June 2009

Hot Topics in LABOR LAW REPORTS:

Supreme Court asked to rule on NLRB's authority to issue decisions and orders
New Process Steel, LLP, has filed a petition for certiorari with the United States Supreme Court, asking the Court to review the decision by the Seventh Circuit Court of Appeals, in New Process Steel LP v NLRB, 157 LC ¶11,232, that the current two-member panel of the National Labor Relations Board has the authority to issue rulings.

Background. On appeal before the Seventh Circuit, New Process contended that although the Board technically delegated its authority to three members, the third member's term expired three days later, making that member a "phantom member" who could not actually consider cases before the Board. In rejecting the employer's argument, the 7th Circuit found that the employer's interpretation of section 3(b) was misguided. When the Board was comprised of four members, it delegated all its authority to the remaining three-member panel. When the third member's term expired after this delegation, all authority rested with the two-member panel. The NLRB argued, and the appellate court agreed, that the language of the NLRA was clear that "the vacancy of one member of a three-member panel does not impede the right of the remaining two members to execute the full delegated powers of the NLRB."

The appellate court reasoned that the language of section 3(b) allowed two members to proceed as a quorum, despite the new vacancy of the third member. The plain language of the NLRA, concluded the court, expressly allowed the Board to delegate its authority to a three-member panel, and expressly allowed the Board to continue operating as a two-member quorum as long as the Board had initially delegated its authority to a group of three members - which it clearly had done. Thus, the plain meaning of the NLRA supported the NLRB's delegation procedure.

On the same day, the D.C. Court of Appeals vacated and remanded a NLRB Decision and Order, finding that the Board's two-member composition was not properly constituted under the NLRA, and thus, that the Board did not have the authority to issue its Order (Laurel Baye Healthcare of Lake Lanier, Inc v NLRB, 157 LC ¶11,233).

Petition for Certiorari. In asking the Supreme Court to review the Seventh Circuit's ruling, New Process is asking the Court to resolve this split. Two courts of appeal - the First and Seventh - have ruled that the two-member NLRB has the authority to issue decisions, while the DC Circuit alone has ruled otherwise.

The Court's decision on the issue has the potential to dramatically upend the NLRB. Since the two-member panel began hearing cases in January, 2008, it has heard over 400 rulings. Although in most cases the parties have already accepted the Board's decision and cannot, therefore, appeal them, NLRB Chairman Wilma B Liebman has said that there are approximately 110 open cases that could be affected. Although President Barack Obama has announced that he will make two nominations to the Board, he has yet to send either to the Senate, thereby running the risk that the Supreme Court could side with New Process and shut down Board operations until his nominees are confirmed.

The Board has promised to continue issuing decisions and orders and has vowed to file a petition for rehearing by the DC Circuit.

SHRM seeks High Court review of Fourth Circuit neutrality agreement ruling
The Society for Human Resource Management (SHRM) and the National Federation of Independent Business (NFIB) Small Business Legal Center have submitted a brief asking the Supreme Court to grant cert in Adcock v Freightliner LLC (4thCir 2008, 157 LC ¶11,146). High Court review of the interpretation given Section 302 of the Labor Management Relations Act (LMRA) by the Fourth Circuit Court of Appeals "is necessary to ensure fairness in union organizing campaigns," the employer groups contend, in a statement issued on May 22.

In Adcock, Freightliner LLC and the United Auto Workers (UAW) signed agreements establishing ground rules for organizing five plants in North Carolina. Freightliner agreed to require employees to attend a card-check information session on-site during work time, to give the union access to work areas, and to refrain from making negative comments about the union (i.e., a neutrality agreement). The UAW agreed in return that, if recognized as exclusive bargaining representative of Freightliner's employees, the union would not seek severance pay for layoffs or plant closures and would split increases in benefit costs between the company and the workers, in addition to various other guarantees. After the union and employer entered into a CBA that adversely altered employee compensation, several employees filed suit.

The Fourth Circuit ruled that Freightliner and UAW did not violate Section 302, which prohibits employers from giving a "thing of value" to a union, a provision designed to prevent corruption of the collective bargaining process by preventing employers from bribing the union and preventing union extortion of employers. Here, no item of value was given, the appeals court reasoned; rather, "all that is involved is the establishment of mutually acceptable ground rules," it held. Because there was no money given in an attempt to bribe or influence the process, the employer and union had not violated the LMRA.

"SHRM and NFIB believe that section 302 does prohibit the activity engaged in by Freightliner and UAW. Supreme Court interpretation will ensure that every federal circuit applies the same set of rules to union organizing campaigns," they noted.

The text of the amicus brief can be found at:
http://www.shrm.org/Advocacy/PublicPolicyStatusReports/Courts-Regulations/EmploymentandLabor/Documents/BASKIN.PDF

Summer issue of the CCH Labor Law Journal continues its examination of the Employee Free Choice Act, Reductions in Force and more
The Summer 2009 issue of the Labor Law Journal offers suggested revisions to the proposed Employee Free Choice Act designed to ensure passage of the bill, an analysis of issues facing US companies working in foreign nations and a primer on how to conduct reductions in force without falling afoul of the ADEA. The full Table of Contents is reproduced below:

• WHO'S WHO IN LABOR

• THE EMPLOYEE FREE CHOICE ACT: CONGRESS, WHERE DO WE GO FROM HERE?, By David P. Twomey

• HOW TO MAKE THE MUCH-NEEDED EMPLOYEE FREE CHOICE ACT POLITICALLY ACCEPTABLE, By Charles B. Craver

• WHEN DOES A FOREIGN LAW COMPEL A U.S. EMPLOYER TO DISCRIMINATE AGAINST U.S. EXPATRIATES?: A MODEST PROPOSAL FOR REFORM, By Tyler M. Paetkau

• REVISITING DISPARATE IMPACT CLAIMS UNDER THE ADEA: A BRIEF REVIEW AND STATISTICAL PRIMER, By Bryan J. Pesta

Teamsters Airline Division names new Deputy Director
The International Brotherhood of Teamsters announced May 29 that Steve Nagrotsky has been named deputy director of the union's Airline Division. Nagrotsky, with 27 years experience with the Air Line Pilots Association, is an expert on collective bargaining and Railway Labor Act contract enforcement. He also has extensive experience in arbitrations, negotiations and as an advisor to labor groups.

"Steve Nagrotsky is the perfect man for the job," said David Bourne, Airline Division Director. "The Airline Division has experienced an unprecedented 38 percent growth in membership over the past year and currently has 22 Section 6 contract negotiations to address this year. Steve will play a vital role in representing our members and growing the union."

Nagrotsky, a graduate of Cornell University Law School, brings a wealth of knowledge and experience on Railway Labor Act issues to the Teamsters Union. In addition to day-to-day responsibilities, Nagrotsky will play a key role in formulating new policies and practices to ensure the future growth of the Teamsters Airline Division.

Source: International Brotherhood of Teamsters

Bruce Raynor elected president of Workers United, SEIU
In a special meeting June 1, the General Executive Board of Workers United, an affiliate of SEIU, voted unanimously to make Bruce Raynor the new president of their union. Raynor will head the 150,000 member union.

"Already, our young union with a long history has been exceeding expectations and defying the odds. Bruce Raynor is a big part of that history, and we welcome him with great enthusiasm. By renewing the partnership we have built over years of leadership at our predecessor unions, we are poised to do even more and take working people farther," says Edgar Romney, the founding President of Workers United who will now serve the union as Secretary Treasurer.

"I am so proud to be leading this union which is full of members I know and love, with leaders I have had the honor to have served with in the past, and a top notch staff," said Raynor. "I am also excited to have an opportunity to get back to work as an organizer in the industries and geographies I know best. I have always thought that union presidents should be their top organizers, and that is the job I am here to do."

Raynor promised to continue advocating for a settlement to resolve the open questions left by the dissolution of the merger of UNITE and HERE.

"Even though this is a time for looking forward, we can't ignore the past," explained President Raynor. "In order for all of our unions to move on, we need to settle our disagreements once and for all. This dispute is damaging for our members and the entire labor movement. That is why I want to reiterate my commitment to negotiating an end to the UNITE HERE merger up to and including binding arbitration."

Source: Workers United

IUE-CWA promises fight to protect retiree health care in GM bankruptcy
The Industrial Division of the Communications Workers of America (IUE-CWA), has filed an objection in the Southern District of New York Bankruptcy Court, seeking to prevent General Motor's proposed Section 363 sale that would strip GM of the resources needed to pay the health care and other benefits promised IUE-CWA retirees. The union estimates its claims against GM will top $5 billion, comprised largely of the benefits owed to retirees.

The filing is an aggressive action intended to protect the interests of more than 41,000 represented retirees and their dependents and is intended to stop General Motors' plan to sell its viable assets. The union states that GM is violating bankruptcy code with disparate treatment of groups of retirees who have the same promised benefits, noting that under Section 1114 the company must show that any proposed reduction is fair and equitable in its treatment of similarly situated groups.

The filing alleges that GM is "not only unfair, but cruel," for protecting lifetime health and life insurance benefits for similarly situated retirees represented the United Auto Workers, while leaving IUE-CWA retirees and another 6,500 retirees represented by other unions with unsecured creditor claims against a company that will have no assets if the planned sale goes through.

IUE-CWA reached agreement with GM on a voluntary employee beneficiary association to cover its members in December 2008 but the company refused to implement the VEBA citing requirements imposed by the U.S. Treasury Department in its initial bailout assistance. Since that time, GM has made no attempt to resolve the benefits issue.

"With the Treasury Department's apparent blessing, GM is trying to subvert the bankruptcy process by using the sale to reorganize the company without meeting any of the standards set by the bankruptcy code," said IUE-CWA President Jim Clark. "If GM is successful, our retirees will be left holding an empty bag. The law does not allow favoritism for powerful creditors and we will not allow this grossly unfair attempt to cheat our retirees to proceed unchecked."

Source: IUE-CWA

Southwest Airlines Pilots' Association rejects ratification of new contract
The pilots of Southwest Airlines officially declined to ratify a new five-year contract with the airline. The vote, in which over 95% of all eligible voters participated, saw nearly 51 percent of pilots voted against implementing the new contract. The pilots and the Company have been in negotiations on a new contract agreement since it became amendable in September 2006.

"Our pilots have spoken, and...there is more work to be done," said Captain Carl Kuwitzky, President of the Southwest Airlines Pilots' Association (SWAPA). "This contract, despite some financial gains, contained too many other negative aspects."

Although general thoughts on the cause for the failed ratification were expressed during the voting process, SWAPA plans to extensively poll the pilots to fully understand the issues that the pilots want to see readdressed in future talks.

Work to reopen talks with Southwest will begin immediately. The SWAPA Board of Directors will meet June 8-10 to discuss their returning to the bargaining table. In the meantime, SWAPA pilots will continue under the current contract, including work rule and pay provisions. Under terms of the Railway Labor Act governing airline union negotiations, contracts do not expire. Rather, they become amendable on a certain date.

Source: Southwest Airlines Pilots' Association

Delphi to terminate its defined benefit plan for salaried employees
As part of a plan to emerge from bankruptcy reorganization, auto parts manufacturer Delphi Corporation has announced that it intends to terminate its underfunded defined benefit plan for salaried employees and retirees.

In a June 1 filing with the Securities and Exchange Commission, Troy, Michigan-based Delphi, which intends to sell many of its assets to a private equity firm, stated that it explored a number of alternatives for the defined benefit plan, but none proved "feasible." As a result, the company stated it does not expect to continue the plan and that the Pension Benefit Guaranty Corporation (PBGC) will take it over.

The plan, which Delphi froze last year, had slightly more than $2 billion in unfunded benefits at year-end. A PBGC spokesman said the agency will continue to work with all parties involved with the Delphi plan.

Under an earlier agreement with parent company General Motors, Delphi agreed to assume liabilities of its pension plan covering hourly employees in exchange for certain financial considerations.

GM pension plans continue during bankruptcy
Although General Motors Corp has entered Chapter 11 bankruptcy protection, its two defined benefit plans remain ongoing under GM's sponsorship, the Pension Benefit Guaranty Corporation (PBGC) has announced. Both plans, one for hourly workers and one for salaried employees, continue to be insured by the PBGC.

Stakeholders in the bankruptcy, including GM, the United Auto Workers, and the federal government, have stated their intent to maintain the plans under the sponsorship of a new corporate entity to be formed from the sale of GM's productive assets. The PBGC will work with all parties to achieve that outcome, which would be in the best interests of GM's more than 670,000 pension plan participants and the pension insurance program, the agency said.

Unions consider reshaping AFL-CIO
Leaders from 23 labor unions, representing three-fifths of the AFL-CIO, took part last week in a two-day conference organized by the International Association of Machinists and Aerospace Workers (IAM) to consider changes that, according to the union, would dramatically reshape and revitalize the 54-year old AFL-CIO.

"We focused on systemic changes that would strengthen the labor federation's finances and increase its clout," said IAM president Tom Buffenbarger. "We discussed a range of changes needed to modernize and upgrade existing capacities. We tallied up the current expenses and matched them to projected revenues. And we sought to reassert the historic role of the Executive Council.

"These draft blueprints still need some work," acknowledged Buffenbarger. "Over the next few weeks, we will seek input from the unions who could not join us."

