Employment Law Center

E-Verify Self Check is Active

2012-02-09T12:23:00.000-06:00

USCIS announced today that Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status, is now available nationwide.

In conjunction with this announcement, USCIS will be hosting a national stakeholder engagement on Self Check, February 9 at 3:00pm Eastern Time. During the session, USCIS will describe and demonstrate the service, discuss its performance, and debut the new Self Check webpages and promotional materials.

For information, visit: www.uscis.gov/SelfCheck

NLRB General Counsel Wants More Power

2012-01-23T07:24:00.002-06:00

NLRB Announces:

"Citing concerns about delays in processing grievances through parties’ contractual grievance-arbitration procedures, NLRB Acting General Counsel Lafe Solomon has proposed that the Board consider revising the existing policy of deferring charges to arbitration in certain circumstances.

When it is anticipated that charges alleging violations of Section 8(a)(1) and (3) – which include discharges or other discrimination based on union activities -- will not be resolved or arbitrated within a year, Acting General Counsel Solomon would urge that the Board not defer the case, but rather decide the case on the merits. He would also apply the new policy to cases that have already been deferred for more than one year. Mr. Solomon specifically targeted cases involving issues of unlawful discrimination and interference with workers’ protected rights because they are significant and uniquely within the Board’s expertise.

In a memo issued today, Acting General Counsel Solomon directed Regional staff to investigate whether there are significant backlogs or other probable delays in the grievance-arbitration process before making a determination to defer a case alleging Section 8(a)(1) and (3) violations. If the arbitration of this claim is likely to be delayed by more than a year, the Region should not defer the matter to the grievance-arbitration process. Instead, it should fully investigate the charge and, if meritorious, send the case to the Division of Advice at NLRB headquarters for further action. Regional offices should also regularly monitor deferred cases, and, if the case has not been arbitrated or resolved within a year, the Region should consider the parties’ positions and submit the case to the Division of Advice if it determines that the case is meritorious or that continued deferral is appropriate based upon the circumstances of that particular case.

This directive applies only to union workplaces where grievance-arbitration procedures are spelled out in a collective-bargaining agreement. It applies to all pending cases, including those that have already been deferred for more than a year. The directive will not apply to typical Section 8(a)(5) cases, which often involve allegations of contractual violations, that are normally better left to resolution through arbitration.

The National Labor Relations Board has a long-standing policy to defer charges made by employees to the parties’ grievance-arbitration procedures contained in a collective bargaining agreement, as long as certain conditions are met. Deferral of cases has been done in order to promote collective bargaining and the private resolution of disputes, presumably more quickly than through the NLRB’s administrative process. The Board later reviews the resulting arbitration decision to ensure that it meets certain standards.

The Acting General Counsel’s goal, as described in the memo, is to ensure a prompt resolution of disputes in those cases in which backlogs hold up the process for many years. Acting General Counsel Solomon wrote, “Excessive delays can render enforcement of a Board order ‘pointless and obsolete.’ The circumstances may have changed so much at the job site that by the time a Board order issues it would be impossible to effect meaningful compliance, and the Charging Party would be left without a remedy. This lack of a remedy can erode public respect and confidence in the law.”"

Pepsi Pays for Conducting Criminal Background Checks

2012-01-18T07:33:00.002-06:00

Pepsi has paid a total of $3.13 million and agreed to make job offers to rejected candidates to resolve a charge of race discrimination filed by the EEOC where they allege that Pepsi's use of criminal background checks resulted in disparate impact against minorities.

The EEOC alleged that more 300 African Americans were adversely affected when Pepsi used criminal background as a reason to disqualify candidates. Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense.

The EEOC alleged that it was not job related for Pepsi to screen out dock worker applicants for non violent offenses, and that if applicants are convicted thieves, forgers and the like, they should not have been excluded. “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII,” said Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office. “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”

http://eeoc.gov/eeoc/newsroom/release/1-11-12a.cfm

NLRB Filled with Recess Appointments

2012-01-04T16:29:00.001-06:00

President Obama today announced his intent to recess appoint the following three individuals to serve as Members of the National Labor Relations Board.

Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.

Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.

The last day of Member Craig Becker’s service was Tuesday, Jan. 3. With the expiration of his appointment, the Board dropped to two members, Chairman Mark Gaston Pearce and Member Brian E. Hayes. The Board was last at its full five-member strength in August of 2010.

http://nlrb.gov/news/white-house-announces-recess-appointments-three-fill-board-vacancies

NLRB Delays Posting Requirement Again

2011-12-28T07:51:00.002-06:00

The National Labor Relations Board has postponed its employee rights notice-posting rule due to a legal challenge in the federal court in Washington, DC. The new implementation date is now April 30, 2012.

The posting requirement required employers to post the 11-by-17-inch notice communicating an employee's right to organize.

NLRB Modifies Election Procedure

2011-12-21T13:49:00.002-06:00

Refer to the prior post for the details, but the NLRB has voted to finalize the quickie election rules. According to the NLRB, those rules:

■Amend § 102.64 to expressly construe Section 9(c) of the Act and to state that the statutory purpose of a pre-election hearing is to determine if a question of representation exists.

■Amend § 102.66(a) and eliminate § 101.20(c) (along with all of Part 101, Subpart C) to ensure that hearing officers presiding over pre-election hearings have the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation.

■Amend § 102.66(d) to afford hearing officers presiding over pre-election hearings discretion over the filing of post-hearing briefs, including over the subjects to be addressed and the time for filing.

■Amend §§ 102.67 and 102.69 to eliminate the parties’ right to file a pre-election request for review of a regional director’s decision and direction of election, and instead to defer all requests for Board review until after the election, when any such request can be consolidated with a request for review of any post-election rulings.

■Eliminate the recommendation in § 101.21(d) (as stated, along with all of Part 101, Subpart C) that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review.

■Amend § 102.65 to make explicit and narrow the circumstances under which a request for special permission to appeal to the Board will be granted.

■Amend §§ 102.62(b) and 102.69 to create a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and to provide that Board review of regional directors’ resolution of such disputes is discretionary.

■Eliminate part 101, subpart C of Board regulations, which is redundant.

■The remainder of the amendments merely conform other sections of the Board’s Rules and Regulations to the eight amendments described above.

See: http://www.nlrb.gov/node/3240

NLRB Moves Forward on Elements of Quickie Elections

2011-12-13T12:36:00.004-06:00

In June 2011, the National Labor Relations Board (“Board”) published a Notice of Proposed Rulemaking which proposed comprehensive changes to the way union elections proceedings will occur.

On November 30, 2011, the Board voted 2-to-1 to move forward with some, but not all, of the amendments to the election procedure. Specifically, the Board intends to draft a final rule that contains six procedural amendments. Generally, the rules revise the process for union representation elections and shortens the time from filing an election petition until the actual vote is held. Some of the major amendments:

Post Election Hearings: The new rules would give the hearing officer authority to limit pre-election hearings to only address questions of representation that must be resolved prior to an election—for instance, to determine whether a petition has been filed in a unit appropriate for collective bargaining.

Appeals: The Board’s current rules require parties to file separate appeals to seek Board review of pre-election issues and issues concerning the conduct of the election, respectively. Because appeals concerning pre-election issues must be filed before the election, and are often subsequently mooted by the results of the election, the Board determined that review of potentially moot issues is a waste of Board resources. The new rule therefore consolidates the two appeals into a single post-election procedure.

Consolidation of Appeals: Under the current rules, the ability to seek resolution of pre-election issues not only enables employers to clarify vital issues, but in the process, also provides employers with more opportunities to educate employees on the issues of unionization. History clearly demonstrates that the shorter the time frame between the filing of an election petition and the actual secret ballot vote, the more likely it is that the union wins the election. Employers who have more time to educate their workforce are far more likely to help employees realize that having a union is often not what they are led to believe during the extended stealth campaigns conducted by organizers before an election petition is filed. The elimination of the pre-election appeal would serve to limit the time in which employers have to educate affected employees prior to an election.

 Quickie Elections: Along these same lines, the new rules would end the practice of delaying the scheduling of elections to permit time for a pre-election appeal. By eliminating the pre-election appeal, the new rule similarly removes language in the current rules that states that a vote cannot be held sooner than 25 days after the regional director issues a Direction of Election.

The new rules also clarify that the standard for seeking permission to appeal to the Board requires a showing of extraordinary circumstances on an issue that would otherwise evade review. They provide hearing officers with the discretion to determine if and when a party may file a post-hearing brief. Finally, the new rules would make Board review of a regional director’s or judge’s resolution of post-election disputes discretionary after both stipulated and directed elections.

The Board did not vote on some of the more controversial of the proposed amendments, which included:

 Requiring that a hearing be held within seven (7) days after service of the notice that the union filed a representation petition;

 Permitting the union’s petition to be filed electronically, as opposed to the current requirement that it be filed by hand or regular mail;

 Requiring the employer prepare a position statement no later than the date of the hearing, and precluding the employer from raising any issues omitted from the position statement;

 Requiring the employer to include employee e-mail addresses and telephone numbers on the voter eligibility list.

DOT Bans Hand Held Cell Phone Use

2011-12-05T08:04:00.003-06:00

U.S. Transportation Department has announced a final rule prohibiting interstate truck and bus drivers from using hand-held cell phones while operating their vehicles. The rule is the latest action by the U.S. Department of Transportation to end distracted driving.

"When drivers of large trucks, buses and hazardous materials take their eyes off the road for even a few seconds, the outcome can be deadly," said Transportation Secretary Ray LaHood. "I hope that this rule will save lives by helping commercial drivers stay laser-focused on safety at all times while behind the wheel."

The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver's commercial driver's license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000. Approximately four million commercial drivers would be affected by this final rule.

While driver distraction studies have produced mixed results, FMCSA research shows that using a hand-held cell phone while driving requires a commercial driver to take several risky steps beyond what is required for using a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a crash or other safety-critical event.

The final hand-held cell phone ban rule can be accessed here:

http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/rule-programs/rule_making_details.aspx?ruleid=347

NLRB Member Hayes Considers Resgination to Defeat Quick Elections

2011-11-23T07:21:00.002-06:00

Lone NLRB Republican Brian Hayes has suggested he may resign. His resignation would effectively make the NLRB short of members which is need to take action on such items as the quickie election rule.

Interesting and desparate times.

See: http://lrionline.com/breaking-member-pearce-letter-to-hayes-reports-hayes-is-considering-resigning

EEOC Posts Record Charges and Settlements

2011-11-22T07:49:00.003-06:00

The U.S. Equal Employment Opportunity Commission (EEOC) finished fiscal year 2011 with a record number of charges and the highest amount in administrative settlements, the agency reported in its annual Performance and Accountability Report.

The EEOC received a record 99,947 charges of discrimination in fiscal year 2011, which ended Sept. 30, the highest number of charges in the agency’s 46-year history. EEOC staff also delivered historic relief through administrative enforcement—more than $364.6 million in monetary benefits. This is also the highest level obtained in the Commission’s history. The fiscal year ended with 78,136 pending charges—a decrease of 8,202 charges, or ten percent. In previous years, the pending inventory had increased.

At the end of the fiscal year, there were 580 systemic investigations involving more than 2,000 charges under way. EEOC field legal units filed 261 lawsuits—23 of which involved systemic allegations affecting large numbers of people; 61 had multiple victims (less than 20); and 177 were individual lawsuits.

The EEOC’s private sector national mediation program also achieved historic highs, obtaining more than $170 million in monetary benefits for complainants, and securing the highest number of resolutions in the history of the program—9,831. This is five percent more than the number of resolutions reported in fiscal year 2010.

In the federal sector, where the EEOC has different enforcement obligations, the Commission resolved a total of 7,672 requests for hearings, securing more than $58 million in relief for parties who requested hearings. It also resolved 4,510 appeals from final agency determinations.

