pay provisions to include injunctive relief and creates a cause of action under the disclosure provisions for injunctive relief and both actual damages and an additional equal amount as liquidated damages. Existing law allowing recovery of attorney’s fees and costs apply to both types of claims. Finally, similar to the provisions of federal Title VII law, the Act now extends the statute of limitations to three years after discovery of the act which a lawsuit is based, rather than just three years after the act itself.

Maryland employers should review any rules they have regarding employee discussions about their wages for compliance with the Act’s protections for such discussions.

Employers: DOL Final White Collar Exemption Rule Takes Effect on December 1, 2016

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Our colleagues Jeffrey Ruzal and Michael Kun at Epstein Becker Green have a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the technology industry: “DOL Final White Collar Exemption Rule to Take Effect on December 1, 2016.”

Following is an excerpt:

Nearly a year after the Department of Labor (“DOL”) issued its Notice of Proposed Rulemaking to address an increase in the minimum salary for white collar exemptions, the DOL has announced its final rule, to take effect on December 1, 2016. …

According to the DOL’s Fact Sheet, the final rule will also do the following:

  • The total annual compensation requirement for “highly compensated employees” subject to a minimal duties test will increase from the current level of $100,000 to $134,004, which represents the 90th percentile of full-time salaried workers nationally.
  • The salary threshold for the executive, administrative, professional, and highly compensated employee exemptions will automatically update every three years to “ensure that they continue to provide useful and effective tests for exemption.”
  • The salary basis test will be amended to allow employers to use non-discretionary bonuses and incentive payments, such as commissions, to satisfy up to 10 percent of the salary threshold.
  • The final rule does not in any way change the current duties tests. …

With the benefit of more than six months until the final rule takes effect, employers should not delay in auditing their workforces to identify any employees currently treated as exempt who will not meet the new salary threshold. For such persons, employers will need to determine whether to increase workers’ salaries or convert them to non-exempt.

Read the full post here.

OSHA’s Electronic Recordkeeping Rule: New Pitfalls for Employers

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Our colleague Valerie Butera, a Member of the Firm at Epstein Becker Green, has a post on the OSHA Law Update blog that will be of interest to many of our readers in the technology industry: “OSHA’s New Electronic Recordkeeping Rule Creates a Number of New Pitfalls for Employers.”

Following is an excerpt:

On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness information to the agency electronically.  The amendments also include provisions designed to prevent employers from retaliating against employees for reporting injuries and illnesses at work.  The information employers provide will be “scrubbed” of personally identifiable information and published on OSHA’s website in a searchable format. …

OSHA plans to rely upon computer software to remove personally identifiable information from these records.  The software will supposedly remove all of the fields that contain identifiers such as the employee’s name, address, and work title, and to search the narrative field in the form to ensure that no personally identifiable information is contained in it.  OSHA’s reliance on a computer system to detect every piece of identifiable information in a narrative is terribly risky and increases the potential for a data breach.

Read the full post here.

NLRB May Make It Harder for Employees to Decertify Unions

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Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the technology industry: “NLRB Looks to Make It Harder for Employees to Decertify Unions.”

Following is an excerpt:

National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., has announced in a newly issued Memorandum Regional Directors in the agency’s offices across the country that he is seeking a change in law that would make it much more difficult for employees who no longer wish to be represented by a union to do so.  Under long standing case law, an employer has had the right to unilaterally withdraw recognition from a union when there is objective evidence that a majority of the employees in a bargaining unit no longer want the union to represent them. …

An employer faced with evidence that a majority of its employees no longer wish to be represented by their union has always faced a difficult choice – whether to petition for an election or to respect its employees’ request and take the risk of charges and litigation by immediately withdrawing recognition. Clear understanding of the law and facts, as well as the potential consequences of each course of action has always been critical.  By issuing this Memo and announcing his goal, the stakes have clearly been raised, and the right of employees to decide—perhaps the ultimate purpose of the National Labor Relations Act—has been placed at serious risk.

Read the full post here.

What Monitoring Technology Allows, the Law May Prohibit

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Gregg Settembrino

Gregg Settembrino

Recently I attended the American Bar Association’s (“ABA”) 2016 mid-year National Symposium on Technology in Labor and Employment Law (“Conference”) in Washington, D.C.  The Conference highlighted a number of technology related issues that should be of interest to employers, such as the use artificial intelligence in the workplace, cybersecurity, and new trends in the National Labor Relations Board’s technology-based decisions and rulemaking.

