August 2009

Hot Topics in LABOR LAW REPORTS:

NLRB rejects employers' recognition challenges arising from UNITE HERE split
The National Labor Relations Board (NLRB) has upheld the dismissal of a petition filed by a California-based laundry company challenging the representative status of Workers United, a Service Employees International Union (SEIU) affiliate union that was formed by former UNITE HERE members who splintered off from that union due to an ongoing internal rift. A Regional Director rejected the employer's contention that both Workers United and UNITE HERE were seeking representative status, thus a question concerning representation existed. The NLRB affirmed.

The employer, Royal Laundry, contested Workers United Local 75's status at the San Francisco industrial laundry after UNITE HERE also claimed to be the workers' bargaining agent. Royal ceased contract negotiations with Local 75, denied union representatives access to the workplace, withheld union dues, and refused to process workers' grievances.

Several employers have attempted to use the ongoing dispute between the two unions as a basis for refusing to recognize the incumbent union that was elected as their employees' exclusive bargaining rep. In particular, employers filed petitions with the NLRB in an attempt to end Workers United's representation of their workers.

NLRB Regional Directors have since issued six decisions finding that Workers United affiliates are the proper bargaining representatives. All have determined that the Workers United affiliates maintained continuity of representation and that disaffiliation from UNITE HERE did not affect continuity of representation. The same stewards, local officers, and union staff continued to bargain and administer the contracts, the decisions noted. Therefore, the employers had to recognize the Workers United affiliates, the Regional Directors ruled, dismissed the employers' petitions.

The decisions were made in Michigan (Continental Linen Services, GR-7-RM-1491), Ohio (Premair of Cleveland, 8-RM-1111), Missouri (Gateway Packaging Co of Missouri, 17-RM-864), Minnesota (Radisson Duluth Hotel, 18-RM-1380), and California (Royal Laundry, 20-RM-2868), (Angelica Textile Services, Inc, 21-RM-2676).

Based on the recent Board decision upholding the Royal Laundry ruling, the NLRB General Counsel will begin issuing complaints against employers that refuse to bargain with, to process grievances and arbitrations with, provide access to and to remit dues to Workers United affiliates.

NLRB memo details revised procedures for processing of charges arising out of the UNITE HERE dispute
OFFICE OF THE GENERAL COUNSEL, Division of Operations-Management

MEMORANDUM OM-09-81(CH)

August 3, 2009

TO: All Regional Directors, Officers-in-Charge, and Resident Officers

FROM: Richard A. Siegel, Associate General Counsel

SUBJECT: Revised Procedures for Processing of Charges Arising out of the Current Dispute Involving UNITE HERE, Workers United and SEIU

NLRB Associate General Counsel Richard A. Siegel has issued Memorandum OM-09-81, August 3, 2009 , explaining to all Regions the manner in which they should proceed in the processing of pending charges raising issues related to the UNITE HERE dispute for Type I, II and III unfair labor practice cases. The full text of the memorandum is reproduced below.

On July 21, 2009 the Board issued its Order, denying the Employer's request for review in Royal Laundry, Case 20-RM-2868. The Acting Regional Director dismissed the employer's petition in that case finding that there was no question concerning representation to be resolved by the conduct of an election. In so concluding, consistent with the Board's analysis in Raymond F. Kravis Center For The Performing Arts, 351 NLRB 143, 147 (2007), the Acting Regional Director found that any change in the affiliation status of the certified bargaining representative in the unit by virtue of the dispute involving UNITE/HERE, Workers United and SEIU did not disturb the representative status of the union and raise a QCR. 1 This Board action provides guidance to the General Counsel's handling of certain unfair labor practice charges arising from the dispute. Accordingly, in the processing of pending charges raising issues related to the UNITE HERE dispute Regions should proceed in the following manner

For unfair labor practice cases described as Type I in OM 09-68, i.e., those cases where there is also a pending R case, Regions should continue to defer final action for the resolution of the related R case. As stated in OM 09-68, Regions should conduct a full investigation of the facts in these cases. Once the R case is resolved, a Region should proceed to process the related charge in accordance with the instructions pertaining to Type II case set forth in OM 09-68, as modified by the procedure described below.

With respect to ULP cases arising in units in which petitions have not been filed, Regions will complete their investigation, prepare a memorandum incorporating their findings and recommendations, including the proposed remedy for any merit allegations, and submit that memorandum to DAGC Posner in the Division of Operations-Management. It is anticipated that many of these cases will involve fact patterns and legal issues similar to Royal Laundry and that the Board's ruling in that case will provide useful guidance to the proper analysis of the issues presented.

After a case is submitted to DAGC Posner, directions will be forthcoming to the Region. In cases like Royal Laundry, where the Section 9(a) representative can be identified consistent with the Board's analysis in Kravis and as applied by the Acting Regional Director in Royal Laundry, the Region will be notified that it is authorized to proceed with the processing of the case. Upon approval of its proposed determination in a merit case, the Region should advise the parties and explore settlement possibilities.

It is anticipated that some, perhaps many, of these merit cases will be resolved through an adjustment. There may, however, be instances where an employer agrees to fully remedy all merit allegations but the charging party insists on remedying the case only through a settlement agreement. In such circumstances, the Region Director should consider resolving the case through the issuance of a merit dismissal. 2 A Director should only consider this approach if the Region has received a firm commitment from the charged party to take all measures necessary to resolve the meritorious unfair labor practice allegations and this commitment is documented in the file.

In addition, there may be instances where there is evidence that the employer's conduct evinced bad faith or included an attempt to exploit the internal union rift to undermine the status of the Section 9(a) representative. If a Region believes that there is this type of evidence (or that there are other factors present) that would warrant a resolution only through an informal settlement agreement (or formal settlement in appropriate circumstances), it should submit the case to the Division of Advice.

It is our view that the existence of the pending lawsuit involving a counterclaim by UNITE HERE that seeks to invalidate the disaffiliation of certain of its local unions and joint boards does not prevent the General Counsel from processing these cases. Indeed, this issue was addressed by the Acting Regional Director's order dismissing the petition in Royal Laundry. As stated in that order, the "....NLRB has no authority or need to assess the merits of UNITE HERE!'s contention, or to concern itself with the outcome of such litigation, unless and until the conflict creates a discontinuity sufficient to raise a QCR." (emphasis added) Thus, while the outcome of the suit and its competing claims could impact events down the road, Regions must evaluate the facts in light of the circumstances that currently exist. Accordingly, the existence of the lawsuit and its counterclaims does not warrant delaying the processing of the ULP cases.

There will be some Type II cases that raise novel or complex issues. For instance, if a charged party raises as a defense to an allegation that it violated Section 8(a)(5) by failing to deduct and remit dues that it is being required to send the dues money to an entity other than the Section 9(a) representative, this issue should be submitted to Advice. Another issue that should be submitted to Advice is where the Region believes that two separate labor organizations constitute the Section 9(a) representative, i.e., a local union and the regional joint board. If a Region believes that a case it is processing involves a complex or novel issue warranting consideration by the General Counsel, it may submit that case directly to Advice without first submitting the case to Operations.

Type III cases should continue to be processed in accordance with the instructions in OM 09-68.

If you have any questions about the matters described in this memo, please feel free to contact me or DAGC Posner.

/s/

R. A. S.

cc: NLRBU

Release to the Public

1 On July 28, 2009, the Board denied review of the Director's order dismissing the petition in Gateway Packaging Company of Missouri, Case 17-RM-864. In that matter, the Regional Director found that the purported disaffiliation of the recognized bargaining representative did not work a change in the representative status of the union such as to raise a question concerning representation supporting the petition.

2 See Memorandum GC 95-15, Lightening the Regional Office Workload, dated August 22, 1995.
NLRB memo clarifies why obtaining notarized signatures on documents filed in federal court should cease

NLRB Associate General Counsel Richard A. Siegel has issued Memorandum OM 09-83, August 28, 2009, explaining to all offices the policy regarding notarized signatures on documents destined for filing in federal court, and how such notorizations should stop. The full text of the memorandum is reproduced below.

OFFICE OF THE GENERAL COUNSEL, Division of Operations-Management

MEMORANDUM OM 09-83

August 28, 2009

TO: All Regional Directors, Officers-in-Charge, and Resident Officers

FROM: Richard A. Siegel, Associate General Counsel

SUBJECT: Notarization of Documents in Court Filings

In recent years, federal district court practice has become a staple of Regional Office work. Petitions for injunctive relief under §10(j)/(l), subpoena enforcement, FDCPA collection proceedings, and the like are now commonplace. Recently it has come to our attention that some offices continue to obtain notarized signatures on documents destined for filing in federal court. This practice is obsolete, has in some cases led to unnecessary cost and delay, and should be discontinued.

Congress enacted 28 USC §1746 in 1976. It provides:
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

(2) If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

This language and its widespread usage make clear that a witnessed signature and an oath are not necessary to provide the required degree of solemnity and assurance of veracity to support a tender of evidence. Local court rules to the contrary are superseded. Carter v. Clark, 616 F.2d 228 (5th Cir. 1980).1

Similarly, Fed.R.Civ.P. 11 provides in part:
(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name --or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper --whether by signing, filing, submitting, or later advocating it --an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. Taken in combination, 28 USC 1746 and Rule 11 clearly obviate any need for notarization of documents of the kind that we file in the federal courts.

Documents that are intended to have equivalent probative value to sworn affidavits should conform to 28 USC §1746(2).

/s/

R. A. S.

cc: NLRBU

Release to the Public

1 Moreover, the advent of electronic filing in the federal courts has made notarization even more archaic. If you encounter a local court rule that you believe requires notarization of papers, you should consult with the headquarters litigating Branch that has oversight responsibility for the type of case involved.

Labor Department obtains judgment to restore $50 million to Michigan union pension plans
The U.S. Department of Labor has obtained a consent judgment and order requiring the former president of Chicago-based AA Capital Partners Inc. to restore $50 million in losses to five Michigan pension funds as restitution for misuse of the plans' assets to benefit the investment firm and himself. The judgment also bars defendant John Orecchio from serving in a fiduciary or service provider capacity to any employee benefit plan governed by the Employee Retirement Income Security Act (ERISA).

"Fiduciaries have a legal obligation to ensure plan assets are used only to pay benefits and reasonable expenses of a plan. Those who violate that trust will be held accountable for their actions," said Secretary of Labor Hilda L. Solis.

Although Orecchio has submitted proof of current inability to make restitution, the consent judgment requires him to submit annual financial statements to the Labor Department and to pay off the judgment as funds are received by him.

The Labor Department filed a lawsuit on April 10, 2008 against AA Capital Partners, its co-owner and president Orecchio, chief financial officer Mary Elizabeth Stevens, and affiliate AA Capital Liquidity Management, LLC for allegedly misusing plan assets and charging the plans excessive fees on investments. In July 2008, the department filed an amended complaint adding an additional count which alleged that plan assets were imprudently invested in a limited partnership created to invest in Xyience Inc., a Nevada corporation which manufactures and sells food, vitamins and beverages, even though a prudent investigation had not been conducted with respect to this investment strategy.

The pension plans that suffered losses as a result of Orecchio's actions covered more than 60,000 participants of the Carpenters Pension Trust Fund of Detroit and Vicinity, Operating Engineers Local No. 324 Pension Fund, Michigan Regional Council of Carpenters Annuity Fund, Millwrights' Local No. 1102 Supplemental Pension Fund, and Michigan Teamsters Joint Council #43 Pension Fund. As of April 30, 2006, the pension plans had total assets of approximately $3.1 billion.

