February 2011
In two, sharply worded letters, NLRB Chairman Wilma B. Liebman, and Acting General Counsel, Lafe Solomon, have strongly defended recent actions by the Board and the General Counsel. The letters were in response to criticism leveled against the NLRB at a hearing on “emerging trends” at the NLRB, on February 11, of the House Subcommittee on Health, Education, Labor and Pensions and constituted an aggressive defense by the Board at a time when Congressional Republicans are seeking to slash its funding.
Liebman responded directly to criticism by two of the witnesses, G. Roger King and Phillip A. Miscimarra, calling their accusation that the Board has overreached its statutory authority, “simply untrue.” Liebman contended that the criticism of the Board for issuing major decisions when it lacks a full complement of five confirmed members (it currently has four confirmed members and one recess member) missed the mark. Liebman said that past Boards, including those under George W. Bush, made decisions that overruled precedent, even when they lacked the full complement. Such action, said Liebman, was necessary due to the inability of the U.S. Congress to quickly confirm nominees to the Board; the Board last had five confirmed members in August of 2003. Noting that she has served as both the lone member, and one of only two members, Liebman argued that, “given the chronic vacancies that have plagued the Board . . . it would be an abdication of the Board’s statutory duty to defer acting . . . until, at some unknowable time in the future, it has five confirmed members.”
Liebman also took aim at Miscimarra’s criticism that the Board, in its recent bannering decisions, has intruded into areas that are the exclusive province of Congress. She noted that the U.S. Supreme Court has charged the Board with the “primary responsibility” for crafting and applying national labor policy. She also noted that, because the NLRA is written in general terms, the Act itself charges the Board with crafting specific rules. Liebman argued that the NLRA does not refer to banners and that, as Congress was unlikely to alter the law to deal with the issue, the Board had little choice but to make a ruling defining the legality of the practice.
The Chairman finished by offering her view on the NLRB’s emerging trends. She argued that the Board has been more productive, more transparent and has been more willing to act to “keep the National Labor Relations Act vital.”
For his part, Acting General Counsel Solomon argued that the initiatives targeted during the hearing are essential to the smooth running of the Board’s enforcement operations. He argued that the initiative dictating how and when the Board defers to arbitral awards and grievances was necessary in light of the DC Circuit Court of Appeals challenge to articulate a more “convincing theory” as to when an arbitral award or grievance will be deemed to have resolved a labor issue. Solomon said that, as a result of the initiative, he will ask the Board to change the current standard to allow for deferral to an arbitrator only when that arbitrator has considered the statutory claim underlying the dispute.
Solomon also discussed his controversial 10(j) injunction initiative, under which the Board quickly pursues injunctions in cases in which an employer is accused of terminating employees in the face of an organizing campaign. Such action is needed, argued Solomon, because such violations “affect the entire workforce” and because, as time passes, support for the organizing campaign dissipates, thus rendering an ultimate Board order ineffective. Contending that his efforts have constituted a “targeted approach, not a blunderbuss,” Solomon argued that his remedies redress the impact that these violations have on “fundamental employee rights.”
The NLRB’s deadline for public comment on the agency’s proposed rule that would require employers to post notices informing employees of their rights under the NLRA is approaching. The February 22 deadline falls next week and at least one group is urging its members to contact the NLRB with their concerns.
The Society of Human Resource Management has opposed the proposed rule. SHRM has argued that the Board does not have the authority, under the NLRA, either to require employers to make such a posting, or to penalize employers who fail to meet the posting requirement. SHRM further contends that the proposed language foes not “accurately reflect the rights and obligations” under the NLRA.
The NLRB has announced that it has reached a settlement in a case involving a Connecticut ambulance service employee who was terminated for posting negative comments about a supervisor on her Facebook page. Shortly before the matter was to go to a hearing before the Board, the agency and employer, American Medical Response of Connecticut, Inc, reached an agreement under which the company will revise its “overly-broad” rules so as to ensure that employees are not improperly restricted in discussions regarding wages, hours, and other terms and conditions of employment. The company also agreed not discipline or discharge employees for engaging in such discussions, including internet discussions, and has guaranteed that it will not deny future employee requests for union representation, nor will it discipline employees who do request union representation.
Last year, the employer terminated the employee after she posted negative comments about her supervisor on her Facebook page and invited her fellow employees to join the discussion. According to the NLRB, the termination violated the NLRA, because the employee engaged in protected, concerted activity when she made the comments and attempted to initiate a discussion about them with her coworkers. The initial NLRB complaint alleged that the company’s rules regarding its employees’ use of social media were overly broad and, further, that it had illegally denied union representation to the employee during an investigatory meeting.
The alleged Weingarten violation renders the agreement somewhat less useful than it could have been in terms of providing insight into the Board’s developing views on employer social media policies. What is undeniable, however, is that the Board is slowly edging towards treating the internet and social media sites as an extension of the workplace.
Lafe Solomon, the Acting General Counsel of the NLRB has sent a letter to the Attorneys General of Arizona, South Carolina, South Dakota, and Utah, responding to their recently announced intention to defend recent amendments to their respective state constitutions that would bar employer voluntary recognition of unions. Saying that the unanimously held opinion that the amendments could be construed in a manner consistent with federal labor law, Solomon wrote that “…your letter may provide a basis upon which this matter can be resolved without the necessity of costly litigation.” Solomon promised that his staff would remain in touch on the highly controversial issue.
The most recent spat between conservative politicians and the NLRB began on Friday, January 14, 2011, when Solomon advised the Attorneys General that the NLRA preempted their respective constitutional amendments mandating the use of secret ballots in all elections, both public and employee. Such a requirement would, on its face, prohibit employers from voluntarily recognizing unions as the exclusive bargaining representative of their employees, one of the two methods authorized under the NLRA in which unions can gain that status. Solomon requested a response within two weeks and warned that a federal lawsuit could be in the works.
The Attorneys General quickly responded, arguing that the Board’s assertion of preemption was incorrect and refusing to stipulate as to the unconstitutionality of their amendments. It remains to be seen what steps Solomon will take next.
Just days after President Barack Obama announced his intention to re-submit the nomination of Craig Becker as a member of the NLRB, Ranking Member of the Senate Health, Education, Labor and Pensions Committee, and Senator Orrin Hatch (R-UT), Ranking Member of the Senate Finance Committee, sent a letter to the President, blasting the choice of Becker and calling for the nomination’s withdrawal. All Republican Senators signed onto the letter, which was sent to the White House this week.
The letter, which was signed by all 47 Senate Republicans, stated that since Becker was named to the Board through a recess appointment last year, he “has made his intention and bias clear.” The letter accuses Becker of being more interested in promoting a “pro-union” agenda than in interpreting existing national labor law. The letter also implicates Becker in the decision to revisit the Board’s decision regarding the employee status of student researchers and for the Board's recent Notice of Proposed Rule-Making, which would require all employers to post workplace notices advising employees of their right to organize a union. The Senators also accuse Becker and the Board of ignoring state law provisions favoring unions that may conflict with the NLRB, while targeting state law amendments that would bar employer voluntary recognition.
