3 Frequently Asked Questions about FLSA

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Employers usually have a number of questions about the Fair Labor Standards Act (FLSA), which governs wage and hour rules - when and how employers are obligated to pay employees for time worked or not worked under law. Here are answers to 3 frequently asked questions about issues related to FLSA.

1. Can we dock exempt employees' pay?

Some employers seek to dock or withhold pay as a disciplinary measure for exempt employees, particularly for reasons such as absenteeism, tardiness, or performance. Under FLSA, however, employers may not reduce an exempt employee's pay for showing up late, leaving work early, or because they did not perform the quality of quantity of work expected of them. Other guidelines regarding the docking of exempt employees' pay include:

  • If your organization has a written paid sick time, paid leave, or other time off policy, it may reduce the employee's sick or paid leave account for absences due to illness, injury, or medical appointments. 
  • Once an employee's sick or paid leave account is exhausted for these absences, you must pay employees for partial day absences unless they qualify under FMLA and are using intermittent leave. 
  • If your organization does not have a sick or paid leave policy and it is implied that employees receive pay for their absences, it cannot deduct pay for full or partial day absences for exempt employees.
  • Exempt employees who are new to the organization and not yet eligible to receive holiday or vacation pay, should generally be provided with it, given these above guidelines.

There are situations where your organization has the ability to dock or reduce pay of exempt employees, such as if they did not work some days during their first or last week of employment, were absent for an entire week, or received an unpaid disciplinary suspension. Deducting pay for exempt employees is usually permissible under these circumstances, however, you can only dock pay if employees are not working (i.e. not checking email, voicemail, etc.) in these situations.

2. For what time do we need to pay non-exempt employees?

Unlike exempt employees who are paid to complete a job, non-exempt employees only need to be paid for time worked, so naturally, the issue of what constitutes "working time" for non-exempt employees is a common question and issue employers face. Job-related or required training, department or staff meetings, and time spent on work travel are all considered working time for non-exempt employees and must be paid. This even includes seminars, training, or meetings on job-related topics held after hours.

In addition, unauthorized working time may also be considered time worked. Even though an employer may not specifically authorize an employee to work, non-exempt employees must be paid for all work they complete. For example, if a non-exempt employee works at home off-the-clock on their own accord, that time must be considered hours worked even though the time was unscheduled. Additionally, if an employee starts work early or stays late, that time must also be paid. Non-exempt employees must be paid for all hours worked.

Employers are increasingly facing this issue when non-exempt employees access work at home, such as via electronic devices like a Smartphone. For example, if a non-exempt employee sends an email to another employee outside of work hours, they are entitled to be compensated for the time spent responding to that email.

3. Is this job exempt or non-exempt?

Employees exempt from both the minimum wage and overtime pay requirements not only include those that fall under the Department of Labor's  exemptions for executive, administrative, professional, outside sales, and certain computer professionals, but seasonal employees who are employed at certain seasonal amusement or recreational establishments also fall under those exempt from these provisions. Correctly classifying employees as exempt or non-exempt can be tricky given the many guidelines for exemptions.

Terming employees "hourly" or "salaried" can commonly lead to issues of misclassification. Salaried employees are not automatically "exempt" and hourly employees are not automatically "non-exempt." Also, a professional, highly-skilled, or managerial-related job tile (such as engineer, analyst, administrator, or supervisor) does not sufficiently guarantee exemption. Employers need to evaluate employees' specific job duties (regardless of how they are paid) and their job title to determine exemption status, as well as use specific tests to determine their status.

Outdated job descriptions can commonly lead to issues with FLSA compliance so it's important to regularly update them, determine their accuracy, and conduct FLSA audits or evaluations to determine if a job is exempt or not. Job descriptions should accurately depict what an employee actually currently does in the position because they are the most crucial element to deciphering a position's FLSA status according to exemption tests.

