Friday, May 7, 2010

The CCH WorkDay Blog has moved!

The CCH WorkDay Blog can now be accessed at http://www.employmentlawdaily.com/index.php/blog. In addition to the blog, you'll find employment law news content and information about our new Employment Law Daily product. For more information on Employment Law Daily, and to follow the CCH labor and employment law editors as they provide regular insights into legislative activity, cases of note, and other breaking news, go to http://www.employmentlawdaily.com/.

Thursday, April 29, 2010

Wage-Hour Division webchat focuses on rulemaking initiative to beef up recordkeeping requirements, revise companionship services regs

The Wage and Hour Division held a webchat this morning on its recently published spring 2010 regulatory agenda. Nancy Leppink, Wage and Hour deputy administrator, fielded questions from webchat participants on the DOL’s coming plan to beef up FLSA recordkeeping requirements and on pending rulemaking on the companionship services exemption.

Recordkeeping rules. DOL is considering a proposed rule that would revamp current FLSA recordkeeping regulations to require employers to notify workers of their rights under the FLSA, and to provide information regarding hours worked and wage computation. Employers that seek to exclude workers from the FLSA’s coverage will be required to perform a classification analysis, disclose that analysis to the worker, and retain the analysis to give to WHD enforcement personnel who might request it. The current recordkeeping regulations require covered employers to keep specified payroll records and other information, the agency noted, but they do not require that such information be disclosed to the worker. The proposal will also address burdens of proof when employers fail to comply with records and notice requirements.

The likely content of the recordkeeping proposals sparked the greatest interest. The questions offered a telling glimpse of the issues the DOL will be grappling with as it formulates a rule, as well as the input it will no doubt receive during the comment period. Among the questions posed:

  • Do you intend to exempt any industries from the FLSA classification analysis and enhanced recordkeeping requirements?
  • Classification analysis is generally conducted on a position-by-position basis, so when an incumbent leaves a position and a new hire occurs, what will the obligation be to re-analyze the position when the position is filled with a new hire?
  • What are the proposed retention requirements for classification analysis in light of the Lilly Ledbetter Act?
  • Will employers be required under the new recordkeeping requirements to inform employees of their exempt status?
  • Would the notice requirements entail a new posting or some type of mandatory training?
  • Would we need to formally notify each employee of [his or her] FLSA status and how it was determined?
  • What information will be required for notices provided to independent contractors? Is the scope of this proposed rule limited to independent contractors or does it include every employee designated as exempt by his/her employer?
  • Can you share what the proposed burdens of proof might be?
In response to a question whether the rulemaking would likely include changes to recordkeeping requirements “associated with employer credits for things like lodging and meals,” Leppink stated, “We are considering what information employers ought to disclose information regarding wage computations.”

Leppink otherwise declined to offer substantive responses to the queries, noting that the rule is currently under development and that “we have not yet determined exactly what will be proposed.” However, she did offer, in general terms: “Our regulatory agenda includes updating recordkeeping requirements. We expect this update to promote transparency and encourage greater levels of compliance by employers. We also expect the regulation to enhance awareness among workers of their status as employees or independent contractors, as well as enhance awareness of employee rights, and entitlements to minimum wage and overtime pay.” The agency’s time table is to publish the proposed regulation in August.

Companionship services. DOL also intends to update its companionship services regulations in order to clarify when domestic service employees are exempt from the minimum wage and overtime provisions of the FLSA. At issue is whether the current exemption for companions working for a third-party agency needs revision in light of significant changes in the home care industry. DOL also intends to address the scope of training required to render a worker “trained personnel” excluded from the companionship exemption, and the amount of household work that may be performed by the worker without losing the companionship exemption.

The regulations governing this exemption have remained largely unchanged since they were promulgated in 1975, the agency notes, in its fact sheet on the proposed rulemaking. “We intend to consider whether the scope of the companionship exemption as currently defined in the regulations continues to be appropriate in light of substantial changes in the home care industry over the last 35 years,” Leppink said. The DOL expects the companionship notice of proposed rulemaking to be published in October 2011.

Ambitious agenda? “Is the current agenda typical or is it more ambitious than prior years?” asked one participant. “While we cannot compare this agenda with previous ones, we do intend to vigorously pursue those regulatory changes that can best protect workers,” said Leppink in response. “We believe our regulatory agenda will advance the Secretary's goal of good jobs for everyone. We seek to advance openness and transparency, and help prevent violations before they occur.”

Tuesday, April 27, 2010

Connecticut proposes to increase fines for misclassification of employees

Legislation implementing recommendations of Connecticut’s Joint Enforcement Commission on Worker Misclassification has passed both houses as of April 21. House Bill 5204 proposes to increase civil penalties for violators from $300 per violation to $300 a day per violation. Connecticut law provides that an employer that misrepresents either the number of employees or casts them as independent contractors to defraud or deceive an insurance company to pay lower workers’ compensation insurance is guilty of a class D felony and subject to a stop work order. H.B. 5204 would apply the same penalty if an employer defrauds or deceives the state in the same way. The bill increases the penalty for violations by specifying that each day of the violation constitutes a separate offense. H.B. 5204 also specifies that any employer who is fully insured for workers’ compensation and fails to pay the required state assessments for administration of the Workers’ Compensation Commission and for the administration and payment fund of the Second Injury Fund would be guilty of a class D felony and subject to a stop work order.

