Workplace Prof Blog

DOL Extends Comment Period on FMLA

Kenneth Shiotani (National Disability Rights Network) just informed us that the Department of Labor Wage & Hour Division has extended the deadline for submitting comments to FMLA proposed regulations.  The new deadline is April 30.

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DOL Extends Comment Period on FLSA Application to Domestic Service

The deadline for comments is extended from March 12 to March 21.  Here's the DOL notice.  Thanks to Kenneth Shiotani (National Disability Rights Network) for giving us the heads-up.

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More Time to Comment on FLSA Protections for Home Care Workers

US Labor Department extends comment period on proposed rule to provide minimum wage and overtime protections for in-home care workers to March 12.

The proposed rule would expand minimum wage and overtime protections by ensuring that all home care workers employed by third parties such as staffing agencies receive these protections. It also would clarify that individuals performing skilled in-home care work are entitled to minimum wage and overtime pay. However, families that engage individuals for true companionship or fellowship activities, such as visiting with friends or pursuing hobbies, still would be considered "companions" and not be required to meet the act's labor standards provisions. To learn more about the proposed rule, visit http://www.dol.gov/whd/flsa/companionNPRM.htm.

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Tomorrow's NPRM on FMLA

Kenneth Shiotani (National Disability Rights Network) gives us the heads-up that the DOL's Wage & Hour Divison will post in tomorrow's Federal Register a Notice of Proposed Rulemaking related to the Family Medical Leave Act.  Here's a summary of what will be covered:

The Department of Labor’s Wage and Hour Division proposes to revise certain regulations of the Family and Medical Leave Act of 1993 (FMLA or the Act), primarily to implement recent statutory amendments to the Act. This Notice of Proposed Rulemaking (NPRM) proposes regulations to implement amendments to the military leave provisions of the FMLA made by the National Defense Authorization Act for Fiscal Year 2010, which extends the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies arising out of the servicemember’s deployment; defines those deployments covered under these provisions; and extends FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses. This NPRM also proposes to amend the regulations to implement the Airline Flight Crew Technical Corrections Act, which established new FMLA leave eligibility requirements for airline flight crewmembers and flight attendants. In addition, the proposal includes changes concerning the calculation of leave;reorganization of certain sections to enhance clarity; the removal of the forms from the regulations; and technical corrections of inadvertent drafting errors in the current regulations.

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Wage Case Spawns E-Discovery Dispute

Above the Law reports on Pippins v. KPMG (SDNY), in which several former KPMG auditors have sued for nonpayment of overtime.  In the course of litigation, the court ordered KPMG to preserve hundreds -- perhaps more than a thousand -- hard drives containing information about the working hours of thousands of employees.  KPMG, which apparently has not turned over any hard drives yet, argued that only a sample handful of drives should be preserved.  Not so, said Judge Colleen McMahon:

Even assuming that KPMG’s preservation costs are both accurate and wholly attributable to this litigation — which I cannot verify — I cannot possibly balance the costs and benefits of preservations when I’m missing one side of the scale (the benefits).

I gather that KPMG takes the position that the only Audit Associates who are presently ‘parties’ are the named plaintiffs, and so only the named plaintiffs’ hard drives really need to be preserved. But that is nonsense.... Under [relevant precedent], the duty to preserve all relevant information for "key players" is triggered when a party "reasonably anticipates litigation." ... At the present moment, KPMG should "reasonably anticipate" that every Audit Associate who will be receiving opt-in notice is a potential plaintiff in this action.

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More Post-Dukes Class Action Rulings

The Seventh Circuit issued an opinion last week applying Wal-Mart v. Dukes in a class action under the Fair Labor Standards and Illinois Minimum Wage Acts. In Ross v. RBS Citizens, the district court had certified two classes: 1. all current and former hourly employees made to work more than forty hours a week pursuant to an unofficial policy; and 2. all current and former assistant branch manager employees who claimed they were misclassified as exempt employees and made to work more than forty hours a week.

