Misclassification of workers and the DOL’s take on it

Labor Employment Perspectives reports on a possible change that the Department of Labor (“DOL”) regarding classification of workers.

DOL suggests that it may push forward changes to the record keeping requirements under the Fair Labor Standards Act (“FLSA”) regulations.  These changes will bring to the forefront issues relating to the misclassification of workers as independent workers when they are, in fact, employees.

On January 11, 2013, the DOL requested comments on a public survey designed to look at worker classification and determine the workers’ knowledge and understanding of employment laws and rules regarding basic laws and misclassification.

The DOL states,

The purpose of this study is to design and administer a new survey to collect information about employment experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification…..

The data collection effort with this group will gather information about workers’ employment and pay arrangements and will measure workers’ knowledge about their current job classification, and their knowledge about the rights and benefits associated with their job status.

As a backdrop, in 2010, DOL commissioned a study, which found that 10% to 30% of audited firms for state unemployment insurance had one or more of its employees misclassified as independent contractors.  In the fall of 2010, the DOL proposed a change to the regulations regarding record keeping designed to “enhance the transparency and disclosure to workers of their status as the employer’s employee or some other status, such as an independent contractor…”

In other words, the regulations, if passed as suggested in 2010, would require employers to inform workers of whether they are (1) employees, (2) independent contractors, or (3) other status.  Currently, the law does not require this.

Given their renewed interest, as evidenced by the public survey focused on worker classification, FMLA regulations may change.

 

via Right-to-Know Regulations May Move Back to the Forefront; Time to Check If You Have Misclassified Your Workers! | Labor & Employment Law Perspectives.

Admission to the MN Bar changes

On January 17, 2013, the Minnesota Supreme Court has affirmed changes to the admission to the Bar.  The amendments that changed the Rules of Admission are:

Definitions:  Rule 2A(12) definition of Uniform Bar Examination.  Under the new amendment, UBE is “an examination prepared by the National Conference of Bar Examiners (NCBE), comprised of six Multistate Essay Examination questions, two Multistate Performance Test questions, and the Multistate Bar Examination.  See amendments to Rule 7C (Admission by UBE score).

Requirements for Admission:  Rule 4A(4) was amended to state that an eligible applicant must provide satisfactory evidence of a passing score on the written examination under Rule 6 and is not eligible for admission under Rules 7A (Eligibility by Practice), 7B (Eligibility by MBE), 7C (Eligibility by UBE), 8, 9, or 10.

Requirements for Admission:  Rule4B was stricken.  Rule4B previously stated that the applicant had to be a resident of Minnesota or maintain an office in Minnesota or designate the Clerk of Appellate Courts as agent for service of process for all purposes.

The Examination:  Rule 6E(1) Essay Questions was amended to delete the following subjects:

1. Civil Procedure (but note that the amendment added a Federal Civil Procedure subject);
2. Ethics and Professional Responsibility;
3. Federal Individual Income Taxation;
4. Uniform Commercial Code Art. 1 &2 (but note that under the Contracts subject, the amendments include the UCC; as well as the new subject of Negotiable Instruments); and
5. Wills, Estates and Trusts (but note that there is a new subject of Trusts and Estates).

The Examination:  Rule 6E(1) Essay Questions added the following subjects:

1. Conflict of Laws;
2. Federal Civil Procedure;
3. Negotiable Instruments (Commercial Paper) under the UCC;
4. Secured Transactions under the UCC; and
5. Trusts and Estates.

The Examination:  Rule 6E(1) Essay Questions further stated what topics where covered under the following subjects:

1. Business Associations – the subject no longer includes proprietorships;
2. Contracts – the amendment stated the subject includes contracts under the UCC; and
3. Trusts and Estates – the subject includes Decedents’ Estates, and Trusts and Future Interests

The Examination: Rule 6E(2) Multistate Performance Test stated there will be two 90-minute questions.  The prior rule stated one or two.

Admission Without Examination:  Rule 7A(C) Eligibility by UBE score was added to the ways an applicant may be admitted.  Rule 7A(C) states that the applicant might have received a certified scaled score of 260 or higher.  Rule 7A(C) also states the application must be completed within 36 months of the date of the examination.

Admission Without Examination:  Rule 7A(D) Transfer of MBE or UBE score was amended to add UBE.