The EEOC’s FY 2011 report is posted on the agency’s web site at http://www.eeoc.gov/eeoc/plan/index.cfm.

See also:

http://eeoc.gov/eeoc/newsroom/release/11-15-11a.cfm
http://www.shrm.org/hrdisciplines/employeerelations/articles/Pages/ChargesFiledwithEEOCHitRecord.aspx

NLRB Sets November 10 to Adopt Quickie Election Rules

2011-11-21T07:09:00.002-06:00

The NLRB is now rushing to adopt its quickie election procedures which would allow only 10 from the date of an election petition for employees to vote on union representation. In addition, the proposals would take away an employers ability to communicate with employees, allow unions greater access to workers, and allow union's to slice workforces into multiple smaller units.

http://www.nlrb.gov/news/nlrb-sets-vote-portions-proposed-election-rule

Bill Introduced to Fight NLRB Election Proposal

2011-11-21T07:00:00.002-06:00

A bill to shore up the election process in the National Labor Relations Act has been introduced in the House under H.R. 3094. The bill ensures at least 35 days of education prior to the a union election as opposed to the 10 days under the Board proposed rules. The bill has 37 cosponsors.

http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.3094:

http://www.uschamber.com/issues/letters/2011/letter-supporting-hr-3094-%E2%80%9Cworkforce-democracy-and-fairness-act%E2%80%9D

H-1B Cap Close to Full

2011-11-03T10:38:00.001-05:00

50,000 of the eligible 60,000 H-1Bs have been utilized through the end of October. At this pace, all eligible H-1s will be used before the end of the year. Those employers wishing to file for H-1 for a candidate will need to make any filing soon to be eligible.

See:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD

Taxation of Cell Phones Clarified

2011-11-02T07:21:00.002-05:00

The IRS has issued a guidance clarifying that cell phones provided for primarily non compensable business use and which are occasionally used for personal purposes are not considered income.

See the guidance at:

http://www.irs.gov/pub/irs-drop/n-11-72.pdf

Unions Must Disclose Less Information

2011-11-01T07:21:00.002-05:00

The Department of Labor’s Office of Labor-Management Standards (OLMS) published a final rule revising the Form LM-30 Labor Organization Officer and Employee Report.

Pursuant to section 202 of the Labor-Management Reporting and Disclosure Act (LMRDA), the Department established the Form LM-30, which is intended to make public any actual or likely conflict between the personal interests of union officers and employees and their obligations to the union and its members. These conflicts concern payments, interests, and transactions involving: (1) the employers whose employees the union represents or actively seeks to represent; (2) vendors and service providers to such employers, the official’s union, or union’s trust; and (3) other employers from which a payment could create a conflict.

In a gift to union's, the new rule shortens the form from nine to two pages, and effectuates the following changes:

Union shop stewards, as a general rule, are not required to file the form;
Union leave and no docking payments (i.e., payments to union officials, who are also employees of the employer, for work done for the union on employer time) are not required to be reported;
Bona fide financial transactions with credit institutions, including loans, are not reportable;
Payments from employers competitive to the represented employer are reportable only if they represent an actual or likely conflict, and payments from unions and their trusts are not required to be reported; and
International, national, and intermediate union officers have a continuing obligation to report potential conflicts regarding locals and other subordinate unions (referred to as “top-down reporting”).

This rule takes effect on November 25, 2011. The changes made to the Form LM-30 reporting requirements will apply to reports required by union officials with fiscal years beginning on or after January 1, 2012.

http://www.dol.gov/olms/regs/compliance/LM30_finalrule.htm

http://www.shrm.org/LegalIssues/FederalResources/Pages/RevisedLM30.aspx

NLRB Posting Postponed

2011-10-06T06:33:00.002-05:00

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule until Januanry 31, 2012. According to the Board, this delay is intended to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

The jurisdiction requirement is based upon interstate commerece rather than an employee number requirement. Under this analysis, most private sector employers will be required to post the 11-by-17-inch notice. and printing or ordering a print by mail.

http://nlrb.gov/news/posting-employee-rights-notice-now-required-jan-31-board-postpones-deadline-allow-further-educa

Labor Board Loses One Member

2011-09-07T07:03:00.003-05:00

Knowing that she could not be confirmed for a new term, National Labor Relations Board Chairman Wilma B. Liebman, who has served on the Board for nearly 14 years, will leave the agency at the completion of her third term at midnight today, August 27.

Chairman Liebman was first appointed to the Board by President Bill Clinton and was confirmed by the Senate in 1997. She is the third longest serving member in the Board’s 76-year history, and as a long standing union lawyer and outspoken advocate for unions, possibly one of its most controversal even to the end as Chairman Liebman said the goal of the Board was to "help to build a middle-class society."

The White House has designated Member Mark Gaston Pearce to be Board Chairman upon Chairman Liebman’s departure. Member Pearce has served on the Board since 2010, and was confirmed by the Senate to a term that ends on August 27, 2013. Previously, he served as a member of the New York State Industrial Board of Appeals and was a founding partner of the Buffalo, NY law firm of Creighton, Pearce, Johnsen and Giroux. He worked as an attorney and district trial specialist for the NLRB from 1979 to 1994.

The NLRB is comprised of five members, three from the controlling party and two from the opposing party. Liebman's departure leaves three members, two Democrats and one Republican. The term of Board member Craig Becker, a Democrat and former AFL-CIO lawyer, will expire at the end of 2011. As part of the current activist Board which has the attention of Republicans, it is unlikely that Becker can be confirmed. This may leave the Board with two members and the inability to make decisions.

http://nlrb.gov/news/chairman-liebman-departs-nlrb-third-term-ends-member-pearce-designated-new-chairman

http://www.shrm.org/Publications/HRNews/Pages/LaborBoardChairTermExpires.aspx

Employer Pays 4.2 Million for Immigration Errors

2011-08-04T14:13:00.003-05:00

The U.S. Department of Labor has entered into a settlement agreement with Maryland's Prince George's County Public Schools system whereby the school must pay $4,222,146 in back wages due 1,044 workers to resolve violations of the H-1B temporary foreign worker program.

Under the program, foreign workers must be paid at least as much as US workers. In addition, the H-1B visa program requires that employers pay certain fees, including an anti-fraud fee and a filing fee, when they utilize the program. Instead of paying these fees and other costs associated with recruiting H-1B workers and filing their visa petitions, PGCPS required the foreign workers to pay them. As a result, the workers' earnings were reduced below the amount legally required to be paid.

http://www.dol.gov/opa/media/press/whd/WHD20110996.htm

4000 I-9 Audits - Fines total $7million

2011-08-04T10:56:00.001-05:00

Nationally, from fiscal year 2009 to date, ICE has initiated Form I-9 inspections against nearly 4,000 businesses resulting in fines of nearly $7 million.

http://www.ice.gov/news/releases/1107/110721boston.htm

No Fault Attendance Plans Face EEOC Scrutiny

2011-08-03T07:33:00.003-05:00

According to an EEOC press release:

Telecommunications giant Verizon Communications is paying $20 million to resolve a nationwide class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The suit, filed against 24 Verizon Communications alleges the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans.

The agreement represents the largest disability discrimination settlement in a single lawsuit in EEOC history. The EEOC charged that Verizon violated the Americans With Disabilities Act (ADA) by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.

The agreement points the way for company policies which do provide any "points" for employees who are disabled and thus a free pass. This, in combination with previous agreements with Sears suggest the EEOC is moving a direction where disabled individuals are not responsible for attendance.

In fiscal year 2010, private sector workplace discrimination charge filings with the EEOC hit an unprecedented level of 99,922, which included a record-high number of disability charges (25,165) – an increase of 17.3 percent in disability charges over the prior fiscal year.

See http://www.eeoc.gov/eeoc/newsroom/release/7-6-11a.cfm

NLRB Hears Testimony on Election Proposal

2011-07-26T12:31:00.003-05:00

The National Labor Relations Board heard testimony on July 18 and 19 of its proposed rules to speed up the election process. The new rules would bump up elections to within 10 days of the date of petition and establish a system which prevents employers from communicating with employees. Union leaning NLRB members have made it clear that their sole purpose is to allowing unions to gain recognition rights far more easily. SHRM and the US Chamber spoke against the proposals.

http://www.shrm.org/LegalIssues/EmploymentLawAreas/Pages/LaborBoardHearsBoth.aspx

To view the proposed regulations:
http://www.gpo.gov/fdsys/pkg/FR-2011-06-22/pdf/2011-15307.pdf

EEOC Suggests Two Medical Files

2011-07-19T07:37:00.003-05:00

In a letter by EEOC counsel Peggy Mastroianni, the EEOC has suggested that Employers must maintain two separate medical files and that an employers access to medical information in the employer maintained medical file may result in an ADA or GINA violation.

Under the inquiry, the EEOC was asked "whether maintaining an employee’s personal health information and occupational health information1 in a single Electronic Medical Record (EMR) violates the requirements of Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA)."

According to the EEOC "There seems to be no basis for distinguishing between this situation and others that the Commission clearly has said would be disability-related inquiries, such as where an employer asks an employee or an employee’s doctor to provide documentation about a disability or searches through an employee’s belongings for the purpose of uncovering information about a disability.

Once an individual begins working, an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity. 29 C.F.R. at §1630.14(c). Generally, this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perform the job or will pose a direct threat due to a medical condition. Medical information also may be obtained to determine whether an employee with a non-obvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave, such as leave under the Family and Medical Leave Act or under the employer’s own sick leave policy. In all of these instances, however, the information sought must be limited in scope. For example, an employer cannot ask for, or view, an employee’s complete medical record because it is likely to contain information unrelated to the need to make an employment-related decision."

To view the article: http://www.eeoc.gov/eeoc/foia/letters/2011/ada_gina_confidentrequre.html

Board Seeks Advantage for Unions

2011-06-21T09:31:00.004-05:00

The National Labor Relations Board has announced that it will publish in the Federal Register tomorrow a Notice of Proposed Rulemaking. While the Board claims the rule making will be intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications; it appears the focus and intent is to dramatically shorten the time period for labor elections and therefore, give unions an advantage in union elections.

The union friendly rules would:

■ Allow for electronic filing of election petitions and other documents.

■ Require employers exchange greater information to unions they in the representation case process.

■ Force tight timeframes for litigation of issues before and after elections.

■ Require employers to identify issues and describe evidence soon after an election petition is filed.

■ Defer litigation of most voter eligibility issues until after the election.

■ Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.

■ Consolidate all election-related appeals to the Board into a single post-election appeals process.

■ Make Board review of post-election decisions discretionary rather than mandatory.

The Board has stated that this process is intended to remove unfair rules. While the current system produces an election win for unions and employers equally at 50%, what the Board really seeks is that the system is not fair and to allow unions to take over workforces even where it is not earned nor desired by the workforce, and to eliminate employer legal options to make sure the process is balanced.

Board Member Brian Hayes dissented from the proposed rulemaking. In his opinion,

"The Board and General Counsel are consistently meeting their publicly-stated performance goals under the current representation election process, providing an expeditious and fair resolution to parties in the vast majority of cases, less than 10 percent of which involve contested preelection issues. Without any attempt to identify particular problems in cases where the process has failed, the majority has announced its intent to provide a more expeditious preelection process and a more limited postelection process that tilts heavily against employers’ rights to engage in legitimate free speech and to petition the government for redress. Disclaiming any statutory obligation to provide any preliminary notice and opportunity to comment, the majority deigns to permit a limited written comment period and a single hearing when the myriad issues raised by the proposed rules cry out for far greater public participation in the rulemaking process both before and after formal publication of the proposed rule. The majority acts in apparent furtherance of the interests of a narrow constituency, and at the great expense of undermining public trust in the fairness of Board elections."