The most controversial measure would hold elected officials accountable by boycotting their re-election campaigns if their positions fail to support workers and their families, according to the IAM.

The IAM and other unions intend to proffer a series of resolutions and constitutional amendments that, if adopted by the AFL-CIO Convention in July, will guide the proposed changes.

Buffenbarger said that "these systemic changes will lead to a more focused and more powerful Federation."

Teamsters ratify contracts at MillerCoors breweries
International Brotherhood of Teamsters members working at MillerCoors breweries in Eden, NC, and Fort Worth, Texas, have ratified three-year bargaining agreements that will provide wage and pension increases to more than 900 employees at the two breweries.

"Our members overwhelmingly ratified these contracts at MillerCoors because they provide stability for their families," said Jack Cipriani, director of the Teamsters Brewery and Soft Drink Workers Conference and Teamsters international vice president. "For the next three years, our members at MillerCoors know that their wages and pension benefits will increase, which is saying a lot in today's economy."

According to the union, MillerCoors management attempted to persuade the Teamster bargaining teams to accept higher healthcare co-pays during negotiations, which occurred simultaneously for the two plants. However, because of coordination between Teamster negotiators at the two breweries, there will be no health care cost increase the first year and only minor increases for the second and third years.

The union noted that retiree health care was a priority in negotiations, so the bargaining committees made certain that retiree coverage remained free. There will continue to be no premiums for retirees who have retired or who will retire through the end of the three-year contracts. "We value all generations of our members," Cipriani said.

The Teamsters Brewery and Soft Drink Workers Conference represents 1,200 MillerCoors workers nationwide. The third and final contract, for the MillerCoors plant in Irwindale, California, is currently being negotiated.

Starbucks settles with NLRB over unfair labor practices
The National Labor Relations Board has reached a settlement with Starbucks over unfair labor practice violations committed by the world's largest coffee chain, a "watershed victory" in the ongoing effort to organize Starbucks baristas, according to the International Workers of the World (IWW) Starbucks Workers Union.

"Faced with the prospect of having its widespread union-busting campaign exposed in a public hearing," the IWW says, Starbucks agreed to remedy the alleged violations committed against workers in the ongoing union campaign. It was the sixth such settlement in three years, the union noted.

Among the terms of the Board's settlement with Starbucks:

• Reinstatement of IWW members who were discharged for their union activity;
• A $2,000 backpay award (mitigated by IWW's ability to assist the discriminatee in securing alternate employment, according to the union);
• Invalidation of Starbucks' national policy that prohibited employees from sharing written union information and joining the union on company property;
• Invalidation of a no-pin policy, which banned baristas from wearing IWW pins. Workers had been sent home from work without pay for refusing to take them off, according to the union;
• Agreement to cease threats, bribes, and surveillance of union members.

The settlement agreement can be viewed in its entirety at: http://www.starbucksunion.org/files/usgovsettle.pdf.

The Starbucks Workers Union, part of the Industrial Workers of the World, is a "solidarity" or "members only" union that allows any Starbucks worker to join, without securing a majority of workers at a site. The union currently has more than 300 current and former Starbucks employees as members. According to the union, it has been able to secure wage gains and improvements in working conditions and has remedied individual grievances with management.

NLRB called upon to address plant rule doctrine/Sec. 8(g) intersection
Whether striking employees of a health care institution lose the protections of the National Labor Relations Act (NLRA) when they violate a neutral rule requiring employees to give call-in notice for absences, even though a union already had given the required 8(g) strike notice, was a question of first impression in the Second Circuit Court of Appeals, and it was necessary to address the intersection between Sec. 8(g) and the plant rule doctrine in order to resolve it, the appeals court concluded. Reasoning that the National Labor Relations Board (NLRB) should "opine on the relationship between these two rules in the first instance," the court denied enforcement of a Board order finding the employer unlawfully failed to immediately reinstate strikers and remanded the case for the Board to address the overlapping doctrines (NLRB v Special Touch Home Care Services, Inc, 2ndCir, 157 LC ¶11,241).

The union notified the employer, a home health care agency, of the pending strike pursuant to Sec. 8(g), which mandates ten days' notice before striking a health care institution. In order to plan for coverage of absent caregivers in light of the coming strike action, the agency surveyed its workers to identify who intended to join the strike. Several workers did not respond to the employer's survey but failed to come into work when the strike began. The employer reprimanded them for violating a standard policy requiring employees to give at least two hours' notice before missing a shift. The NLRB held this reprimand violated the Act.

On appeal, however, the Second Circuit found that the employer justifiably had relied on the plant rule doctrine, which holds that employers may enforce neutral, reasonable conduct rules, in disciplining the employees who failed to call in. On the other hand, the court noted, the union and its members just as reasonably relied on Sec. 8(g), which does not require individual workers to give notice of their intent to participate in a strike action. "It appears both parties reasonably relied on separate doctrines," the appeals court wrote, "and these rules came into conflict with each other." Resolution of the dispute thus turned on the interaction between the overlapping doctrines --a matter for the Board to grapple with, the court concluded, remanding on this issue.

Federal mediator convenes America West flight attendant negotiations
Represented by the Association of Flight Attendants-CWA (AFA-CWA), America West Airlines flight attendants will resume contract negotiations that had begun prior to the carrier's merger with US Airways. A National Mediation Board (NMB) federal mediator will meet with union and company negotiators on Monday, June 8, and joint talks are planned for Tuesday, June 9, at the Tempe, Arizona headquarters of US Airways.

"America West flight attendants have not seen any wage increases in over seven years. We hope that by resuming our pre-merger negotiations, we can make some long overdue improvements for a vast number of flight attendants who have been left behind," said Lisa LeCarre, AFA-CWA America West President. "While we remain committed to continuing single contract negotiations, significant economic and scheduling issues remain unresolved. It is time for the company to focus on fairness to the America West flight attendants."

Negotiations for a new flight attendant contract began in 2004. Those negotiations, however, were put into recess once the merger with US Airways was approved in 2005, as the NMB believed that negotiators would focus instead on reaching a single merged contract with management. In February 2009, single merged contract negotiations were stalling. The original America West contract is now 10 years old, which, under the Railway Labor act, means that the flight attendants continue to work under the pay scale and work rules agreed to in 1999 with no improvements or wage increases.

"Over half of the experienced and dedicated America West flight attendants have seen zero increases to their wages since 2002. And in some cases, America West flight attendants make 40 percent less in wages than their counterparts at US Airways," said LeCarre. "Flight attendants are experiencing wage erosion and each day they fall further and further behind. This is no way to treat employees. With no end in sight to single contract negotiations with US Airways management, it is our duty to protect America West flight attendants."

Source: Association of Flight Attendants-CWA, AFL-CIO

Unilateral change in carriers did not violate bargaining agreement
An arbitrator ruled that an employer did not violate a bargaining agreement by replacing a current health insurance carrier during the term of the agreement. The evidence established that the carrier's rates were going to increase 46% and the employer exercised its right, under the current agreement, to unilaterally change carriers. Local 415-S, Graphic Communications Conference, International Brotherhood of Teamsters and Commander Packaging Corp. 09-1 ARB ¶4585. Elliott H. Goldstein.

The change resulted in members having to switch from an HMO to a more expensive PPO to keep their current physicians, yet, the agreement stated employees were not to be made responsible for any increase in cost for "such benefits" and that the insurance program was to be maintained for the duration of the agreement "as negotiated." The arbitrator ruled this language was ambiguous and the bargaining history indicated the parties intended a cost maintenance agreement but did not intend for maintenance of a specific schedule of benefits.

The evidence also indicated that the employer attempted to obtain substantially similar benefits, that there was no mutual intent to ensure identity of benefits, that both sides acted in good faith, and that the choices provided by the new carrier were not illusionary, rather, these choices may not have been were as convenient as those of the old carrier and resulted in a longer commute to health care providers for those who selected the HMO option under the new plan.

Thus, the contract only guaranteed that an employee's weekly insurance costs would not increase, but did not guarantee the same geographic availability or identical benefits, the arbitrator ruled, and any cost increase due to an employee replacing an HMO with a PPO was a voluntary choice with equitable but not contractual concerns and implications.

Bill addressing union salting introduced in Congress
Legislation amending the National Labor Relations Act (NLRA) to allow employers to discharge undercover union organizers, commonly referred to as "salts," was introduced in the House and Senate on June 10, 2009, by Representative Steve King (R-Iowa) and Senator Jim DeMint (R-SC), respectively. Called the Truth in Employment Act (H.R. 2808/S. 1227), the bill would add the following provision to Section 8 of the NLRA: "Nothing in this subsection shall be construed as requiring an employer to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status." The legislation is intended to address Supreme Court precedent, which prevents employers from discriminating against salts.

The bill's findings state that "the tactic of using professional union organizers and agents to infiltrate a targeted employer's workplace, a practice commonly referred to as 'salting', has evolved into an aggressive form of harassment not contemplated when the National Labor Relations Act was enacted and threatens the balance of rights which is fundamental to the system of collective bargaining of the United States." Therefore, said the legislators, the bill would amend the NRLA to protect employers from being required to hire any person who is seeking a job in order to promote interests unrelated to those of the employer. The bill would also protect the right of employers to fire any employee who engages in a "salting campaign" instead of doing his or her job.

The House bill has been referred to the Committee on Education and Labor and the Senate bill has been referred to the Committee on Health, Education, Labor and Pensions.

NLRB affirms union's right to represent employees
The National Labor Relations Board has affirmed the right to represent, by an affiliate of the Workers United union, a group of Royal Laundry employees. The ruling could potentially help settle dozens of competing claims of representation between Workers United and UNITE HERE across the country.

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

After 150,000 workers left UNITE HERE to form Workers United, UNITE HERE has mad repeated attempts to intervene in the new union's relationships with employers. Royal received demand letters from UNITE HERE that the employer stop negotiating with Workers United and send dues directly to UNITE HERE. Friday's decision upholds the Board's preliminary finding that UNITE HERE's demands lacked any legal basis.

"UNITE HERE is trying to interfere with workers' ability to win strong contracts and protect the gains they've made through years of hard work," said Bruce Raynor, President of Workers United. "UNITE HERE's campaign against our union is only hurting workers. It is time we stop this conflict and settle this dispute through binding arbitration."

Workers United, an SEIU affiliate, is a union representing more than 150,000 workers in the US and Canada who work in the laundry, food service, hospitality, gaming, apparel, textiles manufacturing and distribution industries.

Source: Workers United

Dex Media and IBEW agree to new contract
Dex Media, Inc., one of the nation's leading Yellow Pages and online local commercial search companies and the International Brotherhood of Electrical Workers, Local 1269 (IBEW) have agreed on a new three-year contract, which has been ratified by the Company's union-represented employees. The contract will be implemented immediately.

The negotiations began on March 24, 2009 and focused on sustaining the long-term viability of the Company in the face of intense competition during the ongoing economic crisis. The previous contract expired at 6:00 PM MDT on May 8, 2009.

"The Company appreciates the good faith bargaining by the Union and its desire to work with the Company for a better and stronger future," said spokesperson Mike Truell. "The proposed contract was developed after several weeks of intense negotiations and continues to provide our employees with good paying jobs and benefits. We are happy to continue toward our primary focus of helping our advertisers succeed and putting forth products that help consumers in their everyday lives."

The new contract covers approximately 420 IBEW employees in Western states, including Arizona, Colorado, Idaho, Montana, New Mexico, Utah and Wyoming.

Source: Dex Media, Inc.

Employer entitled to preliminary injunction to enforce former recruiter's noncompete agreement
An employer that provided staffing services to businesses seeking financial professionals and accountants satisfied a four-part test for injunctive relief and, thus, was entitled to a preliminary injunction to enforce a former employee's confidentiality and noncompete agreements, a federal trial court in Arizona ruled. The employer established that it was likely to succeed on its breach of contract claim, it was likely to suffer irreparable harm if the former employee's direct and local competition was not enjoined, the balance of equities tipped its favor, and injunctive relief was in the public interest ( Ajilon Professional Staffing, LLC v Griffin, DAriz, 157 LC ¶60,810).

Federal Labor Relations Authority announces initiative to resolve oldest cases
The Federal Labor Relations Authority (FLRA) has announced that, by Status Inquiries to be issued by the Case Intake and Publication Office during June 2009, Chairman Carol Waller Pope and Member Thomas Beck are seeking input from parties in its oldest pending cases as to whether formal decisions by the Authority are warranted and/or whether alternative means to resolve the dispute can be identified.

Specifically, the Authority is contacting parties in cases that have been pending before the Authority Chairman and Members for more than two years. The Authority notes in the inquiries that, for various reasons, and through no fault of the parties, decisions in these cases have not issued. The Authority also notes that it has undertaken an initiative to improve the timeliness of its decisions and to eliminate its backlog of pending cases. Accordingly, in order to determine how best to use its resources, the parties in these cases are asked to identify whether circumstances continue to warrant formal adjudication. The Authority also offers assistance in resolving disputes though alternative dispute resolution methods, if requested. A form is included for the responses, which may be submitted by mail or by facsimile.

This is but one of several strategies Chairman Pope and Member Beck are employing to improve agency performance. Other such strategies include early identification of incoming cases that are susceptible to summary disposition and use of innovative decision formats. In addition, the entire FLRA --the Authority, Office of the General Counsel, and Federal Service Impasses Panel --is aggressively pursuing opportunities to provide training to customers both to assist them in avoiding disputes and to improve the quality of filings, which in turn assists agency components in more timely resolving disputes.