At various times from 2002 to 2006, the defendants allegedly improperly used $25.9 million of the plans' assets to pay for, among other things, the operating expenses of the firm, renovations to a horse farm, and a strip club owned by Orecchio. In addition, they caused the plans to pay unauthorized fees to AA Capital.

AA Capital is a registered investment advisory firm to employee benefit plans, including ERISA-covered benefit plans. The firm created AA Capital Liquidity Management as the general partner for a fund that invested in real estate loans and entities that developed real property. In 2006, AA Capital was placed in the hands of a court-appointed receiver.

Source: U.S. Department of Labor

Machinists ratify national UPS contract
International Association of Machinists (IAM) members at United Parcel Service (UPS) have approved a new contract covering 3,200 maintenance workers at 33 locations across the United States. Members voted to approve the contract by an 82 percent margin, according to the union.

The five-year agreement includes annual wage increases, improved pension contributions, eligibility for the IAM 401(k) plan and improved tool allowances. Members' health care benefits under the new agreement will remain intact.

"This agreement is a credit to the solidarity of our members and the hard work of our negotiating committee and UPS to find a way to increase wages and benefits during these tough economic times," said IAM automotive department director Boysen Anderson.
Teamster freight members ratify YRCW Job Security Plan

The International Brotherhood of Teamsters and YRC Worldwide, Inc have announced that Teamster members who work at the employer's freight companies have approved a Job Security Plan that provides economic relief for YRCW as it works through the worst economic crisis since the Great Depression. 58.5 percent of the membership ratified the changes, with 64 percent of members casting ballots.

Both the employer and union released statements commending the result of the negotiations.

Bill Zollars, Chairman, President and CEO of YRC Worldwide stated that, "The contract changes enable us to reduce our cost structure, preserve capital and be more competitive in the marketplace."

"Once again Teamster members at YRCW have shown great courage by making extraordinary sacrifices to help this company survive," said Jim Hoffa, Teamsters General President.

But Hoffa cautioned that there is more work to be done to ensure the company's financial future, and that the union expects the employer's shareholders to contribute.

"Now YRCW, banks and other stakeholders have to step up and do their part to ensure the company's long-term survival. Do the banks want the fate of 35,000 YRCW workers, hundreds of thousands of retirees, and hundreds of thousands of other workers to be their responsibility if they do not significantly rework YRCW's loan facilities?"

The Job Security Plan provides YRCW with over $1.2 billion of cost savings over the remaining 44 month term of the agreement and greatly enhances YRCW's financial position. While the wage reduction and pension terminations are effective immediately, they will not remain in effect unless: 1) YRCW and its bank group amend their loan agreements in order to provide the company with sufficient liquidity and flexibility to complete its restructuring and take advantage of the upturn in freight demand anticipated in 2010; and 2) affiliated Teamster Pension Funds approve the "deferral/termination" arrangement.

The modified agreement includes a 5 percent incremental wage reduction and an 18-month cessation of union pension fund contributions, which will not require repayment. Related savings from the pension and wage reduction are approximately $45 million per month, and begin immediately. Savings increase to an estimated $50 million per month in 2010. The plan also calls for a reduction in gross wages of 15 percent from the full National Master Freight Agreement rates effective Aug. 1, 2009. This includes the 10 percent wage reduction previously ratified by the membership in January 2009.

The plan also provides for the issuance of options for YRCW stock to Teamster members that would lead to employee ownership of an additional 20 percent of the company's outstanding stock over and above the 15 percent that was negotiated at the end of last year.

"As the economy is just now showing signs of improvement our primary goal is to make sure YRCW's other stakeholders, primarily the bank lending group, provide YRCW with the necessary liquidity to withstand this recession and ensure YRCW's long term financial stability," said Tyson Johnson, Director of the Teamsters National Freight Division. "I commend our YRCW Freight Teamsters for doing everything that has been asked -- over $2 billion in wage and pension relief since January. We've done our part to preserve members' jobs and their benefits, now the other stakeholders have to step up to the plate."

The vast majority of YRCW Teamsters, who made up 90 percent of the total vote, work under the National Agreement. A handful of separate "white paper" agreements, representing 10 percent of the total number of voters, rejected the plan. As with past contract ratification rejections, those issues will be dealt with on a local by local basis.

"Our union employees approached this situation in a very professional manner," said Mike Smid, President of YRC Inc. and Chief Operations Officer of YRC Worldwide. "This vote sends a clear message to our customers and our competitors. We are moving forward together, and we're moving forward with confidence, delivering uninterrupted and unparalleled service in our superior networks."

Additional asset sales contract finalized. The company also announced progress on improving its liquidity position by executing contracts with NorthAmerican Terminals Management, Inc. ('NATMI') to sell and simultaneously lease back certain facilities, and to sell additional excess properties. The aggregate sales price is approximately $81 million and the property sales are intended to close during the third and fourth quarters of 2009. Sale and financing leaseback transactions are now expected to generate around $375 million of cash proceeds and excess property sales should generate over $100 million in 2009.

Sources: YRC Worldwide Inc. and International Brotherhood of Teamsters

Associated Builders & Contractors opposes union-only project labor agreements
Southeast Pennsylvania Chapter Associated Builders and Contractors, Inc. (ABC SEPA) today announced the launch of a campaign opposing the union-only Project Labor Agreement (PLA) being used on the $400 million expansion of the State Correctional Institute (SCI) at Graterford in Montgomery County. The Pennsylvania Department of General Services (DGS) and Gov. Ed Rendell have decided to allow only union construction workers on this project, discriminating against more than 75 percent of the region's construction employees that have chosen not to join a union.

"These Philadelphia-style, union-only PLAs are discriminatory and un-American," stated Geoffrey Zeh, president and CEO of ABC SEPA. "Hard-working, open-shop construction workers and their employers are funding this project; however, the majority of them are being excluded from working on the project. This job, like any construction project, should be focused on value, quality, safety, training and experience and open to all qualified contractors without regard to their labor affiliation. The use of a PLA will increase costs to taxpayers by excluding open-shop contractors and reducing competition."

The marketing campaign designed to increase the awareness of these discriminatory PLAs includes print advertisements titled "My Daddy Can't Work on the Graterford Prison Project" that will run in The Reporter and Times Herald newspapers. It also includes 60-second radio commercials; a traveling billboard; a resource section on ABC SEPA's website; hand bills; letters to the DGS, Gov. Rendell and Montgomery County legislators and officials; as well as other marketing and public relations tactics.

In addition to the Graterford Prison project, ABC is also opposing two other PLAs in Pennsylvania at the Centre County Correctional Facility in Bellefonte and the SCI at Forest located in Marienville, Forest County.

Source: Associated Builders & Contractors

Frontier Airlines, Teamsters Local 961 reach agreement on wage and benefit concessions
Frontier Airlines and Teamsters Local 961 have announced entry into a consensual, long-term labor agreement and a comprehensive settlement of the company's litigation under Section 1113 of the Bankruptcy Code.

The agreement modifies the wage and benefit reductions Frontier obtained from its International Brotherhood of Teamster (IBT)-represented employees under a Bankruptcy Court order last November. The new agreement's modified wage and benefit reductions are comparable to the consensual reductions Frontier has obtained from its other employee groups. The settlement, if ratified, also will resolve the ongoing appeals of last year's Bankruptcy Court order. The proposed agreement, which is endorsed and supported by Local 961 leadership, will be put before Frontier's maintenance employees for a ratification vote. The Local anticipates it will hold the ratification vote on the agreement and count ballots by Aug. 20.

"Frontier and the IBT worked together to negotiate an agreement that takes into account the best interests of Frontier, the IBT and, most importantly, all of our maintenance employees," said Frontier President and CEO Sean Menke. "I applaud the IBT leadership for working with us to reach this agreement. It provides us with cost assurances and labor certainty as we proceed with the upcoming auction process and our anticipated emergence from bankruptcy."

"The Teamsters Union and its members understand the importance to our members and to Frontier of this agreement," said Matthew Fazakas, President and Principal Officer of Teamsters Local 961. "On behalf of the IBT leadership, we fully endorse this agreement and will work to achieve ratification as promptly as possible."

Source: Teamsters Local 961

CSXT, Locomotive Engineers reach tentative agreement
CSX Transportation Inc. and the Brotherhood of Locomotive Engineers and Trainmen have reached a tentative agreement on a five-year extension to a combined wage and performance bonus package.In addition to wage increases, CSXT engineers will continue to be eligible for payments from a Performance Bonus Plan that links that portion of their compensation to company financial performance.

"This is an important evolution in the agreement that directly aligns the interests of our more than 5,000 locomotive engineers with company goals to meet the expectations of our customers and shareholders," said Lisa Mancini, senior vice president-human resources. "We applaud the vision of the BLET in reaching this extension to the agreement that rewards engineers when the company meets its financial and strategic goals."

The agreement extension is subject to ratification by BLET members, and includes competitive wage increases and higher bonus payout potential over a five-year period. The Performance Bonus Plan first went into effect for BLET members in 2007.

Source: CSX Transportation

Communications Workers of America ratify core wireline agreement
AT&T Inc. has announced that Core wireline employees in its Midwest Region (CWA District 4) have voted to ratify a three-year agreement with the Communications Workers of America. The agreement covers about 18,500 CWA members in Illinois, Indiana, Ohio, Michigan and Wisconsin. The contract expired on April 4 and employees have worked under the terms of the expired contract while negotiations continued.

"We applaud the negotiating teams in District 4 for their hard work in reaching an agreement during tough economic times and a period of significant change in AT&T's wireline business, and we applaud the membership for recognizing it was a fair and reasonable agreement and voting for ratification," said Bill Blase, senior executive vice president-Human Resources.

Negotiations are continuing in other regions where contracts expired on April 4, as they did in Midwest. They include East (CWA District 1), Southwest (District 6), West (District 9), and Legacy T (CWA ComTech unit). Negotiations are also continuing for Core Wireline contracts with the IBEW for employees mostly in Illinois and northwestern Indiana; those contracts expired June 27. The Core Wireline contract in the Southeast region (CWA District 3) expires on Aug. 8 and negotiations began in that region July 20.

A total of about 120,000 employees are covered under the various contracts.

Source: AT&T, Inc.

Delta calls on Machinists to resolve representation
Updating an earlier story, Delta Air Lines has sent the following letter from Mike Campbell, executive vice president of Human Resources and Labor Relations, to Robert Roach, Jr., general vice president of the International Association of Machinists and Aerospace Workers. Delta accepts Roach's meeting request and calls for a resolution of the status of the various Northwest Airlines crafts or classes represented by the IAM pre-merger. The text of the letter is below:

Dear Mr. Roach:

We have agreed to meet next week in Washington, D.C., and I am awaiting confirmation from your office of either Monday, August 3, Tuesday, August 4, or Wednesday, August 5. As I stated, the National Mediation Board has agreed to make offices available for our meeting starting at 9:00 a.m. on whatever day we agree upon.

In your letter, you state that the purpose of our meeting will be to discuss various issues which will help facilitate your determination of single carrier status. As you know, we have taken the position since November 5, 2008, that we constitute a single transportation system. All other pre-merger unions at both DL and NWA have agreed with that position. As recently as yesterday, the AFA filed with the NMB stating "it is AFA's belief that based upon the standards governing the establishment of a single transportation system. . ., Northwest and Delta are now a single transportation system." Of course, in January of this year, the NMB agreed with each pre-merger union that requested a finding of single carrier status.

In view of this history, the IAM is now the only union that has not filed to resolve its post-merger representation status. We are available to discuss whatever subjects you want to raise, but in the end, we want to make clear that the continued post-merger status of the various NWA crafts or classes represented by the IAM pre-merger needs to be resolved.