The legislation follows a March 17 announcement by Connecticut attorney general Richard Blumenthal in which he proposed measures to crack down on companies that misclassify employees as independent contractors, called for the increased penalty and criminal sanctions, and recommended joint investigations of misclassification complaints with other state agencies. The Joint Enforcement Commission, co-chaired by Blumenthal and acting labor commissioner Linda Agnew, has been investigating employee misclassification for the past year. If enacted, the changes would take effect on October 1.

Thursday, April 22, 2010

Hearing on Work-Life Balance Award Act held

A hearing on legislation that would establish an award for employers that recognize the importance of balancing work with family and personal obligations was held April 22 by the House Committee on Education and Labor. The Work-Life Balance Award Act (H.R. 4855), authored by Reps. Lynn Woolsey (D-CA) and George Miller (D-CA), would create, through the Department of Labor, a bipartisan advisory board to develop the necessary criteria for employers that wish to qualify for the award. “It is unacceptable,” Woolsey said, “that our country, which is the number one economy in the world, can barely compete with developing nations in this arena. Workers should not have to choose between work and family.”

Stating that the introduction of this legislation was a great step, Woolsey added that it can be further improved by adding the minimal requirements for the advisory board to use in establishing its criteria for awardees. “For example,” she said, “the bill should identify certain work-life practices on which employers would be measured. While I do not have an exhaustive list, these policies could include paid sick leave to care of oneself or a sick family member and for the birth or adoption of a child; time off to attend children’s extracurricular activities and school conferences; telecommuting; job sharing, and on site-child care. While the bill requires the board to consider only those employers who are in compliance with all labor and employment laws, we certainly should consider the “whole company” as an example of a good employer, so an employer with wage and hour or OSHA citations may not qualify.”

EEOC Commissioner Victoria Lipnic, who noted that she was not testifying in her official capacity, offered the view that “any initiative that encourages voluntary efforts for employers to offer work-life policies that work best for their employees and meet their operational needs at the same time is worthwhile. I support such initiatives by private entities and as a matter of public policy. The ability of employers to have the creativity to adopt policies that work in their workplaces is critical to their ability to compete in our global economy.”

Testifying on behalf of the Society for Human Resource Management (SHRM), China Miner Gorman called the measure “a common-sense bill to recognize and showcase those public and private organizations delivering benefit plans and policies that truly help their employees better balance their work and personal life obligations.” Gorman also urged Congress to consider other initiatives as H.R. 4855 moves forward, and said more can be done legislatively to encourage or create incentives for organizations to offer flexible work options, including paid leave, rather than imposing government mandates.

Tuesday, April 20, 2010

All records are public, but some are more public than others

This Orwellian sentiment appears to be the governing philosophy of the State of Oklahoma, which, according to recent reports, has made millions of dollars selling information gleaned from motor vehicle records, even while state legislators have sponsored a bill that would exempt government worker birth dates from the state’s Open Records Act.

The Oklahoman has reported that the Sooner State has made approximately $65 million over the past five years by selling millions of motor vehicle records to insurance companies, employment screening services and other entities, records which include birthdates and other personal information.

That’s one creative way to survive the recent economic downturn.

But Oklahoma may very well shut down one potential stream of revenue from this information cash cow: its own employees.

In a somewhat unusual move for the state that bars employers from prohibiting guns in their workplaces, two Oklahoma legislators have sponsored a bill that would shield government employees’ personal information from the gleaming eyes of the aforementioned entities. The reason? Safety, says the Oklahoma Public Employees Association. The OPEA applauded the passage of Senate Bill 1753, saying that the era of identity theft and fraud made the move essential. Others have claimed that the move is necessary to protect public employees from those who would do them harm.

So, essentially, the Oklahoma legislature will protect public employees from the prying eyes of the public, but not from the weapons of their own co-workers.

The logic, or lack thereof, is all a bit confusing, and it becomes even more so when one considers the allegation made by the Oklahoma that the OPEA has, during the last year, received access to confidential public employee information. According to the paper, since House Bill 2245 became effective in June, 2009, two spreadsheets containing the names and addresses of all state employees were mailed to direct mail companies hired by the OPEA as part of the union’s organizing efforts.

The connective tissue between the two, seemingly incompatible, bills, is Representative Randy Terrill, a Republican whom the union named its 2009 Legislator of the Year. Representative Terrill not only pushed the bill that gave the union its access, he is also the house sponsor of Senate Bill 1753.

It’s a curious exception that Representative Terrill has carved out for the OPEA and it’s one that citizens of Oklahoma, who might like to know more about the people that run their state, have every right to question.