NLRB memo explains how Regions are to carry on during the current disagreement between UNITE HERE, Workers United and SEIU

NLRB Associate General Counsel Richard A. Siegel has issued Memorandum OM 09-68(CH), June 18, 2009, explaining to all Regions how to proceed with the processing of unfair labor practice charges in light of the pending dispute between UNITE HERE, Workers United and SEIU. The full text of the memorandum is reproduced below.

MEMORANDUM OM 09-68(CH)

June 18, 2009

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

FROM: Richard A. Siegel, Associate General Counsel

SUBJECT: Processing of Unfair Labor Practice Charges Arising out of the Current Dispute Involving UNITE HERE, Workers United and SEIU

There are pending before the Agency numerous petitions and charges raising issues related to the dispute between UNITE HERE, Workers United and/or SEIU. On May 13, Change to Win (CTW), notified the Executive Secretary that UNITE HERE and SEIU, including its affiliate Workers United, had agreed to submit jurisdictional issues related to numerous pending petitions to a dispute resolution procedure established by the Change to Win Constitution. On May 14, the Executive Secretary's Office sent letters to a number of Regions instructing the receiving Region that the subject petition was to be held in abeyance for 30 days from the date of the letter to enable Change to Win to attempt to resolve the issues in dispute in accordance with its Constitution.

On June 3, 2009, CTW informed the Executive Secretary that it was rescinding its request for the Board to hold processing of the petitions in abeyance. Regions with petitions pending were thereafter instructed to resume case procession.

The current dispute involves the decision of some of the constituent parts of UNITE HERE, including some local unions and some regional district councils, to disaffiliate and to affiliate with the Service Employees International Union (SEIU). As part of the effort to affiliate with the SEIU, these former constituent parts of UNITE HERE have formed a new organization, Workers United. UNITE HERE has challenged the validity of the attempted disaffiliation effort claiming that it is not allowed under the UNITE HERE Constitution. As a result of this dispute, it appears that many employers have received letters both from UNITE HERE and from Workers United, or one of its constituent locals or regional councils, claiming to be the entity that represents the employer's employees. In the face of these competing claims, employers have taken a variety of actions. Some have ceased remitting dues to either side until the internal union dispute is resolved. Others have taken other actions that are alleged in pending charges as unilateral changes. Some of the employers have filed RM petitions claiming that the conflicting claims raise a "question concerning representation" (QCR) warranting a representation election.

Careful consideration has been given to how Regions should proceed in the face of this complex situation. Resolution of many of the C cases ultimately will require a determination of whether the internal union dispute has raised a QCR. Accordingly, expeditious processing of the petitions by Regional Directors to permit Board review of this basic issue, upon proper request, is essential. Where the QCR issue is present in the pending C cases, the General Counsel has decided to defer decision until the Board has an opportunity to address the issue in the pending R cases. Such a Board resolution could occur in an R case arising in the same unit in which the unfair labor practice case is pending or in another case that will establish a controlling rule. Regions should complete their investigations of such C cases, but delay implementation of their determinations until authorized. On the other hand, it may be possible to resolve some C cases without having to resolve the representational issue. As detailed below, Regions should continue processing of those cases. Finally, there may be some C cases that implicate the representational issue but involve extensive and serious unfair labor practices allegations. If a Region believes it has such a case, it should consult as described below as to how to proceed.

To summarize, charges generally fall into three types:

Type 1 unfair labor practice cases are those in which a charge arises in a unit in which a representation petition is also pending. For example, we have cases where a Workers United affiliate has demanded recognition in a previously recognized unit and the employer has refused to accord the Union recognition. Workers United has filed a Section 8(a)(5) charge alleging the employer is refusing to meet and confer and the employer has filed an RM petition. Reaching a determination of the allegations raised by this charge appears to require a resolution of the issues raised by the pending RM petition. In such a case the Region should fully investigate the charge but delay implementation of its determination pending the resolution of the issue raised by the petition.

Type 2 cases are similar to Type 1 in that they require determination of whether one of the rival factions is the existing representative, but in Type 2 cases no R case petition has been filed. For example, in some charges the Charging Party alleges it is the rightful representative and the employer has made an unlawful unilateral change by refusing to remit dues to it and/or to grant access to its representatives or that the employer is providing unlawful assistance to the other faction involved in the UNITE HERE dispute. 1 In other instances CB charges allege that one of the factions unlawfully accepted recognition as the representative of certain unit employees. Even though no related petition is pending with respect to the units involved in these charges, the resolution of the issues raised in the petitions pending elsewhere would appear to have the potential to resolve or shed light on the issues raised by such charges. Again, to avoid having the General Counsel determine what is essentially a representational issue, a Region having a charge or charges in these circumstances, while investigating the charge(s) fully, should not implement its determination in the charge(s) at this time.

We will closely monitor the representation cases before the Board for guidance as to what should be done with the pending petitions. As matters develop, we will give further guidance on the processing of Type 1 and 2 cases.

Type 3 cases involve allegations that are tangentially related to the ongoing UNITE HERE dispute but can be resolved without having to reach the representational issues presented in the various pending petitions. For example such cases might involve allegations of 8(a)(1) threats or interrogations of employees. Because the issues in these charges do not require the General Counsel to reach representation case issues that more appropriately should be addressed by the Board, Regions should continue to process these charges to disposition.

The UNITE HERE dispute has generated a great deal of public interest and numbers of public inquiries. Consequently, there is an ongoing need for Headquarters to know about all of the cases pending arising from this dispute and the status of those cases. In addition, with respect to the charges, there is a need to maintain a consistent approach among the Regions and to ensure that the General Counsel's policies are being followed. For these reasons, upon determining the appropriate course for a particular UNITE HERE case, Regions should send DAGC Charles Posner a memorandum outlining how they intend to proceed. The submission should note the case name and number of the C case and recite the allegations raised. The submission should also contain a description of how the C case allegations do or do not relate to the pending representational issues and the Region's analysis and recommendation about how to proceed. If there are related representation cases please provide the name, number and nature of the pending R case. DAGC Posner will communicate unfair labor practice case handling instructions to the Regions.

Finally, there may be cases that appear to fall into Type 1 or Type 2 categories but involve unfair labor practices of such a serious nature that, in the view of the Region, delaying action pending Board action with respect to the R case issue would not be warranted. Such a case might involve allegations of a withdrawal of recognition combined with massive unilateral changes. If a Region believes it has such a case, its submission should include an analysis and recommendation as to why deferral would not be appropriate. We will promptly provide a response to the recommendation provided by a Region.

If you have any questions concerning the matters described in this message, please feel free to contact me.

/s/

R.A.S.

cc: NLRBU

Release to Public

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1 It is likely that in many such cases, the employer's conduct has been prompted by a sincere and innocent confusion regarding the identity of the employees' collective-bargaining representative and not by any intent to evade contractual obligations or deny employees their rights under the Act. These circumstances will be fully explored in the investigation of the cases and be given due consideration in evaluating whether or not to issue a complaint.

Machinists ratify new agreement with Southwest Airlines
The International Association of Machinists and Aerospace Workers (IAM) District 142 has announced membership ratification of a new collective bargaining agreement with Southwest Airlines. Approved with 54 percent of the vote, the four-year agreement covers the carrier's 5,300 customer service and reservation agents. The previous collective bargaining agreement became amendable on October 31, 2008, and the parties reached a tentative agreement on May 5, 2009. This new agreement becomes amendable on October 31, 2012.

The agreement provides an immediate three percent wage increase, retroactive to November 1, 2008, with top pay increasing to $26.61 per hour over the life of the accord. Other improvements include an increase in retirement benefits, with company-paid 401(k) contributions increasing to 8.3 percent, a one percent gain, retroactive to January 1, 2009. The contract calls for Southwest to again increase 401(k) matching contributions, to 9.3 percent, on January 1, 2011.

"This agreement provides financial security for our members while giving Southwest Airlines the stability it needs to continue growing in a very difficult economic climate," said IAM District 142 President Tom Higginbotham.

Source: International Association of Machinists and Aerospace Workers

Steelworkers reach tentative agreement with MeadWestvaco
The United Steelworkers (USW) has announced that it has reached tentative agreement on a new, six-year collective bargaining agreement on behalf of 900 hourly production and maintenance employees at MeadWestvaco. USW International Vice President Jon Geenen, who is the union's top official with responsibility for paper industry bargaining, said that the Steelworkers will not discuss publicly specific items in the proposed contract until the members of USW Local 8-675 have had a chance to review it with their local union negotiating committee.

"But," Geenen said, "I am proud of our negotiating team and our local union leadership in Covington for standing together throughout the last two years."

Geenen said that the members of USW Local 8-675 deserve special recognition for their commitment and loyalty to the union since an independent group tried unsuccessfully to decertify the USW in Covington and the global financial crisis deepened while these negotiations proceeded.

"It's time to get to work on building a stronger union," Local 8-675 President Bobby Harrison said. "It's time to work to build a stronger community, and most importantly, it's time to make paper."

The union also called upon the Covington Paperworkers Union (CPU) to drop charges it filed with the National Labor Relations Board (NLRB) against the company earlier this month for bargaining with the USW, which remains the only Board-recognized bargaining representative of these employees.

Source: United Steelworkers (USW)

Judge orders halt to wage cut for California home care workers
A U.S. District Court judge has issued an injunction ordering the state of California to halt a proposed $2 cut in wages for the state's 400,000 home care workers. The injunction immediately stops pay cuts in all California counties that planned on passing the state cut onto to their home care workers. The injunction was issued by federal judge Claudia Wilken in response to a lawsuit filed by the Service Employees International Union (SEIU.) The lawsuit alleges the wage cut violates the federal Medicaid Law, Americans with Disabilities Act, and Rehabilitation Act.

"This ruling is bringing hope to hundreds of thousands of home care consumers and workers all across the state," said Mary Harms, a home care worker in Contra Costa County. "We had no choice but to ask the court to help us after the governor and legislature let everyone down and put so many people in danger."

The enjoined state budget cuts would have slashed homecare workers' wages to as low as $9.50 an hour.

Sources: SEIU United Healthcare Workers-West; SEIU ULTCW; SEIU Local 521

"Forewarn Act" would expand WARN Act requirements, liability
Legislation that would strengthen the law requiring employers to notify workers of mass layoffs or plant closings was reintroduced in the House and Senate last week. The bipartisan Federal Oversight, Reform, and Enforcement of the WARN Act ("FOREWARN Act"), introduced on June 25, would strengthen enforcement of current law and close loopholes in the Worker Adjustment and Retraining Notification (WARN) Act.

The House bill (H.R. 3042) was introduced by Reps. George Miller (D-Calif), chairman of the House Education and Labor Committee, and John McHugh (R-NY). Reps. Lynn Woolsey (D-Calif.) and Marcy Kaptur (D-Ohio) are co-sponsors of the House bill. Sen. Sherrod Brown (D-Ohio) introduced the companion measure in the Senate (S. 1374).

"Current protections for workers being laid off are both confusing and rarely enforced," said Miller, in a press release announcing the bill's introduction. "While an early warning may not save their job, a meaningful early notice will help them prepare to find a new job or upgrade their skills for new employment."

"In the two decades since the WARN Act was enacted, our nation's economy has changed markedly," said McHugh. "It is time to modernize the WARN Act to fit today's economy, and thereby ensure workers and communities get the fair notice they deserve and need to prepare and adjust to their change in job status."

Congress passed the WARN Act in 1988 to give workers 60 days advance notice to adjust to an impending "plant closing" or "mass layoff." Compelling evidence demonstrated that retraining and other readjustment efforts have the greatest success when advance notice is provided, according to the release. However, the WARN Act's effectiveness has been undermined by existing loopholes and weak enforcement, the bill sponsors contend.

First, the WARN Act only covers 24 percents of all layoffs, according to a report by the by the Government Accountability Office (GAO). Of those layoffs, employers only provided notice approximately one-third of the time. The WARN Act has several exceptions that employers can invoke --both legitimately and illegitimately --including unforeseen business circumstances and whether a company is trying to attract capital to avoid a shutdown. Furthermore, the WARN Act is only invoked at companies with at least 100 employees that layoff 33 percent or more of their workforce.

In addition, weak penalties and enforcement measures may prevent employers from providing notice. GAO found that employers failed to provide notice to employees in two-thirds of layoffs and closures where the WARN Act applied. The WARN Act requires violating employers to pay an employee a day's pay for every day of notice not provided and does not provide the federal government the authority to enforce workers' rights.

The FOREWARN Act would:

• give the Department of Labor authority to enforce the WARN Act;
• increase penalties for violation to double back pay;
• reduce the mass layoff figure from 50 to 25, reduce the employer size from 100 to 75 employees, and lower the mass layoff trigger. The lower thresholds would protect employees in both manufacturing and services firms;
• lengthen the notification period from 60 to 90 days;
• require employers to provide written notification to the Department of Labor, including the reason for the plant closing or mass layoff, whether the employer has jobs elsewhere, and a statement of each employee's right to wages and benefits;
• expand required notice recipients to include the Secretary of Labor, elected officials including the governor, member(s) of Congress, and state representatives, and the appropriate labor union(s), when applicable.

