Well, has Rain been on FMLA? I don’t think so. Just getting the umbrella’s in shape to protect our clients from the showers of newest regulations coming from the big sky of Washington DC.

“In Loco Parentis” (#4 in reasons) is Rain’s quick rainbow brush stroke of some of the newest additions.

So what is FMLA? Small drops first so let’s start with a quick refresher before discussing some of the newest additions to the regulations.

The Basic Rights of The Family Medical Leave Act Are:

An absolute entitlement to a certain amount of job protected leave in a defined period of time.
The right to reinstatement to the same or equivalent job.
The right to have health benefits continued as if still working the same regular schedule.

FMLA Eligibility for Leave

1. Employed at least 12 months;
2. Worked 1250 hours in last 12 months; and
3. Works at a work site with 50 or more employees within a 75-mile radius.

FMLA Reasons for Leave

1. For an employee’s own serious health condition.

2. For the birth of a child within the first 12 months after birth.

3. For placement of a child with the employee for adoption or foster care within the first 12 months after placement.

4. To care for a parent, spouse, or child with a serious health condition.

Now the drops get bigger with the addition of “loco parentis”. So who’s a parent? Who’s a son? Who’s a daughter? Getting muddy, is it? (Rain is wearing her boots). Fortunately, DOL’s Wage and Hour Division (WHD) has clarified the situation somewhat.

For FMLA leave purposes, “parent” is defined broadly as a biological, adoptive, step, or foster parent, or an individual who stood in loco parentis to an employee when the employee was a child.

Note that an employee’s parents-in-law are not included in the definition of “parent” for purposes of FMLA leave.

The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (a) under 18 years of age; or (b) 18 years of age or older and incapable of self-care because of a mental or physical disability.” (For purposes of an employee’s entitlement to take military FMLA leave for a son or daughter, there is no age restriction.)

Rain could storm for days with information on how to manage FMLA…so watch for future blogs on the subject.

Keeping Your Eyes on what’s happening with Form I-9

Rain always likes to go into details….Well, the Immigration Reform and Control Act of 1986 begot the Employment Eligibility Verification, thus Form I-9.

The U.S. Department of Homeland Security (DHS) on July 22, 2010, published a final rule in the Federal Register amending an interim final rule on the electronic signature and storage of the Form I-9.

Like the interim final rule, the final rule permits employers to complete, sign, scan and store the Form I-9 electronically as long as certain performance standards set forth in the final rule for the electronic filing system are met.

Enough you say, as Rain’s omnificent and all knowing senior partner pompously espouses, “We asked the time, not how to build the clock”. So cutting the chase, regardless of how many times Rain likes to say “final rule of the interim final rule”, this is what DHS has to say.

1. Must complete a Form I-9 within three business—not calendar—days.
2. May use paper, electronic systems or a combination of paper and electronic systems.
3. May change electronic storage systems as long as the systems meet the performance requirements of the regulations.
4. Need not retain audit trails for each time a Form I-9 is viewed electronically, but only when the Form I-9 is created, completed, updated, modified, altered or corrected.
5. May provide or transmit a confirmation of a Form I-9 transaction but are not required to do so unless the employee requests a copy.

Still puzzled?

Our Strategic Partner, Ogletree Deakins, Immigration eAuthority Newsletter has provided excellent interpretation of “how to count the days”. Please read on.

I-9: Does an Employer Have 3 or 4 Days to Complete?

There has been some recent public reports and discussions regarding “how to count days” in determining employer requirements with respect to completing the Form I-9 Employment Eligibility Verification. In reviewing the I-9 process requirements, let us consider using the example of an employee hired on a Monday.

1. By regulation, the employer must have the employee complete Section 1 “at the time of hire.” As such, it is clear that Section 1 should be completed on the first day of employment.
2. Employers (or any employer-authorized representative) must then complete Section 2 “within three business days of hire.” This is the time period during which the employer must physically examine the documentation presented by the employee and complete and sign Section 2. Historically, the biggest confusion surrounding this three-day time frame was determining what is a “business” day? Employers that operate Monday through Friday are not required to count weekends, but employers that regularly operate on weekends and holidays must include all days in counting to three. So in the original example of the employee hired on Monday, the common interpretation was that Section 2 should be completed by Wednesday.

They go on to say:

“To be certain, we are hesitant to recommend to employers that they should rely on this interpretation when completing Form I-9. For now, we would recommend that the employer count the hire date in calculating the “three business days after hire.” In fact, perhaps the best practice would be to ask the employee to bring the I-9 documents to work on the first day of work and complete Sections 1 and 2 on the first day of employment. Nevertheless, employers can clearly wait until Wednesday to complete Section 2 and, if things go awry as they sometimes do, may still be in full compliance if Section 2 is completed by Thursday. “ http://www.ogletreedeakins.com/publications/index.cfm?Fuseaction=PubDetail&publicationid=1303

Storage? What to Save?

DHS clarified that employers may, but are not required to, copy or make an electronic image of a document used to comply. It cautioned, though, that employers should apply consistent policies and procedures for all employees to avoid discrimination.

DHS noted that the Form I-9 and verification documentation may be stored in a separate Form I-9 file or as part of an employee’s other employment records. In addition, only the pages of the Form I-9 containing employer- and employee-entered data need be retained. Other pages of the current form are instructions for completing the Form I-9 and need not be retained. (Gee, how savvy DHS is becoming…no one keeps anything like instructions when they are only a click away.)

Rain and partners, always recommend Form I-9 be stored separately. Think about it. When DHS pays a “social” visit to your company…we are confident you do not want to pull all those personnel files looking for I-9 paperwork nor have DHS on a ”look what we discovered” as they review your full personnel files.

DHS cautioned that providing the option of electronic preparation and storage does not alter the requirement that the employer physically examine any documentation provided by the employee in the presence of the employee prior to completing the Form I-9.

Rain is indeed, committed to short blogs, however, reading the Federal Register almost took me to August 23^rd!

The final rule takes effect Aug. 23, 2010.

For more excitement about Form I-9….

Check out our newest Strategic Partner, Aurico, a global provider of screening solutions. In fact, Aurico offers a completely electronic version of I-9 online. For details, check out their website behind the Red Door “What We Do” and click on Aurico Logo.