The Senators also implied that the Becker nomination presents a test of the President’s vow, publicly stated in this year’s State of the Union address, for more bipartisan cooperation.
“If the President, as he stated in the State of the Union, is serious about relieving pressure on the business community and ushering in a new era of bipartisanship, he should withdraw the Becker nomination and work with us to find someone that both parties can support,” Senator Hatch warned. The Senators said they would work quickly to find a more “acceptable” nominee.
UAW threatens Caterpillar strike
According to published reports, several locals of the United Auto Workers voted on Sunday, January 30, 2011, to authorize a strike against the members’ employer, the equipment manufacturer, Caterpillar. The unions have been attempting to reach a successor contract to the current CBA, which expires on March 1, 2011.
The nation’s largest federal employees’ union, the American Federation of Government Employees (AFGE) has praised the decision of Transportation Security Administration Administrator John Pistole to stop the privatization of the nation’s airport screening function, also known as the Screening Partnership Program (SPP). From the beginning of the TSA, airports have had the option to opt out of the federal screening system and Pistole recently announced that in order to maintain TSA’s status as “an effective, federal counterterrorism security network, SPP will not be expanded beyond the current 16 airports.”
“The nation is secure in the sense that the safety of our skies will not be left in the hands of the lowest-bidder contractor, as it was before 9/11” AFGE National President John Gage said. “We applaud Administrator Pistole for recognizing the value in a cohesive federalized screening system and workforce.”
The ongoing contract negotiations between the National Football League (NFL) and the NFL Players Association (NFLPA) reached a new low yesterday, February 14, as the NFL filed an unfair labor practice (ULP) charge against the union, charging it with failing to engage in good-faith bargaining, in violation of Section 8(b)(3) of the National Labor Relations Act. The league accused of the NFL engaging in a series of conduct aimed at justifying what the League says is the union’s plan to “disclaim interest” as the players’ bargaining representative in order to then seek an injunction barring the League from locking out the players. This alleged “anticipatory refusal to bargain” lies at the heart of the charge.
The two sides have been negotiating a successor contract since June 3, 2009, when the owners decided to step away from the existing CBA in the belief that they were not receiving a sufficient portion of the League’s revenue. For much of the next year, the negotiations proceeded quietly, but since the opening of the 2010 season, the chasm between the two sides on issues ranging from an expanded schedule to revenue sharing has opened wide. Earlier this month, the sides cancelled a previously scheduled bargaining session. Now, with the filing of the ULP charge, it seems unlikely that an agreement will be reached prior to the March 3 expiration of the existing CBA.
The charge accuses the union of failing to schedule bargaining sessions, failing to provide timely responses to management proposals and preconditioning further negotiations on the receipt of financial data to which the League insists the union is not entitled. All this is being done, the League claims, in order to allow the union to seek decertification of itself as the exclusive bargaining representative, which would free the players from the CBA’s procedures and would allow them to seek a judicial injunction, under federal antitrust laws, barring the owners from engaging in their planned lockout of the players. By filing this charge, the NFL has effectively precluded NLRB consideration of any decertification petition, thanks to the NLRB’s blocking charge rule.
In a released statement, the NFLPA denied the charges, claiming that the players have offered proposals and solutions. “This claim has absolutely no merit.”
Continental Airlines flight attendants represented by the International Association of Machinists and Aerospace Workers (IAM) voted late last week to ratify a new interim CBA. The interim agreement, which was ratified by 68 percent of the voting membership, will raise the atttendants’ top base pay to $52.53 per hour and will guarantee that no attendants will be furloughed for the life of the CBA. The 20-month CBA covers approximately 9,300 flight attendants based in Houston, TX, Newark, NJ and Cleveland, OH, and is retroactive to January 1, 2010.
In addition to the pay and furlough guarantees, the flight attendants will also receive retroactive pay, profit sharing and improved work rules. In addition, Continental will restore its 401(k) match.
“This interim agreement provides immediate raises and important merger protections as United and Continental integrate their operations,” said IAM General Vice President Robert Roach, Jr. “After we win representation rights for the combined Flight Attendant group, we will return to the table and negotiate long-term improvements for all 25,000 Flight Attendants.”
The Teamsters National Freight Industry Negotiating Committee (TNFINC) and WRC Worldwide have reached a restructuring agreement that the union says will save the jobs of 25,000 YRCW Teamsters and keep the company in business. The union says that the agreement deals with debt reduction and the need for new capital in a way that offers “significant liquidity” to the employer, thus ensuring “operational and job security.” The agreement also gives the Teamsters two seats on the company board of directors and will offer union members “meaningful equity ownership in YRCW. ”
“Protecting our members' jobs and health care benefits has been our number one concern at YRCW as the company has struggled,” said Teamsters President James Hoffa. “Since the Dec. 31 extension, we have been adamant about making sure an additional deadline did not pass without significant progress in YRCW's restructuring efforts. We have some further analysis to do, and the details and definitive documentation need to be finalized, but there is now a clear pathway forward to a healthier YRCW.”
Legislation introduced last week would repeal a bill promulgated last year by the National Mediation Board under which the NMB only considers votes actually cast when determining the outcome of a representation election. HR 548, the Restoring Democracy in the Workplace Act, is aimed at turning back the clock on NMB-conducted elections and would mean that votes not cast in an election would be considered votes cast against the union seeking election. Congressman Phil Gingrey (R-GA), the bill’s sponsor, noted that the older rule, which had been in place for 75 years, had withstood four attempts to change it and had twice been upheld by the U.S. Supreme Court. Gingrey claimed that the legislation was needed to protect the majority of employees against “a minority of employees” who could potentially, on their own, decide the outcome of representation elections, a situation that Gingrey says is “inherently undemocratic.”
The bill is also, according to the Congressman, an attempt to reward organized labor. “The rule imposed by the NMB is nothing short of a political gimmick to circumvent the legislative process and enact meritless, big labor priorities through an unelected three person panel. Their move to radically alter these rules without any necessary reason for doing so is clearly arbitrary and motivated by the demands of big labor.”
Currently, elections held under the FLRA, the NLRA and the NMB only consider the desires of those who actually vote. And, of course, political elections do not consider the votes not cast to be votes cast against representation.
Although Republicans control the U.S. House of Representatives, Gingrey’s bill does not have a realistic chance of passage. The Democrat-controlled Senate would also have to pass the legislation. Should that unlikely event occur, President Barack Obama would be expected to veto the bill.