One segment of the Conference that I found particularly interesting was “Technology in the Workplace: What’s Out There, What’s Coming, and Why You (Really) Need to Care,” presented by Kate Bischoff and Heather Bussing. It was a discussion regarding risks employers face when monitoring, tracking, and recording employees.  Indeed, today’s technology allows employers to communicate with employees wherever they are and at any time of the day.  Tracking and monitoring devices include cellular phones, wearables such as smartwatches and fitness trackers, radio frequency identification (“RFID”) tags, and work badges implanted with minute microphones and transmitters.  Monitoring employees, whether during work hours or non-work hours, can expose employers to legal risks even if the monitoring is intended to improve business operations, improve employee wellness, or enhance workplace safety conditions.

The rapid advancement of technology has made monitoring, tracking, and recording employees easier and the data more accurate.  Despite such technological advancements, however, the law is still catching up.  Some states, however, already have monitoring laws in place.  Delaware, for example, has passed legislation requiring employers to notify employees if the employer uses technology to monitor their activities.  Delaware’s law covers electronic monitoring of phone conversations, email, and internet use.  The law, however, is silent on an employer’s use of global positioning systems (“GPS”) or other tracking devices.  Also, under California law, a monitored employee can sue their employer for invasion of privacy if the employee has a legally protected privacy interest and a reasonable expectation of privacy.

In addition to using location tracking devices to monitor employees, today’s technology can allow employers that issue wellness trackers to employees as part of an employee wellness program to view and use employee biometric data.  These devices collect such data as the number of steps a person has taken, heart rate, quality of sleep, steps climbed, and other personal metrics.  Nevertheless, employer access to such data is largely forbidden under the Genetic Information Nondiscrimination Act (“GINA”).  Moreover, the Health Information Portability and Accountability Act (“HIPAA”) limits access to and the sharing of health information acquired by employers.

While the line between productive employee monitoring and unlawful surveillance is not entirely clear, a few things are absolutely certain.  Technology in the workplace is here, it can be used to monitor almost anything, and it is not going away.

To mitigate some of the risks that come with monitoring, tracking, and recording employees, employers should:

  • Exercise caution and common sense when adopting novel methods of watching, tracking, and listening to employees regardless of underlying business, health, and safety reasons.
  • Only allow the employees to view their own specific biometric data if employers issue smart watches or wellness trackers, and collect such biometric information, as part of an employee wellness program.
  • Track and monitor new developments in the law at both the federal and state level and revise employer policies accordingly.

Preparing for the New STEM OPT Regulations: May 10 Is Coming! May 10 Is Coming!

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Jang Hyuk Im

Jang Hyuk Im

Many high-tech companies are recovering from the recent April mad-dash to file H-1B cap petitions allowing for the continued employment of their foreign student graduate population.  Since the H-1B cap season closed abruptly following the first week of April, and USCIS has completed its computer-generated lottery determining which of the 200,000-plus petitions submitted have been accepted for the limited 85,000 H-1B cap slots available, employers now must turn their attention immediately to define viable alternative visa options for those foreign students not fortunate to be selected.

In the past, one of the alternatives for employers with F-1 work-authorized students who possessed Science, Technology, Engineering or Math degrees (so-called “STEM” degrees) not chosen for the H-1B cap lottery, was the ability for that student to file for the 17 month STEM extension of their Optional Practical Training (OPT) work authorization.  Until recently, the only requirements to secure this extension were:

  1. the student received a STEM degree from an accredited U.S. college or university that related to their employment; and
  2. their employer was registered with E-Verify, a US Department of Homeland Security-sponsored online employment verification database that is voluntary for employers to join.

This simple STEM OPT work authorization extension process changes dramatically on May 10, 2016, when the Department of Homeland Security’s (DHS’s) new STEM OPT regulations are scheduled to take effect.  These changes resulted from last year’s August 2015 Federal Court ruling that found procedural irregularities in the manner in which the prior STEM OPT rules had been promulgated.

Beginning May 10, 2016, any F-1 student wishing to apply for his/her STEM OPT extension must:

  1. have received their STEM degree from an accredited college/university that is Student and Exchange Visitor Program-certified (SEVIS registered);
  2. previously have been granted regular OPT work authorization that remains effective;
  3. apply for the I-765 employment authorization extension up to 90 days before the student’s current regular OPT period expires;
  4. apply for the I-765 employment authorization extension within 60 days after the student’s Designated School Official’s (DSO) enters into SEVIS the DSO’s recommendation to extend the OPT; and
  5. make certain their employer is registered in and actually using E-Verify.

