Michael Dalrymple's Blog http://dalrymple-law.com/myblog I am a voracious consumer of the news, especially as it pertains to the interests of my clients. I will use this blog to post links, articles, and stories that are of interest to me and that my clients might find useful. Be sure to visit my website at http://www.dalrymple-law.com Mon, 10 Jan 2011 13:20:24 +0000 en hourly 1 http://wordpress.org/?v=3.0.4 Protections for Nursing Mothers at the Workplace http://dalrymple-law.com/myblog/2011/01/10/protections-for-nursing-mothers-at-the-workplace/ http://dalrymple-law.com/myblog/2011/01/10/protections-for-nursing-mothers-at-the-workplace/#comments Mon, 10 Jan 2011 13:20:24 +0000 Michael Dalrymple http://dalrymple-law.com/myblog/?p=81 Protections for Nursing Mothers  at the Workplace

The Patient Protection and Affordable Care Act, also known as the Healthcare Reform Act, amended Section 7 of the Fair Labor Standards Act (FLSA) to provide break times and privacy for nursing mothers in the workplace.

In general, employers are required to provide a “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” In addition, employers must set aside a “place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Time and Location of Breaks

Employers are required to provide a “reasonable” amount of break time to express milk as frequently as needed by the nursing mother.  The frequency and duration of breaks needed to express milk will be dependent on the individual.

Notably, a bathroom, even if private, is not a permissible location under the Act.  The location provided must be functional as a space for expressing breast milk.  The space need not be dedicated to the nursing mother’s use, but must be available when needed in order to meet the statutory requirement.  A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

Employers with fewer than 50 employees would not be subject to the break time requirement if compliance with the provision would impose an undue hardship.  Whether providing a break time would be an undue hardship is determined by evaluating the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.  All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk.  However, where employers already compensate its employees for breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. As with other breaks, the employee must be completely relieved from duty during the break.

You may locate additional information by visiting:

http://www.wagehour.dol.gov

or more information about this or other legal topics, please e-mail e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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Federal Law Prohibits Discrimination Based on Genetic Information http://dalrymple-law.com/myblog/2010/11/18/federal-law-prohibits-discrimination-based-on-genetic-information/ http://dalrymple-law.com/myblog/2010/11/18/federal-law-prohibits-discrimination-based-on-genetic-information/#comments Thu, 18 Nov 2010 20:42:47 +0000 Michael Dalrymple http://dalrymple-law.com/myblog/?p=78 Federal Law Prohibits Discrimination Based on Genetic Information

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employment-related discrimination based on genetic information.  The protections for employees provided by the Act came into effect on November 21, 2009.  the Equal Employment and Opportunity Commission (EEOC) is responsible for enforcing the Act and recently issued final regulations.  This is a welcomed development in anti-discrimination law for Individuals who have or may develop a disease or disorder that could be detected or predicted by evaluating genetic information.  In other words, Title II of GINA applies to everyone.  

The EEOC provides the following description of the law’s protections:  

Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs – referred to as “covered entities”) from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.

The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.

Definition of “Genetic Information”

Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by and individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Discrimination Because of Genetic Information

The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work.

Harassment Because of Genetic Information

Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area of the workplace, a co-worker, or someone who is not an employee, such as a client or customer.

Retaliation

Under GINA, it is illegal to fire, demote, harass, or otherwise “retaliate” against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.

Rules Against Acquiring Genetic Information

It will usually be unlawful for a covered entity to get genetic information. There are six narrow exceptions to this prohibition:

•Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.

•Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.

•Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition.

•Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).

•Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.

•Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.