The National Mediation Board (NMB) has announced that it is modifying its write-in vote procedures for representation elections. Citing its recent voting rules, which became effective on July 1, 2010, and its “long standing policy of looking at voter intent,” the NMB will do away with the silence option for write-in votes. Voters who select the write-in option will now have the choice of either affirmatively speaking-in (telephone) or writing-in (Internet) their choice of union official or union. No other votes will be considered eligible and voters who either fail to speak when calling in to vote, or who leave the write-in box blank, will not have their votes counted. Voters who attempt to do so will be prompted by the system to enter “additional information. Additionally, voters who record the phrase “Any Other Organization or Individual,” will be considered to have cast a void vote.
The Board will also modify the section of its Representation Manual Section that deals with Run-off Elections. Section 16.0 currently, and erroneously, states that “in the event of a tie vote between votes for representation and votes for no representation, a run-off election will be held.” As that language is “inconsistent” with Board law, it will be struck. The new modified rule does not, however, change the Board’s run-off procedures, nor does it change the Board’s practice of allowing write-in votes.
The modified language will apply to all elections authorized on or after March 21, 2011.
LEADING CASE NEWS
The NLRB was denied its application for enforcement of two supplemental orders because it failed to consider an employer’s objections to the immigration-related evidentiary rulings of an administrative law judge (ALJ) that was based on pre-Hoffman Plastic Compounds, Inc v NLRB case law, ruled the Second Circuit (NLRB v Domsey Trading Corp, February 18, 2011, Pooler, R). Because Hoffman held that undocumented immigrants are ineligible for backpay under the NLRA, the Board abused its discretion by not permitting Domsey to ask the discriminatees direct questions about their immigration status during the backpay period, and excluding the testimony of its immigration expert.
Background. In January 1990, approximately 200 Domsey employees went on strike, alleging that the company committed unfair labor practices. After the strike ended, the NLRB determined that the employer had committed unfair labor practices and ordered the reinstatement of the strikers. During a compliance hearing to determine backpay for the workers who were denied reinstatement, the employer raised the issue of immigration status. The ALJ ruled that Domsey was not permitted to inquire into the discriminatees’ immigration status during the backpay period. The employer filed objections to the supplemental decision, objecting to the ALJ’s immigration-related evidentiary rulings precluding the employer from questioning claimants about their ability to obtain work in this country legally, and excluding the testimony of an immigration expert. After the ALJ issued his supplemental decision, but before the NLRB had issued its decision, the Supreme Court decided Hoffman.
More than five years after Hoffman was issued, the NLRB issued its supplemental decision. The Board held that Hoffman precluded an award of backpay to those discriminatees who admitted to being undocumented during the backpay period. However, the Board did not address Domsey’s objections to the ALJ ruling, precluding it from asking discriminatees about their immigration status. Following remand, it again adopted the ALJ’s decision without addressing Domsey’s objections to the ALJ’s evidentiary rulings.
Abuse of discretion. As an initial matter, the Second Circuit rejected the NLRB’s argument that the court lacked jurisdiction to consider Domsey’s objections because the company failed to preserve these objections before the Board. The Board urged that the employer’s general objection to the ALJ’s immigration-related rulings was insufficient to preserve those arguments. However, the appeals court concluded that the Board misunderstood the nature of the employer’s objection. The employer was not arguing that each discriminatee was undocumented during the backpay period, but that it was prohibited from eliciting relevant testimony from the discriminatees and was therefore unable to prove its affirmative defense. Thus, the Board’s waiver argument was without merit.
The ruling that Domsey could not ask discriminatees questions concerning their immigration status was premised on pre-Hoffman case law. After Hoffman, it is now clear that undocumented immigrants are ineligible for backpay under the NLRA, and that immigration status is relevant to the question of backpay eligibility. Consequently, the Second Circuit concluded that the Board abused its discretion by ratifying the ALJ’s ruling, which was based on an outdated and erroneous view of the law, and by failing to remand the case to the ALJ for further proceedings consistent with Hoffman.
While an NLRB administrative law judge has authority to review documents and to decide issues of privilege under NLRA, Sec. 11(1), only an Article III court may enforce a Board subpoena when a party to an administrative hearing refuses to voluntarily comply, the Fourth Circuit held, ruling on an “impasse between the Board and the district court [that] raises the ultimate question about the division of power between the NLRB and Article III courts” (NLRB v Interbake Foods, LLC, February 22, 2011, Niemeyer, P). Thus, when an employer refuses to comply with a Board subpoena to produce documents based on assertions of attorney-client or work-product privilege, the Board’s recourse is to seek district court enforcement of the subpoena in order for the court to assess the legitimacy of the claimed privilege.
In an administrative hearing over unfair labor practice charges levied against a bakery following a union-organizing drive, inconsistencies arose over the date in which the employer’s HR manager first began to communicate with others about the possible discharge of an employee. Several documents on the privilege log (which identifies the document’s author, recipient, date, and subject matter) suggested that the employer began to discuss taking the adverse action prior to the date alleged by the HR manager. For example, two “privileged” e-mails regarding the “Missy Jones investigation” were dated four days prior to the date that the HR director had testified was the earliest date that she communicated with anyone about the termination. Thus, the ALJ, at the General Counsel’s request, wanted to conduct an in camera inspection of documents from the employer’s privilege log to determine whether they were in fact privileged. When the employer refused to comply with the ALJ’s order to turn over the documents for this purpose, the Board filed an application for enforcement of its subpoena duces tecum and the ALJ’s order for in camera review. The district court denied the Board’s request.
The Board appealed, contending that the resolution of this question “will also have ‘far-reaching consequences that might apply to any executive or independent regulatory agency or department that relies on federal courts for the enforcement of its administrative subpoenas.’” The appeals court affirmed. NLRA, Sec. 11(2) specifically provides for court enforcement of subpoenas; this structural limitation on the Board’s subpoena authority protects against the Board’s abuse of its subpoena power, the appeals court noted.
The appeals court rejected the Board’s argument that the district court should allow the ALJ to conduct in camera review and make the privilege ruling. When the Board petitions the court to enforce a subpoena, only the court may determine the subpoena’s validity and whether the party’s reasons for noncompliance are valid, the appeals court held. The court may not delegate this function to the ALJ. Thus, the appeals court affirmed the district court’s refusal to delegate to the ALJ the court’s responsibility to decide the issue of privilege.
However, the appeals courts rejected the district court’s statement that only an Article III judge has authority to determine an issue of privilege. “When all is said, the NLRA carefully recognizes the appropriate divide between the administrative authority to conduct hearings and issue orders and the exclusively judicial power of Article III judges to enforce such orders,” the appeals court wrote. Congress has conferred authority on the NLRB — and by extension, its administrative law judges — to receive and evaluate evidence and to rule on claims of privilege. Inherent in the Board’s authority to issue subpoenas and to receive evidence is the authority to make substantive rulings on the grounds for objection to subpoenas and to the admissibility of evidence at the administrative hearing. And within this scope, Board adjudicators are authorized to make rulings on questions of privilege.