The bill has been referred to the Committee on Education and Labor in the House and to the Senate Committee on Health, Education, Labor, and Pensions.

Freedom From Union Violence Act introduced in the House
The Freedom From Union Violence Act (H.R. 2537), introduced in the House on May 21, would impose a fine of up to $100,000 and/or a prison sentence of up to 20 years for anyone affecting commerce who commits robbery, extortion, or an act of physical violence to any person or property during a labor dispute. The bill would amend the Hobbs Act, which aims to combat racketeering in labor-management disputes, by eliminating a loophole that permits "violence and intimidation on behalf of labor unions ... if it is ruled that such coercion was to further a 'legitimate' union objective,” according to Rep. Joe Wilson (R-SC), who introduced the measure. The bill exempts conduct that is incidental to otherwise peaceful picketing during the course of a labor dispute, consists solely of minor bodily injury or minor damage to property, or threat or fear of such minor injury or damage, and any conduct that is not part of a pattern of violent conduct or of coordinated violent activity. The bill has been referred to the House Judiciary Committee.

Bill would amend NLRA to allow for merit pay beyond union contract
Employers would no longer be restricted in setting pay for individual employees pursuant to the lockstep terms of a collective bargaining agreement under legislation introduced last week in Congress. The “Rewarding Achievement and Incentivizing Successful Employees” (RAISE) Act, introduced in both the House and Senate on June 4, would amend the NLRA to allow an employer to grant merit pay incentives to individual employees who are covered under a collective bargaining agreement. The RAISE Act (H.R. 2732/S.1184) would amend Sec. 9(a) of the NLRA to provide that, “notwithstanding a labor organization's exclusive representation of employees in a unit,” nothing in Sec. 8(a)(1) or 8(a)(5) of the Act, or in a collective bargaining agreement, “shall prohibit an employer from paying an employee in the unit greater wages, pay, or other compensation for, or by reason of, his or her services as an employee of such employer, than provided for in such contract or agreement.” The legislation was introduced in the House by Rep. Tom McClintock (R-Calif.) and in the Senate by Sen. David Vitter (R-La.). The House bill has been referred to the House Committee on Education and Labor; the Senate bill goes to the Senate Committee on Health, Education, Labor, and Pensions.

Bill addressing union salting introduced in Congress
Legislation amending the National Labor Relations Act (NLRA) to allow employers to discharge undercover union organizers, commonly referred to as “salts,” was introduced in the House and Senate on June 10. Called the Truth in Employment Act (H.R. 2808/S. 1227), the bill would add the following provision to Section 8 of the NLRA: “Nothing in this subsection shall be construed as requiring an employer to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.

Eight states call on FedEx Ground to properly classify workers
Attorneys general from Iowa, Kentucky, Missouri, Montana, New Jersey, Ohio, Rhode Island and Vermont sent a letter serving notice to FedEx that they were concerned that the company might be avoiding payroll taxes by classifying its drivers as independent contractors, rather than employees. Such an improper classification would deny workers basic rights such as a minimum wage, workers' compensation insurance, unemployment insurance, wage and hour protections and civil rights protections.

The action won praise from at least one major union.

"FedEx can't hide from its responsibilities to its workers," said Ken Hall, Teamsters International Vice President and Director of the Package Division. "Federal and state agencies are taking action to make sure FedEx doesn't skirt the law and pays its fair share. Thanks to officials like these attorneys general, FedEx...won't be allowed to profit from this scheme at the expense of its work force and the American taxpayers."

FedEx Ground is currently under investigation in 30 states to determine if the company is misclassifying workers as independent contractors through its owner-operator model. Also, more than 45 class-action lawsuits have been filed against the company in state and federal courts over its misclassification scheme.

Employee misclassification not only deprives workers of their rights, it also leads to the loss of federal income and employment tax revenue. It is estimated that more than $4.7 billion in federal income is lost due to this practice. At the state level, misclassifying 1 percent of workers results in an average of $198 million lost annually to state unemployment insurance funds.

Source: International Brotherhood of Teamsters

Seven union locals extend contracts with FirstEnergy
FirstEnergy Corp. has announced that seven of its union locals - representing about 2,600 employees - have ratified contract extensions. These unions include employees from Pennsylvania Electric Company (Penelec), Pennsylvania Power Company (Penn Power), Cleveland Electric Illuminating Company (CEI), Ohio Edison, and Toledo Edison, along with some power plant employees. Overall, FirstEnergy has 6,700 employees represented by 17 union locals.

"I appreciate the commitment that our union leaders and represented employees have made to the company during these tough economic times," said Anthony J. Alexander, president and chief executive officer of FirstEnergy. "When combined with the changes already made by our salaried employees, these contract extensions will help ensure that we emerge a stronger company, better positioned for growth when the economy begins to rebound."

The contract extensions - one to three years in length - could include wage and health care changes along with a Voluntary Enhanced Retirement Option (VERO) for employees 58 years and older with at least 10 years of service. The extent of contract changes was dependent upon the length of the extension.

The company recently announced that it would take steps to reduce costs, enhance efficiencies and minimize financial risk in response to the continued economic recession. These steps include temporary salary changes, revisions to retiree health care coverage, and offering the VERO program to its non-represented workforce. The contract extensions are an effort to bring the same kind of changes to represented employees.

Company representatives plan to continue discussions with leadership of some of the remaining unions that represent FirstEnergy employees to provide the same time-sensitive extension options.

Source: FirstEnergy Corp.

Machinists union files for AirTran representation election
The International Association of Machinists and Aerospace Workers (IAM), the largest airline union in North America, has asked the National Mediation Board (NMB) to hold a representation election for more than 2,000 fleet service, passenger service and reservation employees of Orlando-based AirTran Airways. If victorious in an eventual election, the IAM would add to the more than 110,000 fleet service workers, passenger service agents, reservation agents, flight attendants, mechanics, stock clerks, flight simulator technicians and other airline and airline service company employees whom they currently represent.

"The two main issues driving this campaign are respect and wages," said IAM Transportation General Vice President Robert Roach, Jr. "The Machinists union will ensure these AirTran employees are properly compensated and treated with the dignity every worker deserves."

Under NMB rules, a union seeking an election must submit signed election authorization cards from a minimum of 35 percent of the group to be organized. The NMB will review the Machinists union's submission before setting an election date. Employees typically cast votes electronically through an Internet website or by telephone.

"Most other AirTran employees already have the protection of union contracts," said IAM District 141 President Rich Delaney. "It is time for AirTran's fleet service, passenger service and reservation employees to have a voice in their future and benefit from the security an IAM agreement provides."

Source: International Association of Machinists and Aerospace Workers

11thCir: Trial court abused discretion in denying class cert in RICO action
A federal district court abused its discretion when it denied class certification to a group of employees in a RICO suit alleging their employer engaged in racketeering activity by hiring illegal aliens and depressing employees’ wages, the Eleventh Circuit ruled, in a long-litigated case over undocumented workers that has found its way to the Supreme Court and back again. The lower court erred in concluding the employees did not present a question of law or fact that was common to all members of the proposed class, the appeals court found. Commonality requires that there be at least one issue whose resolution will affect all or a significant number of the putative class members. Here, the employees presented two overarching questions that were common to all members of the class: namely, whether the employer participated in the conduct of an enterprise’s affairs under the federal racketeering statute; and whether the employer engaged in a pattern of racketeering activity or a conspiracy to violate a state racketeering law. Moreover, the lower court erroneously relied on precedents regarding class certification of employment discrimination claims under Title VII. Unlike Title VII claims, RICO claims are often susceptible to common proof. Thus, the district court incorrectly relied on the employer’s decentralized decisions regarding hiring and wages to conclude that the employees’ complaint did not present questions common to the class. The RICO complaint did not depend on proof of individual acts of disparate treatment. Rather, whether the employer conducted the affairs of an enterprise through a pattern of racketeering activity that depressed the wages of all employees was a question common to each employee’s complaint (Williams v Mohawk Industries, Inc, May 28, 2009).

7thCir: National Guard members are not entitled to preferential scheduling
A city police department did not violate the Uniformed Services Employment and Reemployment Rights Act (USERRA) when it discontinued its policy of allowing police officers who missed their weekend work shifts in order to attend National Guard duties to make up the time on their scheduled days off, the Seventh Circuit ruled. For nine years, the department had allowed the practice, which allowed the officers to collect a full week’s pay from the city in addition to their military pay. The department’s discontinuation of the practice, thereby providing equal work scheduling benefits to all employees, did not constitute a denial of a benefit of employment actionable under USERRA because the practice was not required by the statute, the appeals court held, affirming a district court ruling in the city’s favor (Crews v City of Mt Vernon, June 2, 2009).

9thCir: Scheduling change was minor dispute, subject to binding arbitration
A dispute over a unilateral scheduling change made by an airline employer was a minor dispute under the Railway Labor Act and therefore was subject to binding arbitration, the Ninth Circuit ruled on interlocutory appeal. The employer unilaterally changed the schedules for its flight attendants from the FAA regulation (FAR) designed for pilots to the FAR for flight attendants after their bargaining agreements had expired and while the parties were in negotiations for new contracts. A district court issued a preliminary injunction barring the employer from implementing the change, finding the disagreement was a major dispute and that the employer should have negotiated the change with the union. The Ninth Circuit reversed. The appellate court's decision turned on the distinction between major and minor disputes under the RLA. A dispute is minor, the court noted, if the disputed action is "arguably justified" by the parties' collective bargaining agreement. Here, the schedule change was arguably justified by the CBAs, the court found, noting ambiguity in the contract language as to which of the two FARs should be applied to the flight attendants. Moreover, management rights clauses gave the employer the right to establish new schedules and justified the employer's unilateral action in the absence of contract language to the contrary. The dispute was to be resolved by binding arbitration before the National Railroad Adjustment Board; the appeals court vacated the preliminary injunction and directed the lower court to dismiss the action (Flight Attendants v Mesa Air Group, Inc, June 1, 2009).

MA: Public policy trumps bargaining agreement, state high court rules
An arbitration award finding an employer violated a bargaining agreement when it granted retroactive seniority (and a job) to an applicant in order to settle his refusal-to-hire disability discrimination claim was contrary to public policy and must be vacated, the Massachusetts Supreme Judicial Court ruled, in a pair of cases consolidated for consideration. The union had filed a grievance on behalf of an employee with seniority who lost the vacancy to the applicant pursuant to the settlement. An arbitrator ruled the public employer violated the contract by granting the discriminatee seniority without the consent of the union. The employer challenged the award, claiming it was contrary to public policy. The state high court agreed. It rejected the union’s claim that the public policy exception did not apply without an express finding of discrimination. A “presumption of legitimacy” arose from the settlement agreement, the court reasoned, since a public entity would not likely enter into such an agreement without a substantial basis to believe the plaintiff would prevail at trial, and the union was unable to rebut this presumption by showing the settlement was a sham attempt to subvert the union contract. Nor was court approval of the settlement a precondition to overriding the union contract. In the second case before it, however, the high court affirmed an award in favor of the union in a grievance over the employer’s unilateral elimination of a seniority-based list of employees who would be entitled to work temporarily in a higher job classification, based on concerns the list might be discriminatory. Here, no one had come forward with a claim of discrimination, and no claim of discrimination was brought before a tribunal or a court that resulted in a finding of discrimination or a settlement (Mass Bay Transportation Authority v Boston Carmen’s Union, Local 589, MaSJCt, June 4, 2009).

NLRB: No duty to reassure employees about former union organizer on staff
An employer did not violate Sec. 8(a)(1) of the NLRA by hiring a former union organizer to campaign against the union without assuring employees that the organizer’s knowledge of their past union activities would not be used against them, the NLRB ruled, reversing a law judge’s finding on this issue. The former organizer had been involved in two previous election campaigns for the union before he was hired by the employer as a labor relations consultant. Employees who were active union supporters were upset to hear he was now working on the employer’s antiunion campaign. Under extant Board law, however, there is no affirmative “duty to assure” employees that his knowledge of their union activities would not be used to interfere with the exercise of employees’ Sec. 7 rights, the two-member panel noted, dismissing the unfair labor practice allegation (Community Medical Center, NLRB 354 No 26, May 29, 2009).

2ndCir: Two-member NLRB has authority to issue decisions
The Second Circuit has now weighed in on whether the NLRB has authority to issue decisions in its current incarnation as a two-member quorum of a three-member panel. Siding with the First and Seventh Circuits (and against the DC Circuit), the Second Circuit found the NLRB's initial delegation of power to a three-member panel was lawful because the NLRA expressly authorizes such a delegation. "That the NLRB knew that the membership of the panel would soon be reduced from three to two — and that [the] Board’s membership would also decrease to two — has no bearing on the fact that the panel was lawfully constituted in the first instance.” The main question, as the court saw it, was whether the NLRB panel lost its authority with the loss of the three-member quorum. The court found that it had not. The Act is silent on the question, and the legislative history failed to reveal Congressional intent. The court looked to the NLRB's belief that the panel retained its authority and found that, in light of the "animating purpose" of the Taft-Hartley amendments to the Act that were intended to improve the NRLB's efficiency, the Board's interpretation of the statute was a reasonable one (Snell Island SNF LLC v NLRB, June 17, 2009).