See the article in the New York Times: http://www.nytimes.com/2011/06/22/business/22labor.html?_r=1

Employees Track Their Own Time

2011-05-31T09:22:00.002-05:00

The Department of Labor has created yet another reason for employers to have strict policies and thorough systems to track work time. In a an initiative intended to touch the technology savvy employee, the DOL announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed.
Available in English and Spanish, users track their work hours, break time and any overtime hours.
Additionally, through the app, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.
This new technology is significant because, instead of relying on their employers' records, the DOL is likely to choose the hours selected by workers which prove different from employer records.
The free app is currently compatible with the iPhone and iPod Touch. The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

To see the press release: http://www.dol.gov/opa/media/press/whd/WHD20110686.htm

The New Affirmative Action Obligation of Hospitals

2011-04-15T16:03:00.002-05:00

The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”), the agency that enforces affirmative action regulations, has grown increasingly aggressive in its attempt to expand its jurisdiction over health care employers.
Since November, the OFCCP’s jurisdiction over hospitals has broadened following OFCCP v. Florida Hospital of Orlando, where an Administrative Law Judge (“ALJ”) held that a hospital that subcontracts to provide medical services to TRICARE beneficiaries is a federal subcontractor subject to affirmative action laws. In that case, Humana Military Healthcare Services, Inc. (“HMHS”), held a contract with TRICARE Management Activity of the Department of Defense (“TRICARE”) to establish a healthcare provider network for beneficiaries under the program. The Florida hospital was a “participating hospital” in that network. The ALJ concluded that TRICARE, like the HMO contract in Braddock, is a program to provide actual medical services, as opposed to medical insurance like in Bridgeport. Consequently, by providing medical services to TRICARE’s beneficiaries, the hospital was deemed to be a subcontractor because its services were necessary to the performance of TRICARE’s contract with HMHS.
The Florida Hospital decision essentially imposes affirmative action obligations on any hospital or medical practice that receives more than $50,000 annually for medical services performed under a TRICARE contract. This decision, coupled with the 2009 Braddock decision, reflect the OFCCP’s continued efforts to expand affirmative action laws to more healthcare employers.
Hospitals should therefore review any TRICARE or similar contracts to ascertain whether they have affirmative action obligations.

USCIS Annouces Final I-9 Rule

2011-04-15T10:12:00.000-05:00

U.S. Citizenship and Immigration Services (USCIS) today announced a final rule that adopts, without change, an interim rule to improve the integrity of the Employment Eligibility Verification (Form I-9) process. USCIS received approximately 75 public comments in response to the interim rule, which has been in effect since April 3, 2009. The main changes made by the interim rule and adopted by the final rule include: prohibiting employers from accepting expired documents; revising the list of acceptable documents by removing outdated documents and making technical amendments. The final rule will be published in the Federal Register tomorrow and will be available at www.uscis.gov The final rule is effective on May 16, 2011.

Supreme Court Decides Cat's Paw Theory

2011-03-02T08:28:00.003-06:00

On March 1, 2011, the United States Supreme Court issued an opinion in Staub v. Proctor Hospital and in an 8-0 decision ruled in support of what is called the “cat's paw” theory of employer liability. Under this theory, an employer is liable if a supervisor, who is not charged with making the ultimate adverse employment decision, performs an act motivated by discriminatory animus, and that act influences the ultimate decision. The “cat’s paw” theory received its name from a fable conceived by Aesop and put into verse in the 17th Century by Jean de La Fontaine. In the fable, which is described in the Supreme Court opinion, “a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.” See the decision at: http://www.supremecourt.gov/opinions/10pdf/09-400.pdf

Board Allows Organizing at Catholic College

2011-02-11T13:18:00.002-06:00

Manhattan College in New York is appealing a decision by a Regional Director of the National Labor Relations Board in which the regional director ruled that that Catholic college was not sufficiently Catholic or with enough religious purpose as to disallow union organizing by adjunct professors. Elbert Tellem, the NLRB's Acting Regional Director, determined in the matter that the College's Catholic mission is not central to the school's mission, and therefore not exempt. Should the Labor Board agree, a significant number of religious based employers could be opened up to potential union organizing.

http://www.mancol.edu/news/news_releases/011211_1.shtml

ICE Announces I-9 Compliance Center

2011-02-04T13:00:00.003-06:00

In an announcement on January 20, ICE Director John Morton announced the creation of an employment compliance inspection center in Crystal City, Virginia. The center will be home to 15 auditors who will support ICE's worksite enforcement strategy by helping agency field offices around the country expedite Form I-9 audits of businesses selected for inspection by ICE. From fiscal year 2009 to date, ICE has initiated Form I-9 inspections against 3,769 businesses across the nation. This move demonstrates ICE's commitment to more workplace enforcement.

http://www.ice.gov/news/releases/1101/110120washingtondc.htm

H-1B Cap is Reached

2011-01-28T07:51:00.000-06:00

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.
Read the News Update.

H-1B Cap Close to Full

2011-01-21T07:53:00.003-06:00

The USCIS has reported that 62,000 of the 65,000 available H-1B VISAs have been submitted under this year's cap. This means the window on any filings will close very soon.

In addition, it should be noted that fees for filing have been adjusted by the agency over the last year.

The following fees may be required with a cap-subject petition:

Base filing fee: $325
American Competitiveness and Workforce Improvement Act fee: $750 for employers with 1 to 25 employees and $1,500 for employers with 26 or more employees
Fraud Prevention and Detection fee: $500
Premium Processing fee: $1,225

To view the USCIS announcement: http://www.aila.org/content/fileviewer.aspx?docid=31829&linkid=227888

All Categories of EEO Charges Increase

2011-01-20T10:01:00.003-06:00

The U.S. Equal Employment Opportunity Commission (EEOC) announced in its report of charges for fiscal year 2010 that charges filed against private sector employers hit an unprecedented level of 99,922 charges. This was an increase in every charge category and for the first time ever, retaliation charges became the number one charge filed with the agency.

The federal agency ended FY 2010 with 86,338 pending charges. In the year, the EEOC filed 250 lawsuits, resolved 285 lawsuits, and resolved 104,999 private sector charges.

Not surprisingly, the EEOC secured more than $404 million in monetary benefits from employers -- the highest level of monetary relief ever obtained by the Commission.

The FY 2010 enforcement statistics, which includes trend data, can be found at:

http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm

E-Verify System Increasing in Accuracy

2011-01-19T08:54:00.002-06:00

The U.S. Citizenship and Immigration Services (USCIS) recently conducted a a customer satisfaction survey with regard to the E-verify system. In addition, the Government Accountability Office (GAO) has also recently completed an E-Verify report.
Both sources of information suggest a reduction of mismatch rates, greater employer compliance, and establishing better safeguards for employees’ personal information.
On the customer survey, E-Verify received a customer satisfaction score of 82 out of 100 and it was rated highest for customer support, which received a score of 89.
More than 243,000 employers representing more than 834,000 worksites currently use E-Verify. On average, 1,000 new employers enroll each week. In FY 2010, the E-Verify Program ran more than 16 million queries.
The E-Verify customer survey is available for review at http://www.uscis.gov/USCIS/E-Verify/E-Verify/e-verify-satisfaction-report-10-15-10.pdf. To read GAO’s report, as well as USCIS’s response to the GAO report, please visit http://www.gao.gov/new.items/d11146.pdf.

EEOC Alleges Use of Credit History Discriminates Because of Race

2011-01-03T11:41:00.005-06:00

The EEOC has alleged in a new complaint that Kaplan Higher Education Corporation, a nationwide provider of postsecondary education, engaged in a pattern or practice of unlawful discrimination when it used credit histories as a basis for rejecting certain job applicants. According to the agency, the use of credit checks amounted to refusing to hire a class of black job applicants nationwide.

Since 2008, Kaplan has used credit history as a method to screen job applicants. The complaint alleges that this practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity.

The EEOC claimed that use of a job applicants’ credit history is arbitrary. According to Regional Attorney Debra Lawrence “Title VII of the Civil Rights Act of 1964 was intended to eliminate practices that serve as arbitrary barriers to employment because of a job applicant’s race. Employers need to be mindful that any hiring practice be job-related and not screen out groups of people, even if it does so unintentionally.”

The complaint follows the EEOC's recent comission meeting and fact sheet on the topic.

To view the press release:

http://www.eeoc.gov/eeoc/newsroom/release/12-21-10a.cfm

NLRB Announces Unprecedented Remedies

2010-12-22T08:05:00.003-06:00

In a effort that can only be as unprecedented in the history of American Labor Law, Acting General Counsel Lafe Solomon of the National Labor Relations Board sent a memorandum out to Regional Directors making the case and directing the Regions to pursue unique and dramatic remedies in the Unfair Labor Practice Charges.

Under the General Counsel's theory, the reason for the decline of the labor movement is a lack of access to employees, and in the case where an unfair labor practice occurs, the effect is so dramatic as to make organizing nearly impossible. So, says the Mr. Solomon, remedies must be established which require employers to stand before their employees explaining their bad acts, and allows unions to enter employer property to present their case in front of employees, and explain how bad the employer has been and the benefits of organizing.

According to the General Counsel, "If a Region determines that an employer’s unfair labor practices have had such a severe impact on employee/union communication that bulletin board access and names and addresses are insufficient to permit a fair election, it should submit the case to the Division of Advice with a recommendation as to why additional remedies are warranted, including:

granting a union access to nonwork areas during employees’ nonwork time;
giving a union notice of, and equal time and facilities for the union to respond to, any address made by the
company regarding the issue of representation; and
affording the union the right to deliver a speech to employees at an appropriate time prior to any Board election.

These remedies may be warranted where an employer makes multiple
unlawful captive audience speeches or where the employer is a recidivist and has shown a proclivity to violate the Act."

To view the NLRB release, see:
http://www.nlrb.gov/shared_files/Press%20Releases/2010/R-2805.pdf

NLRB Seeks to Require Non Union Employees to Commuinicate Unionization Option

2010-12-21T16:14:00.002-06:00

The National Labor Relations Board has proposed a rule which would require all employers to notify employees of their rights to organize a union under the National Labor Relations Act.
The Board has stated in the notice that it “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”
The posting proposed by the Board does not stop at the company bulletin Board. If an employer communicates with employees primarily by email or other electronic means, the notice would have to be posted electronically as well.
The proposed notice is similar to one recently finalized by the U.S. Department of Labor for federal contractors. It states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.
As a proposed rule, the public may comment for a period of 60 days.
A fact sheet and further information about the proposed rule is available here.
The press release can be found at:
http://www.nlrb.gov/about_us/news_room/template_html.aspx?file=http://www.nlrb.gov/shared_files/Press%20Releases/2010/R-2806.htm

NLRB Looking to Grant Unions Access to Private Property for Handbilling

2010-12-16T13:20:00.007-06:00

The National Labor Relations Board has signaled its likely intent to allow non employees access to provide property for union activity when it inviting anyone to file briefs regarding the question of "what legal standard the Board should apply in determining whether an employer has violated the Act by denying nonemployee union agents access to its premises while permitting other individuals, groups, and organizations to use its premises for various activities."