Applying these principles to the case at hand, the appeals court concluded that the district court did not abuse its discretion in holding that, through its privilege log, the employer made a prima facie showing that the three documents in question were protected from production by the attorney-client privilege. Likewise, it held the district court was within its discretion to reject the Board’s proffered reasons for doubting the employer’s preliminary showing of privilege. The fact that the HR director may have testified incorrectly regarding the dates of her communications (intentionally or otherwise) does not compel an inference that the disputed e-mails were not privileged.
Confronting the rare question of whether the WARN Act provides the right to a jury trial, the Sixth Circuit found that the statute provides aggrieved employees with equitable restitutionary relief for which there is no such right (Bledsoe v Emery Worldwide Airlines, Inc, February 16, 2011, Guy, R). Further, a class of laid-off commercial freight airline employees was not entitled to WARN Act notice because they had no reasonable expectation of being recalled at the time their employer closed its operations, the appeals court concluded, affirming the decision below.
In August 2001, in the wake of a fatal accident, the airline’s planes were grounded and about 575 employees were laid off. Letters were sent to the employees initially indicating that if issues with the FAA could be resolved, the layoffs would last less than six months. As the airline continued to attempt to resolve the issues identified by the FAA, interim letters were sent to the laid-off employees, advising them of the status of the airline and the layoffs. Ultimately, it became apparent that the airline essentially would be required to meet the certification requirements of a new carrier entering the market. Because of the costs and the continuing uncertainty associated with obtaining FAA authorization for future flight operations, management determined that the airline would close. Accordingly, the airline laid off the 90 remaining active employees with 60 days’ pay, and sent a letter to the previously laid-off employees advising them that their layoffs were permanent.
A WARN Act action ensued and a class was certified for the previously laid-off employees. However, a district judge ruled that they had no right to a jury trial, and at a bench trial, the judge determined that they were not entitled to WARN notice that their layoff was permanent. The employees appealed.
No right to jury trial. Finding that the WARN Act could not be construed to entirely avoid the constitutional question of whether aggrieved employees had a right to a jury trial, the Sixth Circuit observed that the Seventh Amendment provides a right to trial by jury when “the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.” Finding there was no action comparable to the WARN Act prior to the merger of courts of law and equity in 18th century England, the circuit court moved on to the more important question of whether the remedy available under the WARN Act is legal or equitable in nature.
The appeals court first observed that the exclusive remedies under the WARN Act are tailored to restoring the pay and benefits that the employer should have provided to aggrieved employees during, or in lieu of, the required 60-day notice period. Those remedies are restitutionary in nature, and are not compensation for discriminatory or otherwise wrongful discharge or layoff. Second, the statute places the entire amount of the liability in the district court’s discretion, which reinforces the notion that the WARN Act remedies at issue are equitable in nature. Moreover, back pay under Title VII, observed the appeals court, has been characterized by courts of appeals as an equitable remedy for which there is no right to a jury trial, and the Supreme Court has assumed, without deciding, as much. Finally, the WARN Act was not akin to the FMLA, which the appeals court had recognized as providing a right to jury trial on claims for damages. Accordingly, the district court did not err when it struck the employees’ jury demand.
No right to WARN Act notice. Here, applying the three factors identified by the NLRB in analyzing similar issues, the appeals court first noted that the circumstances of the August 2001 layoff were such that both the airline and the employees initially expected that the layoffs would be temporary, lasting less than six months and possibly less than 60 days. The layoffs were not declared to be permanent until December 2001. Also, the layoffs were caused not by a loss of business, but rather by regulatory intervention. The airline, which had been working with the FAA for many months, expected to resolve the issues and recall its employees. Similarly, the airline’s “future plans” and “expected length of layoff” initially would have supported a reasonable expectation of recall.
However, it became progressively more apparent that the economics of complying with the increasing FAA requirements did not make sense from a business perspective, and the airline began relaying concerns about how this impacted the layoffs to its laid-off employees. There was a shift in the expected length of the layoffs, and the airline retreated from the optimistic statements made in its August letters to employees; in its October letter, it stated that there were no plans to recall any employees. Finally, in letters in November, the airline advised that it was unknown whether the layoffs would be temporary or permanent; that a much greater expenditure of time and money would be required than originally thought; and that the resumption of flight operations would not be before April 2002—and then, only if the necessary funding could be secured and approved.
The differences in tone between the August, October, and November letters indicate an increase in the expected length of the layoff, an increasing wariness about the airline’s ability to resolve the FAA issues, and “a magnified expression of the uncertainty about whether the employees would ever be recalled, to the point where the reasonable reader (the reasonable employee) is left with no expectation of recall, by the end of the November letter,” wrote the court. Given the obstacles that had developed, and the uncertainty as to whether, when, and at what cost the airline would obtain FAA approval to resume operations, a reasonable employee under the same circumstances would not have expected to be recalled when the airline closed, the appeals court concluded, affirming the district court’s similar conclusion.
A federal district court’s dismissal of a veteran’s claims that he was subjected to workplace discrimination and constructive discharge by his employer following his return to work from military service was affirmed by the Eighth Circuit (Lisdahl v Mayo Foundation, February 28, 2011, Benton, W). Similarly, the district court properly granted summary judgment in favor of the employer against the claims of two coworkers who alleged USERRA retaliation for providing statements in support of the employee’s claims.
After working as a paramedic for three years with an ambulance company, the employee joined the Marines. Following his discharge from the military, the employee returned to his employment at the same position, seniority, and rate of pay (including intervening pay increases) as before he joined the Marines. Back at work, the employee’s supervisor had a direct, no-nonsense management style, strictly enforcing employer procedures. While the supervisor allegedly made jokes at the expense of the military, there was no evidence that he made any military-related comments to the employee. At any rate, the employee never reported any instances of mistreatment by the supervisor to management, nor did his coworkers complain about any abuse of the employee by the supervisor.
Constructive discharge claim. In May 2007, the employee took FMLA leave for treatment of Post-Traumatic Stress Disorder. During his medical leave he applied for disability from the Veterans Administration. The employee never returned to work from medical leave. Thereafter, the employee sued his ambulance service employer alleging workplace discrimination and constructive discharge on the basis of his veteran’s status. Two coworkers also filed suit alleging retaliation under USERRA for having provided statements in support of the employee’s claims. After a bench trial, a district court dismissed the employee’s USERRA claims. A month later, the court granted summary judgment against the coworkers’ retaliation claims. These appeals followed.