FLSA is a difficult and complex law to administer in the workplace, and as a result workplace violations are easily made. Understanding the common pitfalls faced by other employers, however, can help your organization stay compliant with the law's many provisions.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

How to Manage FMLA Intermittent Leave: 7 Strategies

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How to Better Manage FMLA Intermittent Leave: 7 Strategies

There is probably no task more cumbersome for HR professionals than managing intermittent leave under the Family Medical Leave Act (FMLA). Intermittent leave allows qualified employees to take FMLA leave in small blocks of time (such as one hour) versus one block of 12 weeks.

Although intermittent leave can benefit employees who need time off work for their own health condition or to help with another family member's serious health condition, it can create burdens and adversity for employers if it isn't managed appropriately. The following administrative strategies tend to help employers manage intermittent leave more effectively.

1. Require medical certification.

You have the right to determine that intermittent leave is medically necessary. You can require medical certification to be submitted in order to make this determination and request multiple medical opinions. Doing so gives you some control over the situation and helps you understand the frequency and duration of intermittent leave needed by the employee.

2. Ask for recertification.

Requiring employees to recertify their leave when the condition changes or according to a certain period (such as every 6 months or annually) helps keep employees honest and makes sure you stay knowledgeable about the condition's status and any changes needed for the leave.

3. Have employees use paid leave concurrently with FMLA leave.

Requiring use of concurrent paid leave, disability, etc. curbs the adverse effects of excessive absenteeism. If you don't require use of concurrent leave, you may risk an employee using more than the allotted 12 weeks of leave provided under FMLA.  

4. Use a rolling 12-month period to calculate FMLA leave.

Calculating FMLA leave on a calendar 12-month basis can lead to employees taking back-to-back leave and potentially provides 24 weeks or 6 months of FMLA to an employee. Conversely, calculating FMLA on a rolling 12-month period can prevent back-to-back leave.

5. Accommodate the employee to reduce disruptions.

You may assign an employee to an alternative position with equivalent pay and benefits to better accommodate intermittent leave. You may also work with them to establish an intermittent leave schedule that reduces the leave's disruptions to your business operations. Remember, it's completely legal to request that the employee make a reasonable effort not to disrupt your business operations.

6. Establish guidelines for call-offs.

Call-offs can disrupt business, so provide requirements that employees must call in before they are absent if they are going to be using FMLA leave. You may also request that employees provide notice of unforeseeable leave as soon as practicable.

7. Track leave and absences.

You may request recertification from health care providers when you notice a pattern of absences which could suggest that an employee is abusing intermittent leave. Also, be aware that not tracking FMLA may lead you to provide more than the required amount of leave. Make sure nothing goes uncounted, and if you don't have the time to track it, consider outsourcing FMLA.

While these strategies won't necessarily reduce the number of employees using FMLA leave, they will typically help your organization avoid the costly consequences of mismanaged intermittent FMLA leave.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

ADA FMLA Compliance Training

ADA & FMLA Compliance Training Course

Participants review the interrelatedness of these two laws including how they impact each other.

Train Your Employees

Supreme Court Upholds Health Care Reform Law

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On June 28th, 2012, in a 5-4 decision, the U.S. Supreme Court that the individual mandate portion of the health care reform law (the Patient Protection and Affordable Care Act), which requires that most Americans buy health insurance or pay a fine, is constitutional as a tax.

The Court agreed that while Congress could not use its power to regulate commerce between states to require individuals to buy health insurance, Congress could impose a tax penalty using its tax power for individuals who refuse to buy health insurance.

Because the mandate is constitutional, the Court did not need to determine whether other parts of the law were constitutional, according to the SCOTUS Blog.

The individual mandate was set to be implemented in 2014, however, many provisions of the health care reform law had already gone into effect in 2012. The ruling suggests that employers will still be responsible for the carrying out the provisions of the law which affect their organizations.

For more information about the Supreme Court decision, please visit the links below.

