Legal Alerts Archive
On April 1, 2009, the Supreme Court upheld the enforceability of arbitration provisions in collective bargaining agreements, which require employees to arbitrate claims under federal anti-discrimination law. While it marks a sharp departure from the established law in much of the country, for employers, it is welcome news. 14 Penn Plaza v. Pyett.
Yesterday, the U.S. Labor Department (DOL) released model notices regarding the new COBRA requirements that were enacted as part of the American Reinvestment and Recovery Act of 2009 (ARRA). The law mandates that plans notify certain current and former participants and beneficiaries about the COBRA premium subsidy and "second chance" COBRA election opportunity by no later than April 18, 2009.
Organized labor's membership in the private sector has plummeted below 8 % – an all time low. To address this problem, unions have turned to an aggressive legislative agenda designed to tilt the scales in their favor. Among the items on their priority list are the Employee Free Choice Act (EFCA) and the Re-Employment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT Act).
The Employee Free Choice Act was introduced in both houses of Congress today. The bill would allow labor unions to bypass secret ballot representation elections that have been in place for 75 years in favor of a streamlined process known as "card check." It also contains binding arbitration provisions that would allow an outside arbitrator to dictate the terms of a first contract in the event that the parties cannot reach agreement within the first four months of negotiations, and it would impose substantially increased penalties against employers who commit unfair labor practices. For a more thorough discussion of the bill and its potential implications on your business, please click here.
On February 24, 2009, the U.S. Supreme Court upheld the right of the state of Idaho, which has a right-to-work law generally permitting payroll deductions for union dues, to prohibit such deductions for union political activities. This decision underscores the rights of states to separate the operation of government from partisan politics, even in the context of local governments having public-union labor contracts with dues check-off provisions. Ysura v. Pocatello Education Association.
On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (ARRA), which, among other things, provides for a nine-month subsidy of COBRA premiums for employees who are involuntarily terminated. The law also subjects employers to additional administrative and notice requirements.
On January 30, 2009 President Barack Obama fired three very clear shots across the bow of non-union employers. They were in the form of Executive Orders titled Nondisplacement of Qualified Workers Under Service Contracts, Economy in Government Contracting, and Notification of Employee Rights Under Federal Labor Laws.
While no one can properly claim that the articulated goals are not worth pursuing, we anticipate that many of the improvements identified and pursued will have a decidedly pro-union and anti-employer bent.
The Department of Homeland Security announced a delay in the implementation of the newest version of Form I-9, which was due to become effective today. In a last minute announcement issued on January 30, 2009, the Department postponed implementation of the new form until April 3, 2009. The administration will be considering public comments on changes to the form and may further delay its effective date. Until further notice, employers should continue using the June 5, 2007 version of Form I-9.
Today President Obama signed into law the Lilly Ledbetter Fair Pay Act which expands the time period in which employees can pursue discrimination claims related to employment compensation. This will result in a substantial increase in the number of pay-related lawsuits.
The federal government has agreed to delay the implementation of the Federal Contractor E-Verify Rule until at least May 21, 2009. This is the second delay. Previously, the federal government decided to postpone the implementation of the rule until February 20 following a lawsuit filed by the U.S. Chamber of Commerce and other groups. The delay is designed to allow the new administration sufficient time to review the rule and decide when, and if, the rule will go into effect. The rule was originally due to take effect on January 15, 2009. Once implemented, the rule will require all federal contractors for services and construction with contracts over $100,000 and a performance period over 120 days to use E-Verify for all newly hired employees and current employees working on the contract.
Today the Supreme Court handed down a decision in Crawford v. Metropolitan Govt. of Nashville expanding the types of employee conduct that can trigger protection under Title VII.
A new San Francisco Ordinance went into effect January 20. It requires employers with 20 or more employees (regardless of where they are located) to provide incentives for their San Francisco employees to use public transportation. The San Francisco based employees must work at least 10 hours per week to qualify.
- Supreme Court Allows Unions to Use Members' Dues to Finance Litigation Outside of the Bargaining UnitDecision applies only to public sector unions1.22.09
Today the Supreme Court issued its decision in Locke v. Karass determining the ability of unions representing public sector employees to collect litigation costs as part of a compulsory "agency fee" authorized under state law, even if the litigation does not directly involve the local bargaining unit. Addressing a split among the Circuit Courts of Appeal on this issue, the Court refined a test previously set forth in Lehnert v. Ferris Faculty Ass'n, used for determining the propriety of including items in compulsory "agency fees" paid by nonunion members of a bargaining unit.
