Legal Alerts Archive
The National Labor Relations Board (NLRB) has issued three highly anticipated decisions addressing which employees are considered to be supervisors and therefore ineligible for union membership under the law. Despite a lot of dire warnings from union leaders, the so-called Kentucky River decisions appear unlikely to create major changes in determining who is eligible for union membership and who is not.
Governor Arnold Schwarzenegger recently signed legislation creating the largest state minimum wage increase in almost twenty years. The new law provides for an increase in California's minimum wage of $1.25 over the next 16 months to $8.00 per hour. The increase will be implemented in a two-step process with a 75 cents per hour increase (to $7.50 per hour) effective January 1, 2007 and another 50 cents per hour increase (to $8.00 per hour) effective January 1, 2008.
On July 14, 2006, Illinois Governor Rod Blagojevich (D) signed legislation giving workers who allege they have not been paid their proper wages the right to pursue new penalties under the Illinois Minimum Wage Act. This law also grants the Illinois Department of Labor (IDOL) additional authority to investigate employers it suspects of violating Illinois wage and hour laws.
A newly proposed rule from the Department of Homeland Security (DHS) is sending a clear signal that receipt of the Social Security Administration (SSA) mismatch letter serves as constructive notice to the employer that persons named in the mismatch list are almost certainly not authorized to work in this country. On June 14, DHS published a proposed rule in the Federal Register setting forth procedures and obligations for employers who receive the SSA mismatch letter. There will be a 60-day period for submission of comments on the procedures and time limits DHS has set forth.
- A Special Alert For Employers In Construction, Agriculture, Hospitality, Food Processing, and Textiles5.9.06
Beginning about six weeks ago, the Department of Homeland Security (DHS) and its Bureau of Immigration and Customs Enforcement (ICE) suddenly focused upon interior enforcement of our immigration laws. This has resulted in highly publicized raids on employers, I-9 inspections, detention of deportable aliens, and lots of media coverage.
On Monday, April 17, Governor Sonny Perdue signed the Georgia Security and Immigration Compliance Act. The new law contains several provisions that affect employers, but much remains unclear. Here is an analysis of the law’s employment-related measures.
On January 1, 2006, the minimum wage for employees working in Florida will rise to $6.40 per hour. This represents an hourly increase of $0.25 over the current Florida minimum wage and $1.25 over the current federal minimum wage. The jump in the Florida minimum wage is a result of the Florida Minimum Wage Amendment passed by Florida voters in November 2004 which set the minimum wage at $6.15 per hour and called for annual increases tied to the rate of inflation.
On October 7, 2005, the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) issued new regulations defining “internet applicant” and amending the recordkeeping requirements for federal contractors with regard to internet-based job applications. This Article addresses some of the frequently asked questions regarding these new regulations.
A new Michigan law (MCLA § 445.83) requires employers by Jan. 1, 2006 to eliminate social security numbers on identification badges. Portions of the law took effect March 1, 2005. Other states, including Arizona, Arkansas,
- South Carolina Now Requires Special Proof10.6.05
Employers are now required to prove that employee drug tests comply with specific drug testing procedures before the Employment Security Commission (ESC) will disqualify a terminated employee from receiving unemployment benefits. Under a 2005 amendment to South Carolina Code Section 41-35-120(2), an insured employee may be disqualified from receiving unemployment benefits if the employee tests positive for drug use and is subsequently terminated. But in order to disqualify an employee, you must provide a policy to your employees expressly prohibiting drug use and stating that confirmed drug use can result in an employee's termination.
Effective June 1, 2005 the FTCs new "Disposal Rule" requires businesses to "properly dispose" of consumer reports when discarding such information.
On May 18, 2005, the U.S. Court of Appeals for the 9th Circuit (having jurisdiction over nine western states) reversed the decisions of three lower courts and ruled that Finance Managers at dealerships can qualify for an exemption from overtime as "commission-paid" employees.
Under the Veterans Benefits Improvement Act (VBIA), employers now are required to give specific notice to their uniformed service member employees of their rights under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). USERRA was enacted in 1994, after the Persian Gulf War, to expand the rights of employees returning to work from uniformed service, which in many cases entitles them to jobs with their pre-service employers, complete with all the seniority, status, pay and benefits they would have accrued had they never left. Employees returning from service also have additional protections related to termination of employment. Proposed regulations related to USERRA currently are under review.
The Federal Trade Commission has revised their "Summary of Your Rights Under the Fair Credit Reporting Act" in English and Spanish. This is the document which an employer must give to an employee/applicant, along with a copy of the person's consumer report, if the employer is going to take adverse action based on the report. There is no requirement to produce the "Summary of Your Rights" in Spanish. Instead, the required document adds an introductory statement in Spanish directing consumers to the FTC to obtain Spanish-language information. While the Spanish version of the Summary is not required, the FTC "encourages those businesses serving Spanish-speaking consumers to provide the Summary in Spanish." Click here to access the FTC's website where both the English and Spanish versions are available.