Source: SCOTUS Blog

New Retirement Plan Requirements: 4 Things Employers Must Do

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The Department of Labor's final rules under the Employee Retirement Security Act of 1974 (ERISA) start became effective July of 2012. These rules are intended to enhance the transparency of fees and other compensation with service providers. They will help employers and their employees better understand how much their retirement plan truly costs and the value/level of service they are receiving from their vendor/service provider.

Many employers are unaware of their responsibilities as ERISA fiduciaries. Most are neither trained nor skilled to interpret vendor reports, monitor service levels or fees, and ask the probing questions necessary to fulfill their fiduciary duties. Employers may need to retain professional advisors to implement a strategy of compliance and procedural prudence to manage their plans.

Dave Kulchar, Executive Vice President and Director of Retirement Plan Services at Oswald Financial, Inc. explains that there are two phases in the implementation of these rules. He says, "Phase one requires service providers to disclose all costs to plan sponsors beginning on July 1st. Phase two requires plan sponsors to deliver this information to plan participants, effective August 1st."

The new requirements often are explained in a complex manner that are difficult for organizations to understand so we've simplified them to summarize 4 of the most critical action steps you need to take to comply with these new requirements.

1. Make sure you receive the necessary disclosures.

Employers must make sure that they have received all of the required disclosure information from their covered service providers (auditors, record keepers, custodians, actuaries, advisors etc.).  If the required information is not received by July 1, 2012, then the employer has an obligation to request the information in writing. Without the required information in hand, any fees paid to those service providers may be considered prohibited transactions under ERISA and employers can be held liable for civil penalties or excise taxes.

2. Evaluate and benchmark fees from your vendors.

The new rules of 2012 require covered service providers of ERISA-covered defined benefit and defined contribution plans to provide employers with the information necessary for them to evaluate whether fees paid to service providers are reasonable when compared to those paid by other similar plans and determine if any conflicts of interest may impact a service provider's performance under a service arrangement. Information that must be disclosed includes:

  • A description of all services to be provided to the plan
  • All compensation it expects to receive, including direct and indirect compensations
  • The manner in which compensation will be received by the service provider
  • A description of whether the services provided are fiduciary services or services under the Investment Advisors Act of 1940
  • Information about conflicts of interest

This information will be necessary to evaluate and benchmark their fees against other service providers in the market to determine whether they are reasonable or not, and to understand if the fees are in line with those paid by similar plans. Organizations will need to make sure that they aren't paying unreasonably high fees for their retirement plan's services and document their analysis and review.

Why is benchmarking necessary? As plan fiduciaries, employers must evaluate their providers regularly in terms of their cost and competence to avoid liability, even if they are satisfied with their provider and aren't considering a change. In addition, employers should be wary of simply choosing the least costly service providers and evaluate their competence and level of service to protect themselves from potential liability. 

3. Communicate fees to employees.

Effective August 1, 2012, employers need to communicate and report these disclosed fees to employees participating in the retirement plan. Under these rules, employers are also required to provide ongoing disclosure to plan participants on quarterly statements going forward. It is important to note that this communication is the responsibility of plan sponsors - not plan service providers.

These disclosures must include an explanation of fees and expenses charged or deducted from participants' accounts as well as general information about the plan's structure and operation. "In some cases, employers will need to combine all of the information disclosed by various service providers and vendors in order to communicate it to employees," Kulchar explains.

In terms of how fees should be communicated, Kulchar advises, "Employers must communicate disclosed fees on paper unless they meet the necessary qualifications to disclose them online, which in many situations may be difficult to meet. Also, there is no set format and communications can look different, but fees must be expressed in a flat dollar figure and percentage."

4. Anticipate and answer employee questions.

Employers need to anticipate and answer employee questions about the reports that they distribute on fees. They should be prepared for employees to request assistance in understanding the information being disclosed to them about the fees. Employers should also expect that employees will inquire about why they hired particular service providers and be in a position to justify and explain the fees and expenses that must be disclosed on a comprehensive basis for the first time. They may even consider providing a list of FAQs to employees when this information is disclosed.

