We received a great response to the 2012 Employment and Labor Law Final Exam. Thanks to all of our clients and friends who participated this year.

Congratulations to Andrew Lominack and Kay Allen for being selected from the pool of perfect scores. Andrew and Kay will receive a basket full of goodies from the Gourmet Shop of Five Points.

Now for the answers:

1. Under the Family and Medical Leave Act (FMLA), which of the following state- ments is true?

Answer: The employee must have worked for the employer at least 1,250 hours during the 12 months preceding the commencement of the leave, so “(d)” is the correct answer.

To qualify for leave under the FMLA, an employee must have been employed for at least 12 months (does not need to be consecutive) by the employer; must have worked for the employer at least 1,250 hours during the 12 months preceding the commencement of the leave; and must have been employed at a work site where the employer employs at least 50 (not 25) individuals within a 75-mile radius as measured by surface road miles.

2. The Fair Labor Standards Act (FLSA) generally permits employers to make which of the following deductions from an exempt employee’s pay?

Answer: Deductions for FMLA leave are permissible; “(a)” is the correct answer.

An employer is not required to pay an otherwise exempt employee for time in which such employee is taking unpaid leave pursuant to the Family and Medical Leave Act. Instead, the employer may pay an employee taking FMLA leave a proportionate part of the employee’s full salary for time actually worked in a work week. The FLSA also permits deductions for absences of a day or more when the absences are for the employee’s personal reasons or because of the employee’s illness in accordance with a policy or plan of providing compensation for loss of salary occasioned by sickness. However, deductions from pay for absences of less than a day could destroy the exemption.

3. In South Carolina and North Carolina, employers who must comply with state immigration law requiring the use of E-Verify to confirm an individual’s eligibility to work in the United States are not required to also complete an I-9 form for the individual.

Answer: False, so “(b)” is the correct answer.

South Carolina and North Carolina employers that are required to verify an individual’s employment eligibility via E-Verify are also required to complete an I-9 form for each such individual.

4. Which of the following statements is true regarding the Uniformed Services Employment and Reemployment Rights Act (USERRA) and/or the Americans with Disabilities Act (ADA)?

Answer: USERRA requires an employer to place a qualifying, returning service member in the position the individual would have held if the individual had not been absent from work for military service; “(d)” is the correct answer.

As discussed in our May 2012 newsletter, the Equal Employment Opportunity Commission has taken the position that it is unlawful for an employer to refuse to hire a veteran because he or she has PTSD, was previously diagnosed with PTSD or because the employer assumes he or she has PTSD.

Additionally, a returning veteran who has been absent due to service for more than 180 days may not be terminated without cause for at least one year following return to employment; however, the veteran’s employment may be termi- nated for cause during the year following return to employment.

5. Which of the following is NOT a requirement of the Older Workers Benefit Protection Act (OWBPA) for a valid release of age discrimination claims under the Age Discrimination in Employment Act (ADEA)?

Answer: The employee must be given the right to revoke the release within 10 days following its execution, so “(d)” is the correct answer.

The employee must be given a seven-day period to revoke the release following its execution. In order to obtain a valid release of ADEA claims, the OWBPA requires the following:

  • The release must be written in a manner calculated to be understood by the employee or former employee.
  • The release must specifically refer to claims under the ADEA.
  • The release must be retrospective only.
  • The release must be in exchange for valid consideration in addition to anything of value to which the employee or former employee is already entitled.
  • The employee or former employee must be informed in writing of the right to consult legal counsel before signing the waiver.
  • The employee or former employee must be given at least 21 days to consider the waiver.
  • The employee or former employee must have the right to revoke the waiver within seven days following its execution.
  • If the employer offers an exit incentive or other type of employment termination program to a group of employees, the employees must receive a full explanation of the terms of the program and at least 45 days to consider whether to participate in the program. In this case, the waiver must also include additional detailed information including the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or orga- nizational unit who are not eligible or selected for the program.