Confidentiality of Genetic Information

It is also unlawful for a covered entity to disclose genetic information about applicants, employees or members. Covered entities must keep genetic information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.) There are limited exceptions to this non-disclosure rule, such as exceptions that provide for the disclosure of relevant genetic information to government officials investigating compliance with Title II of GINA and for disclosures made pursuant to a court order.

http://www.eeoc.gov/laws/types/genetic.cfm

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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Returning to Work after an Illness or Injury http://dalrymple-law.com/myblog/2010/09/29/returning-to-work-after-an-illness-or-injury/ http://dalrymple-law.com/myblog/2010/09/29/returning-to-work-after-an-illness-or-injury/#comments Wed, 29 Sep 2010 16:59:20 +0000 Michael Dalrymple http://dalrymple-law.com/myblog/?p=72 Returning to Work after an Illness or Injury

The U.S. Department of Labor created a new toolkit that helps employers and employees understand the return-to-work process. It provides resources to help get employees who experience an illness or injury back on the job quickly and smoothly. The employee toolkit includes information about job accommodations, preparing for a job interview, resume writing, self-employment and employment-related laws. The employer toolkit has information about strategies such as offering the opportunity to work part-time, telecommuting, modifying work duties or schedules, as well as resources that can help employers retain the talents of older workers.  

To access the toolkit, simply visit the following link:

http://www.dol.gov/odep/return-to-work/

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Do You Need a Power of Attorney? http://dalrymple-law.com/myblog/2010/09/02/do-you-need-a-power-of-attorney/ http://dalrymple-law.com/myblog/2010/09/02/do-you-need-a-power-of-attorney/#comments Thu, 02 Sep 2010 16:40:12 +0000 Michael Dalrymple http://dalrymple-law.com/myblog/?p=70 Do you need a power of attorney?

The power of attorney comes in two major varieties, healthcare and durable.  Both types are adaptable to almost any situation, but demand serious consideration.  By signing a power of attorney, you are transferring significant powers to another individual.  So, be certain you trust the person you ask to perform this important duty and be fully aware of the powers you are transferring.  Still, I suggest that almost every adult should have a healthcare power of attorney, or a Appointment of Healthcare Representative document.  As for a durable power of attorney, each individual should consider whether one is appropriate for their circumstances.  

A.  Healthcare Power of Attorney (Appointment of Healthcare representative)

Often referred to as a medical power of attorney, an Appointment of Healthcare Representative answers the question, who should make your medical decisions when you are unable to do so yourself.  A properly drafted Appointment of Healthcare Representative should include at least three items: 

(1)  specify who can and who cannot make medical decisions on your behalf when you are incapacitated. 

(2)  It should also specify the procedures you do or do not want to be performed when you are incapacitated. 

(3)  Finally, an Appointment of Healthcare Representative should include Health Insurance Portability and Accountability Act (HIPAA) powers.   This language will permit the person of your choice to access any medical information that you would have access to when making important medical decisions.

B.  Durable power of Attorney

A durable power of attorney identifies an agent who is empowered to make financial decisions on your behalf.   The document is very flexible and can be used to complete a single transaction or to give unlimited power over your financial affairs.  For example, through a durable power of attorney, you may authorize another to sign your name to complete the purchase of a house.  You may also empower someone to handle all of your financial transactions while you are on your six-month trip to Europe. 

A durable power of attorney can become effective immediately or become effective only upon your incapacity.  Delaying the effectiveness of the power of attorney until the time of your incapacity prevents your agent from acting on your behalf until you are unable to do so yourself.  This arrangement is similar to the Appointment of Healthcare representative, but only applies to your financial transactions.  

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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Are your recruiting efforts violating the law? http://dalrymple-law.com/myblog/2010/06/03/are-your-recruiting-efforts-violating-the-law/ http://dalrymple-law.com/myblog/2010/06/03/are-your-recruiting-efforts-violating-the-law/#comments Thu, 03 Jun 2010 23:08:08 +0000 Michael Dalrymple http://dalrymple-law.com/myblog/?p=64 Are your recruiting efforts violating the law?