Finally, with respect to your statement that the IAM has attempted to schedule meetings with Mr. Anderson in the past, we have no record that any IAM official has attempted to contact him or the undersigned to schedule a meeting for the purpose set forth in your letter.

I look forward to a productive meeting next week that starts the process of resolving post-merger representation.

Sincerely,
Mike Campbell

Source: Delta Air Lines

Alaska Airlines aircraft technicians approve two-year contract extension
Alaska Airlines and the Aircraft Mechanics Fraternal Association (AMFA) have jointly announced ratification of a two-year contract extension covering the airline's 658 aircraft technicians. The extension was ratified by more than 77 percent of the technicians who voted.

The extended contract, which becomes amendable on Oct. 17, 2011, provides technicians with a 1.5-percent pay scale increase on Oct. 17 of 2009 and 2010. In addition, technicians will now participate in the same performance-based incentive plan as Alaska Airlines' pilots, flight attendants, dispatch and management employees.

"With the current economic conditions in the airline industry, we felt that it was in our members' best interest to have an opportunity to vote on the company's contract extension offer and the negotiated letters of agreement," AMFA's negotiating committee said in a statement. "The voting results now show the majority of our members believe this extension and the three letters of agreement will give them some stability over the next two years.''

Fred Mohr, Alaska Airlines' vice president of maintenance and engineering, said, "This contract extension recognizes the value of our skilled and dedicated technicians, whose daily contributions are a key element in our operational excellence."

Source: Alaska Airlines

IAM files for elections at Delta Air Lines
The International Association of Machinists and Aerospace Workers (IAM) took the necessary steps August 13 to resolve representational issues for 12,700 fleet service, flight simulator technician and plant protection employees at the combined Delta Air Lines and Northwest Airlines. The IAM asked the National Mediation Board (NMB) to declare that the two airlines are operating as a single carrier with respect to those classifications.

"Any benefits from the merger between Delta and Northwest must be shared with employees," said IAM General Vice President Robert Roach, Jr. "The airlines' bankruptcies were extremely difficult for employees and their families. The Machinists union can help these workers regain what was taken in bankruptcy and protect them as Delta navigates through a turbulent industry."

The IAM also represents Northwest's passenger service, stock clerks and office & clerical employees

"As soon as we determine that the two airlines are operating as a single carrier under NMB guidelines for other classifications, the IAM will move to resolve their representation issues as well," said Roach. "It has been a long road, but I look forward to welcoming Delta employees into the Machinists union family."

The Machinists union is the largest airline union in North America, representing more than 110,000 airline workers, including 12,000 Northwest Airlines fleet service, customer service, office & clerical, flight simulator technicians, stock clerks and plant protection employees.

Source: International Association of Machinists and Aerospace Workers

Kroger, UFCW Local 75 reach tentative contract agreement
The Kroger Co has reached a tentative agreement on a new contract with the United Food & Commercial Workers, Local 75, in Dayton, Ohio. The agreement would cover more than 4,000 Kroger workers at 30 stores in Dayton and the surrounding area.

The UFCW 75 leadership will present the fully recommended tentative agreement to its members for ratification during a meeting scheduled for August 12. Details of the agreement are not being released pending ratification. However, according to the UFCW, the agreement secures "fair wages and affordable health care over the life of the contract," including benefit improvements without any increase in employee contributions. The Dayton agreement is consistent with the contract reached for Cincinnati Kroger workers in 2007, the union said.

"Both Local 75 and Kroger came together and worked hard to reach an agreement that provides quality jobs, increased wages, a stable pension fund, and affordable, quality health care for associates and their families," said Geoff Covert, president of Kroger's Cincinnati/Dayton Division. "This tentative agreement also keeps Kroger competitive in this marketplace."

Kroger is one of the nation's largest retail grocery chains, employing more than 326,000 workers in over 2,500 retail stores.
Kroger Associates in Dayton ratify new labor agreement

Members of United Food & Commercial Workers Union Local 75 working for associates of The Kroger Co. in Dayton have ratified a new labor agreement. The agreement covers more than 4,000 associates who work in 30 stores in Dayton and the surrounding areas.

"This agreement provides good, stable jobs for our associates, increases take-home pay, and provides high-quality, affordable health care. At the same time, it enables our company to remain competitive in a difficult economy with intense competition," said Geoff Covert, President of Kroger's Cincinnati/Dayton Division.

Kroger, one of the nation's largest retail grocery chains, employs more than 326,000 associates who serve customers in 2,475 supermarkets and multi-department stores in 31 states. Kroger operates stores under two dozen local banner names including Kroger, Ralphs, Fred Meyer, Food 4 Less, Fry's, King Soopers, Smith's, Dillons, QFC and City Market

Source: The Kroger Co.

Deere & Company and United Auto Workers open contract negotiations
The United Auto Workers and Deere & Company have jointly announced the opening of collective bargaining on a new master agreement covering approximately 9,500 represented employees at 15 John Deere facilities. The current agreement became effective October 1, 2003. It expires at midnight September 30, 2009.

After this announcement, the company and union leadership have agreed to not make public comments on contract issues during negotiations.

"Our goal is an agreement that benefits our members, Deere & Company, and the communities where we work and live," said UAW Vice President Jimmy Settles, who directs the union's Agricultural Implement Department.

"We look forward to mutually beneficial discussions and a successful completion of the collective bargaining process," said Ken Huhn, vice president of labor relations, Deere & Company.

The locations represented by the UAW/Deere Master Factory Agreement include the John Deere Harvester Works in East Moline, IL; John Deere Seeding Group/Cylinder Division in Moline, IL; John Deere North American Parts Distribution Center in Milan, IL; John Deere Davenport (IA) Works; John Deere Des Moines (IA) Works; John Deere Dubuque (IA) Works; John Deere Ottumwa (IA) Works; John Deere Waterloo (IA) Works; John Deere Engine Works (Waterloo); John Deere Waterloo Tractor, Cab Assembly Operations; John Deere Product Engineering Center (Waterloo); John Deere Foundry (Waterloo); and parts depots in Atlanta and Denver. The John Deere Coffeyville (KS) Works will also be covered by the upcoming agreement.

Source: Deere & Company

Goodyear and USW reach tentative agreement on new contract
The Goodyear Tire & Rubber Company and the United Steelworkers (USW) have reached tentative agreement on a new master contract covering about 10,300 employees at seven tire plants in the United States. The Union is expected to schedule ratification votes at all plants in the coming days.

The previous three-year labor agreement had been extended twice, and the most recent extension was set to expire at 11:59 p.m. EST on Aug. 29, 2009. The parties had been negotiating in Cincinnati since June 8, 2009.

The plants covered by the tentative agreement are: Akron, Ohio; Buffalo, N.Y.; Danville, Va.; Fayetteville, N.C.; Gadsden, Ala.; Topeka, Kan.; and Union City, Tenn.

Goodyear employs approximately 70,000 people and manufactures its products in more than 60 facilities in 25 countries.

Source: The Goodyear Tire & Rubber Company

American Federation of Government Employees elects officers
The nation's largest federal and DC government workers union has elected new officers, the union announced.

John Gage was sworn in for a third term as president of the American Federation of Government Employees (AFGE)."There is much to do on behalf of federal workers," Gage told convention delegates after the swearing in ceremony. "It's our turn. Our focus is now on the midterm congressional elections and making sure the American people have the public services they deserve. We plan to help elect a Congress with men and women who are actually responsive to the needs of the American people, particularly the nation's working families," he added.

J. David Cox was elected by acclamation as the National-Secretary Treasurer. During his acceptance speech, Cox appealed to delegates to make a commitment to expand AFGE's role in the labor movement. "This union is great and has the capacity to be even greater." Cox said.

Augusta Thomas was elected to as the new National Vice President, Women's and Fair Practices, and told convention delegates that "the best is yet to come." She also asked that AFGE members focus on "hope, positive thinking and action." Thomas was formerly the Fair Practices coordinator for AFGE's District 6, which represents federal employees in Indiana, Kentucky, and Ohio.

The American Federation of Government Employees (AFGE) is the largest federal employee union, representing 600,000 workers in the federal government and the government of the District of Columbia.

Source: American Federation of Government Employees

OLMS issues proposed rule on employee notice requirements for federal contractors
The Office of Labor-Management Standards has published a proposed rule in the August 3, 2009 Federal Register (74 FR 38488) setting forth the notification requirements of federal contractors and subcontractors pursuant to President Obama's Executive Order 13496. Previously, contractors were required to post a Beck rights notice; EO 13496 directed that rules be promulgated requiring contractors to inform employees of all protected rights under the NLRA. Comments on the proposed rule are due September 2.

The Executive Order requires the Secretary of the Department of Labor to initiate a rulemaking to prescribe the size, form, and content of the notice that must be posted by a contractor under paragraph 1 of the contract clause described in section 2 of the Order. Under the Executive Order, Federal Government contracting departments and agencies must include the required contract provisions in every Government contract, except for collective bargaining agreements and contracts for purchases under the Simplified Acquisition Threshold, and except in those cases in which the Secretary exempts a contracting department or agency with respect to particular contracts or subcontracts or class of contracts or subcontracts pursuant to section 4 of the Order. As required by the Executive Order, this proposed rule establishes the content of the notice required by the Executive Order's contract clause, and implements other provisions of the Executive Order, including provisions regarding sanctions, penalties, and remedies that may be imposed if the contractor or subcontractor fails to comply with its obligations under the Order and the implementing regulations.

Comments, identified by RIN 1215-AB70, may only be made by the following methods: Internet --Federal eRulemaking Portal. Electronic comments may be submitted through http://www.regulations.gov. To locate the proposed rule, use key words such as "Department of Labor" or "Notification of Employee Rights Under Federal Labor Laws" to search documents accepting comments. Follow the instructions for submitting comments. Delivery: Comments should be sent to: Denise M. Boucher, Director of the Office of Policy, Reports and Disclosure, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N- 5609, Washington, DC 20210. Because of security precautions the Department continues to experience delays in U.S. mail delivery.

LEADING CASE NEWS

DCCir: Selective enforcement of email policy violated NLRA
An employer's selective enforcement of its email policy violated the NLRA, the DC Circuit held, issuing a narrow, fact-based ruling in a case that had inspired a rare oral argument before the NLRB—and leaving for another day the broader issue of whether employee use of an employer's e-mail system is in itself protected activity under the Act. The employer twice disciplined a union president for using her work email to send union-related messages; one clarified an earlier email, while two others solicited support for the union. While it was undisputed that the employer's email policy forbade email use for "non-job-related solicitations," the union argued the first email was not covered by the policy and that, in regards to the other emails, the employer selectively enforced that policy to discriminatory ends. Since the first email was not a solicitation, the employer's decision to discipline the employee over it violated the Act, the appeals court held. The court found that the employer's discipline over the other emails also violated the Act. While the Board ruled that the discipline was not discriminatory because there was no evidence the employer had allowed other employees to solicit on behalf of groups, the appeals court found the employer selectively applied its policy, noting that even though the policy did not draw a distinction between solicitation for groups or individuals, "in practice the only employee e-mails that had ever led to discipline were the union-related e-mails at issue here," and that email solicitations on behalf of individuals had been allowed. Moreover, the employer had specifically warned the employee not to use email for union purposes (Guard Publishing Co dba Register Guard v NLRB, July 7, 2009).