The Seventh Circuit affirmed the certification as not an abuse of discretion. The employer had argued that the classes lacked commonality as interpreted by the Supreme Court in Dukes. The Seventh Circuit distinguished Dukes in a number of ways in affirming the district court's certification. In this case, the classes constituted only about 2000 employees from Illinois only, and there were a large number of affidavits supporting the claims. And the legal question of an unofficial policy did not require individual determinations of motive, unlike discrimination claims. Finally, there was no conflict, either, between a statement of official policy and the unofficial policy alleged by the plaintiff classes to have injured them.

With very few of these Courts of Appeal applications of Dukes, this adds another important development in where class actions will go from here.

MM

Trio of 4th Circuit Employment Cases

Jon Harkavy (Patterson & Harkavy) sends word of three important cases issued over the last couple of days by the Fourth Circuit.  The descriptions below are Jon's:

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• EEOC v. Great Steaks holds that a district court's denial of fees to a prevailing defendant in an EEOC enforcement action was not an abuse of discretion.  The degree of deference shown to the district court that managed the case seems paramount in Judge Floyd's reasoning for the unanimous panel.
• Minor v. Bostwick Laboratories (copy attached) decides that an intra-company FLSA complaint may be considered protected under the statute's anti-retaliation provision.  Judge Duncan, writing for a unanimous panel, concludes that while [the Supreme Court's] Kasten's holding does not control determination of this issue, its reasoning compels the decision here.
• Jafari v. Old Dominion Transit Management is an unpublished FLSA retaliation case raising the same issue, among others.

CEPR Report on Low Wage Work

The Center for Economic and Policy Research, a progressive economic thinktank, has issued a report on low wage work in rich countries. Low Wage Lessons compares the percentage of the workforce in low wage work, the strength of collective bargaining, and the level of social safety net, among other things, in developed countries. From the press release:

The experience of the United States stands primarily as a model for how not to succeed in reducing low-wage work. The United States has the lowest unionization rate among rich countries, a weak minimum wage, a stingy benefits system, and the highest rate of low-wage work among rich economies. About one-fourth of U.S. workers are in low-wage jobs, according to the standard international definition of low-wage work of earning less than two-thirds of the national median wage. (The median wage is the wage received by the worker exactly in the middle of the wage distribution.)

In the United States, the minimum wage and the Earned Income Tax Credit (EITC) are the two most important policies in place to fight low pay. But, the report argues that they have largely been ineffective.

"The minimum wage and the EITC could be excellent tools to fight low-wage work," [John] Schmitt[, the author of the report,] said, "but, they have been set far too low to make a difference."

The report also emphasizes that low pay is only the most obvious problem facing low-wage workers in the United States. Low-wage workers are also far less likely to have health insurance, paid sick days, paid family leave and other benefits that are common in higher-wage jobs.

And from the web summary of the report, 

Over the last two decades, high – and, in some countries, rising – rates of low-wage work have emerged as a major political concern. According to the Organization for Economic Cooperation and Development (OECD), in 2009, about one-fourth of U.S. workers were in low-wage jobs, defined as earning less than two-thirds of the national median hourly wage (see first figure below). About one-fifth of workers in the United Kingdom, Canada, Ireland, and Germany were receiving low wages by the same definition. In all but a handful of the rich OECD countries, more than 10 percent of the workforce was in a low-wage job.

If low-wage jobs act as a stepping stone to higher-paying work, then even a relatively high share of low-wage work may not be a serious social problem. If, however, as appears to be the case in much of the wealthy world, low-wage work is a persistent and recurring state for many workers, then low-wages may contribute to broader income and wealth inequality and constitute a threat to social cohesion. This report draws five lessons on low-wage work from the recent experiences of the United States and other rich economies in the OECD.

Lots of interesting data and analysis.

MM

Fired for Working Through Lunch

Good Morning American carried a story a couple of days ago about an Illinois appellate court's reversal of the denial of unemployment compensation (i.e., she got her unemployment) to a woman (Sharon Smiley, photo at left) who was fired for working through lunch.  To the general public, of course, this sounds like a story about a clueless and heartless employer -- most folks don't understand the world of FLSA and other trouble an employer can get into if nonexempt employees are working off the clock.  On the other hand, one would have singificantly less sympathy for the employer if the employer were giving employees 50 hours of work to do but only 40 hours of paid time to do it.