In the matter before the Board, a local council of construction unions in the Milwaukee area was protesting that the Pick N Save grocery had constructed new stores and expanded or remodeled existing stores by using nonunion contractors. The Council claimed that the reason for the concern was that using contractors who pay less than prevailing wages and benefits undercuts and jeopardizes the wages and benefits collectively bargained by their member unions.
Pick N Save leased the majority of its locations whereby the landlord agrees to construct and remodel stores to it’s specifications. Pick N Save, however, retained the authority to approve the contractors selected to perform the work.
The council of union began a campaign of handbilling at Respondent’s retail stores where they distributed informational handbills in front of 26 of Respondent’s stores and on Pick N Save's private property. No picketing occured and the handbilling was peaceful.
As would be expected, Pick N Save contacted the police to expel the handbillers, and citations were issued.
The handbills asked consumers not to patronize Pick N Save, accusing them of saving money by using cheap labor to build and remodel its stores and not passing those savings on to consumers. The council suggested that consumers could achieve savings of their own by shopping at competitor stores, pointing out price differences favoring products sold by competitors. It also urged consumers to contact Pick N Save in support of the union efforts.
The parties stipulated that Pick N Save allowed solicitation and distribution of literature on private property both inside and outside its stores for at least the last three years by Salvation Army bellringers, the Boy Scouts, the Girl Scouts, the Veterans of Foreign Wars, the Shriners, the Hunger Task Force, the Red Cross and Second Harvest.

The Board's request for briefing suggests the Board is looking to expand the right of non employees to communicate union interests on private property.

To view the decision, see:

http://www.nlrb.gov/research/decisions/board_decisions/template_html.aspx?file=http://www.nlrb.gov/shared_files/Board%20Decisions/356/v35627.htm&size=251

H-1B Cap is Growing Close to Complete

2010-12-16T12:30:00.002-06:00

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations such as physicians scientists, engineers, or computer programmers.
Each year, these applications are subject to a 65,000 H-1B numerical limitation (the “cap”). Some petitions are exempt from the cap under an advanced degree exemption (which is granted an additional 20,000 applications) for a beneficiary who has obtained a U.S. master’s degree or higher.
At this point, the USCIS has received 52,000 of the potential 65,000 applications and 19,000 of the 20,000 masters degree applications.
These numbers are the petitions that USCIS has accepted for this particular type of cap. It includes cases that have been approved or are still pending. It does not include petitions that have been denied.

To view the USCIS report, see:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD

More Federal Benefits Provided to Same Sex Domestic Partners

2010-09-22T09:10:00.002-05:00

President Obama in a June 2, 2010 memorandum directed federal agencies to provide benefits to same-sex domestic partners of agency employees (and their children) at the same level as is provided to spouses (and their children). The Presidential memorandum directed HR for the federal government to make employee benefits available to same-sex domestic partners to the same extent that such benefits are available to spouses (and their children). These benefits include:

credit union membership;
access to fitness facilities;
hardship transfers to maintain or improve the health of a domestic partner to the same extent provided to opposite-sex spouses;
planning and counseling services (including briefings on employee pay and allowances, career counseling, retirement counseling, financial counseling, resource and referral services, planning sessions for permanent change of duty station, deployment support, parenting support groups, and elder care support groups);
family assistance services (including adoption counseling, parenting counseling, childcare, elder care, financial planning, and home improvements);
family and morale/wellness/recreation (MWR) events (including barbecues, golf outings, or awards ceremonies);
access to medical treatment;
access to lodging or allowances;
joint consideration of transfers; and
accidental death and dismemberment insurance.

In an effort to follow through on this directive, John Berry, the Director of from the Office of Personnel Management has announced that 24 hour leave has now been incorporated and offered to federal employees who have same sex domestic partners.

To view the announcement, see:

http://www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=3146
http://www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=2982

FAA Issues Proposed Fatigue Rules

2010-09-10T14:16:00.002-05:00

On the heals of the OSHA announcement on fatigue, the FAA has issued new proposed fatigue rules for pilots which would limit consecutive work time to 15 hours and provide for a minimum block of 30 hours off for rest every week.
See Wall Street Journal article at:
http://online.wsj.com/article/SB10001424052748703597204575483621276408024.html?mod=WSJ_hpp_MIDDLETopStories

OSHA Issues Fatigue Statement

2010-09-10T09:18:00.003-05:00

While currently the hours of work performed by an employer are not regulated by OSHA, the agency has often suggested it could enforce long hours of work as a safety issue under the general duty clause. In a statement by US Department of Labor's OSHA Assistant Secretary Dr. David Michaels, OSHA verified that it may use the general duty clause for enforcement of fatigue issues. That statement provides: "The U.S. Department of Labor's Occupational Safety and Health Administration has been petitioned by Public Citizen, a national advocacy organization, as well as other groups and individuals, to issue regulations that would limit the work hours of resident physicians. In response to the request, the assistant secretary of labor for occupational safety and health, Dr. David Michaels, today issued the following statement:"We are very concerned about medical residents working extremely long hours, and we know of evidence linking sleep deprivation with an increased risk of needle sticks, puncture wounds, lacerations, medical errors and motor vehicle accidents. We will review and consider the petition on this subject submitted by Public Citizen and others."The relationship of long hours, worker fatigue and safety is a concern beyond medical residents, since there is extensive evidence linking fatigue with operator error. In its investigation of the root causes of the BP Texas City oil refinery explosion in 2005, in which 15 workers were killed and approximately 170 injured, the U.S. Chemical Safety Board identified worker fatigue and long work hours as a likely contributing factor to the explosion. "It is clear that long work hours can lead to tragic mistakes, endangering workers, patients and the public. All employers must recognize and prevent workplace hazards. That is the law. Hospitals and medical training programs are not exempt from ensuring that their employees' health and safety are protected. "OSHA is working every day to ensure that employers provide not just jobs, but good, safe jobs. No worker, whether low-skilled and low-wage, or highly trained, should be injured, or lose his or her life for a paycheck."Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to assure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. "

20 Most Influential ADA Cases

2010-09-09T09:55:00.003-05:00

In celebrating 20 years of the ADA, the EEOC has self promoted what the agency believes are the 20 most important cases brought by the agency since the inception of the Act.

The 20 cases can be found at:

http://www.eeoc.gov/eeoc/history/45th/ada20/ada_cases.cfm

Unions are Disfavored by Americans

2010-08-31T10:20:00.002-05:00

In part of a 70 year decline of American attitudes toward unions, a new Gallup survey reports that American approval of unions remain at a near record low.

In addition, 40% of Americans say unions should have less power, while 29% say it should be greater.

To review the survey, see:
http://www.gallup.com/poll/142007/Americans-Approval-Labor-Unions-Remains-Near-Record-Low.aspx

Health Care Employers Targeted by Employment Law Trends

2010-08-31T08:41:00.001-05:00

As if the recent barrage of changes brought about by health care reform legislation wasn’t enough, the health care industry is also the target of a number of changes in the area of employment law. As the Obama administration takes hold in the various agencies, the Department of Labor (DOL), the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs (OFCCP) have taken an approach to health care employers which presumes that employers are to be distrusted and are out to take advantage of the workforce. The theory seen over and over again is that only through strict government control can employers be expected to treat employees with respect.

While it is has yet to be demonstrated whether or not the administration will accomplish the dramatic changes it desires, change is occurring. In the last few months, the following have been observed:

Wage and Hour

In the effort to bring about stimulus to the economy, the DOL was granted significantly more funds for enforcement. With the new funds and new investigators, the Wage and Hour Division of the U.S. Department of Labor has announced several initiatives nationwide which target health care employers. These initiatives are triggered by the perception from the DOL that health care is a low wage industry and lists the industry along with agriculture, day care, garment manufacturing, guard services and temporary help.

In these initiatives, Wage and Hour has targeted health care employers for investigation on such issues as:

Meal periods interrupted by work whereby the entire meal period becomes compensable. Automatic deductions for meal periods are often the culprit in these violations.
Misclassification of employees as exempt from overtime.
Rounding practices with the time clock which end up in the employer's favor. While certain rounding is allowed, it is only allowed if the practice results in a neutral outcome.
Bonuses, incentives or call time not included in the base rate for overtime purposes.
Misclassification of workers as independent contractors rather than employees.
Off-the-clock work, such as volunteering for work or being required to volunteer for certain functions.
Pre-shift and post-shift activities which are part of the work setup or wind down, which are not compensated. This includes possible donning and doffing of protective clothing.
Failure to include time worked at multiple locations such as the hospital and affiliated clinics for the purposes of overtime.
Travel time from site to site during the workday.

The DOL recently settled an action with a Boston hospital for $2.7 million dollars to pay 700 employees lost overtime. In St. Louis, another health care employer paid $1.7 million to settle with the DOL. Likewise, in the last few months, class action lawsuits have been filed against employers in Tennessee, Illinois, New York and Florida. In California, a class action claim against Kaiser Permanente was recently settled to pay employees improperly classified as exempt, the amount of $7.5 million dollars.

Affirmative Action

In what would be a significant extension of their authority, the OFCCP has recently indicated that it desires to revise regulations governing to affirmative action for the disabled and veterans to the level currently required for affirmative action on the basis of race and gender. Under this extension of control, government contractor employers would be required to make inquires to applicants as to their disability or veteran status, take affirmative action for placement and promotion, track employee progression through the system, and establish more detailed and elaborate programs in favor of these individuals.

Union Organizing and the Employee Free Choice Act (EFCA)

Not only have unions put health care squarely in their sights for a number of years as a key target for growth, now, with a Congress and President who were elected with substantial union support, unions are seeking a payback. For this reason, the government agencies are now seeking ways which will make it easier for unions to organize the nation’s workforce, and with a particular focus on health care.

While the President and members of Congress pushed hard for the EFCA (which would strip employees of the right to vote on union representation), it fell just short. Now, with a Congress headed for what looks like a change in party control, Politico and the Washington Post have reported that an effort is underway which would provide for quick votes on such issues as the EFCA, between the date of the November election and the change in control of Congress in January. In this way, the likely-to-be-ousted Congress could pass the EFCA, leave the Congress with no alternative, and the new Congress would likely be a few votes shy of that necessary to overturn the legislation.

House members have begged Speaker Pelosi not to bring the EFCA back on the agenda prior to the election, but this lame duck vote approach seems to be the tactic which would satisfy these members facing election, and pay back the unions who are the number one contributors to the party in power.

If this doesn’t work, the newest members of the NLRB, who were just appointed this winter, have stated that they don’t need the EFCA in order to pursue major labor election reform. These members believe that they possess the right to “rule-making authority” which would allow them to significantly alter the election process in favor of unions, without Congressional approval.

In addition, a priority for the new Board has sought to narrow the definition of what is a supervisor. This effort is twofold. First, by expanding the number of employees who can be in a union bargaining unit, unions widen their net of dues-paying members. Second, when employees who are supervisory in scope are now able to be used by unions as part of an organizing drive, it provides the union with credibility it may not otherwise possess.

Lastly, the Board is doing what it can to influence the extent of damages assessed in unfair labor practice cases. The Board has historically been rational in the assessment of damages. Recently, however, the Board announced a settlement with a non-union health care employer for the discharge of two workers, in the amount of $900,000.

USCIS Announces Agency Wide Review

2010-08-10T07:48:00.001-05:00

U.S. Citizenship and Immigration Services (USCIS) has announced the results of a public survey that launched the USCIS Policy Review, an unprecedented, top-to-bottom examination of the agency’s adjudication and customer-service policies. The survey results helped USCIS select the first 10 issue areas to address in the agency-wide review.

First 10 Areas Under Review:

National Customer Service Center
Nonimmigrant H-1B (specialty occupations)
Naturalization
Employment-Based Adjustment of Status
Family-Based Adjustment of Status
Employment-Based Immigrants Preference Categories 1, 2 (priority workers, professionals and holders of advanced degrees) and 3 (skilled workers and professionals)
Refugee and Asylum Adjustment of Status
Form I-601 (Application for Waiver of Ground of Inadmissibility)
General Humanitarian Programs
Employment Authorization and Travel Documents

To develop the list, USCIS considered its operational and programmatic needs as well as a desire to represent the diversity of issue areas.

Employers Do Not Need to Accomodate Medical Marijuana

2010-07-28T11:03:00.002-05:00

Oregon is one of fourteen states which allow the prescription of medical marijuana, despite the fact that the practice is directly contrary to federal law. Consistent with several other decisions, Oregon's highest court has now ruled that employers do not have to allow the use of medical marijuana, even if allowed by state law, as federal prohibitions take priority.