To obtain the DSO’s OPT extension recommendation, the Student and his/her employer must complete and submit to the DSO the newly-required Form I-983 Formal Training Plan for STEM OPT Students.  The Form I-983 is a new application and requires both the student and employer to satisfy several never-before-seen, but now mandatory training and verification requirements.

Specifically, the Form I-983 requires the employer to certify under penalty of perjury that:

  1. it provides the OPT extension job opportunity commensurate with those of the employer’s similarly situated US workers in duties, hours, and compensation;
  2. it possesses sufficient resources and trained personnel to provide the appropriate training;
  3. the student will not replace any US worker;
  4. the program will assist the student in the student’s training objectives;
  5. it agrees to provide notification to the DSO regarding any material changes (i.e. pay, work hours, corporate changes, terminations, etc.);
  6. the employer and student agrees to prepare a detailed and goal-oriented formal training plan measuring the training achievements reached by the student related to their STEM degree; and
  7. the employer will provide annual reviews of the students’ formal training plan confirming the achievements reached under the program.

The next several months are going to be a brave new world regarding how to complete and submit the new Form I-983 Formal Training Plan for STEM OPT Students.  While one may consult  the recently established DHS website, that site provides only generalities regarding how to complete the I-983 Form.  Unfortunately it provides no specific samples or details regarding what is viewed as a proper formal training plan allowing for DSO certification.  The conjecture is that it may take several exchanges between the student, his/her DSO, and the employer before we can truly get a feel for how to properly prepare and complete the formal training plan allowing for DSO recommendation.

But the news is not all bad!  The new STEM OPT regulation also provides additional benefits.  They include:

  1. an increased work authorization period from the original 17 months to 24 months;
  2. allowing those currently under the already approved 17 month STEM extension to remain employed for the duration of that 17 month EAD extension and be allowed to file for an additional 7 month extension (provided several additional requirements are met—please speak to an EBG attorney regarding those details);
  3. extending the period of permissible unemployment to 150 days during the combined 36 months of regular and STEM OPT work-authorized period;
  4. permitting the student to remain employed for up to 180 days while the STEM OPT extension is pending if their current employment authorization expires;
  5. allowing students currently on a regular 12 month OPT period based on non-STEM degrees to be  the eligible to file for the 24 month STEM OPT extension if that student previously received a US STEM degree;
  6. allowing for a second 24 month STEM OPT application if the second STEM degree was received at a higher educational level then the first STEM degree.

Separately, the newly issued STEM OPT regulations has also added additional reporting and audit sections requiring the student and employer continually be on their toes in maintaining the STEM OPT training program.  These include:

  1. subjecting the employer to potential USCIS onsite inspections, including random inspections conducted without prior notice;
  2. requiring the student to complete six month and annual reporting to the DSO;
  3. requiring the student and employer to prepare a formal training plan for submission to and approval by the DSO with continued follow-up thereafter confirming the plan in being followed; and
  4. requiring the employer to report material changes to an already-approved training plan.

In summary, the newly-issued STEM OPT regulation gives many US high-tech employers an alternative to allow for the continued employment of their US STEM-degreed foreign national workers.  But, like any government benefit, this comes with a higher bureaucratic cost.

DOL Releases New Poster and Employer’s Guide to FMLA

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Technology employers should note that the Department of Labor’s Wage and Hour Division (“DOL”) has just released a new Family Medical Leave Act (“FMLA”) poster and The Employer’s Guide to The Family and Medical Leave Act (“Guide”).

New FMLA Poster

The FMLA requires covered employers to display a copy of the General FMLA Notice prominently in a conspicuous place. The new poster is more reader-friendly and better organized than the previous one. The font is larger and the poster contains a QR code that will connect the reader directly to the DOL homepage. According to the DOL, however, the February 2013 version of the FMLA poster can continue to be used to fulfill the FMLA’s posting requirement.

The Employer’s Guide to The Family and Medical Leave Act

According to the DOL, the Guide is intended to provide employers with “essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.” The Guide reviews issues in chronological order, beginning with a discussion of whether an employer is covered under the FMLA, all the way through an employee’s return to work after taking FMLA leave. The Guide includes helpful “Did You Know?” sections that shed light on some of the lesser-known provisions of the FMLA. The Guide also includes hyperlinks to the DOL website and visual aids to improve the reader’s experience. Overall the Guide helps navigating the complex FMLA process; however, it does not provide any guidance beyond the existing regulations.

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