Michael LeRoy (Illinois) and Cheryl Anderson (S. Illinois) receive nice mentions in the article.

Hat tip: Robin Bales.

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DOL Developments

Kenneth Shiotani (National Disability Rights Network) sends us word of two Department of Labor developments:

• The DOL is publishing its draft Environmental Justice Strategy in response to the Memorandum of Understanding with the Interagency Working Group on Environmental Justice (EJ IWG) signed in August 2011. President Obama has renewed agencies’ environmental justice planning by reinvigorating Executive Order 12898 (EO 12898), which tasked Cabinet-level Federal agencies with making environmental justice part of their mission. The agencies were directed to identify and address, as appropriate, the disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations.
  
  The Department views Environmental Justice from a workplace training, health and safety perspective. The Department is developing an Environmental Justice Strategy that is in line with the mission of the Department and Secretary Solis’ vision for the future: good jobs for everyone. The vision of good jobs for everyone includes ensuring that workplaces are safe and healthy; helping workers who are in low-wage jobs or out of the labor market find a path into middle-class jobs; and helping middle-class families remain in the middle-class.

• The DOL's notice of proposed rulemaking on the application of the FLSA to home care workers was published in the Federal Register today.  Comments are due on or before February 27, 2012.

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NPRM re FLSA Coverage for Home Care Workers

Thanks to Kenneth Shiotani (National Disability Rights Network) for sending us this link to the Notice of Proposed Rulemaking for President Obama's proposal to provide home care workers FLSA coverage for both the minimum wage and overtime.  The NPRM is from the DOL’s Wage and Hour Division website.

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Court Dismissed FLSA Claim v. Tribal Casino on SMJ Ground

Matthew Fletcher's (Michigan State) Turtle Talk has the key documents in Larimer v. Konocti Vista Casino Resort, Marina & RV Park (N.D. Cal.), in which the court dismissed plaintiff's FLSA overtime case against a casino corporation owned and operated by a Native American tribe.  The basis of the dismissal was that under the doctrine of tribal sovereign immunity, the court lacked subject matter jurisdiction over the defendant.

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Seattle Passes Paid Sick Leave Ordinance

The Seattle City Council voted yesterday to require employers in the city to provide paid sick leaves to employees, according to an Associated Press story. Currently, Washington, D.C., San Francisco, and the state of Connecticut mandate paid sick days. You may recall that Millwaukee passed an ordinance a few years ago, but it was struck down on state election law grounds.

The Seattle ordinance requires that employers of five or more employees give each employee five paid sick days for their own sickness or that of a person they care for, or if they are a victim of domestic violence, to cooperate with law enforcement and court proceedings. Employers with 250 or more employees have to provide nine days.

Some are opposing the law as bad policy during a recession, while others (including many employers) praise it as easy to comply with, not adding much in expenses, and better protecting workers (both the sick and the not sick) and customers.

According to the group Family Values at Work, 44 million workers nationwide still lack access to paid sick time. This is a step in the right direction, especially for those lower wage workers who likely can't afford to take unpaid time off even when they need to, and for all of us those workers would come in contact with.

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4th Circuit Restricts Scope of FLSA Retaliation Protection

Jon Harkavy (Harkavy Patterson) sends us the Fourth Circuit decision (handed down yesterday) of Dellinger v. Science Applications Int'l Corp.  The court held, 2 to 1, that the FLSA does not reach retaliation against prospective employees.  Given the Supreme Court's expansive reading of antiretaliation clauses, this case may be ripe for a cert grant.

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Wage Determinations Online

The U.S. Government Printing Office has partnered with the Department of Labor and the National Technical Information Service to provide permanent public access to Davis-Bacon Wage Determination information.  Wage Determinations OnLine is the official Federal Acquisitions Regulation (FAR) mandated Web site that contains both current and archived wage determinations. Users can search for a determination or browse by state and county. Archived determinations are available from 2000 forward.