The court ruling confirms what other courts have decided and which allows employers to continue policies which prohibit marijuana use. See the article in Inc Magazine at: http://www.inc.com/news/articles/2010/04/oregon-court-marijuana-ruling-favors-employers.html

Novartis Gender Case Settles

2010-07-15T12:33:00.002-05:00

In November, Novartis was the subject of the largest ever punitive damage award in the gender case. That award, $250 million.

Novartis has now settled with female field representatives who alleged gender bias in pay, promotions and pregnancy leave for $152 million.

To view the settlement, see: http://www.nylj.com/nylawyer/adgifs/decisions/071510novartis.pdf

The National Law Journal article can be found at: http://www.law.com/jsp/article.jsp?id=1202463548010&rss=newswire

Text Messages are Not Private

2010-06-18T08:55:00.003-05:00

The Supreme Court in a unanimous decision ruled that employees do not have an expectation of privacy to cell phone text messages if an employer's policies communicate to the employee a lack of that expectation. In the first case of its type, the Court looked at a public employer who audited employee cell phones and pagers for personal content in an effort to determine whether the minutes being used were business related and therefore more minutes needed to be purchased. When the employer discovered texts of an inappropriate sexual nature, an employee was discharged. The employee chose to challenge the action saying his text messages were private and therefore the city should not have reviewed the content of those texts.

This decision clearly lays out for private and public employers alike the nee to have clear and complete technology policies which allow for an employer to review content from texts, emails, web histories, voice mails and the like.
See the National Law Journal article at:
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202462788870&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20100618NLJ&kw=Justices%20sidestep%20workplace%20privacy%20in%20texting%20ruling&slreturn=1&hbxlogin=1

Supreme Court Overturns 500 Labor Board Rulings

2010-06-17T11:28:00.003-05:00

The Supreme Court has ruled that the 2 person Board which has decided many cases was not adequate under the NLRA and therefore overturned all decisions made in that manner ruling: "If Congress had intended to authorize two members alone to act for the Board on an ongoing basis, it could have said so in straightforward language." "Congress instead imposed the requirement that the Board delegate authority to no fewer than three members, and that it have three participating members to constitute a quorum."

See: http://abcnews.go.com/Business/wireStory?id=10940761

USCIS Redesigns E-Verify - Requires Training

2010-06-15T13:24:00.002-05:00

The U.S. Citizenship and Immigration Services is redesigning the E-Verify system effective June 13, 2010 for the purpose of increased accuracy and security. Following the change, users of the system will be required to participate in a short web based training session.

Employers can find out more information and prepare by visiting: www.uscis.gov/everify, under the “Customer Support” link which has a link for the “E-Verify Redesign.”

The USCIS will hold two free webinars on June 16th.

Federal Contractor Poster Requirements

2010-06-04T09:55:00.002-05:00

The poster for Federal Contractors to notify employees of their rights under federal labor laws is now available. You will find the links for these new poster obligations below: If the links don't take you directly there, cut and paste into browser.

Fact Sheet: http://www.dol.gov/olms/regs/compliance/FactSheet_LaborRightsPoster.pdf

Executive Order 13496: http://edocket.access.gpo.gov/2009/pdf/E9-2485.pdf

Final Rule Implementing Executive Order 13496: http://edocket.access.gpo.gov/2010/pdf/2010-11639.pdf

Poster (one page): http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf

Poster (two pages): http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster2page_Final.pdf

Electronic Posting: The text for the link must read, "Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers'' and it must link to this page: http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf.

Cash Keeps Weight Down

2010-06-01T11:34:00.003-05:00

A new report suggests that some cold hard cash works to encourage employees to lose weight and to keep it off. In a study by Kevin G. Volpp, MD, PhD at the LDI Center for Health Incentives at the University of Pennsylvania Medical School, results indicated that weight loss is greater and longer for those who are consistently rewarded financially to reduce weight. To view the study, see:
http://www.med.upenn.edu/ldichi/docs/issue_brief_feb_091.pdf
http://news.yahoo.com/s/ap/20100601/ap_on_he_me/us_med_dieting_for_dollars

Notification Requirements for Federal Contractors

2010-05-19T13:55:00.002-05:00

The OFCCP has announced the following:

Under a new Department of Labor regulation to be published tomorrow, beginning on June 19, 2010 Federal contractors and their subcontractors are required to post notices informing employees of their rights under the National Labor Relations Act (NLRA).
These regulations implement Executive Order 13496, signed by President Obama on January 30, 2009, and require federal contractors to agree to post the required employee notice and to agree to insert provisions in their subcontracts that require their subcontractors to post the employee notice as well. The employee notice that must be posted and the contract provisions that must be inserted into Federal contracts and subcontracts can be found at 29 C.F.R. Part 471 Appendix A.

The notice to employees, required by the new regulation, informs employees about their rights under the NLRA to form, join and assist a union, and to bargain collectively with their employer. The notice provides examples of unlawful employer and union conduct that interferes with those rights and indicates how employees can contact the National Labor Relations Board, the Federal agency that enforces those rights, with questions or to file complaints. Contractors that violate the Labor Department’s regulations requiring employee notification of these rights may be subject to sanctions, including suspension or cancelation of the contract.

Contractors and subcontractors must post the employee notice conspicuously in and around their plants and offices so that it is prominent and readily seen by employees who are covered by the NLRA and who engage in contract-related activity. In particular, contractors and subcontractors must post the notice where other notices to employees about their jobs are posted. Contractors and subcontractors who post notices to employees electronically must also post the required notice electronically, which requires posting a link to the Department of Labor’s website containing the employee notice where they customarily place other electronic notices to employees about their jobs. Where a significant portion of contractor's workforce is not proficient in English, contractors and subcontractors must provide the employee notice in languages spoken by employees, and the Department will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements.

Contractors and subcontractors may obtain the required poster in any of three ways. The Labor Department will print posters and provide them to Federal contracting departments and agencies for supply to contractors and subcontractors. Contractors and subcontractors can request posters from the Labor Department’s Office of Labor-Management Standards and OFCCP field offices, and contractors and subcontractors can download the poster from http://www.olms.dol.gov.

Class Action Claims Arbitratable Only With Express Consent

2010-05-11T11:56:00.003-05:00

The Supreme Court has determined that agreements committing a party to arbitration do not bind that party to arbitration in a class action format unless the agreement specifically provides for such. While the agreement at issue in the decision dealt with charter shipping issues, the decision confirms that in an employer/employee context, employers must seek and receive an explicit consent to arbitration of class action claims in order to bind another employee to arbitration in class claims.

http://www.supremecourt.gov/opinions/09pdf/08-1198.pdf

Accommodation Includes Transportation to Work

2010-05-11T08:02:00.002-05:00

Is an employer required to accommodate issues outside of work in order to allow an employee to perform the essential functions of the job at work? That was this issue in a 3rd Circuit case in which an employee suffering from glaucoma lost her ability to drive in the dark. As an accommodation, the employee requested that her start and end times be shifted such that she could drive to and from work in the daylight. The employer rejected the request not because the shift was necessary, but because they did not believe it to be fair to grant the special request for only one person.

The 3rd Circuit ruled that accommodation can include alteration of the shift, even if the issue accommodated is an outside transportaion matter.

To read the decision:

http://caselaw.lp.findlaw.com/data2/circs/3rd/084675p.pdf

DOL Declares Mortgage Officers Nonexempt

2010-04-27T14:00:00.002-05:00

The Wage and Hour Division has issued its first ever Administrator Interpretations letter. In the letter, the Administrator comes out squarely against previous adminstrations and the revised exemption regulations to state that Mortgage Officers are non exempt. The letter states:

"The administrative exemption is “limited to those employees whose primary duty relates ‘to the administrative as distinguished from the production operations of a business.’” 69 Fed. Reg. 22122, 22141 (April 23, 2004), quoting the 1949 Weiss Report. In other words, “it relates to employees whose work involves servicing the business itself – employees who ‘can be described as staff rather than line employees.’” Id., quoting the 1940 Stein Report. . . . Thus, a careful examination of the law as applied to the mortgage loan officers' duties demonstrates that their primary duty is making sales and, therefore, mortgage loan officers perform the production work of their employers. Work such as collecting financial information from customers, entering it into the computer program to determine what particular loan products might be available to that customer, and explaining the terms of the available options and the pros and cons of each option, so that a sale can be made, constitutes the production work of an employer engaged in selling or brokering mortgage loan products. Such duties do not relate to the internal management or general business operations of the company; they do not involve servicing the business itself by providing advice regarding internal operations, unlike the duties of employees working in, for example, a firm’s human resources department, accounting department, or research department. The typical job duties of a mortgage loan officer comprise a financial services business’ marketplace offerings, the selling of loan products. Their duties involve the day-to-day carrying out of the employer’s business and, thus, fall squarely on the production side of the business."

To review the full opinion, see:
http://www.dol.gov/whd/opinion/adminIntrprtn/FLSA/2010/FLSAAI2010_1.htm#

Health Care Costs to Increase Under New Health Law

2010-04-26T14:37:00.002-05:00

A new Center for Medicare and Medicaid services report now shows that national health care expenditures could increase by $311 billion over the next ten years under Obamacare.

From the CMS Report:

• Federal spending is curved upward "by a net total of $251 billion" over the next decade. National health spending increases by $311 billion in 2010 through 2019.
• Estimated reductions in the growth rate of health spending "may not be fully achievable" because "Medicare productivity adjustments could become unsustainable even within the next ten years, and over time the reductions in the scope of employer-sponsored health insurance could also become an issue."
• Medicare provider cuts based on economy-wide, non-farm productivity improvements result in Medicare payment rates to grow more slowly than the providers cost of furnishing services to beneficiaries which may cause providers to "end their participation in the program," and possibly jeopardize access to care for beneficiaries. According to the report 15% of all hospitals, nursing homes and other similar providers could be operating at a loss by 2019.
• The growth rate reductions from productivity adjustments (which are the source of a substantial portion of the Medicare savings in the new law) are unlikely to be sustained on an annual basis
• The other Medicare savings provisions in the bill that are intended to help control future health care cost growth will have a "negligible financial impact over the next 10 years"
• The new fees and excise taxes will "generally be passed through to health consumers in the form of higher drug and devices prices and higher premiums" and will increase national health expenditures.
• A little more than one-half of those estimated to become insured as a result of PPACA in 2019, 18 million people, would receive their coverage through Medicaid. For these individuals, the report notes that as a result of more physicians refusing to treat Medicaid patients, it is reasonable to expect that a significant portion of the increased demand for Medicaid could be difficult to meet.
• Businesses would pay $87 billion in penalties between 2014-2019.

http://johanns.senate.gov/public/?a=Files.Serve&File_id=1835930b-9e63-4300-89c7-9051c920d76a

Breaks for Expressing Milk Now Mandatory

2010-04-08T13:37:00.003-05:00

The new health insurance reform bill not only seeks to make dramatic changes to the insurance market, it also inserts substantive employee "rights" that are beginning to become uncovered. As an example, the new Patient Protection and Affordable Care Act, requires employers to provide “reasonable” breaks to nursing mothers to express milk for their infants. This provision provides:
"An employer shall provide:
a reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth; and
a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk.
This time is unpaid unless a state law says otherwise.