9thCir: Non-signatory employer was not liable for ERISA contributions
A joint employer that was not a signatory to a collective bargaining agreement is not liable under ERISA for contributions to an employee benefit plan, the Ninth Circuit has ruled. However, it reversed and remanded a district court finding that the total amount of compensation paid by the two employers does not serve as the basis for contribution. Trustees of multi-employer employee benefit plans sued a non-signatory employer, contending the employer was liable under ERISA for contributions made as a joint employer. The appeals court held the joint employer theory could not be used to impose obligations on the non-signatory company. The court reasoned that the trustees' attempt to impose obligations over and above those required by the bargaining agreement directly conflicts with the plain language of ERISA. However, the signatory joint employer could be liable for contributions based on the gross compensation the two employers paid to the employee. The bargaining agreement obligated employers to contribute an amount equal to a specific percentage of the gross compensation, but did not identify which employer paid the gross compensation. As the language was ambiguous, the appeals court remanded the question for a determination of the parties' past practice (Trustees v NYCA, Inc, July 15, 2009).

FedCir: Discharge for service-related absences violated USERRA
The Merit Systems Protection Board (MSPB) erred in rejecting an employee's claim that he was terminated due to his military service in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), ruled the Federal Circuit Court of Appeals. In a four-year period, the employee had only worked for the employer for four days due to military obligations. The employer, after speaking with the employee, later discharged him for "excessive use of military leave." The employee then brought an action under USERRA, claiming the employer discharged him based on his military service. After an administrative ruling on the issue, the employee sought review by the full MSPB, which ruled his military service was not a motivating factor in his dismissal. The appellate court noted that "the [MSPB] found that [the employee] had failed to show that his military service was a motivating factor…because the ‘real reason' for his removal was his absence from work…" However, this reasoning went against the very tenets of what the USERRA seeks to protect, the court concluded, reversing the MSPB. An employer "cannot escape liability…by claiming that it was merely discriminating against an employee on the basis of his absence when that absence was for military service," the court wrote (Erickson v US Postal Service, July 15, 2009).

SDNY: Court strikes ruling voiding Frontier Airlines bargaining agreements
A federal district court in New York has vacated a bankruptcy court ruling that erroneously voided an airline’s collective bargaining agreements with the Teamsters union, finding the bankruptcy court erroneously applied the standards set forth in section 1113 of the Bankruptcy Code when it considered the airline’s proposal to modify the bargaining agreement after the 1113 hearing already had begun. The bankruptcy statute does not allow for rejection of a bargaining agreement based on a modification proposal made after a debtor-employer’s application to reject the contract, the district court concluded. Nor does the code permit rejection based upon a debtor-employer’s disclosure efforts made during a section 1113 hearing. Finally, the court rejected the airline’s assertion that the union’s conduct during the hearing amount to a waiver of any objection to these mid-hearing developments. The bankruptcy court’s ruling had effectively allowed the airline to implement a unilateral 14 percent cut in wages, among other terms (Teamsters Airline Div v Frontier Airlines, Inc, July 20, 2009).

NLRB: Discriminatee's remedy not affected by felony, quitting interim job, medical leave
A hospital's back pay and reinstatement obligations for unlawfully discharging an x-ray technician were not effected by the ex-employee's subsequent felony conviction for attempting to solicit a controlled substance by fraud, her quitting an interim job, or her extended medical leave in a subsequent job, the NLRB held, adopting a law judge's determination. First, the employer had a past practice of dealing with comparable drug abuse via an employee assistance program and it was unknown whether the discharged employee would have availed herself of the program because she had been unlawfully discharged two years before she committed the crime. Thus, the employer failed to prove it would have discharged the employee for the felony conviction so as to disqualify her for reinstatement or toll the back pay owed. Second, the law judge credited the ex-employee's reason for quitting an interim job—that the scheduled work hours became incompatible with child-care needs—and the Board found the law judge implicitly discredited testimony from the past employer to the contrary. Finally, the employer failed to prove that the ex-employee's eight-month medical leave of absence from a subsequent job would have resulted in her lawful discharge under the employer's policy, precluding reinstatement and further back pay. The employer argued it had a practice of requiring those who exhaust FMLA leave to return and work at least three shifts to gain a two-month extension or face discharge, yet the written policy itself allowed for both an extension of FMLA leave and a personal leave of absence that could have been read to cover the eight-month leave. Thus, the defenses did not negate any remedial obligations imposed for the unlawful termination (Jackson Hospital Corp dba Kentucky River Medical Center, 345 NLRB No 42, July 9, 2009).

WAGES HOURS – FMLA

UPS hit with $100 million overtime suit
United Parcel Service (UPS), the world's largest package delivery service, has failed to pay as much as $100 million in overtime wages to its account managers, a recently filed class action alleges. The lawsuit, filed on August 19 in the U.S. District Court for the Southern District of California, asserts violations of the federal Fair Labor Standards Act and California law.

"UPS requires these employees to work up to sixty hours a week but claims that these workers do not deserve to get overtime pay," according to attorneys at Sanford Wittels & Heisler, LLP, which represents the plaintiff class. The class action law firm specializes in employment discrimination, wage and hour, consumer and complex corporate class action litigation and has offices in Washington, DC, New York, and San Francisco.

The complaint alleges that UPS fails to pay its account managers overtime wages for work in excess of 40 hours a week and eight hours a day; fails to provide these workers with mandatory meal periods and rest breaks; and fails to keep accurate records of the hours these employees work.

Account managers are ground troops in the multi-billion dollar corporation, going door-to-door to businesses to promote UPS delivery services. Laura Meza, a UPS account manager in Fullerton, California, brought the action and seeks to represent thousands of UPS account managers throughout the United States. "I work up to 60 hours every week," Meza said. "My day starts at 6 a.m., when I have to go to the office to get my daily manifest lists and respond to calls and emails from customers and supervisors. From 8:30 a.m. to 4:30 p.m., I'm out in the field pitching UPS products to customers. When I finally come home, I have to keep responding to work emails. And even on weekends, vacations and sick days, I'm routinely expected to do paperwork, calls and emails for work. That's the grinding routine that UPS requires of all of us account managers."

"Because overtime laws help motivate companies to hire more workers to get the job done, they're the kind of economic stimulus that we can't overestimate in today's dire economic climate," noted Janette Wipper, one of the attorneys for the plaintiff, based in the firm's New York office.

UPS has revenues of approximately $50 billion a year and employs 345,000 workers in the United States.

Bill would amend FMLA's military family leave provisions
A bill (S. 1543/H.R. 3403) that would extend up to 26 weeks of unpaid leave to family members of injured veterans for five years after the veteran leaves service was introduced in Congress on July 30, 2009.

Called the Supporting Military Families Act of 2009, the bill expands on the Fiscal Year 2008 National Defense Authorization Act (NDAA) (P.L. 110-181), which amended the Family and Medical Leave Act of 1993 (FMLA) to provide that eligible employees, who are the spouse, son, daughter, parent or next of kin of covered servicemembers in the Armed Forces, including members of the National Guard or Reserves, are entitled to 26 workweeks of leave during a 12-month period to care for that servicemember, who because of a serious injury or illness, is undergoing medical treatment, recuperation, or therapy, otherwise in outpatient status, or is otherwise on the temporary disability retired list. The bill was introduced by Senator Chris Dodd (D-Conn) and Representative Lynn Woolsey (D-Cal).

A number of service-related illnesses and injuries may not manifest themselves until after a servicemember has left the military, according to Dodd and Woolsey in a July 30, 2009, release. The bill would extend the 26 weeks of leave to family members of veterans for up to five years after a veteran leaves service, if he or she develops a service-related injury or illness that was incurred, or, in the case of an existing injury, was aggravated, while on active duty.

The bill would also extend eligibility for exigency leave to all active duty personnel deployed to a foreign country in order to provide another needed benefit to families who struggle with the challenges of a deployment. The NDAA, which was signed into law by President Bush on January 28, 2008, also amended the FMLA to provide eligible employees with up to 12 workweeks of leave during any 12-month period for certain qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent (i.e., the covered military member) is on active duty (or has been notified of an impending call or order to active duty) in the National Guard or Reserves in support of a contingency operation. The Department of Labor's FMLA regulations relating to qualifying exigency leave limited access to the leave to Reserve and National Guard members only. This was not the intent of the initial legislation, according to Dodd and Woolsey. The bill would also extend exigency leave to cover active duty members in the regular service as well.

"We must ensure that we care for the health and well-being of our war heroes and veterans, many of whom return from deployment with serious injuries and illnesses," said Dodd. "We enacted legislation last year to provide extended leave from work to allow family members to take care of their wounded warriors. The legislation we introduce today will ensure that the family members of former military personnel are also afforded the same benefits. We have a responsibility to provide our servicemembers the tools they need to recover from injuries, and this legislation will help us do that."

"Since a majority of military family members work, they too must balance work and family," said Woolsey. "This legislation makes important changes to the FMLA military family provisions that were passed last year to ensure that these workers get the time off they need to support servicemembers---and now veterans---in their families during deployment and when they are ill."

The Senate bill, which has three cosponsors, has been referred to the Committee on Health, Education, Labor and Pensions. The House bill, which has two cosponsors, has been referred to the Committees on Education and Labor, Oversight and Government Reform and House Administration.

OPM issues proposed revisions to FMLA regulations related to military caregiver leave
The Office of Personnel Management (OPM) has proposed revisions to its Family and Medical Leave Act (FMLA) regulations that would provide eligible federal employees up to 26 administrative workweeks of leave under the Act to care for a member of the Armed Forces, including a member of the National Guard or Reserves, who is injured in the line of duty while on active duty, according to a notice in the August 26, 2009, Federal Register. The proposal would implement statutory changes made to the FMLA by the Fiscal Year 2008 National Defense Authorization Act (NDAA).

The NDAA, signed into law (P.L. 110-181) by President Bush on January 28, 2008, provided new leave entitlements to employees with family members in the military. Among them was military caregiver leave. This leave entitlement provides eligible employees who are the spouse, son, daughter, parent or next of kin of covered servicemembers in the Armed Forces, including members of the National Guard or Reserves, with up to 26 workweeks of leave during a 12-month period to care for that servicemember, who because of a serious injury or illness, is undergoing medical treatment, recuperation, or therapy, otherwise in outpatient status, or is otherwise on the temporary disability retired list. OPM's proposed revisions essentially track the regulations issued by the Department of Labor (DOL) for private employee, which took effect on January 14, 2009.

The proposed regulations would also permit an employee to substitute annual or sick leave, including advanced annual or sick leave, for any part of the 26-week period of unpaid FMLA leave to care for a covered servicemember. In addition, OPM is proposing to update its sick leave regulations to support agencies in planning for pandemic influenza. The federal agency is also proposing to clarify its current regulations regarding the advancement of up to 104 hours of sick leave to provide care for a family member and/or for bereavement purposes and the amount of sick leave that may be advanced for other conditions. OPM has also proposed organizational changes to its existing sick leave and FMLA regulations to enhance greater understanding and administration of the programs.

Comments on the proposed revisions must be received on or before October 26, 2009. Interested parties may submit comments, identified by RIN number "3206-AL91" using either of the following methods: (1) Federal eRulemaking Portal: http://www.regulations.gov; or (2) Mail: Jerome D. Mikowicz, Deputy Associate Director, Center for Pay and Leave Administration, US Office of Personnel Management, Room 7H31, 1900 E Street, NW, Washington, DC 20415-8200.

Sick leave changes. Under current regulations, federal agencies may, when required by the exigencies of the situation, advance up to 30 days of sick leave for a serious disability or ailment, or for purposes relating to the adoption of a child. OPM is proposing to update these regulations to permit an agency to advance sick leave to an employee to care for a covered servicemember, pursuant to the NDAA.

According to the proposal, once an employee has invoked leave under the FMLA, he or she may substitute any accrued or accumulated annual or sick leave for any period of leave without pay. For a full-time employee, the 480-hour (12-week) limitation per leave year on the use of sick leave to care for a family member with a serious health condition under current law does not apply to employees caring for servicemembers because the employee may substitute accrued or accumulated sick leave for any or all of the 26 administrative workweeks of unpaid leave to care for a covered servicemember.

