Category Archives: Regulatory & Compliance

NEW FMLA REGULATIONS TAKE EFFECT TODAY

By: John E. Murray

Last month the Department of Labor issued final regulations clarifying the right of eligible employees to take FMLA leave relating to military leave. These regulations take effect today. The relevant changes to the DOL’s prior regulations are:

  • FMLA leave is available for qualifying exigencies arising out of the active duty of the employee’s spouse, son, daughter, or parent, only when that active duty involves deployment to a foreign country.
  • Eligible employees may take leave to care for the parent of a military member if the parent is incapable of self – care and the care provided by the employee is necessary because of the military member’s active duty.
  • The amount of leave an employee may take to spend time with a military member on rest and recuperation leave has been expanded from 5 days to 15 days.
  • The spouse, son, daughter, parent, or next – of – kin of a military member, may take up to 26 work weeks of FMLA leave to care for a former service member who was discharged or released under conditions other than dishonorable discharge during the 5 years prior to the first day of leave.
  • The definition of serious injury or illness for a covered service member now includes conditions which existed prior to active duty which were aggravated in the course of active duty.
  • The list of healthcare providers authorized to complete a certification for service members has been expanded to include caregivers who are not affiliated with the Department of Defense, the Veterans’ Administration or TRICARE. Second and third opinions may be required for certifications provided by these healthcare providers.
  • Documentation of enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers can be sufficient certification if the employee also provides information about the military member’s familiar relationship to the employee, the military member’s discharge date and the military member’s status.

For employers who use the DOL’s forms, the Department has issued new forms for the leaves affected by these regulations. They are available from the DOL’s website. For employers who have developed their own forms, these changes will require modification only to the extent any of the current forms are inconsistent with the new regulations, or they fail to fullyadvise employees of their rights.

Finally, the Department of Labor has issued a new FMLA poster which incorporates the new regulations. You can view a copy of the poster by clicking: It also is available at www.dol.gov/whd
and local Wage and Hour District Offices.

If you have questions about whether your FML A forms require modification, please call John Murray at 414-226-4818, or call any other Lindner & Marsack attorney at 414-273-3910.

OFCCP PROPOSED RULE SEEKS TO INCREASE DISABILITY HIRING

By: Laurie A. Petersen and Kristofor L. Hanson

On December 9, 2011, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”), published a Notice of Proposed Rulemaking, which if implemented, would impose significant changes on companies doing business with the federal government with respect to their hiring of persons with disabilities. The rule looks to set a hiring goal
for workers with disabilities’ proposed at 7% of federal contractors’ workforces’ and would establish for the first time, a single, national utilization goal for individuals with disabilities.

The proposed rule does not set 7% as a quota or a restrictive hiring ceiling. Nor does failure to achieve 7% hiring of persons with disabilities necessarily constitute a violation of Section 503 of the Rehabilitation Act of 1973, which the proposed rule seeks to amend. The OFCCP director stated that the focus of the rule will be on determining whether covered contractors are following required steps related to recruitment, notification of job openings, and accessible hiring procedures.

Under the rule the definitions of “disability,” “major life activities,” “substantially limits,” and other statutory terms within the existing Section 503 regulations to conform with the ADA Amendments Act (“ADAAA”) and the Equal Employment Opportunity Commission’s final regulations implementing that new law, which amended the Rehabilitation Act as well as the ADA.

The proposed rule makes substantive changes to a federal contractor’s responsibilities and the manner in which applicants are invited to voluntarily self-identify as individuals with disabilities during the hiring process. Contractors also shall invite employees to self-identify as disabled post-offer. The pre-offer self-identification process is designed to assist contractors and OFCCP in determining the number of individuals with disabilities who apply for jobs with contractors.

In addition, the proposed rule adds a new requirement that contractors annually survey their employees, providing an opportunity for each employee who is, or subsequently becomes, an individual with a disability to voluntarily self-identify as such in an anonymous manner, thereby
allowing those who have subsequently become disabled or who did not wish to self-identify during the hiring process to be counted. The purpose of the annual survey is to provide contractors and the OFCCP with a data collection tool to establish a baseline percentage of disabled employees and to better identify and monitor the contractor’s hiring and selection
practices with respect to individuals with disabilities. The OFCCP believes that assuring anonymity of employee response to the annual survey will likely increase the response rate, thus providing that the most accurate data possible is available to assist contractors and OFCCP. This data is designed to assist contractors and OFCCP in evaluating and refining
contractors’ affirmative action efforts. Surveying of employees may be accomplished by the contractor using a paper and/or electronic format, using the method(s) generally used by the contractor to communicate with employees regarding work-related matters. The OFCCP will provide suggested language for the self-identification inquiries and is seeking comments on the language prior to implementation.

Contractors would also have to annually review their personnel policies to assure that their affirmative action plan obligations are being met. Likewise, contractors would be required to annually review their outreach and recruitment efforts to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities, and to document the review. In addition, contractors would have to establish “linkage agreements” and “ongoing relationships” with state vocational rehabilitation agencies or local organizations listed in the Social Security
Administration’s Ticket to Work employment network directory.

Federal contractors would also be required for the first time to develop and implement written procedures for processing requests for reasonable accommodation under the rule. The purpose of developing these written procedures, according to the OFCCP, would be to assure that applicants and employees have clear instructions on how to request accommodations
and know the reason an accommodation request has been denied. In addition, the rule would assist federal contractors in assuring they are satisfying their reasonable accommodation requirements.