President Fills EEOC Vacancies As Recess Appointments

2010-04-05T10:44:00.003-05:00

The President has filled four positions with the EEOC by recess appointment: Jacqueline A. Berrien, associate director counsel for the NAACP Legal Defense and Educational Fund, will serve as chair, law professor Chai Feldblum, a Georgetown law professor will serve on the Commission, attorney Victoria Lipnic, formerly with the DOL and management defense attorney will serve on the commission and P. David Lopez, a trial attorney for the EEOC, will be promoted to general counsel.
The nominations of Berrien, Lipnic and Lopez were a bit of trade being worked out in the Senate. Feldblum has been met with strong opposition in the Senate and likely the reason for using the recess process for appointment.

http://www.whitehouse.gov/the-press-office/president-obama-announces-recess-appointments-key-administration-positions

EEOC and Walmart Agree to Gender Based Quota

2010-03-09T08:56:00.002-06:00

The EEOC has settled a claim against Walmart Stores which requires the retail giant to pay $11.7 million in back wages and compensatory damages, to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). In the claim, the EEOC alleged one of Walmart’s Kentucky Distribution Center's denied jobs to female applicants from 1998 through February 2005. During that time period, the EEOC contends, Walmart regularly hired male entry-level applicants for warehouse positions, but excluded female applicants who were equally or better qualified.
What is unique about the settlement is that the in the consent decree settling the suit, Walmart is required hire for order filler jobs, as they become available, giving priority to females, presumably in direct violation of Title VII. Walmart will fill the first 50 available order filler positions with female class members. For the next 50 positions, female class members will be offered every other job. Thereafter, every third position will be offered to female class members.
Acting EEOC Chairman Stuart J. Ishimaru stated. “Let this major settlement serve as a warning: Employers must stop engaging in these outdated and sexist practices, or they will face severe legal consequences.” Evidently the Chairman was just fine with gender discrimination which benefits females.

See the EEOC press release: http://eeoc.gov/eeoc/newsroom/release/3-1-10.cfm

$6.2 Million is Largest EEOC Settlement in History

2010-03-01T09:29:00.003-06:00

The U.S. Equal Employment Opportunity Commission announced court approval of the distribution of a $6,200,000 compensation fund in its Americans With Disabilities Act litigation between the it and Sears. Sears, which had a medical leave policy which allowed employees to take a full year off of work as a leave of absence evidently wasn't doing enough according to the EEOC. In its lawsuit against Sears, the EEOC alleged that Sears was required to grant even more time off, and the policy violated the ADA because the company maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees if leave time ran out instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. The EEOC argued that it was not the employee obligation to ask for the accommodation of more time despite a clear ADA policy, rather, Sears should have notified every employee on leave that the accommodation was available, and thus providing the accommodation opportunity. When it was not, according to the EEOC, the opportunity was lost.

Under the terms of the decree, the EEOC found that 235 individuals were eligible to share in the settlement. The average award was approximately $26,300.
http://eeoc.gov/eeoc/newsroom/release/2-5-10a.cfm

Lessons in Breach of Information

2010-02-23T12:27:00.001-06:00

As required by section 13402(e)(4) of the HITECH Act, the Secretary of Health and Human Services must post a list of breaches of unsecured protected health information affecting 500 or more individuals. As a lesson learned to everyone who stores information, virtually all of these breaches were the result of unsecured systems, laptops and PDAs. To view the list, see:
http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/postedbreaches.html

Overly Aggresive EEOC Hit with $4.5 Million in Attorneys Fees

2010-02-17T10:16:00.004-06:00

In an EEOC case against CRST Van Expedited Inc alleging a pattern and practice of sexual harassment by the trucking firm, a federal judge in Iowa has ordered the EEOC to pay the gigantic sum of $4.5 million in attorneys fees to CRST. The order was based primarily due to the agency's inability to pull together facts to make its case. In the order, the judge was particularly dissatisfied with the agency's effort to make a case on the fly, rather than possessing evidence of a pattern and practice case. Chief Judge Reade from the Northern District of Iowa stated that the EEOC lawyers used a “sue first, ask questions later” litigation tactic. The court stated in its order that “The EEOC’s criticisms of CRST’s anti-sexual harassment policy are not well-taken.” “To show a pattern or practice of unlawful employment practices, the EEOC must do more than quibble with alleged deficiencies in CRST’s anti-sexual harassment policy and practices. It must cite legal authority.”

See:
http://case.lawmemo.com/ia/crst_fee.pdf
http://www.desmoinesregister.com/print/article/20100212/BUSINESS/2120351/Cedar-Rapids-trucking-firm-wins-harassment-case-4.5-million

The Increasing Trend of Employee Tracking

2010-02-11T14:17:00.003-06:00

With a advent of inexpensive and prolific use of GPS in cell phones and separate devices, the issue of employee privacy has become a more commonplace issue. Generally, with proper policies and notices, it is possible to issue employer owned devices and track employees as part of their work conditions. The key issues in these matters are that of privacy and expectations of privacy.

Now, the Obama administration is speaking up to say that no one has the expectation of privacy, and that the government can monitor your whereabouts on your cell phone anytime it deems necessary, and no warrant is necessary. To view a discussion of the administration's stance, see: http://news.cnet.com/8301-13578_3-10451518-38.html

State E-Verify Requirement Upheld

2010-02-09T07:50:00.002-06:00

In ruling on a statutory scheme similar to other states such as Nebraska, the 10th Circuit has ruled that the State of Oklahoma can continue with its statute requiring state contractors to use E-Verify. The E-Verify provision requires that government entities as well as contractors prove the legal status of all new hires through the E-Verify system. A similar Arizona provision has been upheld by the 9th Circuit.

To read the decision, see: http://www.leagle.com/unsecure/page.htm?shortname=infco20100202058

Stereotyping Case Proceeds in the Eighth Circuit

2010-02-03T11:42:00.003-06:00

The 8th Circuit has issued a decision which would allow an employee claim to proceed based upon the possible gender stereotyping of the employer. In the case, a hotel chain manager removed an employee from duty at the front desk based upon the manager's perception that the employee did not present a "Midwestern girl" image. The employee, was admittedly masculine and wore clothes more typical of a male.

While the reason for discharge was not determined, the court determined that it is possible for the matter to proceed under the theory that such sexual stereotyping could violate Title VII.

See the decision at: http://www.ca8.uscourts.gov/opndir/10/01/083860P.pdf

DOT Bans Texting for Commercial Drivers

2010-02-02T08:29:00.003-06:00

FMCSA recently completed its ``Driver Distraction in Commercial Vehicle Operations'' study. The purpose of the study was to investigate the prevalence of driver distraction in CMV safety-critical events (e.g., crashes, near-crashes, lane departures) recorded in a naturalistic data set that included over 200 truck drivers and 3 million miles of data. This report is available at FMCSA's Research Web page at: http://www.fmcsa.dot.gov/facts-research/art-research.aspx

Under the study, the odds of being involved in a safety-critical event is 23.2 times greater for drivers who are texting while driving than for those who do not. Texting drivers took their eyes off the forward roadway for an average of 4.6 seconds during the 6-second interval immediately preceding a safety-critical event. At 55 mph (or 80.7 feet per second), this equates to a driver traveling 371 feet, the approximate length of a football field, including the end zones, without looking at the roadway. At 65 mph (or 95.3 feet per second), the driver would have traveled approximately 439 feet without looking at the roadway. This clearly creates a significant risk to the safe operation of the CMV.

Because of the safety risks associated with texting, the DOT will ban texting while driving for commercial drivers and FMCSA will address the problem of texting in an expedited, stand-alone rulemaking to be completed in 2010.

CMVs are defined in 49 CFR 390.5 as ``any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle-- (1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or (2) Is designed or used to transport more than 8 passengers (including the driver) for compensation; or (3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or (4) Is used in transporting material found by the Secretary of Transportation to be hazardous.

EEOC Agreement Orders Hiring of HR Executive

2010-01-13T12:59:00.004-06:00

The U.S. Equal Employment Opportunity Commission announced a deal with Outback Steakhouse whereby the employer has agreed to pay $19 million to settle a class lawsuit alleging sex discrimination against thousands of women at hundreds of its corporately-owned restaurants nationwide.
According to the EEOC, Outback discriminated against its female employees by denying women opportunities for advancement. The EEOC alleged that female employees hit a glass ceiling and could not get promoted to the higher-level profit-sharing management positions in the restaurants.
The settlement stems from a lawsuit filed by the EEOC in September 2006. In addition to the monetary relief, the settlement, contained in a four-year consent decree signed by Federal Court Judge Christine M. Arguello, requires that Outback:

Institute an online application system for employees interested in managerial and other supervisory positions;
Employ a human resource executive in the newly created position of Vice President of People;
Employ an outside consultant for at least two years who will determine compliance with the terms of the decree and analyze data from the online application system to determine whether women are being provide equal opportunities for promotion; and
Report every six months to the EEOC on carrying out the terms of the decree.

See EEOC press release at: http://eeoc.gov/eeoc/newsroom/release/12-29-09a.cfm

Health Care Costs to Employers

2010-01-05T08:20:00.002-06:00

Looking for the cost impact to employers of the new health care legislation, the following articles address this topic:

Potential Impact of Health Reform on the Cost of Private Health Insurance Coverage, PricewaterhouseCoopers, October 2009
Employers Brace for Health Bill's Cost, Wall Street Journal, December 2009
Assessing the Impact of Fefderal Health Care Reform on Employers and Group Health Plans, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C., December 2009

Interestingly enough, the cost of health care plans are expected to be 18% higher than without the legislation by 2018. This does not include the additional taxes on individuals and businesses.

According to the Coopers report: "the cost of the average family coverage is approximately $12,300 today and
could be expected to increase to approximately:
􀁸 $15,500 in 2013 under current law and to $17,200 if these provisions are implemented.
􀁸 $18,400 in 2016 under current law and to $21,300 if these provisions are implemented.
􀁸 $21,900 in 2019 under current law and to $25,900 if these provisions are implemented.
This analysis shows that the cost of the average single coverage is $4,600 today and could be expected
to increase to:
􀁸 $5,800 in 2013 under current law and to $6,400 if these provisions are implemented.
􀁸 $6,900 in 2016 under current law and to $7,900 if these provisions are implemented.
􀁸 $8,200 in 2019 under current law and to $9,700 if these provisions are implemented."

Record Job Disatisfaction

2010-01-05T08:03:00.002-06:00

When new hiring eventually increases and the economy eventually has a heat up, will employees jump ship faster than ever? New data suggests this may be the case as job satisfaction rates have hit a 22 year low. According to a survey by the Conference Board, only 45% of employees are happy with their jobs which is 4 point lower than last year at this time. Not only does this raise concerns about workplace productivity, but also raises a serious question as to whether employers can hold productive workers when competition for workers heats up.
For an article and reference to other sources on the topic, see http://news.bbc.co.uk/2/hi/americas/8440630.stm

H-1B Cap is Reached

2009-12-23T10:11:00.001-06:00

The USCIS has reported that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. Dec. 21, 2009 is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.

COBRA Subsidy is Extended

2009-12-22T16:11:00.002-06:00

The Department of Labor has issued a press statement announcing an extension of the COBRA subsidy program. The statement provides:
"Congress has acted and the President has signed the Fiscal Year 2010 Defense Appropriations Act. The act extends the eligibility period for the COBRA premium reduction for an additional two months (through Feb. 28, 2010) and the maximum period for receiving the subsidy for an additional six months (from nine to 15 months). Millions of unemployed Americans and their families will be better able to afford and keep their health benefit coverage because of this new law.
"Individuals who had reached the end of the reduced premium period before the legislation extended it to 15 months will have additional time to pay the reduced premiums related to the extension. To continue their coverage they must pay the 35% of premium costs by (60 days after date of enactment) or, if later, 30 days after notice of the extension is provided by their plan administrator.

Will the House Avoid EFCA in 2010

2009-12-22T11:29:00.003-06:00

Opponents of the Employee Free Choice Act are quoting House Speaker Pelosi's recent statements to several vulnerable members of the House that she will not force votes on controversial bills as the House goes into an election year. Does this mean EFCA is off the table for 2010 - doubtful. The general consensus is that to provide House members cover and to ensure passage, any EFCA legislation will start in the Senate.