The burden was on the employee to show that his status as a veteran was a motivating factor in his constructive discharge, observed the Eighth Circuit. Likewise, the employee had the burden to demonstrate that his working conditions were objectively intolerable. In this instance, the district court’s rejection of the employee’s contention that any purported discharge by the employer was motivated by anti-veteran animus, or that his working conditions were objectively intolerable, was supported by the evidence in the record. At most, the record showed a personality conflict between the employee and his supervisor. Consequently, the Eighth Circuit agreed with the district court’s determination that there was insufficient evidence that the employee experienced objectively intolerable working conditions upon his return to work, or that the employer took any actions against him based on his veteran’s status. Further, since the employee never filed any complaints against the supervisor, he failed to give the employer a reasonable opportunity to correct any intolerable conditions. Thus, the district court did not err in finding that the employee was not constructively discharged.
Retaliation claims. With respect to the district court’s grant of summary judgment against the coworkers’ USERRA retaliation claims, the Eighth Circuit ruled that the trial court did not incorrectly apply the “materially adverse” standard from Title VII jurisprudence in deciding their USERRA retaliation claims. An “adverse employment action” in Title VII jurisprudence denotes a significant injury or harm, observed the appeals court. Similarly, the anti-retaliation protections of USERRA do not provide a remedy for trivial harms. Here, a dispute with the supervisor concerning the scheduling of vacation time that resulted in no financial harm, and his imposition of a 500-minute limit per month on employee usage of company cell phones did not rise to the level of actionable retaliation. Thus, the district court did not err in granting the employer’s motion for summary judgment against the retaliation claims.
Hot topics in WAGES HOURS – FMLA
On Wednesday, February 16, the House Committee on Education and the Workforce conducted a hearing exploring the current direction of the U.S. Department of Labor (DOL). The hearing, which featured only testimony from Secretary of Labor Hilda L. Solis, came just days after the DOL released its 2012 budget request, in which it requested an increase in funding for its agencies that enforce worker protections and regulations. The Republican-led committee has made the regulatory activities of the Obama administration the key target of its early hearings.
Committee Chairman John Kline (R-Minn) set the tone for the hearing in his opening statement. Noting that 14 million Americans remain unemployed, Kline said that the Obama administration’s $814 billion stimulus bill, $5 billion of which went to the DOL, has failed to lower the unemployment rate below nine percent. Kline stated that such results, after “two years of pouring taxpayer money into the economy,” are “unacceptable.” Kline argued that workforce policies adopted by the Obama administration have threatened job creation and economic opportunity by favoring “Big Labor at the expense of small businesses.”
Solis defended her department’s policies and regulatory activities against Kline’s assault. She noted that, while the economy continues to struggle, 50,000 private-sector jobs were added in January, the eleventh straight month in which jobs were added. She stressed that the DOL’s activities, especially its job training programs and safety regulations, were essential to assisting workers in dealing with the continued fallout from the recession. Solis also praised the department’s efforts to ensure wage compliance, noting that since 2009 its Wage and Hour Division has recouped nearly $400 million in back wages, while assessing over $18 million in civil monetary penalties in over 52,000 cases. Those cases, noted Solis, have impacted nearly 400,000 workers.
Solis also offered a spirited defense of OSHA practices under her watch. She said that “while we work with the business community on minimizing the regulatory burden,” OSHA would continue “to aggressively enforce our safety and health laws against those employers who refuse to play by the rules and who put profits above their workers’ lives.” That ability, however, would be threatened by proposed cuts in the House Republicans’ budget; OSHA staffing levels would be the lowest since the 1970s.
An amendment to the Federal Aviation Act (FAA) reauthorization bill that would have removed Davis-Bacon Act wage protections on Federal Aviation Administration construction projects failed on February 3, by a vote of 55-42; three Republican senators voted against the amendment, which was sponsored by newly minted Senator Rand Paul (R-Ky.). Paul, an avowed fiscal conservative and darling of the Tea Party movement, claimed that removing the prevailing wage requirement from FAA construction projects was a necessary component of his crusade to reduce federal spending.
“This amendment would prevent Davis-Bacon restrictions from inflating the cost of federal building projects in our country, to provide for the things that we want. We can build 20 percent to 30 percent more airports if we don’t force union wages that are above the market wages on government projects.”
Paul did not detail where the additional airports would be built, but did restate his belief that the “marketplace should determine the market for wages.”
The amendment’s failure was met with great relief by the America's Building Trades Unions, which called the Davis-Bacon Act “sound and proven public policy.” The union noted that Kentucky has a prevailing wage law and that such laws prevent contractors from competing “on the basis of who can find the cheapest workers, either locally or by importing labor from elsewhere.” Such a race to the bottom, the union implied, imperils construction and public infrastructure.
Thus far, Republican senators have attached amendments to the FAA reauthorization bill that sought to repeal health care reform and prevent TSA employees from selecting a bargaining representative for collective bargaining purposes.
The U.S. Department of Labor has filed a lawsuit against Houston-based Kinder Morgan Inc., one of the nation’s largest pipeline transportation and energy storage companies, and its subsidiary, Kinder Morgan Energy Partners LP, accusing the company of failing to pay more than $1 million in overtime compensation to approximately 4,500 current and former operators, technicians, maintenance workers, laborers and administrative nonexempt employees. This conduct violated the FLSA, the DOL alleges, and the agency is seeking full recompense of the owed back wages, in addition to liquidated damages.
Kinder Morgan Inc., is worth an estimated $30 billion and employs 8,000 workers across the country. Its clients include Conoco/Philips, Exxon Mobil and Shell. However, in a statement regarding the lawsuit, Secretary of Labor Hilda L. Solis said that the company’s size and connections did not give it the right to disregard the law.
“There is no excuse for denying workers their rightful wages, and this lawsuit demonstrates that the department will use all available enforcement tools, including litigation and penalties, to ensure accountability and compliance with the law,” said Solis.
The U.S. DOL has announced that it has recovered $1.8 million in back wages for approximately 400 workers from Houston-based grocery stores Hong Land Corp., Hong Kong Group Inc., Pacific Ocean Enterprise Inc. and B&B Corner Corp., all doing business as Hong Kong Market, and store owners Hai Du Duong and Ha Duong. The DOL also collected $200,000 in civil money penalties from employer as it resolved, through a consent judgment, its lawsuit charging the employer with violating the FLSA. The employers were required to pay the civil penalty because they had, despite being on notice of earlier violations, continued to violate the Act.
The DOL’s WHD conducted in investigation into the employers’ wage practices. That investigation revealed that the employers had falsified payroll records and had coerced their workers to return wages earned. Many employees worked up to 70 hours per week, yet the employers paid them less than minimum wage and refused to pay overtime compensation.
“These employers disregarded our nation’s most basic labor laws. They exploited the vulnerability of hundreds of low-wage workers, and then deliberately misled investigators to try to keep them from finding out the truth,” said Secretary of Labor Hilda L. Solis. “The Labor Department will use all enforcement tools available, including litigation and penalties. We will secure full and fair compensation for affected workers, and we will level the playing field for businesses that follow the rules.”
The breadth of the penalties assessed is in keeping with the DOL’s determination to utilize its investigatory powers to force employers to comply with the FLSA, the department noted.
The U.S. Department of Labor has released its budgetary requests for 2012; they suggest that the DOL will focus heavily on job creation, combating employee misclassification, and on improving worker safety.
“Our budget request reflects our commitment to help America ‘win the future’ by sustaining a competitive workforce and ensuring worker protections," said Secretary of Labor Hilda L. Solis. The Secretary also noted that the Department will make “responsible and reasonable cuts that are rooted in current economic realities and a continued focus on increased efficiency and effectiveness.”
The DOL has asked for $12.8 billion in discretionary funding, saying that the numbers will allow it to help assist in job creation efforts through job training programs and through programs that provide employment opportunities for various workers’ groups, including the unemployed, dislocated workers, and economically vulnerable communities. Among the specific requests is $380 million for a Workforce Innovation Fund, which the DOL says is necessary to improve its job creation programs. Its 2012 budget will shifts funds that were previously allocated to the states in order to fund the programs. The money would be distributed to the fund through the Departments of Labor and Education, which will jointly oversee competitive grants to support innovative, systemic, and evidence-based reforms in the workforce system.
Worker safety is also a DOL budgetary priority. Among other areas, the DOL has requested $33 million to improve mine safety. The money would go towards reducing the current backlog at the Federal Mine Safety and Health Review Commission, a backlog that the DOL says has created an “unacceptable delay in holding bad-actor operators accountable for threatening the health and safety of America's miners.”
The Department has also requested nearly $50 million to combat worker misclassification. The money will be divided between the Wage and Hour Division, the Office of Federal Contract Compliance Programs, the Occupational Safety and Health Administration, the Office of the Solicitor, and the Employment and Training Administration. DOL has also asked for $30 million to promote greater efficiency and transparency, $2 million in the Veterans Transition Assistance Program, and an additional $3 million in the Homeless Veterans Reintegration Program.
The DOL’s budget does cut or slash some existing programs. The Community Service Employment for Older Americans program will be transferred to the U.S. Department of Health and Human Services, and the $125 million Career Pathways Innovation Fund will be cut altogether.
The Department of Labor has debarred an Arizona construction company from government contracts for three years over a range of pay violations and that it is seeking $107,363 in back pay. The Wage and Hour Division conducted an investigation that discovered that Phoenix-based Quality Builders Inc. had committed multiple pay violations in relation to 48 carpenters and laborers who worked for the company on a Yuma, Arizona housing project construction that was funded under the American Reinvestment and Recovery Act of 2009.
The investigation uncovered Quality Builders’ failure to record the actual hours worked. Investigators also learned that the company paid its workers by the piece rate, not by the hour, meaning that their actual pay often dropped below the prevailing wage and fringe benefit levels required for workers on government construction contracts.
“This employer undermined the purpose of the Recovery Act, which is to support good jobs that benefit the local economy,” said George Friday Jr., regional administrator for the Wage and Hour Division in San Francisco, Calif. “In addition to paying these carpenters and laborers the wages they are due, Quality Builders is being debarred from future contracts for the benefit of this community’s workers and other local contractors.”
LEADING CASE NEWS
Claims by detective sergeants for the District of Columbia police department that their employer failed to calculate their overtime based on the enhanced pay owed them were not barred by the statute of limitations, ruled the federal appeals court sitting in the District of Columbia (Figueroa v Dist of Columbia Metro Police Dept, February 11, 2011, Garland, M). Each time the officers received a deficient paycheck, that violation gave rise to a new cause of action and began a new statute of limitations period for that particular event.
The District of Columbia provided that police officers promoted to the rank of detective sergeant would receive $595 per year, in addition to their base pay. In December 2003, the plaintiffs filed a grievance though their union alleging that they had not received their additional stipend. After an arbitration award granting the employees the stipend was upheld, the city provided lump-sum payments to all officers who had served in the position of detective sergeant. However, the city did not recalculate officers’ overtime based on the $595 stipend. On November 5, 2007, the officers filed suit alleging violations of the FLSA, but a federal district court found that their FLSA claims were barred by the statute of limitations. This appeal followed.
On appeal, the officers challenged the district court’s conclusion that their FLSA overtime claims were time-barred. The officers charged that, in calculating their overtime compensation, the city failed to include within their “regular rate” the $595 stipend for detective sergeants. The city countered that the officers’ claims were time-barred because they accrued more than three years before this lawsuit was filed—that is the first time the officers improperly failed to receive the compensation of a detective sergeant. Instead, the officers filed their suit almost four years after the date they filed their grievance for nonpayment of the stipend.
As an initial matter, the appeals court rejected the city’s contention that the officers forfeited their claims arising from paydays after November 5, 2004, by failing to assert them in the district court. Because the officers sought unpaid overtime for their entire tenure as detective sergeants, their claims necessarily included a request for unpaid overtime during the three years before their suit was filed, observed the appeals court. Moreover, in their opposition to the city’s summary judgment motion, the officers argued that wages were unpaid when they were not paid on the ordinary payday, thereby raising a continuing violation claim. Accordingly, the officers did not forfeit this argument. The appeals court observed that it is well established that the statute of limitations for violations of the overtime provisions of the FLSA runs anew with each paycheck. Thus, the officers may recover if their paychecks failed to include properly calculated overtime compensation during the two or three years before they filed their complaint—depending on which limitations period was applicable. The entry of summary judgment in favor of the District of Columbia with respect to the officers’ overtime claims accruing after November 5, 2004 was reversed.
An employee who had no contact with his supervisor for nine days while he was absent from work to address a medical emergency involving his elderly mother was lawfully terminated under the FMLA, ruled the Seventh Circuit (Righi v SMC Corp of America, February 14, 2011, Sykes, D). Applicable FMLA regulations placed the burden on the employee to notify his employer of the anticipated duration of an unforeseeable leave “as soon as practicable,” — in this case, within no more than one or two working days of the employee learning of the need for leave.
The employee, a sales representative, was attending a mandatory training seminar when he learned that his mother was experiencing a medical emergency. He left the seminar to assess his mother’s situation. The next day he advised his supervisor by e-mail that he needed a couple of days off to make arrangements for his mother’s care. The employee’s e-mail indicated that he had vacation time available, and that he preferred not to apply for family leave. Thereafter, the supervisor tried unsuccessfully for more than a week to reach him by telephone to clarify his leave request. However, the employee did not return the supervisor’s calls or otherwise contact his employer. When the employee returned to work, he was terminated for violating the employer’s leave policy.
The employee sued, alleging FMLA interference and retaliation. However, a district court granted summary judgment to the employer, concluding that the employee’s e-mail disavowed any intent to use FMLA leave and that the employee failed to notify his employer of his anticipated return-to-work date, as required by company policy and applicable FMLA regulations. On appeal of his interference claim, the Seventh Circuit affirmed, but only on the ground that the employer was entitled to enforce compliance with its notice requirements for requesting leave.
Waiver of leave. This appeal turned on whether the employee provided sufficient notice under the FMLA. When an employee fails to give his employer proper notice, the employer is under no duty to provide FMLA leave, the employer pointed out. As an initial matter, the Seventh Circuit concluded that the employee’s e-mail comment that he would rather not take FMLA leave left open the possibility that he might want to take FMLA leave after all, and, therefore, was sufficient to alert the employer to the potential that the employee would need FMLA leave. Also, because the e-mail specifically mentioned his mother’s diabetic coma, it suggested that the employee might qualify for FMLA leave. Thus, the e-mail was not an unequivocal waiver of his right to FMLA leave.
While the employee’s e-mail was too ambiguous to trigger the employer’s affirmative duty to provide written FMLA materials and medical certification forms, it was sufficient to give rise to the employer’s duty to make further inquiry. However, there was no dispute that the employer attempted to fulfill this obligation. As soon as the supervisor received the employee’s e-mail, he called the employee, and did so again on numerous occasions in an effort to learn more about the situation. The employee’s failure to respond to those calls or otherwise contact his employer doomed his FMLA claim.
Notice of leave. Employers are entitled to notice that will inform them not only that the FMLA may apply, but also when an employee will return to work. In cases like this one involving unforeseeable leave, the employee must provide notice to his employer about the anticipated duration of his leave “as soon as practicable.” In this instance, the employee never gave his employer notice of the timing and duration of his requested leave beyond an ambiguous “couple of days.” Because the employee was absent without permission for a nine-day period, his vague reference to needing a couple of days could not be considered adequate notice of a request for FMLA leave of this more substantial duration. Even if the leave is unforeseeable and the employee does not know exactly how much leave he will need, he still needs to communicate this fact to the employer, together with an estimate of the likely duration of the requested leave.
Further, Sec 825.302(d) of the FMLA regulations explicitly provides that employers may require their employees to comply with their “usual and customary notice and procedural requirements” when requesting FMLA leave. The employer had a written policy requiring employees to obtain approval for leave from their supervisors. Moreover, its attendance policy stated that an unapproved absence of two consecutive days or more was grounds for termination. The employee’s failure to follow applicable FMLA requirements or his employer’s requirements for notifying his employer of the expected duration of his leave foreclosed his FMLA interference claim.
Pharmaceutical sales reps (PSRs) were exempt from FLSA overtime pay requirements under the outside salesperson exemption, the Ninth Circuit held, in direct contrast to the Second Circuit’s holding in the 2010 In Re Novartis ruling (Christopher v SmithKline Beecham Corp, February 14, 2011, Smith, M). The appeals court affirmed the district court’s grant of summary judgment to the pharmaceutical company, refusing to give deference to a DOL amicus brief submitted in Novartis, which took the position that the outside salesperson exemption did not apply to PSRs.
Acknowledging the Second Circuit’s contrary conclusion, the appeals court disagreed that it owed Auer deference to the DOL’s position. Auer deference is afforded where the language of the regulation clarifying a statute is ambiguous. Here, the relevant question is whether the plaintiffs fell under the outside sales exemption to the FLSA. The statute itself refers to Secretary of Labor regulations to clarify “outside salesman.” However, an agency is not entitled to deference where it simply parrots statutory language, the Ninth Circuit stated, and in its effort to define “sales” in its regulations clarifying outside salesperson, the agency did just that, the appeals court found. Specifically, instead of setting forth a particular test for “sales” or otherwise instructing employers on indicia of sale, Sec. 541.501(b) provides an open-ended definition of sales, and then cross references back to Sec. 3(k) of the FLSA itself. Drawing on the Supreme Court’s decision in Gonzalez v Oregon, the appeals court concluded that, because the regulation did nothing but restate the FLSA, no Auer deference was due. Even if Auer applied, however, the appeals court wrote, deference to the DOL’s position would be unwarranted because it was “plainly erroneous” and “inconsistent with its own regulations.”
The reality of the pharmaceutical industry and the paradigm in which “Rx only” products are distributed demonstrate that the employee is involved in a sale, the court opined. Although the DOL took the position that a “sale” for purposes of the outside sales exemption required “a consummated transaction directly involving the employee for whom the exemption is sought,” the appeals court agreed with the district court in adopting the employer’s rationale for using the phrase “other disposition” from the Sec. 3(k) definition of “sale.” In the pharmaceutical industry, federal law prohibits manufacturers from selling directly to patients; instead, PSRs — who are trained in sales methods and receive commission-based compensation tied to sales — can at best encourage physicians to prescribe products. The “sale” is the physician’s nonbinding agreement to prescribe the product. Recognition that the sale occurs between the doctor and the PSR is evidenced by the fact that the industry employs some 90,000 people in its sales force, the Ninth Circuit opined. Furthermore, PRSs are compensated by increased commission when a doctor increases her use of a drug in a PSR’s bag, the court noted.
The PSRs were much like the salesperson in Jewel Tea Co v Williams, a Tenth Circuit case that the Secretary and both parties had relied on as precedent. In that case, employees made no immediate deliveries, but instead took orders for future deliveries. There, the salespeople were required to perform clerical tasks at night, and were paid a base salary plus a commission under certain circumstances. The appeals court stated that “[e]ven though PSRs lack some hallmarks of the classic salesmen, the great bulk of their activities are the same, as is the overarching purpose of obtaining a commitment to purchase (prescribe) something.” Furthermore, the primary duty of the PSR was not promotional in nature, the appeals court concluded, but instead, promotion was a preliminary step toward the end goal of having a particular doctor commit to prescribing more of a particular medicine. The plaintiffs had no interest in generally promoting sales, the court concluded, but instead, tailored their sales toward a specific set of physicians in a geographic area.
Finally, for the past 70 years, the Secretary of Labor herself had, prior to her presence in Novartis, acquiesced to the practice that detailing (a term used for the work of PSRs) was considered sales, the appeals court observed. “PSRs are driven by their own ambition and rewarded with commissions when their efforts generate new sales. They receive their commissions in lieu of overtime and enjoy a largely autonomous work-life outside of an office,” the court concluded.
State employment laws and regulations, wages-hours/labor relations, February update
District of Columbia Elections
District government employees will be prohibited from engaging in political activities while on duty under a new law enacted January 12. The “Prohibition on Government Employee Engagement in Political Activity Act of 2010,” is added by Act 679 (B. 18-460), L. 2009, with effective date pending. This act takes effect following approval by the Mayor (Signed January 12, 2011), a 30-day period of Congressional review, and publication in the District of Columbia Register. Projected Law date is April 1, 2011. Sections 2 through 10 of Act 679 (B. 18-460), L. 2009. DC ¶9-60,001 through 9-60,009.
Iowa Project Labor Agreements, Executive Order
Iowa Governor Terry E. Branstad signed Executive Order No. 69 on January 14, 2011, to rescind previous Governor Chester J. Culver’s executive order mandating the use of Project Labor Agreements and to prohibit the use of Project Labor Agreements to be used for projects involving state funds. Executive Order No. 22 is rescinded by Executive Order No. 69 effective January 14, 2011. IA ¶16-63,801 and ¶16-63,802.
Montana Wage and Hour Claims Process
Administrative rules of the Montana Department of Labor pertaining to the wage and hour claims process are amended for clarification, to make technical changes, and to remove references to the Board of Personnel Appeals. ARM 24.16.7506, 24.16.7541, 24.16.7544 and 24.16.7547 are amended effective December 10, 2010, Montana Administrative Register 23-12/9/2010. MT ¶27-46,506, ¶27-46,541, ¶27-46,544, and ¶27-46,547.
New Jersey Farm Labor (Seasonal Farm Workers)
Rules of the New Jersey Department of Labor and Workforce Development relating to seasonal farm workers are readopted without change effective December 21, 2010. These rules impose minimum field sanitation standards upon farm operators subject to statutory law N.J.S.A. 34:9A-37 et seq.) when there are 10 or fewer seasonal farm workers at work in a field (Federal regulations (29 C.F.R. Sec. 1928.110) apply when there are more than 10 seasonal farm workers at work in a field). New Jersey Administrative Code, Title 12, Chapter 102, Subchapter 1, rules 12:102-1.1 through 12:102-1.8. Readopted effective December 21, 2010 (43 N.J.R. 191(a)). Filed December 21, 2010, as R.2011 d.029, without change. Expires December 21, 2015. NJ ¶31-51,501 through 31-51,508.
New York Work Hour Restrictions, Nurses (Overtime)
An emergency rule of the New York Labor Department relating to mandatory overtime restrictions for nurses is extended to February 27, 2011. This rule clarifies the emergency circumstances under which an employer may require mandatory overtime for nurses. The rule also requires health care employers to implement a Nurse Coverage Plan that identifies and describes alternate staffing methods available and provides for documentation of attempts to avoid the use of mandatory overtime during a patient care emergency. The emergency rule adds Part 177 to Title 12 of the New York Codes, Rules and Regulations, effective January 4, 2011. Filing No. 1362, December 30, 2010. Posted January 19, 2011, NY State Register, Vol. XXXIII, Issue 3. ID No. LAB-43-10-00003-E. 12 NYCRR 177.1 through 177.7. NY ¶33-44,551 through 33-44,557.
New York Wage Payment
Law relating to enforcement of money judgments is amended. This law provides for various exemptions, including a certain percent of income and certain personal property values, with specified exceptions, from the satisfaction of money judgments. The exemption for personal property includes a motor vehicle not exceeding $4,000 in value above liens and encumbrances of the debtor, but does not allow for this exemption if the debt enforced is for child support, spousal support, maintenance, alimony, or equitable distribution. This provision is amended to provide that the exemption would also not apply if the state of New York or any of its agencies or any municipal corporation is the judgment debtor. New York Civil Practice Law and Rules Section 5205 is amended by Ch. 1 (A.B. 851), L. 2011, effective January 21, 2011. NY ¶33-46,046.
North Carolina Meal and Rest Periods
The North Carolina State Personnel Commission has adopted rules to set requirements for state agencies for workplace accommodation of nursing mothers. State agencies are required, effective as of January 1, 2011, to provide time and a private space other than a restroom or common area to allow for nursing mothers to express breast milk. The agency may require the employee to use the regularly scheduled break time. If time is needed beyond the regularly scheduled paid break times, the agency is to make reasonable efforts to allow employees to use paid leave or unpaid time for this purpose. Rules are added to Title 25, Chapter 01 of the North Carolina Administrative Code, as 25 NCAS 01N.0601 through .0605 (Posted N.C. Register, February 1, 2011). NC ¶34-44,551 through 34-44,555.
Oregon Minimum and Overtime Wages
Rules of the Oregon Bureau of Labor and Industries pertaining to minimum wage deductions are amended to conform allowable garnishment processing fee deductions with legislation (ORS 18.736, as amended by the 2009 legislature). OAR 839-020-0027 is amended by Administrative Order No. BLI 22-2010, filed December 30, 2010, and certified effective January 1, 2011. OR ¶38-41,510a.
Oregon Wage Payment
Rules of the Bureau of Labor and Industries relating to deductions from wages are amended to conform allowable garnishment processing fee deductions with legislation (ORS 18.736, as amended by the 2009 legislature). OAR 839-001-0200 is amended by Administrative Order No. BLI 22-2010, filed December 30, 2010, and certified effective January 1, 2011. OR ¶38-46,503.
Oregon Prevailing Wage Rates on Public Works
Procedural rules of the Bureau of Labor and Industries relating to prevailing wage rates on public works applicable to contractors and subcontractors of public works projects involving initial construction of buildings and structures, highways and roads are amended to conform the rules to changes in statutory law by H.B. 3651, L. 2010. The definition of “public works” is amended to include solar construction and installation projects on property owned by a public body, regardless of whether of not funds of a public agency are used. The rule amendments also clarify that in order for workers to qualify and be paid as apprentices or trainees under the prevailing wage law, they must be employed by “registered training agents” pursuant to the standards of the apprenticeship/training program. In addition, the rule amendments permit contracting agencies to provide in the contract specifications for projects subject to both the state prevailing wage law and the federal Davis-Bacon Act that the applicable state prevailing wage rates are those that are in effect at the time the applicable federal prevailing wage rates are effective. Rule amendments also provide that rate reference requirements in the contract specification are met if such references include Uniform Resource Locator (URL) information for an Internet webpage showing the title of each applicable wage rates publication or determination and the date of each publication or determination as well as the date of any applicable amendments. OAR 839-025-0004, 839-025-0013, 839-025-0020, 839-025-0035, 839-025-0060, 839-025-0100 and 839-025-0230 are amended by Administrative Order No. BLI 23-2010, filed December 30, 2010, and certified effective January 1, 2011. OR ¶38-50,504, ¶38-50,509, ¶38-50,510, ¶38-50,515, ¶38-50,521, ¶38-50,527 and ¶38-50,533.
Oregon Prevailing Wage Rates on Public Works
A procedural rule of the Bureau of Labor and Industries relating to prevailing wage rates on public works is amended with respect to publication of prevailing wage rate determinations for the period beginning January 1, 2011. OAR 839-025-0700 is amended by Administrative Order No. BLI 24-2010, filed December 30, 2010, and certified effective January 1, 2011. OR ¶38-50,545.