One of the many barriers between qualified adults with disabilities and gainful employment is inaccessible recruiting processes.  If you or your employer use the internet to recruit potential employees, your website must be accessible to individuals with disabilities.  Moreover, your application process must also be accessible.  Inaccessible recruitment and hiring processes will expose employers to liability, prevent qualified individuals with disabilities from completing the process, and deprive the market of additional workers.  For more information on this topic, visit the following link.

http://www.shrm.org/hrdisciplines/Diversity/Articles/Pages/RecruitingSitesAccessible.aspx

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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If I only had an Intern: Ever wanted to hire a Summer intern? http://dalrymple-law.com/myblog/2010/04/27/if-i-only-had-an-intern-ever-wanted-to-hire-a-summer-intern/ http://dalrymple-law.com/myblog/2010/04/27/if-i-only-had-an-intern-ever-wanted-to-hire-a-summer-intern/#comments Tue, 27 Apr 2010 18:14:22 +0000 Michael Dalrymple http://dalrymple-law.com/myblog/?p=62 If I only had an Intern:  Ever wanted to hire a Summer intern?

The Fair Labor Standards Act (FLSA) requires employers to pay almost all employees for the services they perform. One possible exception is interns.  The Department of Labor will consider an intern to be an employee unless each of the factors below relating to trainees is met. Importantly, if an intern does not satisfy each of the six factors, he or she must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. 

The Department of Labor permits For-profit private sector internships to be unpaid if the intern’s work  serves only his or her own interest an employee of another who provides aid or instruction. This commonly applies to interns who receive training for their own educational benefit.

The following six criteria must be satisfied before classifying someone as an unpaid intern: 

1.         The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2.         The internship experience is for the benefit of the intern;

3.         The intern does not displace regular employees, but works under close supervision of existing staff;

4.         The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5.         The intern is not necessarily entitled to a job at the conclusion of the internship; and

6.         The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If each criteria is satisfied, the intern will not be considered an employee and the FLSA’s minimum wage and overtime provisions do not apply to the intern. The Department of Labor provides the following guidance when structuring an internship program. 

Similar To An Education Environment And The Primary Beneficiary Of The Activity

In general, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit). The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training. Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern. On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.

Displacement And Supervision Issues

If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA. Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience. On the other hand, if the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.

Job Entitlement

The internship should be of a fixed duration, established prior to the outset of the internship. Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA. 

See Department of labor, Wage and Hour Division Fact Sheet 71.

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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Four Essential Components in a Basic Estate Plan http://dalrymple-law.com/myblog/2010/04/16/four-essential-components-in-a-basic-estate-plan/ http://dalrymple-law.com/myblog/2010/04/16/four-essential-components-in-a-basic-estate-plan/#comments Fri, 16 Apr 2010 12:30:39 +0000 Michael Dalrymple http://dalrymple-law.com/myblog/?p=60 Four Essential Components in a Basic Estate Plan

Everyone knows they should have a will, but a will alone is not a complete estate plan.  The four components below constitute a basic estate plan that everyone should have in place.  Based on individual needs and assets, other components may be necessary. 

1.  Assist your loved ones to help you in a time of need by maintaining a document that collects and organizes your emergency and essential information

            This is not a legal document, but is necessary to family members, friends, or other loved ones who need to implement either your durable power of attorney, healthcare advanced directive, or your will.  This document lists your accounts, account numbers, various financial assets, properties, and debts.  In short, it contains all of the information needed to maintain your estate.  The information listed in this document will likely change frequently so you must update the document as appropriate. 

2.  Designate a person to handle financial and legal issues by executing a durable power of attorney

            A durable power of attorney identifies one or more individuals to make important decisions on your behalf, but only if you are incapacitated.  It becomes effective when you experience a disability, incompetency or incapacity that prevents you from making decisions.  This document should provide for decisions relating to property, financial, management, banking, business and other matters.

3.  communicate your healthcare related wishes and designate an individual responsible for carrying out those wishes by executing a Healthcare Advanced Directive

            This document insures that your healthcare related wishes are known and that a representative of your choice is responsible for implementing those wishes.  It takes the place of a living will and healthcare power of attorney. 