"Currently, 72% of employees don't think they are paying anything for their retirement plan. As a result, employers should be prepared to receive and answer questions like 'Is this new?,' 'How long have we being paying this?,' 'Is this competitive?,' 'What's being charged?,' and 'Is this reasonable?,'" says Kulchar.

Although the 2012 legislation changes on retirement plans create new duties and responsibilities for employers, they provide an opportunity for employers to better understand the true costs of their plans and fees paid to providers and help employees better understand their plans as well.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

Additional Resources

ERC members save thousands on various retirement plan services offered through Preferred Partner, Oswald Financial. These services include waived fees on comprehensive retirement plan reviews and plan design consulting, discounts on Oswald's financial paperless 401(K).

Paycheck Fairness Act Blocked in Senate

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The Paycheck Fairness Act, a bill that would “pave the way for women to more easily litigate their way to pay equality” failed to clear a procedural hurdle in the Senate in June of 2012 as Republicans united against the measure for the second time since 2010, according to this story from The New York Times.

How to Prevent a Retaliation Claim

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Over the past several years, charges of retaliation filed with the Equal Employment Opportunity Commission (EEOC) have significantly increased, making retaliation a major legal risk that employers face. Here are several ways that employers can prevent retaliation.

Know what employment actions are considered "adverse."

An employee can sue for retaliation if they suffer a tangible, adverse employment action - such as loss of income or employment as a result of engaging in a protected activity. They must prove that there is a connection between their protected activity and the employment action they received. Examples of adverse employment actions could be a demotion, termination, or pay cut. A negative performance review may or may not be considered adverse depending on the circumstances.

Be aware that perception is reality when it comes to retaliation.

You may not intend to hurt an employee, but an action can still be perceived as retaliatory if an employee sees it as such. For example, reassigning or transferring an employee to another location, shift, or role or even separating employees from one another can be perceived as an adverse action if the action results in an outcome that is less desirable to the employee.

Address complaints promptly and respectfully.

Take complaints seriously and treat them with respect and care - they are indicators of dissatisfaction and usually precursors to a lawsuit. Start by establishing a policy against retaliation which communicates that your organization does not tolerate retaliation and explains the steps employees should take if they have complaints. Research complaints thoroughly and document the actions you take to address them.

Make and maintain a list of protections.

Create and maintain a list of all protections under law and distribute it to decision-makers, including supervisors and managers. These protections should include employees requesting FMLA, reasonable accommodations, and those employees in protected classes (race, national origin, religion, etc.). Make sure that decision-makers are aware of the types of activities which are protected under law.

Time your decisions accordingly.

Timing is one of the most important pieces of evidence that usually supports a retaliation claim. The longer the timeframe between the protected activity and adverse employment action, the more often courts have dismissed such claims. Refrain from taking adverse employment actions close to a complaint or protected activity.

Channel major employment decisions through HR.

Require a trained HR professional to be involved in any employment decisions, particularly those that negatively affect an employee. Conduct a thorough HR review before proceeding with a disciplinary action (i.e. warning, suspension, termination, etc.) for any employee who engages in a protected action and make sure that you have plenty of documentation to back up your decision.

Train and educate supervisors.

Supervisors can be major culprits of retaliatory decisions and it's important to make sure they are not making any decisions that could be unlawful. While they may feel so inclined to "get back" at an employee, the risks of doing so often far outweigh any benefit. Share specific examples of retaliation by supervisors, common scenarios, and procedures they must follow to avoid retaliation.

On a final note, when it comes to preventing retaliation in the workplace, it's best to consult case law, your attorney, and the EEOC's website for more guidance on the subject.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

Additional Resources

Supervisor & Manager Training: Employment Law

In this series, supervisors and managers learn about potential legal issues such as workplace discrimination and harassment, managing employee leaves of absence, and employee performance issues. Supervisory Series is offered in AM or PM sessions.