Hat tip: Carol Furnish.

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House Hearing on FLSA

Tomorrow morning (Thursday, July 14 at 10:00 a.m.), the House Subcommittee on Workforce Protections will hold a hearing entitled, The Fair Labor Standards Act: Is It Meeting the Needs of the Twenty-First Century Workplace? The hearing will take place in room 2175 of the Rayburn House Office Building.  A live webcast is available.  Here's a description:

Enacted in 1938, the Fair Labor Standards Act (FLSA) sets forth employment rules concerning minimum wages, maximum hours, and overtime pay. The Department of Labor estimates more than 130 million workers are affected by the FLSA. Despite the broad impact of the law on the American workforce, it is largely outdated and does not accurately reflect the realities of modern technology or today’s economy. The law has also created an environment of uncertainty with employers facing a patchwork of conflicting interpretations of the law and employees facing difficulty understanding their rights under the law.

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Connecticut Two-Fer

At the beginning of this month, Connecticut Governor Dannel Malloy signed into law two important new employment laws. First, he signed Public Act 11-52, An Act Mandating Employers Provide Paid Sick Leave to Employees, the first of its kind to be passed by a state. This statute mandates that employers who have fifty or more employees who do not already provide at least five days a year of paid leave to provide up to five days a year of paid sick time. Clearly not every employer is covered, and in addition, not every type of employee is covered even for covered employers, Moreover, employees are not eligible until they have worked 680 hours. Still, Connecticut is the first state to mandate paid sick time in any form, and this is a very important development. 

Secondly, Connecticut became the fourteenth state (plus DC for a total of fifteen state and state-like jurisdictions) to prohibit discrimination on the basis of gender identity or expression. Public Act 11-55, An Act Concerning Discrimination is the statute. Connecticut prohibits discrimination in a variety of contexts outside of employment as well, from housing to provision of utilities, and it added gender identity or expression to most if not all of these. Connecticut also prohibits discrimination on the basis of sexual orientation, but that status is not as broadly protected as the new addition.

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NBA Salary-Cap Inequality

Mitchell L. Engler (Cardozo) explains in The Untaxed King of South Beach: Lebron James and the NBA Salary Cap (forthcoming San Diego L. Rev. 2011) the real reason both Miami and Dallas made it to the NBA finals this year: both teams get a competitive advantage by being located in no-income-tax states.  Here's the abstract:

In contrast to major league baseball, the National Basketball Association has a salary cap designed to provide every team an equal and fair chance of competing for the championship. The Miami Heat‘s recent incredible success in signing the game‘s three most hotly desired free agents, including mega-stars Lebron James and Dwyane Wade, therefore flies in the face of the NBA‘s attempted level playing field. How could one team so outmaneuver all the others in the sport which tried to eliminate such uncompetitive results via a salary cap?

As discussed in this Essay, the answer lies in the law of unintended consequences and perverse incentives. Some NBA teams are located in more attractive jurisdictions with nicer amenities or lower costs, such as taxes. In particular, Miami provides a highly-favorable climate both as to weather and taxes as Florida does not have a state income tax. In the absence of any salary cap limitations, teams in higher-tax jurisdictions could compete better with Miami for free agent players by offering higher salaries to offset the extra tax. But the NBA salary cap, by its very terms, blocks this usual free-market response.

Having flagged this perverse and unintended benefit to the no-tax clubs, this Essay then proposes an appropriate solution. Rather than scrapping the salary cap and restoring a competitive advantage to the wealthier clubs, a state tax adjustment to the cap amounts would remove the rich clubs‘ advantage without substituting an unintended benefit to the no-tax clubs. The salary cap amounts of no-tax teams simply should be reduced by a percentage equal to the highest state tax rate of any NBA team. After making this simple adjustment, this Essay then refutes more sophisticated arguments as to why the proposed adjustment might go too far. Among other points, this Essay highlights how Miami‘s tax advantage might extend beyond just Lebron‘s salary to include his extensive endorsement income as well. Expanding the analysis to such deeper level therefore highlights an even greater need for a state tax adjustment to the NBA salary cap.