While an employee may use up to 26 administrative workweeks of accrued and accumulated sick leave during a single 12-month period if he or she invokes FMLA leave to care for a covered servicemember, the proposed revisions would require that federal agencies may advance sick leave only to the extent that the employee is not indebted for more than 240 hours (30 days) of advanced sick leave at any time. The employee must invoke the advanced sick leave to care fore a covered service member to be eligible for the leave, however, said OPM.

These proposed revisions would also support agencies in dealing with possible outbreaks of pandemic influenza and other serious communicable diseases, by permitting the agency to grant accrued or accumulated sick leave to an employee providing care for a family member who has been exposed to a serious communicable disease, and by permitting an agency to advance sick leave when an employee or a family member has been exposed to a serious communicable disease. According to the proposal, OPM would limit the amount of accrued or accumulated sick leave available for this purpose to 104 hours per leave year, unless the family member contracts the communicable disease. Upon determination by health care officials that the family member has contracted the disease, the employee is entitled to use up to 12 weeks of sick leave in a leave year to care for a family member with a serious health condition.

OPM is also proposing to changes to its regulations to permit agencies to advance a maximum of 240 hours (30 days) of sick leave to an employee if it has been determined by the health authorities having jurisdiction or by a health care provider that the employee's presence on the job would jeopardize the health of others because of exposure to a communicable disease.

Proposed regulations on advanced sick leave. OPM's proposed revisions would also reinstate a "longstanding practice" regarding the advancement of up to 104 hours (13 days) of sick leave to provide general care for a family member and/or for bereavement purposes.

The proposed revision would also permit agencies to advance up to 240 hours (30 days) of sick leave to a full-time employee: (1) who is incapacitated for the performance of his or her duties by physical or mental illness, injury, pregnancy, or childbirth; (2) for a serious health condition of the employee or a family member; (3) when the employee would, as determined by the health authorities having jurisdiction or by a health care provider, jeopardize the health of others by his or her presence on the job because of exposure to a communicable disease; (4) for purposes relating to the adoption of a child; or (5) for the care of a covered servicemember with a serious injury or illness.

In addition, the revision would advance up to 104 hours (13 days) of sick leave to a full-time employee when he or she: (1) receives medical, dental, or optical examination or treatment; (2) provides care for a family member who is incapacitated by a medical or mental condition or attends to a family member receiving medical, dental, or optical examination or treatment; (3) provides care for a family member who would, as determined by the health authorities having jurisdiction or by a health care provider, jeopardize the health of others by that family member's presence in the community because of exposure to a communicable disease; or (4) makes arrangements necessitated by the death of a family member or attends the funeral of a family member.

The maximum amount of sick leave that an employee may be advanced is 240 hours (30 days), OPM stated.

New definitions. OPM has also added definitions for active duty, contingency operation, covered servicemember, next of kin of a covered servicemember, outpatient status, parent of a covered servicemember, serious injury or illness, single 12-month period, and son or daughter of a covered servicemember --all of which are new terms applicable only to taking FMLA leave to care for a covered servicemember.

Certification for leave taken to care for a covered servicemember. OPM's proposed revisions would update the FMLA's certification requirements to require that employees provide the following information when taking caregiver leave: (1) Whether the covered servicemember has incurred a serious injury or illness; (2) whether the injury or illness may render the covered servicemember medically unfit to perform the duties of the member's office, grade, rank, or rating; (3) whether the injury or illness was incurred by the member in the line of duty on active duty; (4) whether the covered servicemember is undergoing medical treatment, recuperation, or therapy, is otherwise on outpatient status, or is otherwise on the temporary disability retired list; and (5) the family relationship of the employee to the covered servicemember.

In addition, a certification for leave to care for a covered servicemember should also contain other information, including: (1) The probable duration of the injury or illness; (2) frequency and duration of leave required; and (3) if leave is requested on an intermittent or reduced schedule basis, an estimate of the frequency and duration of such leave. These provisions are consistent, as appropriate, with the regulations promulgated by DOL in its final rule.

Any one of the following health care providers may complete the certification, according to the proposal: (1) A US Department of Defense (DOD) health care provider; (2) A US Department of Veterans Affairs (VA) health care provider; (3) A DOD TRICARE network-authorized private health care provider; or (4) A DOD non-network TRICARE-authorized private health care provider. The DOL has developed an optional form ( Form WH-385) for employees' use in obtaining certification that meets these requirements, confirmed OPM, and federal employees may use this form as well.

Invitation travel orders and invitation travel authorizations. According to the proposed revision, federal agencies must accept as sufficient certification, "invitational travel orders" (ITO) or "invitational travel authorizations" (ITA) issued to any family member to join an injured or ill servicemember at his or her bedside. An ITO or ITA is sufficient certification for the duration of time specified in the ITO or ITA.

Department of Labor uncovers child labor and migrant and seasonal farm labor violations
9 farms and 17 farm labor contractors cited for violating federal laws
The Department of Labor's Wage and Hour Division has fined nine farms and 17 farm labor contractors doing business in Bladen and Craven counties, N.C., for violating federal labor law, including employing children as young as eight years old as farm laborers.

The investigation is part of the agency's ongoing agricultural initiative aimed at protecting the rights of farm workers under provisions of the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Five of the nine agricultural employers were found to have employed underage workers. They are: Blueberry Hill Farms, Carter Farms, Morris Bros. Blueberry Farms, Nelson's Blueberry Farm and Thomas Milton Smith. Two of the 17 farm labor contractors --Macendonio Hernandez and Jesus Moto Serrano --were also cited for child labor violations.

Other employer violations include failure to disclose terms and conditions of employment as required by MSPA, recordkeeping violations and violations of federal minimum wage law. Penalties imposed against the 26 employers total $31,445 in addition to $40,010 in back wages owed to 428 farm workers.

"Agricultural employers in North Carolina must understand that the Labor Department will vigorously enforce federal labor laws whenever we find that employees are illegally employed," said Richard Blaylock, district director of the Wage and Hour Division in Raleigh. "Agricultural employment is particularly dangerous for children, and the rules for their employment must be followed," he added.

Under federal law, youths ages 16 and above may work in any farm job at any time, and youths of any age may work at any time in any job on a farm owned or operated by their parents. Other youths aged 14 and 15 may work outside school hours in jobs not declared hazardous by the secretary of labor. There are special requirements for employing youths under age 14.

In July, the Wage and Hour Division cited an Arkansas farmer for illegally employing children to pick blueberries. That case, involving Caston Blueberry Partnership, was resolved when the employer paid $2,282 in fines.

The investigations were conducted by the Wage and Hour Division's Raleigh District Office, 4407 Bland Road., Suite 260; telephone 919-790-2742. Information on federal laws concerning minimum wage, overtime, and migrant and seasonal agricultural workers is available by calling the Department of Labor's toll-free helpline at 866-4US-WAGE (487-9243) or on the Internet at http://www.wagehour.dol.gov.

9to5 appeals court ruling on Milwaukee paid sick-leave ordinance
9to5, National Association of Working Women, has appealed Milwaukee County Circuit Court Judge Thomas Cooper's June 12, 2009, ruling that struck down the city of Milwaukee's paid sick-leave ordinance. Milwaukee's ordinance would have provided up to nine paid sick days per year based on the number of hours worked and the size of the business. The organization and its coalition partners are urging Milwaukee Mayor Tom Barrett, the Common Council and City Attorney Grant Langley to join the appeal. Media reports indicate that the mayor and council president are urging the city not to appeal, but the city has not yet decided whether it will join in the appeal.

In his holding, Judge Cooper declared the ordinance "invalidly enacted and unconstitutional" ( Metropolitan Milwaukee Assoc of Comm v City of Milwaukee, Milwaukee County Circuit Court, No 08cv018220, June 12, 2009). While the court did not find the ordinance improperly enacted under state and federal preemption grounds, it determined that the ordinance's reach "exceed[ed] its grasp," as it was improperly enacted under Wisconsin's Direct Legislation statute. The ballot question for the ordinance failed the statute's requirement that it have "a concise statement of its nature" because of how it defined "employers within the city" and "sick leave." The court also held that the ordinance's provisions regarding relocation due to domestic or sexual violence or stalking and taking legal action to such matters were unconstitutional, as an invalid exercise of the city's police powers. According to the court, the "ordinance's recognized objective related to the problems related to sickness," and because the relocation provisions did not fall into that objective, the entire measure was improperly constructed and invalid.

"As our partners in the domestic violence movement have pointed out, the crime of domestic violence continues to climb during the recession," said Wisconsin 9to5 Director, Amy Stear, "At the same time, all signs point to an increase in the H1N1 virus this fall. We need to move ahead quickly to overturn Judge Cooper's erroneous judgment that seeking shelter or taking legal action to stop domestic or sexual violence is somehow unrelated to the City's job in protecting the health and welfare of its people."

Stear noted that Judge Cooper upheld paid sick days as a minimum labor standard and dismissed every argument raised by MMAC alleging that the ordinance conflicted with state or federal laws or with collective bargaining agreements. The sole ground for striking down the ordinance was the inclusion of steps for dealing with domestic violence, sexual assault and stalking, found 9to5.

"Currently, without time off from work, victims in Milwaukee are unable to access the services they need to start a violence-free life," said Carmen Pitre, Co-Executive Director of Sojourner Family Peace Center. "We can't put someone in a position where taking time off work to escape abuse could mean losing the income they need to be independent and support their children. Police and prosecutors cannot bring perpetrators to justice unless victims are able to appear at legal proceedings. The Milwaukee Sick Pay Ordinance would have addressed these barriers to safety and given victims the small window of latitude necessary to prevent further violence."

The District of Columbia and San Francisco are the only US municipalities that have enacted paid leave laws.

New York City private employers may soon wrestle with paid sick leave obligations
Positioning New York City to become the fourth municipality in the country to pass paid sick leave legislation, Council Member Gale A. Brewer (D-Manhattan) introduced legislation on August 20, 2009, mandating that New York city private employers provide paid sick leave to their employees. Thirty-five of the 51 City Council Members have agreed to cosponsor the bill. New York City Mayor Michael Bloomberg has also endorsed the concept of paid sick days.

"No one should have to lose their pay or risk losing their job because they are ill, or their child is sick, said Council Member Brewer. "I look forward to New York City takeing a lead in the national dialogue to support small businesses, workers, families and ordinary New Yorkers who want to go to work but should not if they are genuinely sick and could infect their colleagues or those of us riding the subway with them."

Called the Earned Paid Sick Leave Law, the bill would require employers to provide paid sick leave annually to each employee at a rate of one hour of paid sick leave for every 40 hours worked. Employees who work a 40 hour workweek would earn up to nine paid sick days per year, while employees working for small businesses (employing ten or less employees) would earn up to five days per year. Employees are eligible for the benefit once they begin work, but the paid sick days cannot be used until the employee has worked at least 90 days.

An employer must permit an employee to use the paid sick leave for the following reasons: (1) an employee's or the employee's child's, spouse's, parent's, grandparent's or domestic partner's mental or physical illness, diagnosis or preventive medical care; (2) issues related to domestic violence; and (3) in the event a public oficial closes a school or place of business due to a public health emergency. According to the bill, reasonable notice of foreseeable leave may be required and documentation may also be required for leave of more than three days. In addition, the bill bans employers from taking retaliatory personnel actions or discriminating against an employees because they take the leave. Businesses would be fined $1,000 per violation.