What is the Difference Between an MCO and a TPA?

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If you are responsible for your workers’ compensation program, it is important to have a fundamental understanding of the roles of a MCO and a Workers’ Compensation Third Party Administrator (TPA). MCOs and TPAs play unique roles in helping employers control workers’ compensation costs.

What is a MCO?

Under Ohio's Health Partnership Program, MCOs are responsible for the medical management of Ohio employers’ work-related injuries and illnesses. Every employer in Ohio must have a MCO, which is paid for directly by the Bureau of Worker's Compensation.

The core MCO functions include:

  • Collecting initial injury reports and transmitting to BWC;
  • Management and authorization of medical treatment to be received by an injured worker;
  • Medical review and bill payment processing;
  • Maintaining a network of BWC-certified healthcare providers;
  • Return to work services;
  • Utilization review;
  • Providing Peer Reviews as necessary for treatment decisions;
  • Processing treatment appeals through the Alternative Dispute Resolution (ADR) process; and
  • Training and education.

Further, MCO associates are medical professionals and their processes are clinically focused. They work diligently to help employers avoid the most costly of claims, i.e. lost time claims – when an injured worker is off work for eight or more consecutive days. With clinicians managing the medical care and transitioning injured workers back to gainful employment, employers are better able to manage their long term insurance premiums.

What is a TPA?

A Third Party Administrator (TPA) assists employers in the administrative and financial aspects of a claim.

The core TPA responsibilities include:

  • Providing risk management consulting to employers;
  • Administering compensation group rating savings programs and other discount program consulting;
  • Pertinent claims investigation;
  • Claims administration;
  • Industrial Commission hearing attendance;
  • Evaluation of claims for workers' compensation coverage; and
  • Assisting employers in the development of workers' compensation cost control strategies.

 

TPA staff typically consists of claim representatives, account representatives, and other workers' compensation professionals. 

ERC is proud to endorse CareWorks as the preferred workers’ compensation Managed Care Organization (MCO) for members. For more information, click here.

Military FMLA: Wading through the Confusion

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Verifying Next of Kin

According to the Department of Labor:

"Next of kin of a covered servicemember" means the nearest blood relative other than the covered servicemember's spouse, parent, son, or daughter, in the following order of priority: Blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA.

When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember's next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember's only next of kin.

How is an employer supposed to know if a next of kin has been designated?

Verifying next of kin can isn’t as easy as it sounds. Here are some guidelines which will help employers in this situation when next of kin needs to be determined:

  • The Emergency Contact Form (DD0093) would rank employee’s relatives. This will help determine Next of Kin. For example, if the servicemember didn't have brothers/sisters, child, spouse, or parent, then maybe they would list their cousin or uncle as an emergency contact and beneficiary.
  • To obtain the DD0093, the employer can contact:
    • Army orders verification should be sent to hrc.foia@conus.army.mil
    • For all other branches of the armed forces: To identify a contact person, an employer should look at the military order and conduct an Internet Search to locate of the unit/battalion the servicemember is assigned. There is no general location/number employers can use to verify the validity of the orders. Employers are going to have to do some research to find the appropriate officer in charge of the unit/battalion.

This link has contact information for all the branches of the armed forces. Each branch can provide verification of active duty dates of service. The verification of orders is given by the unit officer in charge of the service member.

Military orders for Marines, Air Force, and Navy will detail what unit or battalion the servicemember is assigned.

The links below can be used to locate contact information for the unit the servicemember is assigned. The employer should contact the officer in charge of the unit to verify the orders.

The Air Force doesn't have a main location on the web which has all the units and contact information. An employer’s best option is to conduct an Internet Search of the unit indicated on the orders to locate a contact person.

