Tag Archives: status

Vets discharged under Don’t Ask Don’t Tell

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.

via Vets discharged under Dont Ask, Dont Tell should be allowed to seek change in records, ABA says.

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Filed under civil rights, discrimination, employment, federal, Pending Legislation

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.

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NLRB Issues Primer On Supervisory Status

Alternative Concepts, 358 NLRB No. 38 April 27, 2012, is an interesting case. The Board reaffirms the Oakwood line of cases and summarizes the applicable law as follows:

The Board set out the analytical framework for determiningsupervisory status in Oakwood Healthcare, 348 NLRB 686 2006, in which it defined the statutory terms“assign,” “responsibly to direct,” and “independentjudgment.” See also Croft Metals, 348 NLRB 717, 721–722 2006, and Golden Crest Healthcare Center, 348NLRB 727, 728, 731 2006. The burden of provingsupervisory status rests on the party asserting that suchstatus exists. Oakwood Healthcare, 348 NLRB at 694,citing Dean & Deluca New York, 338 NLRB 1046, 10472003. The party seeking to prove supervisory statusmust establish it by a preponderance of the evidence. Id.at 1047–1048; Springfield Terrace LTD, 355 NLRB 937,941 2010. Mere inferences or conclusionary statements,without detailed, specific evidence, are insufficientto establish supervisory authority. Golden CrestHealthcare Center, 348 NLRB at 731; Lynwood Manor,350 NLRB 489, 490 2007.

Like the other statutory indicia of supervisory status,the authority to assign and responsibly to direct otheremployees are not determinative of supervisory statusunless they are exercised using independent judgment.To exercise “independent judgment,” an individual mustact or effectively recommend action “free of the controlof others,” using a degree of discretion rising above “themerely routine or clerical.” Oakwood Healthcare, 348NLRB at 693.In Oakwood Healthcare, 348 NLRB at 689, the Boardexplained that assignment means designating an employeeto a place such as a location, department, orwing, appointing an employee to a time such as a shiftor overtime period, or giving an employee significantoverall duties as opposed to ad hoc instructions that theemployee perform a discrete task. There must be specificevidence that a putative supervisor “has the abilityto require that a certain action be taken; supervisory authorityis not established where the putative supervisorhas the authority merely to request that a certain actionbe taken.” Golden Crest Healthcare Center, 348 NLRBat 729.The Board in Oakwood Healthcare, 348 NLRB at 691,also interpreted the meaning of the phrase “responsiblyto direct”: “If a person on the shop floor has ‘men underhim,’ and if that person decides ‘what job shall be undertakennext or who shall do it,’ that person is a supervisor,provided that the direction is both ‘responsible’ and carriedout with independent judgment.” The Board furtherheld that, for direction to be “responsibl[e],” the persondirecting the performance of a task must be accountablefor its performance. To establish accountability for purposesof responsible direction, the party with the burdenof proof must show that “the employer delegated to theputative supervisor the authority to direct the work [ofothers] and the authority to take corrective action, if necessary,”and also that “there is a prospect of adverse consequencesfor the putative supervisor” if the putativesupervisor “does not take these steps.”12 Id. at 692. Evidenceof actual accountability must be present to proveresponsible direction. Alstyle Apparel, 351 NLRB 1287,1287 2007; Golden Crest Healthcare Center, 348 NLRB at 731.B.We find that neither the crew dispatchers nor line controllers are statutory supervisors.

via Adjunct Law Prof Blog: NLRB Issues Primer On Supervisory Status.

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