The measure is championed by a coalition of labor and community groups, including the New York State Paid Family Leave Coalition, A Better Balance: The Work and Family Legal Center and the Working Families Party. About 1 million New York workers have no paid sick days, according to a study by the Community Service Society of New York, including most employees of the food service industry and most low-wage workers. "New York City will benefit significantly when lawmakers put a strong paid sick days law in place," said National Partnership for Women & Families President Debra L. Ness. "This law would help workers, families, employers and the public health, and help build momentum for the minimum standard of paid sick days our country urgently needs."

The District of Columbia, San Francisco and Milwaukee are municipalities that have paid leave programs, but Milwaukee's paid sick leave ordinance was declared unconstitutional. An appeal has since been filed. Nationally, the Healthy Families Act (S. 1152/H.R. 2460) would establish a minimum standard of paid sick days for the nation, allowing workers to earn up to seven paid sick days a year. It is currently being considered by both the House and Senate.

Cintas to pay over $22.75 Million in class action lawsuit
Hundreds of delivery drivers at the nation's largest uniform provider, Cintas, have been notified that a $22.75 million settlement agreement has been reached in the class action overtime lawsuit, Veliz v. Cintas Corporation. It was a long road for the uniform delivery drivers, whose suit, filed in 2003, alleged Cintas misclassified thousands of their route drivers as exempt employees in order to avoid paying overtime required by state and federal laws.

"After six long years of delay tactics and needless posturing by Cintas, drivers will finally receive just compensation for overtime work performed that was wrongly withheld," said Bruce Raynor, President of Workers United, the laundry workers union that has been working with Cintas production workers seeking to form a union. "In the end justice was delayed but not denied, as Cintas ultimately agreed to the recommended settlement agreement negotiated through the arbitration process."

The Cintas drivers who pick up soiled uniforms, oily rags and other items and drop off a fresh supply were classified by the company as salaried workers instead of hourly workers, who would be entitled to overtime pay. The Fair Labor Standards Act (FLSA) requires workers to be compensated for all hours worked, unless they are specifically exempted. Executives and professionals are exempted and can be required to work more than 40 hours a week without being paid overtime. The drivers argued that their jobs driving trucks, delivering uniforms and servicing existing contracts do not make them exempt from being paid for hours worked over 40 hours.

Attorneys for the plaintiffs are notifying plaintiffs that the general terms of settlement had been reached. However, a frame work for allocation of funds is still being worked on and it will still be months before the final settlement agreement is approved by the court.

Source: Workers United

Arkansas agrees to pay more than $130,000 in back overtime wages for 161 wildlife officers
The state of Arkansas, Game and Fish Commission, has agreed to pay $132,154 in back overtime wages after an investigation by the Department of Labor's Wage and Hour Division found 161 current and former wildlife officers did not receive overtime pay as required by the Fair Labor Standards Act (FLSA). Civil money penalties assessed total $13,282.

The investigation by the department's Wage and Hour Division in Little Rock determined that the Arkansas Game and Fish Commission failed to pay its employees for all hours worked, including those worked over 40 in a workweek. Employees were assigned work at home such as answering telephone calls and completing computer assignments, for which they were not compensated.

"This is not the first time this organization has not properly compensated its employees," said Cynthia Watson, the Wage and Hour Division's regional administrator for the Southwest. "In this case, these officers were not compensated for assigned duties following their shifts."

The Arkansas Game and Fish Commission has agreed to future compliance with the law. Back wages and civil money penalties have been paid in full.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates of pay for hours worked more than 40 per week, unless otherwise exempt. Employers must also maintain accurate time and payroll records.

LEADING CASE NEWS

6thCir: Estoppel did not bar employer from raising FMLA non-eligibility defense
An employer’s representations that an employee was being given FMLA leave did not bind it under equitable estoppel such that the FMLA’s protections were extended to him even though he was not an eligible employee, ruled the Sixth Circuit. The employee learned his position as a mechanical engineer had been eliminated after he attempted to return to work from an approved leave for an elective surgical procedure to treat his epilepsy. Prior to his surgery, he applied for leave on an FMLA form and received written notice from his employer that his leave was “pursuant to the [FMLA]” and that he was an “eligible employee” even though he was, in fact, not covered by the FMLA because the employer did not have the requisite 50 employees within 75 miles of the employee’s worksite. Deciding not to impose an additional requirement that the employee show knowledge or bad faith on the part of the employer, the Sixth Circuit found that, although the employer’s actions amounted to a definite misrepresentation of his eligibility, the employee could not show that he detrimentally relied on this misstatement of eligibility. There was no evidence to show his decision to have surgery was contingent on his understanding of his FMLA eligibility status. Rather, the record showed he had already decided upon the surgery by the time he was informed of his eligibility. Moreover, he offered no evidence to support his assertion that he would have rescheduled the surgery had he known that he was not FMLA eligible (Dobrowski v Jay Dee Contractors, Inc, July 8, 2009).

7thCir: Internal complaints must be in writing to be FLSA-protected activity
An employee who alleged he was discharged after making verbal complaints about the location of the company’s time clocks did not suffer retaliation within the meaning of the FLSA because he was not engaged in FLSA-protected activity, the Seventh Circuit ruled. The employee was suspended and then terminated after receiving several written warnings for failing to swipe in and out. The employee claimed he was discharged for making repeated verbal complaints to supervisors and to a human resources staff member that the location of the time clocks was illegal and prevented employees from being paid for time spent donning and doffing required protective gear. Addressing for the first time whether internal complaints are protected activity, the Seventh Circuit concluded, “in line with the vast majority of circuit courts to consider this issue,” that under the plain language of the FLSA, intra-company complaints are covered, and that protection from retaliation is not limited to formal complaints filed in court or with an administrative agency. However, the appeals court also held unwritten verbal complaints are not protected activity, rejecting the Secretary of Labor’s contention in an amicus brief that the retaliation provision should be read expansively to include such unwritten objections. Looking again to the language of the statute, the appeals court found the retaliation provision refers to “filing” a complaint, which connotes a complaint made in writing. Further, it noted analogous provisions in other statutes (such as Title VII and the ADEA) more broadly protect employees who have “opposed any practice,” and the FLSA’s “file any complaint” language is more narrow. Because the employee’s alleged verbal complaints were not protected, the court affirmed summary judgment to the employer (Kasten v Saint-Gobain Performance Plastics Corp, June 29, 2009).

9thCir: Court may not rely solely on uniform exemption policy to certify class
The Ninth Circuit has reversed a district court’s ruling granting class certification under FRCP Rule 23 in a wage suit against Wells Fargo, finding the lower court relied so heavily on the company’s uniform policy of treating all home mortgage consultants as exempt that it excluded all other relevant factors touching on predominance. “Such centralized rules, to the extent they reflect the realities of the workplace, suggest a uniformity among employees that is susceptible to common proof. But Wells Fargo’s blanket application of exemption status, whether right or wrong, is not such a rule,” the appeals court explained. The court compared the blanket exemption policy at hand with a hypothetical employer policy that requires employees to be at their desks for 80 percent of their workday: In a wage suit that turned on the outsides sales exemption, which applies where the employee is “customarily and regularly away from the employer’s place of business,” such a policy “would change this individual issue into a common one... and would be highly relevant to the predominance analysis,” the court explained. In contrast, the exemption policy at issue here “has no such transformative power,” the court wrote, as it “does nothing to facilitate common proof on the otherwise individualized issues.” As such, relying on the policy to the near exclusion of other relevant factors was an abuse of discretion, the court held, reversing and remanding the decision (Mevorah v Wells Fargo Home Mortgage, July 7, 2009).

9thCir: Rule 23 does not bar preemptive motions to deny class certification
A district court did not abuse its discretion by considering an employer’s motion to deny class certification before a putative class of loan consultants filed their motion to certify the class, the Ninth Circuit ruled, concluding no rule or decisional authority prohibited the employer from filing its motion to deny certification before the plaintiffs filed their motion to certify. The appeals court rejected the plaintiffs’ argument that a defense motion to deny class certification brought outside the context of a plaintiff’s motion actually seeking certification is procedurally improper per se. “Although we have not previously addressed this argument directly, we conclude that Rule 23 does not preclude a defendant from bringing a `preemptive’ motion to deny certification,” the appeals court wrote. The court also ruled the plaintiffs were given adequate time in which to conduct discovery on the question of class certification, and the lower court thus did not abuse its discretion by considering the preemptive motion to deny certification; nor did the lower court abuse its discretion in ultimately denying certification. Finally, the appeals court declined again to adopt a rule that class certification is warranted whenever an employer uniformly classifies a group of employees as exempt—for reasons set forth at greater length in the court’s Wells Fargo ruling above (Vinole v Countrywide Home Loans, July 7, 2009).

9thCir: Employees of Wal-Mart suppliers could not hold retailer liable
Employees of Wal-Mart’s foreign suppliers in China, Bangladesh, Indonesia, Swaziland, and Nicaragua failed to state a claim against the retailer based on poor working conditions in their employers’ factories, the Ninth Circuit ruled, affirming dismissal of their suit for failure to state a claim. Wal-Mart’s supplier code of conduct, which asks that suppliers adhere to local laws and local industry standards regarding working conditions like pay, hours, forced labor, child labor, and discrimination, was not enough to establish substantive obligations that can be enforced by the workers against Wal-Mart, nor was Wal-Mart’s insufficient monitoring of its suppliers’ adherence to its code a basis for liability. The appeals court rejected the plaintiffs’ assertion that they are third-party beneficiaries of the code of conduct standards; there is no evidence the parties intended for workers to have a right of performance against Wal-Mart under the contracts. Their claim that Wal-Mart was a joint employer also failed, as the workers offered no support for their theory that a common-law employment relationship exists between a purchaser and its suppliers’ employees. Nor could they succeed on their negligent breach of duty claim; Wal-Mart did not owe the plaintiffs a common-law duty to monitor Wal-Mart’s suppliers or to prevent their alleged intentional mistreatment by the suppliers. Finally, the workers could not establish that Wal-Mart was unjustly enriched by their mistreatment by profiting from relationships with suppliers that Wal-Mart knew were engaged in substandard labor practices. The connection between the workers and Wal-Mart here “is simply too attenuated to support an unjust enrichment claim,” the appeals court found (Doe v Wal-Mart Stores, Inc, July 10, 2009).

PA: State wage law applied to overtime hours worked abroad, even if FLSA did not
An employee was not entitled to overtime wages under the FLSA for the time he spent working in England and Canada, since the FLSA expressly exempted work performed outside the United States from its overtime requirements. That did not mean the hours that he worked abroad were not covered by the Pennsylvania Minimum Wage Act (PMWA), however, a federal district court ruled, denying summary judgment to his employer on his state-law overtime claim. The FLSA does not preempt the states from enacting wage laws that offer greater employee protections than state law provides. "There is nothing within the PMWA that restricts the benefits of the PMWA to work performed within the United States," the court wrote. "We are reluctant to find an unstated foreign-work exemption in the PMWA based solely on the fact that the FLSA contains such an exemption," it noted. Had the state legislature intended that work assignments performed abroad are not to be covered, it would have expressly provided for such an exemption, the court reasoned (Truman v DeWolff, Boberg and Associates, WDPa, July 7, 2009).