4thCir: Tire company ordered to arbitrate pension and health benefits dispute
A tire company must arbitrate with a union over its decision to deny certain pension and health benefits to bargaining unit employees after a large-scale layoff at its Charlotte, North Carolina facility because a collective bargaining agreement (CBA) and pension and health insurance (P&I) agreement between the parties provided for arbitration of benefit disputes not only during the life of the agreements, but also after their expiration, held the Fourth Circuit, affirming a district court’s decision in favor of the union. Before the agreements were set to expire, the company had notified the union that it needed to reduce costs at the Charlotte plant and attempted to renegotiate the agreements in order to achieve these reductions. When the negotiations did not prove to be successful, the company announced that it would have to cut production and lay off 900 employees. In the midst of these layoffs, both the CBA and the P&I agreement expired. The union filed suit after the company refused to arbitrate the grievances. The circuit court reasoned, however, that the CBA and P&I agreement clearly provided that any dispute over benefits was subject to arbitration. To hold otherwise would “be embracing the untenable position that arbitration obligations could seldom outline the collective bargaining agreements in which they are embodied.” (United Steel v Continental Tire NA, Inc, June 9, 2009).

EDVa: Manager’s Employee Polygraph Protection Act claim may proceed
A manager who was demoted after the results of a polygraph exam may go forward within his wrongful discharge suit under the Employee Polygraph Protection Act (EPPA), held a federal court in Virginia. The manager told several executives at his company, which provides automotive maintenance services at several Jiffy Lube franchises in Virginia, that a competing franchisee offered him a job. When the franchisee denied making the offer to his employer—which would have violated Jiffy Lube’s franchise agreement—his employer asked him to take a polygraph exam. The exam results revealed “deception.” The manager was demoted and reassigned to a new store location. Ultimately, he resigned. Filing suit, he alleged violations of the EPPA. Both parties filed summary judgment motions. Deciding the motions, the court held that the EPPA covered the suit, as the Act is concerned with protecting employees from illegal polygraphs, not the circumstances that led to the polygraph. Moreover, the court ruled that the manager proved violations of the EPPA, which “prohibits an employer such as “[the] [d]efendant from even asking an employee to take the exam in the first instance or from discussing or referring to the exam's results.” However, because the test could be construed as at least a factor in his demotion, triable issues existed as to whether the manager was constructive discharged “on the basis of' his polygraph test,” determined the court (Harmon v CB Squared Servs, Inc, June 1, 2009).

NY: No non-compete? No injunction. Former American exec could work for Delta
A senior sales American Airlines employee who departed for Delta Airlines with confidential sales and competitive information in tow would not be barred from working for his new employer, as a federal district court in New York denied American's motion for a preliminary injunction. The executive forwarded work-related documents to his home email account in preparation to resign his job at American. He also copied documents from his company laptop to his home computer and transferred contacts from his American-issued Blackberry to his own device. American argued the defendant would eventually convey this information to his new employer were he not enjoined from doing so. However, since the defendant agreed to destroy or return the confidential materials to American, and Delta expressly stated it would not accept the information if offered, American could not establish a likelihood of irreparable harm based on intentional wrongdoing. American next resorted to the inevitable disclosure doctrine—asserting the defendant had confidential information in his head that he would be unable to avoid using if he were permitted to work for Delta. While the court conceded it was unlikely that he left the company “with his mind a tabula rasa,” the balance of hardships weighed in favor of the defendant, the court found, unconvinced of the value to American of the confidential information at issue and cognizant that the defendant would be out of a job. Moreover, to grant an injunction based on inevitable disclosure would in effect bind the employee to a restrictive covenant to which he never agreed. (American Airlines v Imhof, June 3, 2009).

2ndCir: Healthcare employer could not discharge picketing workers
The NLRB erred in finding a health care employer lawfully terminated nonunion workers for picketing a clinic without first giving ten days’ notice, the Second Circuit ruled. A Board majority held the picketers lost their employee status under the NLRA because they engaged in unlawful picketing within the meaning of Section 8(g) of the Act. While this provision mandates that labor organizations must give ten days’ notice before striking or picketing a healthcare institution, it did not extend this notice requirement to individual employees, the appeals court noted. Moreover, Section 8(d) provides that an employee who engages in a strike within the Section 8(g) notice period loses employee status (and thus, the Act’s protections), but it does not specify such a sanction for employee picketing. “Since the text of sections 8(g) and 8(d) shows no intention to punish individual employees who do not strike but peacefully picket, it would not be appropriate for us to attribute one,” the appeals court wrote (Civil Service Employees Assn, Local 1000, AFSCME v NLRB, June 19, 2009).

USERRA claimant could not delay arbitration pending bill’s passage
An attorney made it quite clear that his client would not arbitrate his USERRA failure-to-reinstate claim, notwithstanding a court order to do so. Rather, he would wait it out until Congress takes action. “Keep an eye on [the] Servicemembers’ Access to Justice Act in Congress,” the attorney wrote, in response to the employer’s request that they submit the dispute to the AAA, “because its passage and signature into law is about the only thing that will advance this matter from the stasis that you have put it in.” (The bill, currently languishing in committee in both Houses of Congress, would bar mandatory arbitration of USERRA claims.) While the attorney was “abusive, unprofessional,” and clearly defiant of the court order to arbitrate, the judge declined to find the attorney in contempt — at least for now — since he finally agreed to arbitrate once the employer advised him of its contempt motion. The court deferred the motion pending completion of the now-scheduled arbitration process (Ernest v Lockheed Martin Corp, DColo, June 16, 2009).

9thCir: Claim that workers were undocumented did not invalidate judgment
An employer could not avoid complying with the terms of a consent judgment reached with the NLRB by asserting after the fact that the 20 discharged workers it was required to reinstate were unauthorized aliens and that their reinstatement would violate IRCA and state immigration law. The employer voluntarily entered into the settlement agreement, the Ninth Circuit noted. If the employer believed the unlawfully discharged workers were undocumented aliens, it could have admitted liability but contested the backpay award on the grounds that the discriminatees were “unavailable” for work (since they could not lawfully work in the US); however, the employer did not do so. “The Board has a procedure for just this situation,” the appeals court noted: The employer must provide the NLRB with proper proof of a person’s unauthorized status, at which time the Board can absolve the employer from rehiring that worker. “Our decision to enforce this consent judgment does not order any party to violate federal or state immigration laws,” the court wrote. Rather, it serves to place the burden on the employer to provide proof of the workers’ unauthorized status—and also to enforce the liquidated damages provision of the settlement, which is not predicated on the workers’ availability for work (NLRB v C&C Roofing Supply, June 25, 2009).

DCCir: Password protection on union campaign websites did not violate LMRDA
A labor union did not violate the Labor-Management Reporting and Disclosure Act (LMRDA) by adopting a resolution requiring all candidates for local union office and their supporters to include a password-protection function on their websites, the DC Circuit has ruled. The union adopted the resolution over concerns that employers had accessed the sites to gain information on local organizing campaigns and contract negotiations. Although the appeals court found the resolution could have interfered with union members' rights to express their views, it noted the impact was not substantial because members had a variety of other means of expression and access available to them. Moreover, the resolution was reasonably related to the protection of the union “as an institution" and allowed the union to organize and bargain more effectively; therefore, it served a legitimate purpose. Furthermore, the union had a reasonable basis for implementing the resolution — namely, concerns about employer misconduct. The appeals court affirmed a lower court’s denial of a motion by several union members to enjoin the union from enforcing the resolution (Quigley v Gilbin and Operating Engineers, June 23, 2009).

NJ: More protective bargaining agreement supersedes individual contract terms
A custodian’s individual employment contract conflicts with and diminishes the rights granted him by the collective bargaining agreement under which he was covered, thus it must yield to the collective agreement, a divided New Jersey supreme court held. Accordingly, the custodian was entitled to an arbitration hearing over his dismissal for workplace misconduct, as provided by the bargaining agreement. Under the individual contract, the Board can terminate the employee on 14 days’ notice. Under the bargaining agreement, however, an employee has the right to remain employed for the full one-year term of his individual contract unless just cause for dismissal exists, and he is also entitled to challenge the basis for dismissal through arbitration. These disparate contractual approaches cannot co-exist, the high court concluded. Since the individual agreement interferes with the custodian’s rights under the collective agreement, the collective agreement prevails; thus, he was entitled to arbitrate his discharge pursuant to its terms (Mt. Holly Township Bd of Educ v Mt. Holly Township Educ Assn, NJSCt, June 24, 2009).

WAGES HOURS – FMLA

Federal Employees Paid Parental Leave Act passes the House
Legislation that would provide paid parental leave benefits to all federal employees passed the House by a vote of 258-154 on June 4, 2009.

Reintroduced January 22 by Representatives Carolyn B. Maloney (D-NY), Frank R. Wolf (R-Va), Steny H. Hoyer (D-Md), Danny K. Davis (D-Ill) and Edolphus Towns (D-NY), the Federal Employees Paid Parental Leave Act (H.R. 626) would provide all federal employees with four weeks of paid parental leave for the birth or adoption of a child and allow employees to use accrued sick or annual leave instead of the 12 weeks of leave guaranteed to them under the Family and Medical Leave Act of 1993 (FMLA).

"It's just unacceptable that right now the US is the only industrialized country that does not provide support for federal workers with a new child. 168 countries are ahead of us, and we are tied with Lesotho, Liberia, Papua New Guinea, and Swaziland," said Maloney. "Families and family values are a top priority for President Obama and with his signature, our workforce will soon have comparable standards to professional private sector employees --and the rest of the industrialized world."

During debate, the House considered three amendments under H. Res. 501. The first, from Representative Darrell Issa (R-Cal), would have required employees to use all accrued leave before receiving additional paid parental leave and would have required additional paid parental leave to be treated as a repayable advance. The amendment was rejected by a vote of 157 - 258. The House did pass two amendments. One, from Representative Al Green (D-Texas), would direct the Office of Personnel Management to take into consideration the impact of increased paid parental leave on lower-income and economically disadvantaged employees and their children when evaluating whether to promulgate regulations increasing the amount of paid parental leave offered to federal employees. The other, from Representative Bobby Bright (D-Ala), would clarify that federal employees (including those in the executive branch, legislative branch, Library of Congress, and GAO) who are called into active duty as members of the National Guard or Reserves will be allowed to count the time of that service towards their total time of employment, for purposes of receiving benefits created in the underlying bill.

Under current law (5 USC §6382), most federal and congressional employees are entitled to a total of 12 workweeks of unpaid leave during any 12-month period because of the birth of a child, the placement of a child for adoption or foster care, to care for specified family members with a serious health condition, or because of an employee's own serious health condition. Employees may elect to substitute up to 12 weeks of accrued or accumulated annual or sick leave for any part of the 12-week period of leave provided by the FMLA, but "nothing in the subchapter shall require an employing agency to provide paid sick leave in any situation in which such employing agency would not normally provide any such paid leave." The bill passed the House in the 110th Congress by 278-146.

In a June 3, 2009, statement of administration policy, the Obama Administration said that it "supports the goal of H.R. 626, which would provide Federal employees with access to paid leave upon the birth, adoption, or fostering of a child."

A companion bill (S. 354) was introduced in the Senate by Senator Jim Webb (D-VA) on January 29.

SHRM calls for flexible, voluntary federal policy on paid leave
In testimony on June 11, 2009, before the House Education and Labor Subcommittee on Workforce Protections, China Miner Gorman, chief operating officer of the Society for Human Resource Management (SHRM), urged Congress to consider an approach to policies governing workplace leave that reflect the needs of today's more mobile, diverse and flexible 21st Century workforce.

In her testimony, Gorman reiterated SHRM's call for incentives to encourage employers to adopt paid leave plans, and was critical of attempts to impose one-size-fits-all paid leave mandates on employers, as embodied in H.R. 2460, the "Healthy Families Act."

"We believe Congress should seek ways to offer incentives for employers to do more - not risk the unintended consequences of an onerous government mandate that could very well result in decreased benefits and fewer new jobs," stated Gorman. "Employers want predictability and employees want flexibility in their paid leave plans. Government mandates can be counterproductive, as seemingly simple and well-intentioned statutes result in hundreds of pages of rules that can work against flexibility for employees."

As an example, Gorman cited the Family and Medical Leave Act of 1993, and the fact that HR professionals have struggled to interpret various provisions of the law. What began as a fairly simple 12-page document has turned into 200 pages of rigid government regulations.

SHRM's alternative approach - a 21st Century workplace flexibility policy - would for the first time respond to the diverse needs of employees and employers, and reflect different work environments, union representation, industries and organizational size.

SHRM recently outlined a series of principles to guide the development of a federal policy on workplace flexibility that would:

1. Encourage employers to offer uniform and coordinated paid leave;
2. Create administrative and compliance incentives for employers who meet the leave standard;
3. Provide certainty, predictability and accountability for employers and employees; and
4. Allow for different work environments, industries and organizational size.

Source: Society for Human Resource Management; http://www.shrm.org.