On April 1, 2009, U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications for employment starting on and after October 1, 2009.
Beginning February 2, 2009, employers must use a new Form I-9 for all new hires and to reverify any employee with expiring employment authorization. Employers using the previous June 5, 2007 edition or earlier editions of the Form I-9 after February 2, 2009 may be subject to fines. Between now and February 2, you should continue to use the June 5, 2007 edition of the Form I-9.
On January 9, 2009, the federal government agreed to suspend the implementation of the E-Verify Federal Contractor Rule until February 20, 2009. The E-Verify Federal Contractor Rule was due to take effect on January 15, 2009, but the government agreed to delay implementation after the U.S. Chamber of Commerce, along with other business groups, filed a lawsuit on December 23, 2008 challenging the legality of this law. A notice announcing the suspension is scheduled to be published in the Federal Register this week.
Oregon's minimum wage increased forty-five cents, from $7.95 to $8.40, effective January 1, 2009. The increase comes thanks to an Oregon statute requiring the Commissioner of the Bureau of Labor and Industries (BOLI) to calculate a minimum-wage adjustment each September. The adjustment is based on any increase during the previous 12 months in the U.S. City Average Consumer Price Index (CPI).
U.S. Citizenship and Immigration Services (USCIS) submitted to the Federal Register an interim final rule to revise Form I-9, Employment Eligibility Verification. The rule narrows the list of acceptable identity and employment authorization documents, requires employers to accept only unexpired documents, and makes several technical changes. The rule and the revised Form I-9 will be published in the Federal Register soon and will take effect 45 days after publication.
The New Jersey Department of Labor and Workforce Development (DOL) recently issued regulations implementing the State's new Family Leave Insurance (FLI) law, which provides up to six weeks paid leave to employees who miss work in order to care for family members who are unable to care for themselves, or to care for newly-born or adopted children. While no FLI leaves may be taken prior to July 1, 2009, there are several steps which employers must take immediately.
On December 3, 2008, in a long-awaited decision, the California Court of Appeals for the Fourth Appellate District addressed the issue of punitive damages in the context of a wage-and-hour lawsuit. This case represents a victory for employers in an area where the laws and penalties in California tend to be draconian. Brewer v. Premier Golf Properties.
A Massachusetts temporary-services company specializing in technical and manufacturing staff has learned a $1.8M lesson about the perils of erroneously classifying employees as exempt under the federal Fair Labor Standards Act.
On January 1, 2009, the minimum wage in Florida will be rising to $7.21 per hour. This represents an hourly increase of $0.42 over the current Florida minimum wage of $6.79. The rise in the Florida minimum wage is a result of the Florida Minimum Wage Amendment passed by Florida voters in November 2004 which initially set the minimum wage at $6.15 per hour and calls for annual increases tied to the rate of inflation. This minimum wage applies to all employees eligible to receive the federal minimum wage.
After years of waiting, the U.S. Labor Department (DOL) has just published new regulations interpreting the Family and Medical Leave Act (FMLA). These are the first significant changes since 1994, and will impact every employer subject to the law. The 762 pages of regulations not only address two new forms of military leave created earlier this year, but also make minor tweaks, major adjustments and wholesale changes to sections of the original FMLA regulations.
Not surprisingly, the result is a mixed bag for employers, who must come into compliance with the new regulations by January 16, 2009. The more significant topics are summarized below, and a detailed review of these (and other) changes can be found on our website.
A final rule just published in the Federal Register amends the Federal Acquisition Regulation (FAR) to require certain federal contractors and sub-contractors to use the E-Verify system. All federal solicitations issued and contracts awarded after January 15, 2009 will include a clause related to the new rule.
Senator Obama has been elected President, but the Democrats did not make the gains they had hoped for in the Senate. Non-union employers who have been concerned about the Employee Free Choice Act (EFCA) may breathe a sigh of relief. It will not pass, at least in its current form. But there is still reason for concern.
Last July we reported on Brinker Restaurant Corp. v. Superior Court, an employer-friendly decision by a California Appeals court which addressed the legal standards under California's laws on meals and rest periods for employees.
On October 23, 2008, the Department of Homeland Security (DHS) released its supplemental final No-Match Letter Rule and announced that it will take effect immediately upon publication in the Federal Register on a not yet scheduled date. The supplemental final rule does not substantively change the safe harbor procedures described in the rule as originally written and issued in August 2007 or as supplemented in March 2008. The DHS will seek to lift the preliminary injunction imposed by Judge Charles Breyer of the Northern District of California in October 2007. Once the injunction is lifted, employers who receive No-Match letters issued by the Social Security Administration (SSA) but follow the safe harbor procedures described in the No-Match Letter Rule, will be sheltered from a charge of constructive knowledge that the individual named in the letter was not authorized to work in the United States. DHS takes the position that its supplemental final rule addresses the issues raised by Judge Breyer and if the injunction is lifted, will take
- State Reduces Thresholds for California Computer Professionals' Overtime Exemption: Changes Take Effect Immediately10.8.08
Last week Gov. Arnold Schwarzenegger approved an amendment substantially changing the law concerning overtime pay for certain computer software professionals. The law amends the California Labor Code and restores the overtime exemption for qualifying computer programmers, analysts and engineers who are paid a monthly salary equivalent to at least $75,000 per year, or who continue to be paid at least $36 per hour for all hours worked. The bill was passed as urgency legislation and took effect on September 30, 2008.
The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) issued a directive on October 2, 2008, effective immediately, regarding inspection procedures for an OFCCP compliance officer (CO) when reviewing Forms I-9 during an on-site compliance review.
In the first New Jersey state court decision of its kind, the New Jersey Appellate Division has held that an employer can be liable under state law for an employee's sexual harassment at the hands of a co-worker in the absence of an effective anti-harassment policy, even if the employer was unaware of the harassment. Cerdeira v. Martindale-Hubbell.
In perhaps the most sweeping change to the face of employment law in over 10 years, the recent passage of the "ADA Amendments Act" will mean a massive change for most of the country's employers. These changes, which will go into effect on January 1, 2009, will not only have a tremendous impact on the defense of employment litigation claims, they will require almost all human resource professionals, managers, and business owners to adopt new policies and procedures in dealing with accommodation requests.
We have developed an interactive process questionnaire form to use or adapt with your workforce under the new ADA, available on our website. For more information about the new ADA Amendments Act, contact your regular F&P attorney.
This list of frequently asked questions was originally prepared by the law firm of Fisher Phillips LLP in 2005, in response to Hurricanes Katrina, Rita and Wilma. In the wake of Hurricanes Gustav, Hannah, and other potential catastrophes in the 2008 hurricane season, we have updated and expanded it.
The California Supreme Court recently handed down a long-awaited and significant decision addressing the nature and scope of non-competition agreements in California. The ruling also addressed the enforceability of contract provisions requiring employees to release "any and all" claims. The case has important consequences for California employers. Raymond Edwards II v. Arthur Andersen LLP.
A California appellate court has handed down a long-awaited decision addressing legal standards for employee claims including meal and rest period violations. The court also overturned legal rulings regarding the employees' "off-the-clock" claims. Brinker Restaurant Corp. v. Superior Court.
The decision is an important one and has been lauded by Gov. Schwarzenegger and others as providing needed clarity to this much-litigated area of the law.
A Federal judge in Florida has issued a mixed ruling on the request for an injunction against the new so-called "guns-at-work" law in Florida. Judge Robert Hinkle of the Northern District of Florida denied the request to enjoin the law as it relates to employees. Therefore, employees with concealed weapons permits will be able to bring guns onto an employer's property if locked in or to a vehicle. The Judge granted the preliminary injunction with respect to business invitees and customers, who, at least for the time being, will not be allowed to bring firearms onto business premises.
As many hospitality employers already know, recently a small, newly formed, independent union (the National Alliance of Bartenders, Servers and Related Trades, Local 1) tried to unionize the bartenders and servers at Ralph & Kacoo's Baton Rouge location. The organizer was an ex-bartender named Kenneth Fails, who had been fired earlier.
Missouri Governor Matt Blunt has signed into law H.R. 1549, a stringent new bill targeting illegal immigration. As of January 1, 2009, employers of unauthorized workers will face potential loss of state contracts and/or tax breaks, suspension or even revocation of their right to do business in the state, and possibly a civil trial in Missouri state court.
- Joint Commission Alert Targets Intimidating/Disruptive Behavior: Aims to Stamp Out the "Equal Opportunity Harasser"7.10.08
Recognizing that intimidating and disruptive behavior can compromise the delivery of quality healthcare, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) on July 9, 2008, issued a Sentinel Event Alert focusing upon its new requirements to address such behavior. The Sentinel Event Alert suggests what healthcare organizations must do to address all kinds of harassing and disruptive behavior, not just conduct made illegal under workplace discrimination and harassment laws.
The State of Louisiana became the latest, following at least Florida and Georgia, to enact a law specifically allowing employees to bring guns to the workplace, subject to certain limitations. The law is not as extensive as similar legislation in some other states, and contains various protections for employers. It should still be viewed with some concern, but not alarm, by Louisiana businesses.
On Wednesday, July 2, 2008, Louisiana Governor Bobby Jindal signed three different bills limiting the use of cell phones and other wireless devices by the driver of a motor vehicle. Two of the bills target inexperienced drivers and broadly prohibit the use of cell phones. The other targets all drivers, but applies only to using devices for sending or reading text messages. Taken together, these laws create some significant restrictions on drivers that will apply to employees driving on company business.
A Federal judge in Florida has delayed a decision on a request by business groups to halt implementation of the so-called "Bring Your Gun to Work" law. Judge Robert Hinkle of the Northern District of Florida heard arguments on a request by the Florida Chamber of Commerce and the Florida Retail Federation to enjoin the law from going into effect as scheduled on July 1, 2008.
The USCIS issued an updated version of Form I-9, Employment Eligibility Verification showing a new expiration date of 06/30/09. All employers are required to complete and retain a Form I-9 for each employee hired after November 6, 1986 to show that the employee is authorized to work in the United States. The current version of the form, as well as the revised handbook, can be found and downloaded here, or from the USCIS website.
The Supreme Court held that an employer sued under the Age Discrimination in Employment Act (ADEA) has the burden of establishing the reasonableness of its explanation for a suspect employment practice. This ruling carries significant adverse consequences for employers, exposing them to greater risk of liability under the ADEA when decisions are made to reorganize or reduce their workforces. Meacham v. Knolls Atomic Power Laboratory.
In a 5-4 decision, the Supreme Court held that the Commonwealth of Kentucky's disability plan, which was not made available to persons already eligible for normal retirement benefits by virtue of their years of service (or age, plus years of service), was not discriminatory on its face, and did not violate the Age Discrimination in Employment Act (ADEA). The Court emphasized that it was dealing with the "quite special case" of different treatment based on pension status where pension status itself turns on age, noting that the ADEA permits an employer to condition pension eligibility upon age. The Court adopted the rule that, where an employer adopts a pension plan that includes age as a factor, and then treats employees differently based on pension status, the employee must come forward with evidence that the differential treatment was "actually motivated" by age, not pension status. Kentucky Retirement Systems v. EEOC.
The Supreme Court confirmed that a conflict of interest exists where dual-role" employee benefit plan administrators have the authority to both evaluate and pay claims. More importantly, the Supreme Court also clarified how the conflict of interest should be weighed on review of a plan administrator’s discretionary benefit denial. MetLife v. Glenn.
The U.S. Supreme Court delivered a substantial victory for those employers who choose to take efforts to fend off union campaigns at their workplaces. In a 7 to 2 decision, the Court found that the National Labor Relations Act (NLRA) preempts a California law that prohibits certain employers from using State funds to assist or deter unionization efforts by their employees. A contrary decision could have opened the door for other states to utilize their spending and regulatory power to restrict employer free-speech rights during union organizing campaigns. U.S. Chamber of Commerce v. Brown.
Beginning July 1, Florida businesses will begin dealing with the reality that their employees may legally bring firearms onto work property, as long as they keep them in their cars. That's because on April 15, 2008, Governor Charlie Crist signed into law the "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008."
A new California statute that prohibits motorists from using a hand-held cellular telephone while driving becomes effective July 1, 2008. Motorists who are 18 years of age or older may use a "hands-free" device while driving. Motorists under age 18 are not permitted to talk on a cell phone at all while driving, whether via a hands-free device or otherwise. This prohibition only applies to drivers, not to passengers. There will be a $20 fine for the first violation and $50 per violation for subsequent offenses. The only exception in the law is for calls made during emergencies to 911 or a health-care provider.
Employers and employees alike may find this new law to be a nuisance and be inclined to ignore it. But the real danger is not in the potential for incurring a $20 fine. The danger is that an employee will seriously injure someone while flouting the law, and that the injured person will sue. This new law should be taken seriously.
On June 11th, the Oregon Court of Appeals dealt a blow to employers fighting medical marijuana in the workplace, letting stand an administrative decision which had granted a victory to a medical marijuana user (Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries). Although the decision was largely based on technical grounds, the Court of Appeals passed up an opportunity to side with employers and the decision may lend comfort to workers’ advocates who support looser workplace drug rules.
President Bush recently signed an amendment to Executive Order 12989 requiring all federal contractors to use E-Verify.