Last May, the Department of Labor's Employee Benefits Security Administration (EBSA) issued long-awaited final COBRA regulations, clarifying and updating COBRA notice requirements. The regulations revise the notices which employers use to comply with COBRA, and are applicable on the first day of the plan year which begins on or after November 26, 2004. For most plans which operate on a calendar year basis, this means the effective date was January 1, 2005.
Trumpeting an agenda that purports to advance "the cause of direct care RNs across the nation," the California Nurses Association (CNA) is charging eastward with ambitious new organizing tactics that could affect healthcare providers around the nation.
Next month, two new laws will go into effect in California that are likely to have a significant impact on how employers enforce personnel policies and administer employee benefits which apply to spouses. Effective January 1, 2005, the laws will cover members of same-sex unions, and qualifying older, but unmarried, heterosexual couples.
These charts report new limits for 2005 that are of interest to sponsors of benefit plans. These new limits and rates are determined using the September 2004 consumer price index (CPI-W), which was released on October 19, 2004.
On November 2, 2004, 72% of Florida voters supported an amendment to the Florida Constitution establishing a state minimum wage of $6.15, $1.00 more than the current federal minimum wage. Subsequently, the minimum wage will be indexed annually to the rate of inflation. The amendment takes effect on May 2, 2005.
The American Jobs Creation Act of 2004 significantly revises certain long-standing employee benefits tax laws and will affect virtually every non-qualified deferred compensation plan maintained by private and tax-exempt employers. The new law establishes a number of design requirements that plans must meet or participants will be subject to taxes and penalties on the amounts deferred, plus interest. Employers should immediately conduct a review of their non-qualified deferred compensation arrangements to determine what action needs to be taken.
Last month, as part of the state budget compromise, the California Legislature amended, but did not eliminate, the “Labor Code Private Attorneys General Act,” also known as the “California Bounty-Hunter Law,” or the “Sue Your Boss” statute. This law authorizes employees (or disgruntled former employees) to sue their employers for violations of the California Labor Code, and it imposes a penalty of $100 for each aggrieved employee per pay period for the initial violation and $200 for each subsequent violation where no penalty is provided by statute. One employee can sue and collect penalties for all employees who were affected by a violation. The employee can also recover attorneys’ fees, which provides a strong incentive for attorneys to file these lawsuits.
A new law just enacted by the California Legislature and signed by Governor Schwarzenegger will require employers with 50 or more employees to provide two hours of sexual harassment training to all supervisors once every two years.
The Family Temporary Disability Insurance Act (FTDI), otherwise known as California's "Paid Family Care Leave Act" provides a maximum of six weeks of partial wage benefits to eligible employees who take time off work to care for a seriously ill child, spouse, parent, or domestic partner, or to bond with a new child. Employees may apply for benefits under FTDI beginning July 1, 2004. Here is a brief summary of how this law affects you as a California employer.
In recent days, a number of articles and other communications created the impression that momentous changes have occurred with respect to proposed revisions of certain federal Fair Labor Standards Act exemptions. Here is what's really going on.
Labor union officials often boast that “companies get the unions they deserve.” Over the past few years organizers have added the phrase “and a whole lot more.” One new tactic of unions is to use California’s wage & hour laws to harass employers. Union attorneys are beginning to file class action lawsuits against employers as leverage to force them to either recognize the union, or agree to a labor contract. Union organizers refer to this developing tactic as “death by a thousand paper cuts.”
Your company was in a layoff mode and a hiring freeze was in effect over the last year. Two critical employees in the accounting department were out on extended medical leave. To get around the hiring freeze you contracted with two workers to complete accounting tasks and classified them as "independent contractors." The replacements were allowed to come and go as they pleased and were paid a premium rate for each hour they worked. Once the workers out on medical leave returned, your company immediately severed its relationship with the independent contractors. What are your potential liabilities?
On October 23, 2003, the California Court of Appeal held in Ralphs Grocery Co. v. Superior Court, that a profitability-based bonus plan for managers of a business that takes into account workers' compensation costs as an element of the net profit of the business is illegal. The court also held that profit-based bonus plans for non-exempt employees that take into account cash shortages and/or merchandise shrinkage are also illegal.