The significant changes in the proposed rule should be reviewed closely by all employers doing business with the federal government. Contractors should also review their current disability hiring and retention policies, as well as their reasonable accommodation guidelines, to assure that they are making proper efforts to accommodate individuals with disabilities, both
at the hiring phase and during active employment.

No implementation date has been set, but OFCCP is accepting comments on this Notice of Proposed Rulemaking through February 7, 2012. Comments, identified by RIN number 1250-AA02, may be submitted online at http://www.regulations.gov; by fax (if six pages or less) to (202) 693-1304; or by mail to: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contractor Compliance Programs, Room C-3325, 200 Constitution Ave. NW, Washington, DC 20210.

If you have any questions about this material, please contact Laurie Petersen or Kris Hanson or any other attorney you have been working with here at Lindner & Marsack, S.C.

US DEPT OF LABOR ISSUES FINAL RULES ON INVESTMENT ADVICE FOR PARTICIPANT-DIRECTED INDIVIDUAL ACCOUNTS

By: Alan M. Levy

Long-awaited final rules for providing investment advice to participants and beneficiaries of 401(k) plans and other retirement programs which utilize participant-directed individual accounts were issued by the U.S. Department of Labor (“DOL”) on October 25, 2011. They will be effective December 27, 2011.

A by-product of defined contribution plans supplanting defined benefit plans has been minimization of plan sponsors’ potential fiduciary liability by authorizing plan participants to make their own investment decisions through self-directed individual accounts. As this change evolved, many plan sponsors and fiduciaries arranged for investment advisers to assist their plan participants in making these decisions, often using experts who were themselves employed by some kind of investment management or securities sales enterprise. In 2006, recognizing a possible conflict of interest in these arrangements, Congress, in the Pension Protection Act (“PPA”), defined allowable parameters for this type of plan activity.

Anyone who controls a plan asset is a fiduciary of that plan. The administrator of a defined contribution plan who manages the investment of assets for those participants who decline to make their own investment directions is subject to fiduciary liability for the prudence and reasonableness of those investment choices. If the fiduciary retains an investment expert who manages the undirected accounts and/or advises participants as to their individual investments, the choice of that expert is also subject to fiduciary liability. And to the extent the expert may have the authority to direct decisions as to the investment of any fund assets in a general “default account” or individual accounts, that expert is also subject to fiduciary duties and liabilities.

The PPA, and the DOL regulations implementing it, now provide an exemption from any claims of prohibited transactions (typically cases involving a fiduciary who may gain some fee, profit, or advantage from a transaction involving plan assets) for the use of investment advisers in the following circumstances:

  • The investment adviser must use (a) a “fee-leveling” compensation system by which he/she receives the same fee no matter what choice of investment is made. The adviser cannot receive a larger payment, such as a commission dependant on the dollar amount of the transaction, if he/she convinces the participant to select one investment choice over another. In the alternative, the adviser must use (b) a computer model system for providing advice or managing assets.
  • The fee-leveling system’s “advice must be based on generally accepted investment theories that take into account historic returns of different asset classes over defined periods of time, but also notes [other] generally accepted investment theories including investment management and other fees and expenses attendant to the recommended investments.” The adviser must also consider “information related to age, time horizons (e.g., life expectancy, retirement age), risk tolerance, current investments, other assets or sources of income, and investment preferences of the participant or beneficiary.” 29 CFR Vol. 76, No. 206, 10/25/11, p. 66138, Pt. 2550, RIN 1210-AB35. In turn, the adviser must request this information from the employer and the participant. Use of a computer model system must take into account similar data and investment theories.
  • The adviser must be certified pursuant to requirements stated in the DOL regulations.
  • An independent audit must be conducted annually to assure compliance with these structural requirements, and the adviser must provide a copy of the audit to the plan fiduciary. “Selection of the auditor is a fiduciary act,” Id., 66147, for which the fiduciary is responsible.
  • A number of disclosures must be provided by the adviser to the participants, “written in a clear and conspicuous manner – calculated to be understood by an average plan participant and must be sufficiently accurate and comprehensive .” Id. This may be done by written or electronic communication. Similar information must be provided by the adviser to the plan fiduciary.
  • The “arrangement pursuant to which investment advice is provided must be expressly authorized by a plan fiduciary.” Id., 66144.

While the retention of the adviser pursuant to these provisions will exempt the fiduciary from any charge of a prohibited transaction, the plan sponsor or fiduciary will have a fiduciary liability for any failure to monitor the adviser’s selection of the adviser and his/her subsequent activities. “[I]ntentional, regular, deliberate practices involving more than isolated events or individuals, or institutionalized practices will almost always constitute a pattern or practice” for which a fiduciary may be held personally liable.

As a general matter, self-directed accounts for employees/participants should limit potential liability for plan sponsors, administrators, and fiduciaries. Use of a certified investment adviser to assist participants in the investment of the assets in their accounts will strengthen these limits, but the appropriate selection and monitoring of the adviser to assure his/her compliance with these rules is essential to preserving that protection.

This is a new and broad-sweeping regulation, and it will inevitably be challenged, clarified, and refined as it is implemented by DOL. Investment advisers will have to comply with the rule, and plan fiduciaries will have to make sure they do so. The prohibited transaction exemptions here will be nullified by any “pattern or practice” of noncompliance.

If you have any questions about the application or implementation of this Regulation, please contact Alan Levy, here at Lindner & Marsack, S.C., for further explanation and assistance.