State employment laws and regulations, wages-hours/labor relations, August update

Alaska Wage and Hour Act
The minimum wage in Alaska increased from $7.15 per hour to $7.25 per hour, effective from July 24 to December 31, 2009. After December 31, 2009, the minimum wage in Alaska is to be not less than 50 cents an hour more than the federal minimum hourly wage ($7.75 per hour beginning January 1, 2010, if the federal minimum hourly wage remains at $7.25 per hour). The minimum wage applies for hours worked in a pay period, whether work is measured by time, piece, commission, or otherwise. An employer may not apply tips or gratuities as a tip credit toward payment of the state minimum hourly wage. Note that public school bus drivers are to be paid two times the state minimum wage for hours worked in a pay period, except that an employer who contracts with the Department of Education and Early Development, a school district, or a regional educational attendance area to provide school bus transportation services is not required to adjust school bus driver wages except when entering into or renewing the contract. Section 23.10.065, as amended by Ch. 56 (S.B. 1), L. 2009, effective July 24, 2009. AK ¶2-41,004.

Arizona Drug and Alcohol Testing
Workers’ compensation legislation deemed unconstitutional as it relates to workplace injury due to drugs and alcohol is repealed and the requirement that an employer file a certification of an established drug and alcohol testing policy with the Industrial Commission of Arizona is removed effective September 30, 2009. In a 2005 Arizona Supreme Court Decision, Grammatico and Komelestewa v. The Industrial Commission(Grammatico), the court held that the legislation was unconstitutional under Article 18, Section 8 of the Arizona Constitution because fault was impermissibly injected into the state’s no-fault workers’ compensation system regarding the compensability of a workplace accident. The decision rendered the statute unreliable for employers or insurance carriers to deny a workers' compensation claim if a worker was under the influence of drugs or alcohol when the workplace injury occurred. Following that decision, the National Commission of Compensation Insurance, which is the rate making agency for Arizona's workers' compensation insurance, revoked a five percent discount that was given to employers who had drug and alcohol testing programs. Subsequent law enacted in 2007 (Sec. 23-961) reinstituted the five percent premium discount for employers that implement drug and alcohol testing programs consistent with statutory notice and testing requirements under Sec. 23-493.04 (Source: Arizona State Senate Fact Sheet for S.B. 1266, June 8, 2009). Section 23-1021, as amended by S.B. 1266, L. 2009, effective September 30, 2009. S.B. 1266 eliminates subsections (C) through (H). AZ ¶3-53,014.

Arkansas Minimum Wage
While Arkansas law provides for a minimum wage of $6.25 per hour, employers subject to federal law must pay employees the higher federal minimum wage of $7.25 per hour as of July 24, 2009. Section 11-4-210. [see also, In General summary] AR ¶4-41,000 and 4-41,010.

Connecticut Prevailing Wages
Law relating to payment of the standard rate of wages for certain workers in Connecticut is amended to tie the wage of certain employees in the state to the prevailing wage paid to the majority of the workers in the same classification working in Hartford County; to provide for the labor commissioner to classify certain individuals hired after July 1, 2009, performing the duty of grounds maintenance laborer, laborer or janitor as a light cleaner, heavy cleaner, furniture handler or window cleaner, as appropriate; to direct the labor commissioner to determine the standard rate of wages for each classification of nonsupervisory employees, which is to be the prevailing rate of wages paid in each classification or, where there are no such rates, a 30 percent surcharge to cover health, welfare and retirement benefits costs. The amendment also provides the procedures for handling of contracts to perform services that are substantially the same as services rendered under a predecessor contract. Section 31-57f, as last amended by Public Act 183 (H.B. 6502), L. 2009, effective July 1, 2009 (Enacted by the state legislature, overriding the governor’s veto). CT ¶7-50,015.

Delaware Minimum Wage
The minimum wage in Delaware increased to $7.25 per hour effective July 24, 2009. State law provides that upon the establishment of a federal minimum wage in excess of the state minimum wage, the minimum wage in Delaware must be equal in amount to the federal minimum wage, except as may otherwise be provided under the law. Since the federal law increased to a higher rate of $7.25 per hour on July 24, 2009, the minimum wage in Delaware also increased to $7.25 per hour on this same date. Section 902 [See also, In General summary]. DE ¶8-41,000 and ¶8-41,002.

District of Columbia Minimum Wage
The minimum wage in the District of Columbia increased to $8.25 per hour on July 24, 2009. District law provides that the minimum wage in the District is to be $7 an hour or the federal minimum wage set by the United States government pursuant to the Fair Labor Standards Act plus $1, whichever is greater. Since the federal rate increased to $7.25 per hour on July 24, this new federal rate plus $1 ($8.25), being the higher rate, became the new minimum wage rate in the District. Section 32-1003 [See also, In General summary]. DC ¶9-41,003.

Florida Minimum Wage
On July 24, 2009, the federal minimum wage of $7.25 per hour replaced Florida's minimum wage rate of $7.21 per hour. Federal law requires employers to pay the higher minimum wage, whether federal or state. The minimum wage applies to all employees in the state who are covered by the federal minimum wage. Note that Florida law also requires the Agency for Workforce Innovation to calculate a new minimum wage each year on September 30, based on the Consumer Price Index. If the calculation made on September 30 is higher than the current federal rate, the state's minimum wage will then take effect January 1, 2010 (Source: State of Florida, Agency for Workforce Innovation, News Release, July 22, 2009). Section 24 of Article X of the Constitution of the State of Florida [See also, In General summary]. FL ¶10-41,000 and ¶10-41,001.

Georgia Minimum Wage
While Georgia’s minimum wage remains at $5.15 per hour, employers subject to federal law must pay employees the higher federal minimum wage of $7.25 per hour effective as of July 24, 2009. Sec. 34-4-3 [See also, In General summary]. GA ¶11-41,003.

Hawaii Prevailing Wages
Hawaii law relating to payment of prevailing wages on public works contracts is amended to require that collective bargaining agreements be submitted to the director of labor and industrial relations in order for the terms in the agreement to dictate prevailing wages on a project financed through the issuance of a special purpose revenue bond. Section 104-2, as amended by H.B. 1676, L. 2009, effective July 1, 2009 (Enacted by the state legislature, overriding the governor’s veto). HI ¶12-50,002.

Hawaii Prevailing Wages
Hawaii law relating to payment of prevailing wages on public works contracts is amended to require that the department of labor and industrial relations include in certified payroll records a fringe benefit reporting form, on which contractors and subcontractors itemize the cost of fringe benefits paid to both union and non-union laborers who perform work for the construction, alteration, or repair of public buildings and public works. This amendment also allows for any certified form containing fringe benefit reporting requirements to be submitted in lieu of a form supplied by the department of labor and industrial relations. Section 104-3 is amended by H.B. 1479, L. 2009, effective October 1, 2009 (Enacted by the state legislature July 15, 2009, overriding the governor’s veto). HI ¶12-50,003.

Hawaii Labor Relations
New law is enacted to streamline union certification by allowing representation without election when no other individual or organization is certified or recognized as the exclusive representative for a unit of employees. This law provides that an employee, group of employees, or any individual or labor organization acting on their behalf, may file a petition alleging a majority of employees in a unit wish to be represented by an individual or labor organization for purposes of collective bargaining. If valid authorizations are signed by a majority of the employees in a unit appropriate for bargaining and no other individual or labor organization is currently certified or recognized as the exclusive representative, the Hawaii Labor Relations Board is to certify the individual or labor organization as their representative without directing an election. This law applies to employees of employers with an annual gross revenue of more than $5 million. New law is enacted (Section 1 and second part of Section 1 of H.B. 952) and Section 377-9 is amended by H.B. 952, L. 2009, effective July 1, 2009. HI ¶12-63,010, ¶12-63,020 and ¶12-63,020a.

Idaho Minimum Wage
The minimum wage rate in Idaho increased to $7.25 per hour effective July 24, 2009. State law provides that the state minimum wage is to conform with and be on track with the federal minimum wage rate, which increased to $7.25 per hour on July 24. Section 44-1502. ID ¶13-41,002.

Illinois Minimum Wage
Reminder: The state minimum increased to $8.00 per hour effective July 1, 2009, as part of a scheduled increase. 820 ILCS 105/4. IL ¶14-41,005.

Indiana Minimum Wage
The minimum wage rate in Indiana increased to $7.25 per hour effective July 24, 2009. Indiana law requires employers with at least two employees during a workweek, during any week in which the employer is subject to the state minimum wage law, to pay each employee wages of not less than the minimum wage payable under the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.). Increases to the federal minimum wage and the training wage are to be automatically adopted by the state by reference. The federal minimum wage rate increased to $7.25 per hour on July 24, 2009. Section 22-2-2-4. IN ¶15-41,004.

Iowa Child Support
Law relating to withholding of employee compensation for child support enforcement is amended to remove obsolete provisions and to provide that the employer is to withhold from compensation the employee's share, if any, of premiums for the health benefit plan in an amount that does not exceed the amount specified in the national medical support notice or order or the amount specified and consistent with federal law (15 U.S.C. Section 1673(b)). The employer is to forward the amount withheld to the insurer. Section 252D.18A and Section 252E.5 are amended by Senate File 319, L. 2009, effective July 1, 2009. Note that changes made to Section 252B.9 and Section 252G.5 by Senate File 319 were subsequently repealed by House File 811. IA ¶16-47,001, ¶16-47,008, ¶16-47,024 and ¶16-47,043.

Kansas Minimum Wage
The minimum wage in Kansas remains at $2.65 per hour and is not scheduled to increase to $7.25 per hour until January 1, 2010. However, for employers and employees subject to the federal Fair Labor Standards Act (29 U.S.C.A. §206), the federal minimum hourly wage of $7.25 applies as of July 24, 2009. Section 44-1203, as amended by Ch. 115 (S.B. 160), L. 2009, enacted April 23, 2009. KS ¶17-41,003.

Kentucky Minimum Wage
Reminder: The minimum wage in Kentucky increased to $7.25 per hour effective July 1, 2009. Section 337.275. KY ¶18-41,002.

Maryland Minimum Wage
The federal minimum hourly wage of $7.25 per hour applies in Maryland as of July 24, 2009. Maryland law requires that employers must pay employees subject to both state and federal law the higher of either the federal rate ($7.25 per hour effective July 24) or a wage that equals $6.15 per hour. For all other employees subject to state law, the greater of either the highest minimum wage under federal law or the state wage of $6.15 per hour applies, unless a training wage applies. Section 3-413. [See also, In General summary.] MD ¶21-41,013.

Minnesota Minimum Wage
Under Minnesota law, large employers covered by state law and which do an annual gross volume of sales or business done of not less than $625,000 must pay a minimum wage of $6.15 per hour, while small employers must pay a minimum wage of $5.25 an hour. For those subject to federal law requirements, the federal minimum wage increased to $7.25 per hour on July 24, 2009; Federal law provides that large employers with an annual dollar volume of sales of $500,000 or more and smaller employers engaged in interstate commerce must pay the federal minimum wage of $7.25 per hour. Section 177.24 [See also, In General summary]. MN ¶24-41,000 and 24-41,004.

Missouri Minimum Wage
The minimum wage in Missouri increased to $7.25 per hour on July 24, 2009, to match the higher, federal rate. State law provides that employers are to pay employees the higher of either the established state minimum wage or the federal minimum hourly wage rate. Note also that state law provides for annual adjustments to be made based on increases or decreases in the cost of living; The Department of Labor and Industrial Relations is required to make a determination of such adjustment on each September 30, with any new rate to take effect on the following January 1. Section 290.502. [See also, In General summary.] MO ¶26-41,002.

Montana Minimum Wage
The minimum wage in Montana increased to $7.25 per hour, effective July 24, 2009, along with the federal minimum hourly wage increase. Montana law provides that the minimum wage is to be the greater of the federal or current state minimum wage. However, businesses grossing $110,000 per year or less must pay a minimum wage of $4.00 to employees. Note that Montana law also provides that the state minimum wage is to be adjusted annually, calculated no later than September 30 of each year, based upon any increase in the cost of living; The new, adjusted minimum wage then becomes effective on January 1 of the following year. Section 39-3-409 [See also, In General summary]. MT ¶27-41,009.