Confidentiality and Release of Information:  Rule 14C(4) Examination of Data now includes the disclosure of the UBE.  In addition Rule 14C(5) specifies that the director may release copies of unsuccessful examinee’s answers to MEE and MPT questions.

via STATE OF MINNESOTA. (published by Minnesota Lawyer – subscription required).

Update on NYPD’s surveillance and infiltration of Muslim groupds

Are Muslim communities being unfairly targeted by law enforcement?  This is the conversation being raised after the New York Civil Liberties Union sought to revisit a 41-year old case.

You may have heard about news articles discussing NYPD’s surveillance and infiltration of New York-based Muslim groups.  Last year, the Associated Press confirmed the existence of a program, called the Assessment Program, formerly known as the Demographics Unit, which spied on Muslims.

As way of background, in 1985, a Manhattan federal judge ordered a consent decree (known as “Handschu guidelines”) whereby the police is barred from investigating political and religious organizations without “specific information” linking the group to a crime.  In that case, Handschu v. Special Services Division, the police had extensive dossiers on a large array of political groups, including the Black Panthers.

After 9-11, the judge loosened the Handschu guidelines to give police wider powers to investigate political groups in the war on terror.

The New York Civil Liberties Union released a memorandum, submitted to the court, seeking to end the NYPD’s Assessment Program.  In the memorandum there is testimony stating that an informant was paid as much as $1,500 a month to take part in the NYPD’s alleged “create and capture” program.  The informant stated,

This meant I was to pretend to be a devout Muslim and start an inflammatory conversation about jihad or terrorism and then capture the respond to sent to the NYPD.

I did this on numerous occasions with people I met at the mosques and other locations.

The question to be decided is – how much latitude law enforcement given when conducting surveillance of political and religious groups?

As a side note, you may have also come across the story regarding the FBI’s surveillance on Muslims groups, known as “Operation Flex.”  That story has been reported in many news circles, including the Business Insider here.

via Courthouse News Service.

Wisconsin labor fight heats up

Public school teachers filed a class action against a public school district that claims it can cut their pay at will and fine them up to $2,500 if they don’t sign their contracts on time.

The class action, which has a putative class size of 230 teachers, alleges that the school district’s contracts have illegal and unenforceable provisions.  For example, the contract allows

1. The district to fire or reduced the pay and benefits of tenured teachers for vague and undefined reasons;
2. The district can fine tenured teachers $1,000 to $2,500 if they don’t sign the contract by the time the school district wants it, or seek release from the contract.

The class action further claims:

• The 2012-13 contracts illegally allow the district to “make salary adjustments ‘due to disciplinary action and/or changes in full-time equivalency warranted by the district,’” in violation of Wis. Stat. § 118.21;
• The contracts illegally allow the district to cut salary and benefits “if in the sole discretion of the district, the educator fails to meet the expectations referenced in the contract, acts in a manner that is not in the best interests of the district’s students, fails to abide by the terms of the Employee Handbook, fails to carry out the duties and responsibilities of the job description, or if the district decides to reduce the professional staff for financial or other lawful reasons,” in violation of Wis. Stat. § 118.21, § 118.21, and state contract law; and
• The contracts illegally set up “a liquidated damages schedule that begins assessing damages on June 1,” with fines beginning at $1,000, escalating to 2,500, for failing to sign contracts by June 15, or seeking release from contract; this “unlawfully assesses damages to teachers seeking release from their contracts prior to the statutory date for acceptance.”

The contracts state “that failure to return a signed contract … would result in non-renewal of the teacher’s contract,” the teachers say: “A stigma is attached to being non-renewed by a school district, as it suggests that a teacher’s employment was not continued for performance reasons or misconduct.”

The class cites violation of Wisconsin Statute 118.21, under which the school district must fix teachers’ wages, violation of Wisconsin Statute 118.22, under which the school district must set the contract acceptance date at June 15, and violation of Wisconsin Statute 118.23, under which it can terminate permanent only employees for good cause.

via Courthouse News Service.

NLRB holds dues check-off survives CBA expiration

Recently, the NLRB released its decision (3-1) in WKYC-TV, in which the NLRB reversed the long-standing rule Bethelem Steel that agreements for dues checkoffs will not continue after the contract expires.

The new rule will not apply to pending cases.   The essence of the majority decision is that because dues checkoffs are mandatory subjects of bargaining, the normal Katz rule for such topics–that they must continue while a new contract is being negotiated–should apply unless there is a reason for an exception; the majority found that there wasn’t.  In making this conclusion, the majority distinguished clauses that involved the waiver of rights, like no-strike clauses.  The majority also criticized Bethelem Steel for treating dues checkoff provisions the same as union security clauses (in part because of its reading of Sections 8(a)(3) and 302(c)).

Member Hayes dissented, arguing that there was no evidence that the old rule wasn’t working. Further, he disagreed with the majority’s statutory interpretation.  He also stressed that limiting dues checkoffs to an active collective-bargaining agreement was more consistent with the concept of voluntary unionism.

via Workplace Prof Blog: Dues Check-Off Now Survives Contract Expiration.

NLRB recent decisions

This is the list of the most recent and significant decisions decided by the NLRB:

Hispanics United of Buffalo – The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express – In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co. – Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.

Continued Dip in Number of Female Associates

The ABA Journal has this troubling trend to report:  a decline of female associate lawyers.

The percentage of female associates in law firms has fallen slightly for the third year in a row, even as women made small gains in partnership ranks, according to NALP, the Association for Legal Career Professionals.

Women made up 45.05 percent of associates in an “incremental but steady slide from 45.66 percent in 2009,” according to a NALP press release.

Women account for 19.91 percent of law firm partners, compared to 19.54 percent last year. Overall, women represent 32.67 percent of lawyers in law firms in 2012, compared with 32.61 percent in 2011 and 32.69 percent in 2010. The high water mark, reached in 2009, was 32.97 percent.

Minorities make up 20.32 percent of the associate ranks, up from 19.9 percent last year.Minority women are “the most dramatically underrepresented group” at the partnership level, comprising 2.16 percent of partners in 2012, the press release says.

via Continued Dip in Number of Female Associates Is Significant and Troubling Trend – News – ABA Journal.

NY Is First State to Require Law Students to Do Pro Bono Work to Get Licensed After Graduation

This is an article from the ABA News website:

In a move that is expected to improve access to the civil justice system for low-income individuals, Chief Judge Jonathan Lippman announced at a press conference Wednesday a new Court of Appeals rule requiring all law graduates to complete 50 hours of pro bono work before they will be admitted to practice in New York.

It is expected that many will complete the pro bono requirement while they are still law students, according to Reuters. However, the pro bono requirement can also be met after an individual earns his or her law degree.

The pro bono requirement doesn’t take effect until Jan. 1, 2015, so it does not apply to current third-year law students.

What qualifies as pro bono work is broadly defined, the article notes, alleviating concerns by law school deans that the program would be difficult to administer.

A 15-member advisory committee that helped draft the new pro bono rule will also oversee its implementation and evaluate how well it works, the news agency notes.

The New York Law Journal (reg. req.) provides a link to a copy of the new pro bono rule (PDF).

via NY Is First State to Require Law Students to Do Pro Bono Work to Get Licensed After Graduation – News – ABA Journal.

New Md. Law May Be First in Country Banning Employers From Seeking Workers’ Social Media Passwords

In what could be the first such law in the country, Maryland has enacted a bill that would prohibit employers from demanding personal passwords to social media sites such as Facebook from job applicants and workers.

State lawmakers last week almost unanimously approved making such information private, in response to reports that a growing number of employers are seeking access to individuals’ personal social media accounts to gather information for job-related decision-making, Raycom News Network reports.

The bill will take effect as law after it is signed into law by the state governor, the Gazette reports.

The American Civil Liberties Union of Maryland favored the new measure. The state Chamber of Commerce opposed it.

While no one wants others to read private messages, the chamber had hoped lawmakers would recognize that there may be legitimate reason for employers to review social media sites, said lawyer and employment practitioner Elizabeth Torphy-Donzella of Shawe Rosenthal. Her Baltimore-based law firm represents the chamber.

Similar legislation is being pursued in California and Illinois and in Congress, the Baltimore Sun reports.

The Washington Post’s Capitol Business Blog says Michigan also is considering such a law.

via New Md. Law May Be First in Country Banning Employers From Seeking Workers’ Social Media Passwords – News – ABA Journal.

8th Cir to hear MN campaign law

From MPR:

A federal appeals court will hear a challenge to Minnesota’s law requiring corporations to disclose their political donations.

A three-judge panel of the 8th U.S. Circuit Court of Appeals upheld the law in May. But in September, the entire court will hear the matter again.

Arguments before the full 8th Circuit will be September 21 in St. Louis