This past summer, Illinois became only the 12th state in the nation to establish a minimum wage above the $5.15/hour federal standard. Under legislation Governor Rod Blagojevich signed into law on August 28, 2003, Illinois workers over age 18 will see the minimum wage increased to $5.50 an hour in January 2004 and to $6.50 an hour in January 2005. Public Act 93-0581. This will make Illinois the only state in the Midwest with a minimum wage that is higher than the federally prescribed minimum. Although this legislation will put more money in workers’ pockets, it will put more strain on small businesses trying to compete with businesses in surrounding states. This type of pro-employee legislation has been proliferating in Illinois as of late, and employers should be aware of the new Illinois laws that will add to the spectrum of employee rights and impose new obligations on Illinois employers.
- Appeals Court Upholds Wrongful Discharge Claim Stemming From Failure to Follow Drug-Testing Guidelines9.15.03
An at-will employee who disputed his positive drug test for cocaine can sue his employer for wrongful discharge because the employer violated state regulations on drug testing, a Louisiana appeals court recently ruled in Sanchez v. Georgia Gulf Corp., La. Ct. App., No. 2002 CA 1617, 8/13/03.
The Sarbanes-Oxley Act of 2002 (“the Act”) was signed into law by President Bush on July 30, 2002. The Act has broad and sweeping implications not only for attorneys who specialize in federal securities law, but also for employers and attorneys who represent or advise publicly-traded companies in employment matters.
In Faris v. Williams WPC-I, Inc., 2003 WL 21213369 (5th Cir. 2003), the 5th Circuit considered whether a post-termination release signed by a former employee was enforceable under 29 C.F.R. § 825.220(d), a regulation issued pursuant to the Family and Medical Leave Act of 1993 ("FMLA").
As many of you know, Gramm-Leach-Bliley requires "financial institutions" to establish and implement a Safeguard Rule Compliance Program or Safeguard Program to protect non-public customer information. This law covers the obvious financial institutions, but also generally covers any entity that obtains or uses customer financial information, including auto dealerships, retail stores, etc. The deadline for compliance is May 23. We have prepared a document that sets out compliance guidelines, a few sample forms, and a cover letter for your convenience.
Increasingly, the benefits package offered by employers is a top priority for job seekers around the country. This focus is clearly justified because a good benefits package can account for 30% or more of an employeeâ€™s total compensation. As Nevada employers struggle to attract quality employees by creating comprehensive benefits packages, it is important to consider all of their possible consequences.
In late 2002, California Assembly Bill 1401 was signed into law. The new law allows California employees and their dependents to extend their group health plan continuation coverage to up to 36 months from the start of their COBRA coverage period. In addition, employers must ensure that eligible employees receive notice of their extended continuation rights.
Newspapers headlines scream "EPIDEMIC" and breathlessly report that 1.5 million Americans were plagued by it last year alone. What is this outbreak? It is personal bankruptcy. Is there any good news to be found? For Corporate America, the good news is that individuals who fail to disclose their potential or pending civil rights claims as a potential asset in their bankruptcy proceedings will be barred from suing their employers.
Employers need to be aware of recent legislation which will soon require a change in COBRA notices and procedures. The Trade Act of 2002 was signed into law on August 6, 2002, and amended federal COBRA requirements by adding a new "second chance" COBRA election for individuals who become eligible for trade adjustment assistance as a result of a trade assistance petition filed on or after November 4, 2002. Trade adjustment assistance is federal aide which is available for workers displaced by increased imports of competing products from foreign countries.
To say that the efforts of California's Division of Occupational Safety and Health to reduce repetitive motion injuries in the workplace has had a tortured history is, if nothing, a bit of an understatement. In 1993, the legislature directed CalOSHA to implement an ergonomics standard by January 19, 1995, designed to reduce the number of repetitive motion injuries in the workplace. CalOSHA failed to do so and was ordered by the courts to establish such a standard by or before December 1996. In November 1996, CalOSHA adopted a standard which became effective in 1997. This new standard was largely reactive in its approach and was promptly challenged in court by both business and labor groups. Ultimately, in 1999, following protracted litigation, the California Court of Appeal upheld the standard and struck down its regulatory exemptions for employers with less than ten employees. Also in 1999, the legislature enacted additional legislation reaffirming its concerns over the prevalence of repetitive motion injuries in the workplace and confirmed CalOSHA's continuing duty to carry the legislatures initial directive.
OSHA has implemented a National Emphasis Program (NEP) dealing with amputations. Compliance Directive CPL-2-1.33 is in effect until October 1, 2003 and encourages inspections in workplaces where saws, shears, slicers, slitters and power presses are present. Employers in 29 "high injury" SIC classifications which have the highest number of machine guarding violations will receive letters from OSHA regarding general industry inspections that are a part of this Program. In addition, OSHA Area Offices may add to their inspection lists any establishments where they are aware of amputation injuries or fatalities related to saws, shears, slicers, slitters and power presses in the last five years (known as the "four S's and a P").