House bill would include living organ donation as an FMLA-eligible condition
Legislation (H.R. 2776) that would amend the Family and Medical Leave Act of 1993 (FMLA) to include living organ donation as one of the eligible conditions for taking a legally protected leave of absence was introduced June 9, 2009, by Representative Ruben Hinojosa (D-Tex). Called the Living Organ Donor Job Security Act, the bill would amend the FMLA to allow leave for private and federal employees who provide a living organ donation, including time spent for: (1) tests used to determine whether the employee is a medically suitable to be a donor; (2) physical, psychological, and social evaluations of the live donor; (3) pretransplant outpatient services; (4) postoperative inpatient and outpatient transplantation services; (5) travel during the total process; and (6) recuperation time. The bill, which has five cosponsor, has been referred to the House Committees on Education and Labor, Oversight and Government Reform and Administration.
Milwaukee's paid sick-leave ordinance declared unconstitutional

Granting the Metropolitan Milwaukee Association of Commerce's motion for a permanent injunction, Milwaukee County Circuit Court Judge Thomas Cooper held that the city's paid sick-leave ordinance, which provided up to nine paid sick days per year based on the number of hours worked and the size of the business, was "invalidly enacted and unconstitutional." 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. An appeal is expected ( Metropolitan Milwaukee Assoc of Comm v City of Milwaukee, Milwaukee County Circuit Court, June 12, 2009).

$200 Million class action filed against Northwestern Mutual
Three former employees of Northwestern Mutual Life Insurance Company today filed a suit in US District Court for the Southern District of California (San Diego) alleging longstanding federal and state wage and hour violations by the company. The complaint asserts the plaintiffs and other employees in similar sales and financial representative positions were denied minimum pay and overtime compensation to which they were entitled.

Plaintiffs and class representatives include Lola Lint, who worked for Northwestern Mutual in the Del Mar office in 2005-2006; Norma Waddell who worked for the company in 2006-2008 in both its Del Mar and Newport Beach offices, and David Yang, who worked in the company's Charlotte, NC, and Atlanta, GA, offices from 2001-2007. Ms. Waddell and Mr. Yang are suing under the federal Fair Labor Standards Act (FLSA) and Ms. Lint and Ms. Waddell are suing under California law.

The two California plaintiffs in the matter requested class certification on behalf of hundreds of California employees or former employees of the insurance company, and $100 million in unpaid wages and liquidated damages on behalf of the class for violations of state law. The federal plaintiffs also requested unpaid wages and liquidated damages of $100 million.

The complaint alleges that the giant insurer, whose principal place of business and headquarters is in Milwaukee, WI, bilks its sales and financial representatives in California and other states by intentionally and repeatedly misclassifying them as "independent contractors" rather than as employees. Independent contractors are exempt from federal and state wage and hour laws, but employees are not. As the complaint details, sales and financial representatives at Northwestern Mutual are responsible for finding clients, selling them insurance products, and following up with them if they have questions. They have little, if any, discretion; are required to secure management approval before making decisions; and do not have the authority to make independent choices relating to management, management policies or general operations. They clearly do not operate as independent contractors.

During their periods of employment, Ms. Lint, Ms. Waddell and other members of the class were required by Northwestern Mutual to work daily shifts longer than eight hours, and more than 40 hours per week, but did not receive the overtime pay to which these hours entitled them. Furthermore, they were paid less than California's minimum wage -- $7.50 per hour as of January, 2007, and $8 per hour as of January 2008 -- during their periods of employment.

The complaint asserts that the company's failure to pay overtime constitutes unlawful, unfair and/or fraudulent activity prohibited by the California Business and Professions Code by which it has reaped and continues to reap benefits and illegal profits at the expense of its employees.

Their attorney in the matter, David Sanford, said, "In modern society, workers are not indentured servants -- they are entitled to work a livable number of hours at a livable wage. Northwestern Mutual has systematically denied basic minimum wage and overtime pay mandated by both the federal Fair Labor Standards Act and California's overtime and minimum wage laws."

Source: Sanford Wittels & Heisler LLP

Wage-Hour Division issues guidance on ARRA federal contractor provisions
The Wage-Hour Division has released a guidance concerning implementation of Section 1606 of the American Recovery and Reinvestment Act of 2009, which provides for application of Davis-Bacon Act labor standards to certain federal and federally assisted construction work funded in whole or in part under provisions of the stimulus measure.

House bill would establish a base wage for tipped employees
The Working for Adequate Gains for Employment in Services "WAGES" Act (H.R. 2570), introduced in the House on May 21, would establish a base, adjustable minimum wage for tipped employees, adjusted incrementally. The WAGES Act would amend Sec. 3(m)(1) of the FLSA to provide that tipped employees are to be paid no less than $3.75 an hour, effective 90 dates from the bill's enactment, and at least $5.00 an hour beginning July 1, 2011. As of July 1, 2012, the minimum wage for a tipped employee would be no less than 70 percent of the standard minimum wage in effect under Sec. 6(a)(1), "but in no case less than $5.50 an hour." After that time, the tipped employee minimum wage is to be adjusted as necessary. The legislation would "roll back an ill-advised policy that has resulted in 18 years of frozen wages for tipped employees," according to Rep. Donna Edwards (D-Md), who introduced the measure. "In 1996 Congress took the unprecedented step to freeze the wages of tipped employees. As a result, by July 2009, the wages for tipped workers will be less than half what they would have been had Congress not taken this action," Edwards noted.

Domestic violence bill also would amend FMLA to cover same-sex partners
Rep. Lynn Woolsey (D-Cal) has introduced The Domestic Violence Act of 2009 (H.R. 2515), a bill that would amend the FMLA to allow eligible employees up to 12 workweeks of unpaid leave during any 12-month period to address domestic violence, sexual assault or stalking and their effects. The bill would allow employees to take FMLA leave to care for family members who are addressing those issues as well. H.R. 2515 also would amend the FMLA to allow family leave rights to employees to care for a same-sex spouse (as determined under applicable state law) or domestic partner. The bill has been referred to the House Committees on Education and Labor, Oversight and Government Reform and Administration.

House approves paid parental leave for federal workers
Legislation that would provide paid parental leave benefits to federal employees passed the House by a vote of 258-154 on June 4. The Federal Employees Paid Parental Leave Act (H.R. 626) would provide federal employees with four weeks of paid parental leave for the birth or adoption of a child and allow employees to use accrued sick or annual leave instead of the 12 weeks of leave guaranteed to them under the FMLA. A companion bill (S. 354) has been introduced in the Senate by Sen. Jim Webb (D-VA).

High Court to hear CAFA issues in wage-hour case
The Supreme Court will review an unpublished Ninth Circuit ruling in a California wage-hour class action in order to resolve a circuit split and clarify the appropriate test for determining a corporation’s principal place of business for purposes of diversity jurisdiction under the Class Action Fairness Act. The High Court granted a petition for cert today in Hertz Corp v Friend (Dkt No 08-1107), an October 2008 decision that the appellate court had refused to rehear. The question presented: “whether, for purposes of determining principal place of business for diversity jurisdiction citizenship under 28 U.S.C. § 1332, a court can disregard the location of a nationwide corporation’s headquarters — i.e., its nerve center.”

6thCir: Employer’s bonus-pay plan fails to comply with salary basis test
A bonus-pay plan applied to the department heads of a health and fitness center was not consistent with the salary-basis test, so an employer was liable for overtime compensation for these managerial employees, ruled the Sixth Circuit. The pay plan created a significant likelihood of improper deductions under the “subject-to-reduction” test set forth by the 1997 Supreme Court ruling in Auer v Robbins. Moreover, for the period after August 23, 2004, when the updated white collar exemption rules took effect, the employer impermissibly dipped into employees’ guaranteed salaries to recoup overpayments, the appeals court concluded. In this instance, the deductions were not made to recover irregular salary advances or payments mistakenly made by its payroll department, but were made as part of a pre-designed bonus compensation plan (Baden-Winterwood v Life Time Fitness Inc, May 19, 2009).

8thCir: County had no legal duty to consult dispatch logs in FLSA overtime case
A district court did not err in instructing a jury that a county had no legal duty to consult dispatch logs for payroll purposes, the Eighth Circuit ruled, in an FLSA suit that turned on whether the county knew or should have known of the overtime hours worked by seven Iowa police officers. At issue were claims that the officers performed work during commutes and mealtimes and the fact that the jury instruction precluded the officers from imputing knowledge by the county that they were working overtime during these periods. The county uses a Computer Aided Dispatch (“CAD”) system, which records the moment that an officer goes “10-41” in the morning and the moment at which each officer goes “10-42” in the evening, allowing the officers to engage in law-enforcement activity as they use patrol cars as commute vehicles. In order to prevail on their overtime claims, the officers were required to present evidence that they worked above their scheduled hours without compensation and that the county had constructive knowledge that they were working overtime. The FLSA’s standard for constructive knowledge in the overtime context is whether the county “should have known,” not whether it could have known, the appeals court noted. As such, the court concluded it would not be reasonable to require that the county weed through non-payroll CAD records to determine whether its employees were working beyond their scheduled hours (Hertz v Woodbury County, Iowa, May 28, 2009).

NDCal: Class cert granted in dollar store managers’ overtime suit
A federal district court in California has certified a class of at least 655 managers of a dollar store chain who asserted FLSA and state-law overtime claims alleging the employer improperly classified them as exempt employees and denied them overtime pay. The court was convinced that common issues predominated, and the case was therefore suitable for class treatment, based in part on the retailer’s practice of requiring managers to certify on a weekly basis that they were spending a majority of their time performing managerial tasks. The company had implemented the practice after it settled a prior wage claim by assistant store managers and wanted to ensure it was properly classifying its managers going forward. The irony was not lost on the court (Cruz v Dollar Tree Stores, Inc, May 26, 2009).

IndSupCt: Multiple jobs, single employer? FMLA-eligible in each
An employee who holds multiple positions with an employer is eligible for FMLA leave from each position if the total number of hours he works for the employer satisfies the FMLA’s hours of service requirement, the Indiana Supreme Court ruled on an issue of first impression for the state high court. Therefore, a high school math teacher who also held paid coaching positions at the school was FMLA-eligible as to the coaching jobs even though he did not work the FMLA-required 1,250 hours as a coach during the relevant time period. The teacher lost his positions as head football coach and assistant basketball coach after he developed a blood clot in his leg on the second day of football practice that required hospitalization and FMLA leave. After he complained to the principal and then to a local newspaper that he was fired for taking leave for his injury, the teacher was denied any future coaching contracts. Appealing a jury verdict in the teacher’s favor on his FMLA retaliation claim, the school argued the teacher was ineligible for FMLA leave with respect to the coaching position because he had not worked the requisite 1,250 hours in that capacity; thus, he was not entitled to reinstatement to the coaching jobs, and his firing from those positions did not violate the Act. The supreme court rejected this notion, finding him FMLA-eligible for the coaching positions. “Importantly, the test for eligibility is phrased in terms of `hours of service’ to an `employer,’ not service in any particular position,” the court reasoned. It was irrelevant that the plaintiff worked under separate contracts for each job and may have been issued separate paychecks for coach and teacher. Moreover, the court held, a jury could reasonably have found that the employer retaliated against the plaintiff for his complaints about not being reinstated and his statements to that effect to a local newspaper (Gary Community School Corp v Powell, May 19, 2009).

CA: $86 mil judgment reversed in Starbucks’ tip-pooling suit
Is a Starbucks shift supervisor who works alongside baristas just part of a customer service team when it comes to taking a cut of the pooled tips? Apparently so, as a California appeals court has reversed an $86 million judgment against Starbucks in a class action suit in which the trial court found the coffee chain violated state law by including the supervisors in tip pools. The lower court’s ruling was improperly based on a line of decisions addressing an employer’s authority to mandate that a tip given to an individual service employee must be shared with other employees, the appellate court reasoned. It noted Starbucks’ shift supervisors are part-time employees who perform all the duties of a barista, along with having responsibility for additional tasks, including supervising and coordinating employees within the store. There is no decisional or statutory authority prohibiting an employer from allowing a service employee to keep a portion of the collective tip, the court said, in proportion to the amount of hours worked, just because the employee also has supervisory duties. While acknowledging that sec. 351 of the Labor Code, which Starbucks was found to have violated, was enacted to prevent employees from having to give up their earned gratuities as a condition of employment, it was undisputed that in this case the tipping public intended to collectively tip both the baristas and the shift supervisors for their work as a “team,” the court concluded (Chau v Starbucks Corp, CalCtApp, June 2, 2009).

3rdCir: Employees with mere oversight duties not “management level”
Two team leaders who oversaw the production line work at a paper manufacturing plant did not qualify as “management level” employees such that their knowledge of a female employee’s sexual harassment allegations imputed Title VII liability to their employer, the Third Circuit ruled. A female technician at the plant reported several instances of alleged harassment to a senior-level manager and a human resources manager, which the employer promptly investigated and took adequate measures to correct. However, the technician asserted that her employer was liable for alleged harassment occurring prior to her formal complaint because her team leaders, also technicians, had limited supervisory responsibilities and knew about the conduct, but failed to take any action to prevent it. The Third Circuit, affirming the district court, disagreed. Knowledge may be imputed to an employer if it is “important to the employee's general managerial duties” or if “the employee is specifically employed to deal with sexual harassment,” wrote the circuit court. “We clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status.” The team leaders were “employed to keep the machines working” and not to “discover or to act upon knowledge or rumors of sexual harassment,” the circuit court held (Huston v Procter & Gamble Paper Prods Corp, June 9, 2009).