Nebraska Minimum Wage
The minimum wage in Nebraska increased to $7.25 per hour, effective July 24, 2009, the same as the federal rate. Nebraska law applies to employees of employers having four or more employees (other than seasonal workers). Section 48-1203 [See also, In General summary]. NE ¶28-41,003.

Nevada Minimum Wage
Reminder: Effective as of July 1, 2009, the minimum wage rate for employees of employers who provide qualified health insurance benefits is $6.55 per hour; Employers who do not provide qualified health insurance benefits must pay employees a minimum wage of $7.55 per hour. These increases are the result of the annual adjustment to Nevada's minimum wage required by the 2006 amendment to the Nevada Constitution. Future adjustments to the minimum wage will depend upon cumulative increases to the federal minimum wage and the consumer price index. Note: The federal minimum wage increased to $7.25 per hour effective July 24, 2009; Employers subject to the federal requirements must pay the minimum wage of at least $7.25 per hour (Source: State of Nevada Governor Jim Gibbons Press Release, April 1, 2009; State of Nevada Department of Business and Industry, Office of the Labor Commissioner, Minimum Wage 2009 Annual Bulletin, April 1, 2009; Section 16 of Article 15 of the Constitution of the State of Nevada). [See also, In General summary]. NV ¶29-41,001.

New Jersey Minimum Wage
Effective July 24, 2009, the federal minimum wage rate of $7.25 per hour applies. State law requires employers to pay employees a minimum wage rate of $7.15 per hour. However, state law and rule also provide that every employer must pay a wage of not less than the federal minimum hourly wage. Therefore, when the federal minimum wage increased to $7.25 per hour on July 24, 2009, the higher federal minimum wage replaced the lower state minimum wage rate. N.J.S.A. 34:11-56a4, and N.J.A.C. 12:56-3.1 [See also, In General summary]. NJ ¶31-41,005 and ¶31-41,503.

New Jersey Wage Payment and Collection
New Jersey’s wage collection law is amended to add a new statute requiring that contractors and subcontractors who contract with a public body to collect or transport solid waste must make and keep accurate records, for at least two years, that show the name, hourly rate of wages paid to, and the daily, overtime and weekly hours worked under the contract, and any other records deemed necessary by the labor commission for enforcement of the payment of wages. The contractor or subcontractor must submit certified payroll records to the public body for each payroll period not more than 10 days after the payment of wages. Such certified payroll records are to be open for inspection by any party to the contract, the commissioner of labor and workforce development, and any member of the public. Enforcement provisions are also amended. Contractors and subcontractors that fail to keep records, falsify records, or refuse to make records available for inspection face fines of $100 to $1,000 and/or imprisonment of 10 to 90 days. Violators are also subject to administrative penalties of $2,500 for a first violation and up to $5,000 for each subsequent violation. The commissioner must notify violators of violations, the amount of penalty, and of the opportunity to request a hearing within 15 days following receipt of notice. This law applies to contractors and subcontractors who employ less than 1,000 employees in the state of New Jersey. Section 34:11-68 is added by Ch. 88 (S.B. 1421), L. 2009, effective July 15, 2009. NJ ¶31-46,061a.

New York Minimum Wage
The minimum wage in New York increased to $7.25 per hour effective July 24, 2009. New York law provides that an employer must pay each employee for each hour worked a wage of not less than $7.15 on and after January 1, 2007, or, if greater, such other wage as may be established by federal law. Since the federal minimum wage increased to a higher rate of $7.25 per hour on July 24, the minimum wage in New York also increased to $7.25 per hour on this same date. [See also, In General summary]. New York Labor Law Section 652. NY ¶33-41,003.

[Note, to be reported: The New York Department of Labor issued emergency rulemaking on August 12, 2009, to make adjustments to regulations dealing with the state minimum wage, as required by the increase in the federal minimum wage, to take effect July 24, 2009, and adjusting various wage allowances in the same proportion as the minimum wage increase; New York State Register Vol. XXXI, Issue 32.]

New York Wage Payment
New York employers are required to give notice to employees at time of hire of the rate of pay and the employer’s designated pay day.
Effective October 26, 2009, employers must give such notice to employees in writing. In addition, if employees are eligible for overtime compensation, such notice must also state the regular hourly rate of pay and the overtime rate of pay. Employers must obtain written acknowledgment from each employee of receipt of such notice. New York Labor Law, Sec. 195, as amended by Ch. 270 (S.B. 3357), L. 2009, enacted July 28, 2009, and effective October 26, 2009. NY ¶33-46,009.

North Carolina Minimum Wage
The minimum wage in North Carolina increased to $7.25 per hour effective July 24, 2009. State law provides that employers must pay employees the state minimum wage rate of at least $6.15 per hour or the minimum wage set forth in paragraph 1 of section 6(a) of the Fair Labor Standards Act, 29 U.S.C. 206(a)(1), whichever is higher. Since the federal minimum wage increased to $7.25 per hour on July 24, the higher federal rate applies. Section 95-25.3 [See also, In General summary]. NC ¶34-41,003.

North Carolina Child Labor
New law is added to require the Commissioner of Labor to submit annually a written report to the General Assembly, the Legislative Study Commission on Children and Youth, and the Fiscal Research Division of the General Assembly on the Department of Labor’s investigative, inspection, and enforcement activities under the Wage and Hour Act pertaining to youth employment. The first report will be due no later than February 1, 2010, covering activities for the period January 1, 2008, through December 31, 2009. Section 95-25.23C, as added by H.B. 22 (Session Law 2009-139), L. 2009, effective June 19, 2009. NC ¶34-45,011a.

North Carolina Child Labor
Penalties for violations of child labor laws will increase in December. Any employer who violates the state’s youth employment provision or related regulations will be subject to a civil penalty of up to $500 for the first violation and up to $1,000 for each subsequent violation; Currently fines are not to exceed $250. In addition, employers will be required to make, keep and preserve employment records that include the ages of employees as well as the wages, hours and other conditions and practices of employment. Employers who violate recordkeeping requirements will be subject to a civil penalty of up to $250 per employee with the maximum not to exceed $2,000 per investigation by the Commissioner or the Commissioner’s authorized representative. Currently the maximum penalty per investigation is up to $1,000. In addition, civil and criminal penalties are imposed for violation of the state Occupational Safety and Health Law, where injury or death occurs, and imposing fines for falsification of records pertaining to employees under 18 years of age. Sections 95-25.15, 95-25.23, 95-25.23A, 95-138 and 95-139 are amended by Session Law 2009-351 (H.B. 23), L. 2009, effective December 1, 2009. NC ¶34-45,005, ¶34-45,009, ¶34-45,010, ¶34-45,013a and ¶34-45,013b.

North Dakota Minimum Wage
The minimum wage in North Dakota increased to $7.25 per hour on July 24, 2009, along with the scheduled federal rate increase. Section 34-06-22 [See also, In General summary]. ND ¶35-41,023a.

Oklahoma Minimum Wage
The minimum wage in Oklahoma increased to $7.25 per hour on July 24, 2009, the same as the federal rate. State law provides that no employer within the state shall pay any employee a wage of less than the current federal minimum wage for all hours worked. The Oklahoma minimum wage rate applies to employees of employers with at least 10 full-time employees at one location or all employees of large employers who gross sales of more than $100,000 annually (No adult employee may be paid less than $2 per hour). Sections 197.2, 197.4 and 197.5 [See also, In General summary]. OK ¶37-41,002, ¶37-41,004 and ¶37-41,005.

Oregon Prevailing Wages
A rule of the Bureau of Labor and Industries relating to publication of prevailing wage rates determinations for certain public works projects as determined by the Commissionerare amended for the period beginning July 1, 2009. OAR 839-025-0700, as last amended by Administrative Order No. BLI 14-2009, filed and certified effective July 10, 2009. OR ¶38-50,545.

Pennsylvania Minimum Wage
The minimum wage in Pennsylvania increased to $7.25 per hour on July 24, 2009. Pennsylvania law states that if the minimum wage set forth in the federal Fair Labor Standards Act of 1938 is increased to a higher hourly minimum wage rate than that required under state law ($7.15 per hour), then the state minimum hourly wage rate is to be increased by the same amounts and effective on the same dates as the increases under the Fair Labor Standards Act. Therefore the state minimum wage increased to the higher federal rate of $7.25 per hour effective July 24, 2009. Section 333.104. [See also, In General summary]. PA ¶39-41,004.

Puerto Rico Minimum Wage
Employees covered by the federal Fair Labor Standards Act are subject to the federal minimum hourly wage rate and all applicable regulations. Effective July 24, 2009, the federal minimum wage is $7.25 per hour. Employees not covered by the federal Fair Labor Standards Act are subject to a minimum wage that is at least 70 percent of the federal minimum hourly wage or the applicable rate set by mandatory decree, whichever is higher. The Secretary of Labor and Human Resources may authorize a rate based on a lower percentage for any employer who can show that implementation of the 70 percent rate would substantially curtail employment in that business. Minimum wages may also be set according to industry. Title 29, Sections 247 and 250. [See also, In General summary]. PR ¶40-41,001 and ¶40-41,002.

South Dakota Minimum Wage
The minimum wage in South Dakota increased to $7.25 per hour effective July 24, 2009, the same as the federal rate. Section 60-11-3. [See also, In General summary]. SD ¶43-41,001.

Texas Minimum Wage
Texas law provides that the state minimum hourly wage rate is to be the same as the federal rate. Therefore, when the federal minimum wage rate increased to $7.25 per hour on July 24, 2009, the minimum wage in Texas also increased to $7.25 per hour. Section 62.051. [See also, In General summary]. TX ¶45-41,051.

Utah Minimum Wage
The Utah minimum wage increased to $7.25 per hour effective July 24, 2009, the same as the federal rate. Utah Administrative Code rule R610-1-3. UT ¶46-41,503.

Virginia Minimum Wage
The minimum wage in Virginia increased to $7.25 per hour effective July 24, 2009. Virginia law provides that employers must pay a minimum wage rate not less than the federal rate. Effective July 24, 2009, the federal minimum wage increased to $7.25 per hour and, therefore, the state minimum wage also increased to $7.25 per hour on that same date. Section 40.1-28.10. [See also, In General summary]. VA ¶48-41,003.

Virgin Islands Minimum Wage
The minimum wage in the United States Virgin Islands Increased to $7.25 per hour, effective July 24, 2009. The law in the Virgin Islands provides that the minimum hourly wage is not to be less than the federal minimum hourly wage; Therefore, when the federal minimum wage increased to $7.25 per hour on July 24, 2009, the minimum wage in the Virgin Islands automatically increased to $7.25 per hour on that same date. Title 24, Section 4. [See also, In General summary]. VI ¶49-41,004.

Wisconsin Minimum Wage
The minimum wage in Wisconsin increased to $7.25 per hour effective July 24, 2009. This rate applies to all employees including minor employees. The only exception is for opportunity employees, who must be paid $5.90 per hour; An “opportunity” employee is a person under the age of 20 who has been employed with the employer for 90 or fewer consecutive days from the date of initial employment. The state minimum wage is prescribed by wage order. Wisconsin Admininstrative Code DWD 272.02, 272.03, 272.05 and 272.06. WI ¶52-41,803, ¶52-41,805, ¶52-41,807 and ¶52-41,808.

Wyoming Minimum Wage
The minimum wage rate in Wyoming remains at $5.15 per hour. However, employers subject to federal requirements must pay employees a minimum wage rate of $7.25 per hour effective July 24, 2009. Section 27-4-202. [See also, In General summary]. WY ¶53-41,000, ¶53-41,002.