4.  Distribute your assets to your loved ones as you wish and with the minimal amount of state involvement by executing a will. 

            Finally, a will insures your possessions end up with the loved ones of your choice.  It also drastically reduces the work to be done by loved ones who are responsible for distributing your estate.  Just as important, it reduces the potential for family discord that may arise when your wishes are not known. 

Take the time to order your affairs by establishing and implementing a proper estate plan. 

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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Indiana DWD Unveils New Tools to Combat Unemployment Fraud and Abuse http://dalrymple-law.com/myblog/2010/04/14/indiana-dwd-unveils-new-tools-to-combat-unemployment-fraud-and-abuse/ http://dalrymple-law.com/myblog/2010/04/14/indiana-dwd-unveils-new-tools-to-combat-unemployment-fraud-and-abuse/#comments Wed, 14 Apr 2010 17:15:12 +0000 Michael Dalrymple http://dalrymple-law.com/myblog/?p=58 The Indiana Department of Workforce Development unveiled two new tools to address unemployment fraud today.  Visit the link below to access these tools and learn more.

http://www.in.gov/portal/news_events/53221.htm 

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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The Timing of Wage Payments (3rd of 3 parts) http://dalrymple-law.com/myblog/2010/04/12/the-timing-of-wage-payments-3rd-of-3-parts/ http://dalrymple-law.com/myblog/2010/04/12/the-timing-of-wage-payments-3rd-of-3-parts/#comments Mon, 12 Apr 2010 14:57:00 +0000 Michael Dalrymple http://dalrymple-law.com/myblog/?p=56 The Timing of Wage Payments (3rd of 3 parts)

Indiana employers can get themselves into trouble by not paying their employees in a timely manner.  The penalties for not paying wages on time can include lost wages, punitive damages, costs and attorney’s fees.  This article briefly describes the requirements concerning when wages must be paid. 

Employers must pay wages to employees on their regular payday for each workweek. When a pay period covers more than a single week, employers must pay all wages on the regular payday for the workweek in which the pay period ends. In almost all cases, Indiana employers must pay their employees at least semimonthly or bi-weekly, but only if the employee requests the arrangement. Employers may not schedule paydays more than 10 days after the end of the regularly scheduled pay period. Payments must be made in lawful money of the United States, by negotiable check, draft, or money order, or by electronic transfer to the financial institution designated by the employee. 

If an employee is discharged or voluntarily leaves employment, the employer does not need to pay the employee the amount due the employee until the next usual and regular day for payment of wages, as established by the employer. This is also the case if work is suspended as a result of an industrial dispute.

Failure to pay employees their wages in a timely manner, whether during employment or thereafter, can expose the employer to a lawsuit for lost wages, punitive damages, costs and attorney’s fees.  Employers must pay a penalty of 10 percent of the amount due per day until the penalty reaches double the amount of damages. Combining the damages for actual lost wages with the mandatory punitive damages, the statutory requirement can result in an award of triple damages to the former employee. In addition, the former employee may recover costs and reasonable attorney’s fees.

If an employee voluntarily leaves their employment, they must provide their address or location to the employer.  If they fail to do so, the employer is not subject to penalties until:  ten days have elapsed after the employee has made a demand for the wages due; or the employee has furnished the employer with the employee’s address where the wages may be forwarded. 

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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Incorporating your small business http://dalrymple-law.com/myblog/2010/04/07/incorporating-your-small-business/ http://dalrymple-law.com/myblog/2010/04/07/incorporating-your-small-business/#comments Wed, 07 Apr 2010 19:44:51 +0000 Michael Dalrymple http://dalrymple-law.com/myblog/?p=52 If you are starting a small business and need to learn about the different types of corporations, the government published a very helpful guide just for you.  Click on the following link to access a wealth of information.   

http://www.business.gov/register/incorporation/?cm_mmc=GovDelivery-_-newsletter-_-0410-_-internal

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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