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Domestic Workers Bill of Rights Approved by California State Assembly

via www.pwcsc.org

California may be the second state to enact the Domestic Workers Bill of Rights. The state assembly earlier this month approved legislation to extend wage and hour protection along with other rights to those who work in private homes. According to the San Francisco Chronicle, the vote was close and may be linked to legislation to protect hotel workers.

The bill is being hailed by immigrant and labor groups as victory. From the Pilipino Workers' Center of Southern California,

The California Assembly approved AB 889 . . . the Domestic Workers Bill of Rights, sponsored by   Assemblymembers Tom Ammiano (D-San Francisco) and V.M. Pérez (D-Coachella) passed. The bill now heads to the Senate for approval. Co-sponsored by Assemblymembers Allen (D- Sonoma), Cedillo (D- LA), Ma (D- San Francisco), Monning (D- Carmel) and Senator De Léon , the bill would improve the quality of care for children, families and seniors by expanding basic labor  protections for household workers and setting industry-wide standards. While current exclusions for domestic workers are confusing and leave well-meaning employers vulnerable to liability, the standards AB 889 provides will create clarity and strengthen an industry which is vital to many Californians. 

“Today’s vote was a historic step forward for the rights of domestic workers in California. For decades domestic work has been excluded from both state and federal labor laws and worker exploitation in this industry has remained invisible and unmonitored. AB 889 will end that by establishing the same basic protections under the law that many of us take for granted,” said Ammiano. 

“This legislation helps us to bring a critical workforce out of the shadows and into the light of day. Domestic workers must be assured the rights and protections that all California workers deserve,” said V. Manuel Pérez, chair of the Assembly Committee on Jobs, Economic Development, and the Economy.

The legislative session ends in early September, so we'll know fairly shortly if this is headed to Governor Brown's desk.

MM

AstraZeneca Settles OFCCP Equal Pay Suit

They had the same job classification, did the same work, had the same history with the company, but the company paid women an average of $1,700 less than men. Sounds like a classical equal pay kind of case right out of the 1970s? Sure does, but it was apparently how things worked at at least one AstraZeneca office as recently as last May.

The Office of Federal Contract Compliance Programs announced yesterday that it had reached a settlement with the pharmaceutical company to pay $250,000 to 124 women who worked at the company's Philadelphia Business Center in Wayne, Pa. The action resolves a lawsuit filed by the U.S. Department of Labor in May 2010 alleging that the company discriminated against female sales specialists by paying them salaries that were, on average, $1,700 less than their male counterparts.

The OFCCP conducted a scheduled compliance review of the business center in 2002 and found that AstraZeneca had violated Executive Order 11246 by failing to meet its obligations as a federal contractor to ensure employees were paid fairly without regard to sex, race, color, religion and national origin. AstraZeneca holds a contract valued at more than $2 billion with the U.S. Department of Veterans Affairs to provide pharmaceutical products to hospitals and medical centers around the country.

Additionally, in accordance with a consent decree, the company has agreed to work with OFCCP to conduct a statistical analysis of the base pay of 415 individuals employed full time in two additional categories of pharmaceutical sales specialists in thirteen states and the District of Columbia. If the analysis concludes that female employees continue to be underpaid, the company will adjust salaries accordingly.

It's an interesting development in what seems to be a wave of pay-related and sex discrimination actions against pharmaceutical companies. See this post at Overtime Law Blog, for example, on the circuit split and SCOTUS denial of cert on classification of outside sales reps, and here for the recent sex discrimination settlement involving Novartis. Maybe women are tired of putting up with poor conditions and are starting to file complaints in greater numbers, or maybe pharmaceutical company practices are coming under greater scrutiny as part of the study of what is driving rising healthcare costs. It would be interesting to know whether this really is a trend or it just happens to be what the news is focused on lately.

Hat tip: Pat Schaeffer

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