On Friday, the Minneapolis City Council introduced the subject matter of an ordinance ensuring fair scheduling, guaranteeing earned sick time and preventing wage theft. The Council also voted to approve funding to study a $15-per-hour minimum wage.
Category Archives: employment
The Star Tribune had a sad, yet unsurprising, article about WI taking the raises away from its officers after it was determined that they owed back wages to those officers…
MADISON, Wis. — The Wisconsin State Patrol is rescinding pay raises for officers who provide security to Gov. Scott Walker after federal regulators said they are due overtime pay dating back to May 2013.Department of Transportation spokeswoman Peg Schmitt said Tuesday that in light of the determination by the U.S. Department of Labor that the officers are due overtime, the $4-an-hour raises given the officers in February will be withdrawn.The 10 officers in the Dignitary Protection Unit provide protection to Walker around the clock, including when he is outside of Wisconsin running for president. They also protect Lt. Gov. Rebecca Kleefisch and visiting dignitaries.The raises that took effect in February had increased salaries for most members of the unit from around $32 an hour to about $36 an hour.
Edward Zelinsky (Cardozo) has just posted on SSRN his article (42 Rutgers Law Record 109-25) The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means.
This is his Abstract:
In Burwell v. Hobby Lobby Stores, Inc., the U.S. Supreme Court held that, under the Religious Freedom Restoration Act of 1993 (RFRA), closely-held corporations’ employer-sponsored medical plans need not provide forms of contraception to which the shareholders of such corporations object on religious grounds. The question now arises how the President, the Congress and the Departments of Health and Human Services (HHS), Treasury and Labor ought to respond to the Hobby Lobby decision.
The best alternative is to require any employer which objects to providing contraception to fund for their respective employees independently-administered health savings accounts (HSAs) or health reimbursement arrangements (HRAs). An HSA or HRA permits the covered employee to spend employer-provided, pre-tax health care dollars on any medical service the employee chooses without implicating the employer in the employee’s spending decision. The HSA/HRA alternative respects the religious rights of sponsoring employers since, unlike conventional insurance or self-insured health plans, the sponsoring employer’s plan does not provide a menu of choices which frames the employees’ decisions. Simultaneously, the HSA/HRA approach respects the autonomy of employees to spend health care dollars on whatever medical services such employees select including services to which the employer objects.
This is an interesting article published by the Washington Post. It discusses some key points that Unions can follow to survive in the tough anti-union atmosphere. This article bases its arguments on scholarly published articles.
The problem that I see is that Unions must represent all employees, regardless of membership. Any changes would have to occur at the legislative level, which means: it will just not happen.
The underfunding of Unions continues to be a big struggle. How can you get enough staff to represent members when there is no money to pay them? RTW laws are a slippery slope.
In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act. Specifically, whether physical presence was one of these. The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case. The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.
In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered. Consequently, she was terminated.
When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.
Id. at *6 (emphasis added).
The reach of the opinion is unclear. The Court also noted:
It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”
Id. at *11 (emphasis added).
This decision is interesting in many different levels. First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.
The U.S. Supreme Court considered whether “neutrality agreements” between unions and employers violate federal labor law. Neutrality agreements are contracts between labor unions and employers under which the employers agree to support a union’s attempt to organize its workforce.
In Unite Here Local 355 v. Muhall, the Supreme Court will decide whether these agreements are a “thing of value.” This definition matters because under Labor Law the exchange of things of value between a labor union and an employer are a felony. Further, it is a crime for a union to request, demand, receive or accept or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by the statute.
Under the agreements, businesses help labor unions in organization efforts in exchange for labor peace, the New York Times reports. The Washington Post offers some examples: An employer might grant access to employee lists or agree to remain neutral in exchange for union concessions, such as giving up the right to strike.
The 11th Circuit Court of Appeals held that it was a “thing of value” because it includes tangibles and intangibles. In other words, while the employer and the union can agree on the ground rules, the assistance in this case would constitute payment.
The assistance the 11th Circuit Court of Appeals referred to was as follows. The casino (employer) agreed to allow union access to worker information and casino grounds, and to allow a unionization vote by cards collected from workers, rather than a secret ballot. The union agreed to refrain from picketing or striking during the union drive.
It is important to note that the 11th Circuit Court of Appeals failed to take into consideration whether there was monetary value.
What is mind boggling is the fact that neutrality agreements are not only common, but they help avoid conflict and encourages the practice and procedure of collective bargaining. The preamble of the National Labor Relations Act supports labor peace and the encouragement of the practice and procedure of collective bargaining.
The outcome of this contentious and heavily litigated case remains unknown. The Supreme Court, specifically Justice Roberts, focused on the card-check portion of the neutrality agreement. Justice Kagan focused on how the benefits bargained by the union benefit employees and unions.
The ABA is supporting legislation to allow veterans who were discharged under the Don’t Ask Don’t Tell to request a change in their military records.
“Restore Honor to Service Members Act,” H.R. 2839, will ensure that veterans who were discharged solely because of their sexual orientation and did not receive an “honorable” characterization of service can have the opportunity to request their characterization be upgraded. In addition, those who did receive an honorable discharge would be able to remove any reference to sexual orientation from their records by requesting a review.
This bill was introduced on July 25, 2013 and was referred to committee. Since July 25, 2013 there has been no movement. The ABA President’s letter, dated November 21, urges the subcommittee to take action.
The Fifth Circuit Court of Appeals (en banc) ruled that an iron worker who was subjected to gay slurs and simulated sex because he failed to conform to the employer’s male stereotypes was discriminated against under Title VII.
In EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. Sept. 27, 2013), the court reviewed the jury’s findings and awarded damages. The Fifth Circuit found that taking the case as a whole, a jury could have found that the employee was harassed because he did not fall under the “manly-man stereotype.”
This case arose when a worker, Kerry Woods, was subjected to sex harassment. Woods was often sexual derogatory terms regarding Woods’ sexuality. In addition, the superintendent also exposed himself when Woods was going to the bathroom, and made sexual innuendo comments to Woods. When these actions were brought to the employer, the superintendent told the general superintendent that he didn’t care for Woods because he was “different” and “didn’t fit in.”
After trial the jury found that this verbal and physical harassment occurred daily. The jury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages.
Starting January 1, 2015 home care aides are not exempt from Wage and Overtime laws. The Department of Labor released a press release discussing this wage and hour change as well as unveiling a new web portal with interactive tools. The web portal for Home Care can be accessed here.
In the DOL’s press release, DOL stated,
This change will result in nearly two million direct care workers – such as home health aides, personal care aides and certified nursing assistants – receiving the same basic protections already provided to most U.S. workers.
The DOL also explained that this wage and hour new rule did not apply to companionship workers. The DOL stated,
The final rule also clarifies that direct care workers who perform medically-related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime.
And, in accordance with Congress’ initial intent, individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection (providing company, visiting or engaging in hobbies) and care incidental to those activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.
The final rule can be accessed here.