Questions please contact:
Holly Moyer, M.Ed., CRC
Sr. Absence Management Consultant
(440) 937-9507
Holly.moyer@careworks.com

9 Common (and Avoidable) FMLA Mistakes

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There is probably no law that gives HR more headaches than the Family Medical Leave Act (FMLA). Even the most adept and experienced HR professionals make errors when administering FMLA. It’s hard not to make mistakes, given the emergence of new case law as well as state and federal regulations that are constantly expanding the scope of employee leave and employer’s obligations in administering that leave.

One small mistake with FMLA, however, can cause big consequences for your organization. Here are 9 of the most common (and avoidable) FMLA mistakes.

  1. Not counting leave as FMLA. If your organization does not run FMLA concurrently with other paid time off, sick leave, disability, or worker’s compensation, it may incur lost work time which can lead to significant costs. Also, some employers may not track time that should be qualified as FMLA leave, especially when reasons for employees’ leave or time off are not known by HR.
  2. Disciplining employees for FMLA-protected absences. It’s not uncommon for employers to penalize employees for absences, but when FMLA factors into the absence, tread carefully. If employees are eligible for FMLA and are qualified to take leave, they are protected, even though your attendance policy may be very specific. Disciplining or terminating an employee for taking leave may not be an appropriate or legal measure to take.
  3. Taking adverse action after denying leave. Denying an employee’s request for FMLA and then taking a series of adverse actions following that request can be a fatal mistake. While these actions may be warranted, employers need to watch their timing. If you deny an employee’s request for FMLA, then immediately follow-up with a termination, it could suggest that the employee’s FMLA request was linked to the termination. Plus, the courts have been especially mindful of retaliation charges lately.
  4. Failing to communicate your FMLA policy and procedure. As an employer, you must let employees know about their rights under FMLA. A 2012 ruling suggests that you must also communicate the procedure by which leave needs to be taken and how you are tracking employees’ time (i.e. rolling calendar year measured forward/measured backward etc.). Even misinforming employees of the time in which they are eligible for FMLA can be a liability.
  5. Allowing your supervisors to manage FMLA. Supervisors are usually the first people employees turn to when they need to take leave. Sometimes, however, supervisors don’t realize that they must direct the employee to HR and not handle FMLA cases on their own. Be sure that your supervisors know how to respond when employees ask for leave. Otherwise they could face personal liability for FMLA violations.
  6. Making assumptions about an employee’s health condition. Making judgments about whether employees have a serious health condition or not without the necessary information can be disadvantageous. Employees may present clear signs of a serious health problem or the condition may be less visible. Take each employee’s request for FMLA seriously and ask for appropriate documentation if you question its validity.
  7. Not verifying or clarifying FMLA documentation with health care providers. Employers may clarify any documentation they receive from health care providers, ask for second and third opinions, and make sure that the employee who is requesting leave does in fact have a serious health condition. Also, know that requiring too much or too little medical documentation could result in liability. Don’t ask for too much, but don’t accept too little.
  8. Removing an employee from their prior job. An employee goes out on leave, perhaps you find that another employee can perform the person’s job better, and then you consider terminating the returning employee or moving them into a lower position. Be aware that unless you have adequate performance documentation to demote or terminate the individual, FMLA regulations say that the returning employee is entitled to their same job or one of equal pay, responsibility, and benefits.
  9. Not providing a reasonable accommodation. Although FMLA only allows for 12 weeks of unpaid leave, your organization may need to explore other reasonable accommodations following FMLA leave if employees have a disability or medical condition that is protected under the Americans with Disabilities Act (ADA). Under ADA, an extension of unpaid leave could be a reasonable accommodation in some circumstances. Oftentimes, both FMLA and ADA apply, especially when serious health conditions are present.

Employers unfortunately can pay a steep price for their mistakes in administering FMLA—whether they are honest or intentional. Our best advice for avoiding FMLA mistakes is to maintain open lines of communication with employees and managers, stay up to date on FMLA case law, don’t make assumptions, keep excellent documentation, and be conscious of the timing of your decisions.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.