Monday, April 19, 2010

SEIU's Stern announces retirement

Andy Stern, the influential but controversial president of the Service Employees International Union, officially announced his retirement last week after 14 years at the helm of the 2.2-million member union.

"With the strength and power of SEIU members' voices we have accomplished what once seemed unimaginable,” Stern said, in announcing his departure. “And, I can imagine no greater honor than these hard-working Americans entrusting me to represent them and their voice.” Stern, who ushered in a web-savvy era for organized labor, fittingly announced his retirement to SEIU members in a videotaped announcement posted on YouTube.

It was originally speculated, after unconfirmed reports of his retirement began to surface, that Stern would leave when his term ended in 2012. However, his immediate retirement puts SEIU Secretary-Treasurer Anna Burger in the role of interim president until the union’s International Executive Board votes on Stern’s successor. The SEIU constitution stipulates that the IEB must schedule an election within 30 days.

Since assuming the union’s presidency in 1996, Stern built the SEIU into the nation’s fastest-growing union, adding 850,000 new members during a period in which union rolls dropped precipitously. Stern's SEIU elevated the union corporate campaign, demonstrating how a lawful work-around to a traditional NLRB-sponsored representation election could be the most effective mechanism for bringing new members into the fold. His relentless focus on organizing new members stemmed in part from the belief that more organizing would cultivate the political clout necessary for organized labor to press its agenda and build the movement. The recent passage of health care reform and President Obama's recess appointment of former SEIU lawyer Craig Becker to the NLRB would seem to support that theory.

But Stern’s successes have earned him enemies, both on the right and the left--within organized labor in particular. Stern angered many in the AFL-CIO when, in 2005, he led the SEIU and five other unions to break away from the labor federation, claiming it was too wedded to unsuccessful strategies of the past and that more organizing was needed, and forming the competing Change to Win federation. His most recent battle came in a high-profile dispute with leaders of the SEIU-UHW, the union’s giant local of California health care workers, who left to form the rival National Union of Healthcare Workers. In a statement issued last week, former SEIU-UHW chief and interim NUHW president Sal Rosselli said: “Stern’s legacy is that he took control of an organization built by more than a million hardworking janitors, healthcare workers, and public servants, and used their resources primarily to secure his own political power.”

Stern’s ties with Congressional Democrats and the Obama administration have also rankled conservatives. Of Stern’s departure, The Wall Street Journal wrote: “In future histories of America's metamorphosis into a European-style entitlement state, Mr. Stern will deserve prominent mention.”

“I have been privileged and could not be more proud of the role I was permitted to play in helping make SEIU the preeminent voice and organization for people who work hard and take responsibility for their families,” Stern said. “It's been an extraordinary run, and I leave my union on solid ground financially and with a deep bench of talent that will advance SEIU's legacy of working for justice for all workers.”

Monday, April 12, 2010

Requiring military employees provide written notification to return to work not likely under USERRA

An Oklahoma municipal employer most likely cannot, under state law and USERRA, require written notice by an employee in order for that employee to return to work after serving on active duty in the National Guard, Oklahoma Attorney General W. A. Drew Edmondson advised in a March 17, 2010 opinion letter issued at the behest of a state representative. In addition, a municipality must pay its employees called to military service the full regular pay they would have received during the 30-day calendar period they are on leave.

The Attorney General first noted that the state has adopted USERRA as law for members of the Oklahoma National Guard. After explaining that municipalities are covered under the USERRA rules, the attorney general then explained that a requirement that an officer or employee provide written notification in order to return to work would establish an extra “prerequisite to the exercise of the right to reemployment beyond that required by USERRA,” which is prohibited. Such a notice requirement adopted by a municipality would, in the attorney general’s opinion, be unenforceable, because a municipality cannot require written notice by an employee to invoke rights already granted by USERRA.

The attorney general then answered whether a municipality had to pay its employees and officers called to military service the full regular pay they would have received during the 30-day calendar period they are on leave. First, the attorney general found that a previous attorney general’s opinion (71-396) was incorrect, in that it applied the definition of “employee” from the Minimum Wage Act to the statute governing military leave. This opinion was overruled by the attorney general, as it was determined that this definition did not belong incorporated into the military leave rules.

The attorney general then pointed out that, pursuant to 44 O.S.Supp.2009 §209, full and regular pay must be paid for the first 30 calendar days, and this applies to both hourly and salaried employees. As such, an employee called to military service is entitled to be paid an amount equal to his/her yearly salary, converted to a daily rate, and multiplied by 30, and this included hourly workers.

So, while this is the Oklahoma Attorney General's opinion based on his reading of the law, it most likely will hold true. However, while there is little doubt that people will have much of a problem with further protecting our military personnel upon returning to their jobs, employers may argue that a letter stating one's intent to return, and a time to return, would merely aid it in better preparing for a worker's return from duty. The problem with that line of thinking is that a written notification of return creates just one more obstacle for returning military personnel, and that seems to run counterpoint to the very protections afforded by USERRA.