See the following articles on the topic:
http://thehill.com/homenews/house/72461-pelosi-to-shield-vulnerable-members-from-tough-votes

http://republicans.edlabor.house.gov/PRArticle.aspx?NewsID=1406

Awards in Employment Cases Are Up

2009-12-16T15:00:00.002-06:00

In what no doubt is the product of a recession year, awards in employment law lawsuits went up nearly 60 percent from a median of $204,000 to $326,640, according to Employment Practice Liability: Jury Award Trends and Statistics 2009 Edition, a report by Jury Verdict Research, a national database of verdicts and settlements. The report outlines that jury awards in employment law cases have increase dramatically in the last several years. For an article discussing the research, see
http://www.shrm.org/hrdisciplines/employeerelations/articles/Pages/JuryAwardsSkyrocket.aspx

Supreme Court to Decide Whether the NLRB has Authority

2009-11-18T12:43:00.002-06:00

The NLRB has been operating and making decisions with a panel of only two out of five members. This, because, the Board has not been able to have new members nominated or approved to complete the Board of five. The Supreme Court has now granted certiorarai to determine whether these two person board decisions are enforceable: http://www.supremecourtus.gov/orders/courtorders/110209zor.pdf

The Supreme Court seeks to review a line of competing Circuit Court decisions in that the 7th Circuit’s decision in New Process Steel v. NLRB (No. 08-3517, 7th Cir. May 1, 2009) held that the Board had authority, the District of Columbia in Laurel Baye Healthcare v. NLRB (No. 08-1214, D.C. Cir. May 1, 2009) held that the Board lacked authority, the 2nd Circuit in Snell Island SNF v. NLRB (No. 08-3822/08-4336, 2d Cir., June 17, 2009) held that the Board had authority, and 1st Circuit held the same in Northeastern Land Svcs. v. NLRB (No. 08-1878, 1st Cir., Mar. 13, 2009).
The Supreme Court decision is likely to focus around the meaning of a the NLRA providing that the NLRB:
"is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. ... A vacancy in the board shall not impair the right of the remaining members to exercise all of the powers of the board, and three members of the board shall, at all times, constitute a quorum of the board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof."
The decision is expected in the Spring.

SEIU Internal Talking Points Disclosed

2009-11-10T11:28:00.002-06:00

An SEIU internal memorandum which outlines the union "language" strategy has been disclosed. According to the internal memorandum, union members are encouraged to avoid using words "union" and "card check" and instead use terms such as "working families" "company domination" and "majority sign up." In a play of words, the memorandum encourages the use of language which paints employers as cigar smoking back room manipulators who trample on the rights of working families, and EFCA as merely a fair way to stop a pervasive use of employer retaliation.
To view the memorandum, see http://2.bp.blogspot.com/_pOgLmc-Yri4/SvjkjO3HTFI/AAAAAAAAATc/Dmz3ZQiWgi0/s1600-h/SEIU+EFCA+Tip+Sheet_Page_2.jpg

Family Military Leave Expanded

2009-11-10T11:12:00.002-06:00

On October 28, 2009, President Obama signed the Fiscal Year 2010 National Defense Authorization Act (NDAA) into law, which, in part, expands the Family Military Leave provisions of the FMLA.
Prior to the NDAA, Qualifying Exigency Leave allowed family members of National Guard and Reserve personnel on active duty to take up to 12 weeks of FMLA job-protected leave to use for "any qualifying exigency" arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. The NDAA, expands use of this benefit families of active duty members of the Armed Forces may also take qualifying exigency leave. To be eligible, the military member must be on active duty in a foreign country, or called to active duty in a foreign country. Once again, employer policy and form requirements will be necessary.

http://www.bairdholm.com/media/newsletter/230_LaborAlert110409.pdf

Change is Coming

2009-11-09T15:51:00.002-06:00

Close to year into the Obama administration, and the winds of change are starting to come to employment and labor law. In the works with the various agencies are:

Dramatic new enforcement of employment status in the battle of contractors versus employees;
An attempt to rework wage and hour enforcement to seek both three years of back pay and civil penalties;
The use of rule making authority at the National Labor Relations Board to create a set of union favorable rules which will be binding on future administrations; and
Use of the new flow of "stimulus funds" for the hiring of counsel and investigators for the purposes of enhanced enforcement.

DOT Proposes Distracted Driver Rules

2009-10-28T11:30:00.005-05:00

The Department of Transportation is preparing draft regulations to ban the use of cell phones while a vehicle is in use by a DOT driver. The rule proposed falls in line with a possible requirement of federal contractors to have similar policies in place.
The DOT has labeled the cell phone ban proposal as "distracted driver" rules such that cell calls, texting and other electronic distractions would be covered. These rules would apply to positions in the rail industry, trucking and bus transportation.
See the following article for related information:
http://fleetowner.com/management/news/dot-rulemaking-distracted-driving-1005/

FLSA Internal Complaints Must Be in Writing

2009-10-27T14:15:00.003-05:00

There is an ever increasing trend of plaintiff's counsel incorporating claims of retaliation into substantive level lawsuits as a method to increase the odds of victory and to have success getting the case to a jury. In a matter before the 7th circuit, an employee alleged a retaliatory discharge after being terminated for failing to swipe in and out on the time clock. The employee alleged that he complained that the clock was not in a convenient location, and therefore, was not accurate. The employee alleges that this complaint, not the failure to clock resulted in his loss of employment.
In the decision, the 7th circuit ruled that the language of the statute does protect against retaliation, but only for written complaints brought forth, and not for mere verbal concerns. The circuit determined that the plain language of the statute refers to protection for "filing" a complaint. This, the court determined means that the concern must be in writing, although not a complaint with the agency. http://caselaw.lp.findlaw.com/data2/circs/7th/082820p.pdf

EFCA Loses Key Sponsor Support

2009-10-20T12:55:00.004-05:00

In a change of support away from the the Employee Free Choice Act, Senator Diane Feinstein has removed herself as a co-sponsor of the bill. Feinstein, who is a stong union supporter from the San Francisco Bay area states that the recession is the reason for her shift and is still hopeful for a compromise bill. http://www.insidebayarea.com/opinion/ci_13594512
Consistent with Feinstein's connection between the economy and EFCA is a study suggesting 5.4 million jobs could be lost should EFCA pass.
http://thetruthaboutefca.com/media/docs/efcaStudy_layneFarrar.pdf

Legislators Seek to Dismantle Alternative Dispute Systems

2009-10-19T13:56:00.002-05:00

Several Senators and House Members have introduced a bill which would make alternative dispute systems, including arbitration, unlawful except in organized labor situations. The bill, dubbed the “Arbitration Fairness Act of 2009” is sponsored by Senator Russ Feingold (D-WI) and Representative Hank Johnson (D-GA).
S. 931/HR 1020, which seeks to make these changes can be found at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s931is.txt.pdf
and
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h1020ih.txt.pdf

Federal Court Rules ADAAA is Not Retroactive

2009-10-15T11:45:00.003-05:00

In a battle to use the new definition of "disability" in a case arising prior to the ADAAA, the Federal District Court of Nebraska In Rickert v. Midland Lutheran College has ruled that the ADAAA does not apply to alleged discriminatory conduct which occurred prior to the effect of the statute. In the decision, the Court states:

"Absent express statutory language to the contrary, there is a presumption that statutes affecting substantive rights, liabilities, or duties will not be applied to conduct occurring before the statutes were enacted. The Americans with Disabilities Amendments Act of 2008 contains no language indicating retroactive application was intended. To the contrary, the amendments were enacted on September 25, 2008, but were not effective until January 1, 2009. By delaying the effective date, Congress clearly indicated the amendments were not intended to merely “clarify” the meaning of the current ADA statutes, but to apply a new law beginning on January 1, 2009. . . . The express intent of the 2008 amendments was to expand the scope of the ADA by enacting legislation that effectively overruled the holdings in Sutton and Toyota Motor, and reinstated the broad view of “regarded as” disabled set forth in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). Pub.L. No. 110-325, § (2)(b)(3).

For the purposes of determining if the Americans with Disabilities Amendments Act of 2008 is retroactively applicable, the court assumes the amendments expand the ADA definition of “regarded as” disabled as Congress intended, and accordingly the scope of acts for which an employer may be liable under the ADA. Considered as such, the amendments attach “new legal consequences to events completed before [their] enactment.”

The alleged discriminatory acts set forth in Rickert's complaint occurred prior to January 1, 2009. In accordance with the “well-settled presumption against application of ... new statutes that would have genuinely ‘ retroactive’ effect,” the court finds the Americans with Disabilities Amendments Act of 2008 is not applicable to alleged discriminatory acts that occurred prior to January 1, 2009. . . . The court will therefore apply only pre-amendment ADA law in evaluating Rickert's claims for relief, and only the ADA law as it existed prior to January 1, 2009 will be discussed hereafter."

New York Decision Challenged

2009-10-14T07:41:00.002-05:00

The State of New York has required all health care professionals to receive the H1N1 vaccine. This step, which is similar to the step taken by many health care employers has been challenged by a employee interest group in federal court. At the core of the complaint is that the broad requirement does not take into account special circumstances. One employee complains that they do not believe the vaccine to be safe and another claims that it makes her break out. The plaintiffs have asked for an injunctive order.
The New York court case is worth watching, as it could set the trend for the rest of the nation.
To see the National Law Journal article, see: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202434518705&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20091014nlj&kw=Health%20care%20workers%20who%20really%20don't%20want%20flu%20shots%20head%20to%20court&slreturn=1&hbxlogin=1

H1N1 Outbreaks Close Some Schools and Swamp Hospitals

2009-09-28T15:54:00.005-05:00

The number of schools and health care facilities overwhelmed by H1N1 virus continues to be on the rise, as we approach a vaccine which may be available to the public in the next month. See the Washington Post article for recent events:

http://www.washingtonpost.com/wp-dyn/content/article/2009/09/26/AR2009092601254_pf.html

For employers, attention needs to be paid to this issue and a plan of action for various scenarios. A possible checklist has been established for employer use at: http://www.bairdholm.com/media/newsletter/215_Labor0909.pdf

The trend toward requiring vaccines for health care workers seems to have taken off. Not only are a number of health care employers requiring the vaccine, now the State of New York is making it mandatory for health care workers. See: http://www.newsday.com/long-island/mandatory-flu-vaccination-splits-workers-1.1481242?print=true

Spector May Still Be Short Votes

2009-09-24T16:55:00.004-05:00

SHRM has reported that Senator Spector was speaking out of school to labor officials when he reported enough votes to pass the reformed EFCA. According to SHRM, the votes for a bill envisioned by Spector does not exist, and would fall one or two votes short. Bill introduction may not occur until 2010, and then only if labor and management can sort out a compromise.
I guess we will all find out who is correct in the next few months.
See the SHRM article: http://www.shrm.org/Publications/HRNews/Pages/NoEFCADeal.aspx

Spector Says He Has EFCA Votes

2009-09-16T09:02:00.003-05:00

A Washington Post blog has reported that in a speech to the AFL-CIO, Senator Spector claims to have the votes to pass a revised EFCA bill. The bill would not include card check, but would:

create a mere one week period from petition to election;
force employers to agreement through forced mediation of a contract;
allow a mediator to chose the last, best offer from either the employer or union;
allow unions into worksites for the same amount of time as employers spend talking about unions with employees;

The hinge to Spector's proposal will be whether key Senators Blanche Lincoln (Ark.) and Ben Nelson (Neb.) vote for cloture. Spector says he has those votes.