MA: Involuntarily discharged employees must be paid unused vacation time under Massachusetts law
Despite having a written vacation pay policy stating that vacation time is not an earned benefit payable upon discharge, the Massachusetts Supreme Judicial Court held that an employer violated the Massachusetts Wage Act when it failed to pay an involuntarily discharged employee for his unused vacation pay. While the Wage Act does not require employers to provide their employees with paid vacation, it states “wages” include “vacation payments due an employee under an oral or written agreement.” At the time of his discharge, the employee had used only one day out of his allotted five weeks of vacation. The employee filed a written complaint with the Attorney General and the Attorney General issued a citation to the employer for violating the Wage Act. The employer challenged the citation in court. While the employer argued that the Wage Act’s language meant that vacation pay is only “due” and payable to employees under the Wage Act if the employer promised to make such a payment, the supreme court disagreed. Relying on an advisory opinion issued by the Attorney General, the supreme court held that if an employee is involuntarily discharged by their employer, the Wage Act requires payment of the vacation time earned through that date, regardless of the employer’s written vacation pay policy. In so holding, the supreme court did not address whether vacation pay must be paid out to employees who voluntarily quit their jobs (Electronic Data Sys Corp v AG, June 10, 2009).

CA: Opt-in FLSA action irreconcilable with California class action procedure
An opt-in feature is irreconcilable with a class action as a matter of California law, a fact that was reaffirmed when a state appeals court dismissed a motion to certify an FLSA claim under section 382 of California’s Code of Civil Procedure. FLSA actions are predicated on opting in instead of opting out, which is inconsistent with a section 382 class action, the court noted. While nothing prevents appellants from pursuing their wage claims under a theory or theories not grounded on the FLSA, having chosen to bring their action under the Act, appellants cannot discard the opt-in feature. “If litigants do not like these rules, they should not file under the FLSA,” the court wrote (Haro v City of Rosemead, CalCtApp, June 9, 2009).

OH: State prevailing wage law applies only to work performed directly on site
The Ohio prevailing wage law applies only to persons whose work is performed directly on the site of a public improvement project, the state’s supreme court ruled, declining to extend the statute’s reach to an employee who worked on the project, but in a fabrication shop not located on or adjacent to the public worksite. Moreover, a union that obtained written authorization to represent an employee of a contractor on a public improvement project (in this case, the off-site fabrication shop employee) does not have standing as an “interested party” to pursue violations of prevailing-wage law on behalf of any other employee on the project. The authorization of this sole employee “does not convey carte blanche authority to the union to pursue claims on behalf of persons who have not agreed to such actions,” the court wrote (Sheet Metal Workers v Gene’s Refrigeration, OhioSCt, June 17, 2009).

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

Alabama Child Labor
The child labor law is revised in the state of Alabama. Changes include adding definitions; creating the Child Labor Administrative Trust Fund; prohibiting a minor from selling fireworks unless supervised by a person at least 18 years of age; requiring an employer to obtain a child labor certificate in order to employ a minor; providing for certificate fees and fines for noncompliance; requiring certain minors to obtain an eligibility to work form from the school which the minor attends; and to repeal conflicting laws, including those relating to work permits. Sections 25-8-32, 25-8-35, 25-8-37, 25-8-38, 25-8-39, 25-8-40, 25-8-45, 25-8-46, 25-8-51, 25-8-59, 25-8-60, and 25-8-61 are amended and Sections 25-8-41, 25-8-47, 25-8-48, 25-8-49, 25-8-50, and 25-8-58 are repealed, by H.B. 144, L. 2009, effective May 19, 2009.

Arkansas Wage Payment
Law relating to wage disputes is amended to adjust for inflation the amount in controversy regarding wage disputes heard and decided by the director of the department of labor, by revising the definition of "labor" to mean work or service performed by a person employed for a period of time for which the wages or salary or remuneration for the work or services are to be paid at stated intervals or at the termination of the employment or for physical work actually performed by an independent contractor if the amount in controversy does not exceed two thousand dollars ($2,000). Section 11-4-301 is amended by Act 622 (H.B. 1576), L. 2009, effective July 31, 2009.

Arkansas Child Support
Law relating to child support enforcement is amended. The definition of "child support order" or "support order" is amended to include a judgment, decree or order issued by a court or administrative agency of competent jurisdiction for the support and maintenance of a child that includes health insurance or cash medical support. The law is also amended to require employer cooperation not only with the Office of Child Support Enforcement but also with a child support enforcement program administered by any other state under Title IV-D of the Social Security Act. Further, the law is amended to require that an insurer, health maintenance organization, self-funded group, multiple-employer welfare arrangement, or hospital or medical services corporation operating in this state must respond to requests concerning information necessary to determine coverage status, claims status, health policy plan, or benefits for minor children for whom services are provided under Title IV-D of the Social Security Act regardless of the identity of the policyholder if the policy covers the child or to obtain benefits through coverage for minor children. Sections 9-14-201, 9-14-208 and 9-14-504 are amended by Act 551 (S.B. 260), L. 2009, effective July 31, 2009.

Arkansas Child Support
New hire reporting requirements are amended to provide that the Director of the Department of Workforce Services is assigned responsibility for administration of the State New Hire Registry, and to authorize the Director to hire an administrator to serve in place of the Director. Definitions are also amended for clarity, including reference to the Office of Child Support Enforcement as being part of the Revenue Division of the Department of Finance and Administration and references to "registry" as meaning the "State New Hire Registry." Sections 11-10-901 and 11-10-902 are amended by Act 802 (S.B. 429), L. 2009, effective April 3, 2009.

Arkansas Prevailing Wages
Arkansas law prohibiting state agencies from contracting with businesses that employ illegal immigrants and requiring contractors to certify that illegal immigrants are not being employed is amended to correct the definition of "illegal immigrant" to mean any person not a citizen of the United States who has: (a) Entered the United States in violation of the Federal Immigration and Nationality Act of 1952, 8 U.S.C. 1101 et seq., or regulations issued the act; (b) legally entered the United States but without the right to be employed in the United States; or (c) legally entered the United States subject to a time limit but has remained illegally after expiration of the time limit. Section 19-11-105 is amended by Act 251 (S.B. 71), L. 2009, effective July 31, 2009.

Arkansas Drug and Alcohol Testing
Law relating to continued disqualification from collection of unemployment benefits following a discharge for misconduct that includes drinking on the job or use of intoxicants is amended. This law is amended to provide that, except as otherwise provided, an individual's disqualification for misconduct is to be for eight weeks of unemployment. However, for a discharge that occurs during the period of July 1, 2009, through June 30, 2011, the disqualification is to continue until, subsequent to filing a claim, he or she has had at least 30 days of employment covered by an unemployment compensation law of this state, another state, or the United States. Section 11-10-514 is amended by Act 802 (S.B. 429), L. 2009, effective April 3, 2009.

Arkansas Drug and Alcohol Testing
Law prohibiting substitution or adulteration of a urine sample in order to defraud or deceive drug and alcohol testing results is amended to specify the law prohibits substituting a human urine sample or the adulteration of a human urine sample or other human bodily fluid sample with intent to defraud or cause deceitful results in a drug or alcohol screening test. The law also prohibits selling, giving away, distributing, or marketing human or synthetic urine or possession of such adulterants. Section 5-60-201, as amended by Act 640 (H.B. 1934), L. 2009, effective July 31, 2009.

Arkansas Military Leave
Law relating to military leaves of absence for public school teachers, administrators and noncertified personnel is amended to eliminate the requirement that such employees who are members of the National Guard or military reserves pay for the cost of a substitute employee when the member is on military leave. Section 6-17-306(b) is amended by Act 944 (H.B. 2004), L. 2009, effective July 31, 2009.

Colorado Public Contracts
New law is enacted to prohibit misclassification of employees as independent contractors. Employers who, following an investigation, are found to have misclassified employees and have failed to pay appropriate taxes for covered employment will be ordered by the director of the division of employment and training in the department of labor and employment to pay back taxes owed plus interest. If it is found that the employer, with willful disregard of the law, misclassified employees, the director may: (1) impose a fine of up to $5,000 per misclassified employee for the first misclassification, and for a second or subsequent violation, impose a fine of up to $25,000 per misclassified employee; and (2) upon a second or subsequent misclassification with willful disregard, issue an order prohibiting the employer from contracting with, or receiving any funds for the performance of contracts from, the state for up to two years after the date of the director's order. Title 8, Labor III, Article 72, Section 8-72-114, added by H.B. 1310, L. 2009, effective June 2, 2009.

Colorado Military Leave
Subject to certain conditions, public employees who are members of the national guard or other component of military forces or who are members of the reserve forces of the United States are entitled to paid leaves of absence of up to 15 days in any calendar year for training or active service when ordered or authorized by proper authority pursuant to law. This provision is amended to provide that such employees are entitled to such paid leaves of absence for up to 15 days "in the leave year established by the employer." Section 28-3-601, as amend by H.B. 1315, L. 2009, enacted May 21, 2009, and effective August 5, 2009.

Colorado Disaster and Emergency Services Volunteer Leaves
Colorado law provides for paid leaves of absence of up to 15 work days a year for certain public employees who are qualified civil defense volunteers, for response in an emergency, as well as for members of the civil air patrol when called to duty for a civil air patrol mission. These provisions are amended to provide that such leaves will be allowed only if the employee returns to work the next scheduled work day after being relieved from service. Exception is made where an employee is unable to return to work due to injury or circumstances beyond the employee's control, if the employee notifies the employer as soon as practicable but prior to the next scheduled work day. Also, if such employees are also certified as a disaster service volunteer of the American Red Cross, leave as a Red Cross volunteer is to run concurrent with and not be in addition to paid leaves for service as a member of the Civil Air Patrol on a mission or qualified volunteer service in a disaster as a civil defense volunteer. Sections 24-50-104, 28-1-104, and 24-32-2225 are amended by H.B. 1315, L. 2009, enacted May 21, 2009, and effective August 5, 2009.

Connecticut Prevailing Wages
Connecticut law requires employers subject to prevailing wage requirements on public works projects to submit on a monthly basis to the contracting agency a certified payroll that consists of a complete copy of wage and hour records accompanied by a statement signed by the employer that indicates the records are correct; that the rate of wages and payments or contributions to an employee welfare fund are not less than the prevailing rate of wages and not less than that required to be paid under the contract; that the employer has complied with wage payment and recordkeeping requirements; that each person is covered by a workers' compensation insurance policy for duration of employment; that the employer does not receive kickbacks; and that the employer is aware that filing a certified payroll known to be false is a class D felony subject to a fine of $5,000 and/or imprisonment of up to five years. This law is amended October 1, 2009, to specify that the certified monthly payrolls must be sent to the contracting agency by mail, first class postage prepaid. Section 31-53, as last amended by Public Act 09-25 (H.B. 6462), L. 2009, effective October 1, 2009.

Connecticut Military Leave
An employee who is the spouse, son, daughter, parent or next of kin of a current member of the armed forces who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status or is on the temporary disability retired list for a serious injury or illness incurred in the line of duty is entitled to a one-time benefit of 26 workweeks of leave during any 12-month period (or, for state employees, 26 workweeks of leave within a single two-year period) for each armed forces member per serious injury or illness incurred in the line of duty. Title 31, Chapter 557, Sections 31-51ll and 31-51mm and Title 5, Chapter 63, Section 5-248a (state personnel employees), as amended by Public Act 09-70 (Sub. S.B. 710), L. 2009, effective May 27, 2009.

Illinois Minimum Wage
Reminder: The state minimum will increase to $8.00 per hour effective July 1, 2009, as part of a scheduled increase. 820 ILCS 105/4.

Maine Minimum Wage
The minimum wage law in Maine is amended to clarify the exemption for summer camp counselors working at day camps. Counselors, junior counselors and counselors-in-training at organized camps licensed under Title 22, Section 2495, and employees of organized camps and similar seasonal recreation programs not requiring such licensure that are operated as or by nonprofit organizations who are under 18 years of age are exempt. 26 MRSA Section 663, as last amended by Ch. 120 (S. 260), L. 2009, effective May 11, 2009.

Maine Meal and Rest Periods
New law is enacted in Maine that will require employers to provide adequate unpaid break time or permit an employee to use paid break time or meal time each day in order to express breast milk for her nursing child for up to three years following childbirth. The employer is also to make a reasonable effort to provide a clean room or other location other than a bathroom for the employee to use to express breast milk in privacy. Employers will also be prohibited from discriminating in any way against an employee who chooses to express breast milk in the workplace. Section 604 is added to Title 26 of the Maine Revised Statutes Annotated by Ch. 84 (H. 280), L. 2009. Enacted May 6, 2009, this law becomes effective 90 days after adjournment of the legislature.

Maine Child Support
New hire reporting requirements are amended to expand coverage for child support collection. This law requires, upon notice by the department of health and human services, that an employer doing business with the state report to the department the (a) hiring of a person who resides or works in this State to whom the employer anticipates paying earnings; and (b) rehiring or return to work of an employee who was laid off, furloughed, separated, granted a leave without pay or terminated from employment. This law is amended to require that any employer so required to report on new hires and rehires must also report the contracting for services with an independent contractor when reimbursement for such services is expected to equal or exceed $2,500 in any year. The following information must be included in the report: (1) The independent contractor's name, address and social security number; (2) The employer's name, business name, address and telephone number; (3) The employer's social security number, employment security reference number or unified business identifier number; (4) The date the contract is executed or, if no contract, the date payments in the aggregate first equal or exceed $2,500; and (5) The total dollar amount of the contract, if any, and the contract expiration date. 19-A MRSA, Section 2154 is amended by Ch. 198 (S. 96), L. 2009, enacted May 26, 2009, with effective date pending (Laws take effect 90 days after adjournment of the current session of the state legislature).

Maryland Whistleblower Protection
The Washington Suburban Sanitary Commission is required to adopt, on or before October 1, 2010, regulations that establish certain comprehensive employee whistleblower protections. These regulations are to be similar to provisions of Title 5, Subtitle 3, of the State Personnel and Pensions Article and are to prohibit a manager or supervisor from taking or refusing to take personnel action as a reprisal against an employee who (1) discloses information that the employee reasonably believes is evidence of an abuse of authority, gross mismanagement, or gross waste of money, or that is a substantial danger to public health or safety, or that is a violation of the law, or (2) following a disclosure of information seeks a remedy provided for under law or regulation; require the Commission to provide employees of the Commission with written notice of protections and remedies; set up a procedure for filing complaints or grievances; establish a system for investigating complaints; and set forth remedial actions that may be taken. Washington Suburban Sanitary District, Article 29, Title 18, Section 18-109, added by Ch. 162 (H.B. 1133), L. 2009, effective October 1, 2009.

Minnesota Fair Labor Standards Act (Minimum Wage)
The Minnesota Fair Labor Standards Act is amended with regard to deductions from wages of unreimbursed expenses. This law is amended to include as authorized deductions from wages the cost of uniforms or clothing furnished on an ongoing basis by a licensed motor vehicle dealer, not to exceed the lesser of 50 percent of the dealer's reasonable expense or $25 per month, including nonhome maintenance. This includes purchased or rented uniforms or specially designed clothing required by the employer, by the nature of the employment, or by statute as a condition of employment, which are not generally appropriate for use except in that employment. Deductions for uniforms and clothing can not be made if to do so would reduce the wages below that of the minimum wage. Section 177.24, as amended by Ch. 69 (S. 1431), L. 2009, enacted May 12, 2009, and effective August 1, 2009.

Nevada Minimum Wage
Reminder: The minimum hourly wage in Nevada will increase July 1 to $6.55 per hour for employees of employers who offer qualifying health benefits or $7.55 per hour for all other employees. State minimum wage rates are adjusted annually based on changes in the cost of living, pursuant to Section 16 of Article 15 of the Constitution of Nevada.

Nevada Minimum Wage
State minimum wage exemptions are amended. Under current law, enrollees in training or rehabilitative programs of community-based training centers issued a certificate of qualification by the Department of Employment, Training and Rehabilitation are considered exempt. This exemption is revised effective July 1 to provide that the relationship between a provider of jobs and day training services which is recognized as exempt under federal law (26 U.S.C. Section 501(c)(3)), certain specified state law provisions, and which has been issued a certificate by the Division of Mental Health and Developmental Services of the Department of Health and Human Services and a person with mental retardation or person with related conditions participating in a jobs and day training services program is not an employment relationship and is therefore exempt. Section 608.255, as amended by Ch. 403 (S.B. 78), L. 2009, effective July 1, 2009.

New York Wage Payment
Provisions of law relating to enforcement of money judgments are amended to provide that personal property that is otherwise exempt from application for satisfaction of a debt may be applied to a debt to the state or its political subdivisions or where the debt enforced is for child support, spousal support, maintenance or alimony, provided that the execution or notice contains a legend at the top of it, above the caption, in 16 point bold type, that states: "The judgment creditor is the state of New York, or any of its agencies or municipal corporations, and/or the debt enforced is for child support, spousal support, maintenance or alimony." New York Civil Practice Law and Rules Sections 5205 and 5230 are amended by S.B. 1755, L. 2009, effective May 4, 2009.

New York Child Support
A provision of law relating to enforcement of money judgments is amended to provide that personal property that is otherwise exempt from application for satisfaction of a debt may be applied to a debt to the state or its political subdivisions or where the debt enforced is for child support, spousal support, maintenance or alimony, provided that the execution or notice contains a legend at the top of it, above the caption, in 16 point bold type, that states: "The judgment creditor is the state of New York, or any of its agencies or municipal corporations, and/or the debt enforced is for child support, spousal support, maintenance or alimony." New York Civil Practice Law and Rules Section 5230 is amended by S.B. 1755, L. 2009, effective May 4, 2009.

New York State Worker Adjustment and Retraining Act (Plant Closings)
The New York Department of Labor has adopted emergency rules to implement the New York Worker Adjustment and Retraining Notification (WARN) Act, which became effective February 1, 2009. These rules, effective April 29, 2009, replace emergency rules that expired April 29, 2009, and fill in gaps in the law to more fully inform employees of their obligations and worker rights under the law. Under the New York State Worker Adjustment and Retraining Notification Act (WARN Act), an employer with 50 or more employees can not order a mass layoff, relocation, or employment loss unless, at least 90 days before the order takes effect, the employer gives written notice of the order to affected employees and their representatives, the department, and the local workforce investment boards established pursuant to the federal Workforce Investment Act. These emergency rules expire on June 27, 2009, but are expected to be made permanent. 12 NYCCR 921.

Oklahoma Minimum Wage
Employers are required to post a notice or notices of the pertinent provisions of the Oklahoma Minimum Wage Act in a form as may be prescribed and furnished by the Commissioner. This law is amended effective November 1 to specify reference to "Commissioner" means the Commissioner of Labor and to also change the size of the required posting from not less than 11 by 17 inches to not less than 8 1/2 by 11 inches in size. Such notice must be displayed in such a manner as to be accessible to all employees in each establishment under the control of the employer. The commissioner or his or her authorized representative may inspect the employer's premises during business hours to determine if such notice has been properly posted. Section 197.6 is amended by S.B. 527, L. 2009, effective November 1, 2009.

Oklahoma Maximum Hours and Overtime
Oklahoma law provides that eight hours constitutes a day's work and requires overtime compensation for hours worked over 40 in a workweek for those public employees not otherwise exempt by special provisions of the federal Fair Labor Standards Act. Exception is made to allow public employees to work more than eight hours in a work day when such hours are assigned as part of an alternate work schedule. This law is amended to include public safety professionals as those who may be allowed to work over eight hours per day when such hours are assigned as part of an alternate work schedule. Those working alternate work schedules must still be paid overtime when working in excess of 40 hours in a workweek, according to federal laws and regulations. "Public safety professionals" means sheriffs, deputy sheriffs, correctional officers, and persons in the emergency medical service profession. Title 61, Section 3, as last amended by H.B. 1608, L. 2009, effective July 1, 2009.

Oklahoma Wage Payment
Law requiring semimonthly or monthly payment of wages on regular paydays is amended to require that an employer who pays an employee with a check that a bank refuses to honor to reimburse an employee for any fees or costs incurred by the employee due to the refusal to honor the check within 14 days of notice of such refusal. Section 165.2 is amended by S.B. 527, L. 2009, effective November 1, 2009.

Tennessee Whistleblower Protection
Tennessee has amended law protecting whistleblowers to clarify that the civil cause of action for retaliatory discharge of an employee for reporting illegal activities applies to state employees, private employees, and certain persons paid by the federal government. This law prohibits employers from discharging or terminating an employee solely for refusing to participate in or refusing to remain silent about illegal activities. An illegal activity would be any activity in violation of the criminal or civil code of the state or the United States or any regulation intended to protect the public health, safety or welfare. Covered employees include, but are not limited to, those employed by a private employer; the state, any municipality, county, department, board, commission, agency, instrumentality, political subdivision or other state entity; and persons who receive compensation from the federal government for services performed for the federal government, notwithstanding that the person is not a full-time employee of the federal government. Section 50-1-304, as last amended by S.B. 682, L. 2009, effective May 7, 2009.

Vermont Minimum Wage
The state minimum wage law is amended to clarify that annual adjustments to the state minimum wage are not to result in a decrease in the minimum hourly wage rate. The law provides that each January 1, "the minimum wage rate shall be increased by five percent or the percentage increase of the Consumer Price Index, CPI-U, U.S. city average, not seasonally adjusted, or successor index, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous September 1, whichever is smaller, but in no event shall the minimum wage be decreased. The minimum wage shall be rounded off to the nearest $0.01." Currently the minimum wage in Vermont is $8.06 per hour. 21 V.S.A. Section 384 is amended by Section 29a of H.B. 313, L. 2009, effective June 1, 2009.

Vermont Prevailing Wages
New law is enacted to require the agency of administration to adopt emergency rulemaking to combat misclassification of employees as independent contractors on state public works projects with total costs of over $250,000. Contractors will be required to provide: detailed information, including information relating to past violations, convictions, suspensions, and any other information required by the department, and such information is to be included with the project bid; a list of subcontractors on the job along with lists of the subcontractor's subcontractors; a payroll process by which during every pay period the contractor collects from the subcontractors or independent contractors a list of all workers who were on the jobsite during the pay period, the work performed by those workers on the jobsite, and a daily census of the jobsite. This information is be provided to the department of labor and to the department of banking, insurance, securities, and health care administration, upon request. Such rulemaking is not to be unduly burdensome on small business. Also, The agency is to assure that any state contract funded in whole or in part with American Recovery and Reinvestment Act of 2009 monies shall comply with the payment of prevailing wages as required by the Davis-Bacon Act. The agency must also require that any contractor that violates classification requirements be prohibited from bidding on future state contracts for a period of time that corresponds to the seriousness of the classification violation. New law, added by Section 29a of H.B. 313, L. 2009, effective June 1, 2009. Not yet codified.

Virginia Child Support Law relating to child support, health care coverage and new hire reporting is amended. The Department of Social Services must transfer the National Medical Support Notice to employers within two business days following the date of entry in the state Directory of New Hires of an employee who is obligated to pay child support or, effective July 1, 2009, to provide health care coverage. Employers must notify the Department promptly if the employment of a parent ordered to provide health care coverage is terminated in the same manner as required for income withholding pursuant to Section 20-79.3. Health care coverage is defined to mean a plan providing for hospital, medical or surgical care coverage for dependent children provided such coverage is available and can be obtained by a parent, and, effective July 1, 2009, by parents, or a parent's spouse at a reasonable cost. Sections 63.2-1900 and 63.2-1924.1 are amended by Ch. 713 (S.B. 1237), L. 2009, effective July 1, 2009.

Washington Child Support
Child support enforcement provisions are amended to clarify that law is to be interpreted as applying to individuals in registered domestic partnerships as well as to married persons, and that references to dissolution of marriage shall apply to registered domestic partnerships that have been terminated, dissolved or invalidated, to the extent such interpretation does not conflict with federal law. New law, added to Title 26, Chapter 18, by S.B. 5688, L. 2009, effective July 26, 2009.

Washington Prevailing Wages
Law relating to payment of prevailing wages on public works contracts is amended to add a new provision of law to define who working on a public works project would be considered an independent contractor for purposes of prevailing wages. The law specifies under what circumstances an individual would NOT be considered to be a laborer, worker, or mechanic, such as being free from control or direction over the performance of service; the service is outside the usual course of the contractor's or subcontractor's business or performed offsite from the employer's businesses; the individual is customarily engaged in an independently established trade, occupation, profession, or business, of the same nature as that involved in the contract of service; the individual is responsible for filing a schedule of expenses with the Internal Revenue Service for the business being conducted; the individual has an active and valid certificate of registration with the department of revenue and an active and valid account with other state agencies for the business being conducted for payment of state taxes normally paid by employers and businesses and has registered for and received a unified business identifier number from the state; the individual maintains a separate set of books or records of income and expenses; and the individual has a valid contractor registration or an electrical contractor license. New statute, added by S.B. 5904, L. 2009, effective July 26, 2009. Not yet codified; This provision is to be added to Chapter 39.12 of the Revised Code of Washington.

Washington Prevailing Wages
Law relating to payment of prevailing wage rates on public works projects is amended with regard to retaining of funds, changing references from 60.28.010 to 60.28.011. Sections 39.12.040, 39.12.050 and 39.12.065 are amended by Ch. 210 (H.B. 1199), L. 2009, effective July 26, 2009.

Washington Labor Relations
New law is enacted to protect workers from human trafficking. This law requires domestic employers of foreign workers and international labor recruitment agencies to provide a disclosure statement to foreign workers who have been referred to or hired by a Washington employer. Such disclosure statement must be provided in English or, if the worker is not fluent or literate in English, then in another language that is understood by the worker. The statement must give notice that the worker may be considered an employee under state law and is subject to the state worker health and safety laws and may be eligible for workers' compensation and unemployment insurances. The statement must also notify the worker of the following: That he or she may be subject to both state and federal wage and hour laws; any itemized deductions that the employer intends to make for food and housing; an itemized list of the international labor recruitment agency's fees; that the worker has a right to control over his or her own travel and labor documents; and a list of services or a hot line that the worker may contact if he or she thinks he or she may be a victim of human trafficking. New law, added by Ch. 492 (S.B. 5850), L. 2009, effective July 26, 2009, contingent on sufficient funding; If specific funding is not provided by June 30, 2009, in the Omnibus Appropriations Act, then this law is null and void. Not yet codified; To be added under a new chapter in Title 19 of the Revised Code of Washington.