See Washington Post blog:
http://voices.washingtonpost.com/capitol-briefing/2009/09/specter_unveils_prospective_de.html

Many Organizations Go Without Corrupt Practices Program

2009-09-15T08:17:00.003-05:00

In a Deloitte webcast on anti-coruption, more than 1,090 business professionals responded to an online poll. Of that survey of seemingly interested organizations, more than one third had no Foreign Corrupt Practices Act compliance program. This, despite the fact that 72% anticipate greater enforcement.

http://www.deloitte.com/view/en_US/us/press/Press-Releases/press-release/2ac94a5e7c8a3210VgnVCM200000bb42f00aRCRD.htm

The FCPA is enforced by both the U.S. Securities and Exchange Commission (SEC) and the U.S. Department of Justice (DOJ). In general, the FCPA makes it unlawful to bribe foreign government officials to obtain or retain business. With respect to the basic prohibition, there are five elements which must be met to constitute a violation of the Act:
A. Who -- The FCPA potentially applies to any individual, firm, officer, director, employee, or agent of a firm and any stockholder acting on behalf of a firm. Individuals and firms may also be penalized if they order, authorize, or assist someone else to violate the antibribery provisions or if they conspire to violate those provisions.
B. Corrupt intent -- The person making or authorizing the payment must have a corrupt intent, and the payment must be intended to induce the recipient to misuse his official position to direct business wrongfully to the payer or to any other person. You should note that the FCPA does not require that a corrupt act succeed in its purpose. The offer or promise of a corrupt payment can constitute a violation of the statute. The FCPA prohibits any corrupt payment intended to influence any act or decision of a foreign official in his or her official capacity, to induce the official to do or omit to do any act in violation of his or her lawful duty, to obtain any improper advantage, or to induce a foreign official to use his or her influence improperly to affect or influence any act or decision.
C. Payment -- The FCPA prohibits paying, offering, promising to pay (or authorizing to pay or offer) money or anything of value.
D. Recipient -- The prohibition extends only to corrupt payments to a foreign official, a foreign political party or party official, or any candidate for foreign political office. A "foreign official" means any officer or employee of a foreign government, a public international organization, or any department or agency thereof, or any person acting in an official capacity.
E. Business Purpose Test -- The FCPA prohibits payments made in order to assist the firm in obtaining or retaining business for or with, or directing business to, any person. The Department of Justice interprets "obtaining or retaining business" broadly, such that the term encompasses more than the mere award or renewal of a contract. It should be noted that the business to be obtained or retained does not need to be with a foreign government or foreign government instrumentality.

Obama Care May Bring Forced Unionization

2009-09-11T07:36:00.004-05:00

Health care does not appear to be the only political clash in the health care debate. In the details there is also a battle for whether or not the federal government should continue its surrender to big labor. In a Wall Street Journal opinion, the details of both House and Senate bills have been reported to allow the government to force employees to become union members in broad sweeps without any opportunity to vote, or even express their opinion.
According to the WSJ, "The Senate version opens the door to implement forced unionization schemes pursued by former Govs. Rod Blagojevich of Illinois in 2005 and Gray Davis of California in 1999. . . . by reclassifying state-reimbursed in-home health-care (and child-care) contractors as state employees—and forcing them to pay union dues. Following this playbook, the Senate bill creates a "personal care attendants workforce advisory panel" that will likely impose union affiliation to qualify for a newly created "community living assistance services and support (class)" reimbursement plan."
The House bill is potentially much worse as it "grants Secretary of Health and Human Services Kathleen Sebelius tremendous discretionary authority to regulate health-care workers "under the public health insurance option." Monopoly bargaining and compulsory union dues may quickly become a required standard resulting in potentially hundreds of thousands of doctors and nurses across the country being forced into unions."
The WSJ piece can be viewed at: http://online.wsj.com/article/SB10001424052970203440104574400571702189240.html

New I-9 Form Available

2009-08-27T09:06:00.005-05:00

Overnight, the USCIS has posted a new I-9 form on its website. The form, dated August 8, 2009, as well as the former form are both compliant for now, but steps should be taken to use the new form. The form was originally supposed to be available in April.

The new form can be found at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31b3ab0a43b5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

E-Verify Mandate Looks to Go on September 8

2009-08-27T08:56:00.002-05:00

Yesterday, the lawsuit filed in Maryland by a number of interest groups, including the U.S. Chamber and SHRM which challenged the legality of E-Verify, failed. The Bush Executive Order, now supported by the Obama Administration, requires federal contractors to use E-Verify for new employees and current employees working on a federal contract.

The new rule, unless other delays are attempted, is planned to go in effect on September 8, 2009. Federal contracts after this date will have a clause with the mandate.

To see the United States Citizenship and Immigration Services (USCIS) information, see: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cb2a535e0869d110VgnVCM1000004718190aRCRD&vgnextchannel=534bbd181e09d110VgnVCM1000004718190aRCRD

No-Match Demise Takes the Next Step

2009-08-25T07:44:00.004-05:00

The Department of Homeland Security has issued a proposed regulation to withdraw the no match rule. The no match rule was originally proposed and implemented in 2007, only to have a court stay implementation.

Now, the problem of no match continues in that employers remain to be between to legal pressures of not discriminating, yet being the enforcer of immigration laws. This is more so now that the Obama administration has begun a strategy of employer enforcement, but apparently without the safe harbors of the no match process.

Some commentators suggest that Congress will take steps to keep the no-match rules. If this is the case, that fight will most likely occur this fall.

The proposed withdrawal can be found at: http://edocket.access.gpo.gov/2009/E9-19826.htm

New Pandemic Toolkit is Available

2009-08-21T10:44:00.004-05:00

The CDC has released a new Communication Toolkit for Businesses which provides "communication resources to help businesses and employers implement recommendations from CDC’s Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Influenza Season."

The entire toolkit can be found at http://www.pandemicflu.gov/.%20

FTC Seeks Civil Award

2009-08-12T09:32:00.002-05:00

The FTC has brought complaints and received civil settlements against two companies that fired workers and rejected job applicants based on background checks without informing them of their rights under the Fair Credit Reporting Act (FCRA). The employer settlements require the defendants to pay $77,000 in civil penalties.
The FCRA requires that before taking adverse employment actions based on background checks, employers must provide employees or applicants with a copy of the report, identify the CRA that provided it, notify them that the CRA did not make the adverse action decision, and inform them that they have the right to obtain a free copy of the report from the CRA and dispute its accuracy.
According to the FTC’s two complaints, both employers used a CRA to conduct background checks and made hiring and firing decisions based on those background checks. The companies allegedly failed to provide the employees and applicants with pre-adverse action notices and adverse action notices as required by the FCRA.
See the FTC release at : http://www.ftc.gov/opa/2009/08/qts.shtm

EEOC Issues Waiver Guidance

2009-07-28T08:58:00.003-05:00

In the wake of layoffs and downsizing, the EEOC has posthumously issued a guidance to employees with regard to severance agreements. The new guidance, which is intended to be worded in a simple format for easy comprehension, sets forth the standards of the Older Workers Benefit Protection Act for waivers.
OWBPA lists factors that must be satisfied for a waiver of age discrimination claims to be considered “knowing and voluntary.” At a minimum:

A waiver must be written in a manner that can be clearly understood. EEOC regulations emphasize that waivers must be drafted in plain language geared to the level of comprehension and education of the average individual(s) eligible to participate. Usually this requires the elimination of technical jargon and long, complex sentences. In addition, the waiver must not have the effect of misleading, misinforming, or failing to inform participants and must present any advantages or disadvantages without either exaggerating the benefits or minimizing the limitations.
A waiver must specifically refer to rights or claims arising under the ADEA. EEOC regulations specifically state that an OWBPA waiver must expressly spell out the Age Discrimination in Employment Act (ADEA) by name.
A waiver must advise the employee in writing to consult an attorney before accepting the agreement.
A waiver must provide the employee with at least 21 days to consider the offer. The regulations clarify that the 21-day consideration period runs from the date of the employer’s final offer. If material changes to the final offer are made, the 21-day period starts over.
A waiver must give an employee seven days to revoke his or her signature. The seven-day revocation period cannot be changed or waived by either party for any reason.
A waiver must not include rights and claims that may arise after the date on which the waiver is executed.

If a waiver of age claims fails to meet any of these seven requirements, it is invalid and unenforceable.

To view the guidance, see:

http://www.eeoc.gov/policy/docs/qanda_severance-agreements.html

Minimum Wage Increase Leads to Discussion of Further Increases

2009-07-24T10:41:00.003-05:00

The federal minimum wage increases today to $7.25 per hour(possibly more in some other state or local markets). On the heals of this increase is coming another debate, and that is whether to also increase the minimum wage for tipped employees. The minimum rate for tipped employees has been at $2.13 since 1991.
Tipped employees generally include: waitresses, hotel workers, nail salon staff and carwash attendants.
Representative Donna Edwards, a democrat out of Maryland, has introduced a bill to raise the minimum wage for tipped employees from $2.13 per hour to $3.75 per hour, and then increase it again to $5.00 per hour in 2011. The bill would also have the tipped wage eventually tie in at 70% of minimum wage by 2012.

See the National Law Journal Article at:
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202432499181&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20090724NLJ&kw=With%20minimum%20wage%20set%20to%20rise%2C%20tipped%20employees%20seek%20their%20share&slreturn=1

EFCA Compromise Approaching

2009-07-17T10:23:00.001-05:00

The New York Times is reporting that key US Senators have reached a compromise with labor unions on the Employee Free Choice Act ("EFCA") and the compromise bill will have the 60 votes needed to pass.
The key provisions of the compromise bill will include a 5 to 10 day election period (versus the current six-week period), and possibly provide union organizers access to company property and/or ban employee meetings held by employers ("captive audience meetings"). Furthermore, the compromise bill will retain the mandatory arbitration provision in the event a contract is not reached after 120 days of negotiations.

See the article at: http://www.nytimes.com/2009/07/17/business/17union.html?_r=1&scp=1&sq=employee%20free%20choice&st=cse

Smart Phones May Prove Costly to Employer

2009-07-17T08:39:00.003-05:00

T-Mobile has had a lawsuit filed against it in the federal court for the Eastern District of New York whereby retail sales employees allege that they were not paid time out of the store where they were required to check their PDAs and respond to both e-mail and text messages.
The lawsuit alleges that employees were given T-Mobile smart phones as a perk and a job requirement. In the course of employee free time off the clock, employees were made to reply to numerous work related e-mails and text messages. The allegations, therefore, was that all this time became time work for which they should have been paid.
Smart phones most certainly pose a giant trap for employers, and they are best off in not issuing such phones to nonexempt workers. If the phones are issued, strict policies should be put in place which disallow and employee's business use on personal time, and/or strict reporting of all that time as time worked.
To see the National Law Journal article on the topic, see:
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202432325922&rss=nlj&slreturn=1

Sexual Orientation Non Discrimination Bill Reintroduced

2009-07-16T10:38:00.003-05:00

A bill entitled the Employment Non-Discrimination Act (ENDA) designed to prohibit discrimination based upon sexual orientation has been reintroduced by Representative Barney Frank of Massachusetts. This new version of the bill was introduced on June 19, 2009 with 118 sponsors.
The original bill had only 18 sponsors, and stalled out in the Senate. This go around, controversial language protected the transgendered has been removed hoping that it attracts new supporters.

The bill (H.R. 2981) can be found at:
http://thomas.loc.gov/cgi-bin/bdquery/z?d111:h.r.02981:

Department of Homeland Security Favors E-Verify and Eliminates No Match Rule

2009-07-14T11:46:00.002-05:00

The Department of Homeland Security (DHS) announced that it will continue to support a Bush Administration regulations that will award federal contracts only to employers who use E-Verify to check employee work authorization.
At the same time, Secretary Napolitano announced the Department's intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order.
E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.
The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. The Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.
DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees.
http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm