DOL Looking For Ways To Increase Enforcement Of FMLA, February 25, 2011
Whenever the DOL initiates employer surveys, it is a sure sign that the agency is looking for ways to step up enforcement. That means increased scrutiny of employer practices and increased penalties against employers. So, employers take heed – Labor Secretary Hilda Solis announced on February 17, 2011, a new employer survey (to take place throughout 2011) gathering data on such issues as how employees use FMLA and whether employees are afraid of the consequences for requesting FMLA leave. According to Secretary Solis, the DOL is conducting the survey to find ways to increase workplace flexibility for hourly workers because, in her words, employers need to understand that flexible work schedules are good for low-wage workers. Solis wants to make sure that hourly workers are not getting the “short end of the stick” when it comes to FMLA leave.
Pizza Restaurant Pays $800,000 To Settle FLSA Suit, February 25, 2011
In a consent judgment issued on February 24, 2011, Martino’s Pizzeria Inc. (d/b/a Mama’s Pizzeria) in Copiague, New York, agreed to pay $800,000 in back wages and penalties to approximately 40 employees. The Department of Labor sued Martino’s Pizzeria, along with its owners, Gaetano and Grace Pinello, for failing to pay minimum and overtime wages in violation of the FLSA. According to the DOL, its investigation of the pizza restaurant revealed that employees were often required to work 70 to 80 hours per week without overtime pay and that they frequently received less than the minimum wage. Martino’s also paid its employees in cash, off the company’s books, and failed to keep time records showing work hours. The Pinellos paid for their failure to keep records – they ended up agreeing to pay the employees $390,000 in back wages and an additional $390,000 in liquidated damages, and to pay the government a $20,000 penalty for willful violation of the FLSA. Solis v. Martino’s Pizzeria Inc., No. CV-09-3644 (E.D.N.Y. Feb. 8, 2011).
Apparently, the DOL has targeted pizza restaurants in the Long Island area for alleged rampant abuse of wage and hour laws. Facing possible six-figure settlements like that paid by the Pinellos, it will be interesting to see how many targeted pizzerias manage to stay in business after a DOL investigation.
What's new on the Union Front? February 18, 2011
Two things regarding organized labor caught my attention this week. First, there's the effort by Wisconsin Governor Scott Walker to end public sector collective bargaining in the state (Senate Bill 11). His proposal would affect 175,000 state and local workers. But Democratic members of the state Senate left town, recognizing that they'd be out voted with a 19-14 Republican majority. So, and I am not making this up, Senate Republicans asked state police to round up the Democrats and bring them to Madison. The Senate Bill is viewed as union busting in a state known historically for its liberal leanings. Teachers have closed schools by staging "sick outs" and going to protests. But there's a $3.6 billion (with a "B") budget gap in Wisconsin, and Senate Republicans claim that this Bill would be the best way to demonstrate fiscal restraint and prudence. Although the Bill seems extreme, keep your eyes on this one. Given the huge deficits facing many states, other governors may take a similar tack.
Second, there's a recent survey showing that only 45% of the American public have a favorable opinion of unions. Ok, this is up from 41% a year ago, but a majority of Americans do not favor unions. This is near a historic low. It didn't matter whether those asked were considering private or public sector unions. But, that hasn't stopped - and won't stop - the administrations at the state and federal levels from continuing to do what they can to find ways to make union organizing easier whether the majority of the public wants it or not. Because, of course, they know what's best.
Refusing to Consider Unemployed Applicants Bothers EEOC, February 17, 2011
It is hard to say whether, and to what extent, this is really happening, but at a hearing on February 16, the EEOC's Commissioners expressedconcern that employers or temp agencies that automatically rejectapplications from individuals who are currently unemployed may beviolating federal anti-discrimination laws. The argument would be thatbecause unemployment has (allegedly) affected women, minorities andolder workers to a more significant degree than younger whites males, anadverse impact could exist if an employer only looks to hire people whoare already employed.
The Commission's concerns were fueled by news reports at the end of 2010that noted some help-wanted ads expressly limited applications to thosefrom currently employed workers, and that some human resourcesprofessionals acknowledged that unemployment status is a screening toolthat employers or staffing agencies use to cull the thousands ofapplications they receive for job openings. I recall hearing of this ina NPR report in December, with an employer's representative suggestingthat in most cases a company going through a RIF won't pick the "bestand the brightest" to be let go, and that therefore in looking to hire, her company would look first to those who were still employed.
EEOC Chair Berrien said the Commission will start to gather informationto determine how widespread the practice of excluding unemployed jobapplicants is and how EEOC might respond. EEOC Commissioner Ishimaruasked why - as a business practice - an employer would want a blanketexclusion of unemployed applicants, since most all employers want tohire the most qualified applicant. Stay tuned.
Medical Marijuana Use Doesn't Trump Workplace Drug Test, February 16, 2011
I bet some of you saw this coming once medical marijuana was legal in some states. Joe Casias got and used his medical marijuana in accordance with Michigan law. But then, when he was drug tested following a workplace accident at Wal-Mart, he was fired for, you guessed it - testing positive for marijuana. Casias sued, claiming a wrongful discharge under Michigan law, since that law and (Casias argued) public policy, let him use the marijuana. The federal district court would have none of it and dismissed the action. Casias v. Wal-Mart Stores Inc., No. 1:10-cv-781 (W.D. Mich. February 11, 2011). It seems that the Michigan Medical Marihuana Act does not regulate private employers' decisions regarding medical marijuana users. Instead, the law Michigan voters approved in 2008, grants users some protection against state or local authorities by giving them an affirmative defense against criminal penalties. Under Casias's theory, said the court, "no private employer in Michigan could take any action against an employee based on an employee's use of medical marijuana." It added that such a finding could "create a new protected employee class in Michigan and mark a radical departure from the general rule of at-will employment in Michigan."
Circuit Split Created in whether Big Pharma Reps are Outside Salespeople, February 15, 2011
Creating a split in the Circuits, the Ninth Circuit has held that GlaxoSmithKline pharmaceutical sales representatives cannot recover overtime pay because they are involved in "outside sales" within the meaning of the FLSA. Christopher v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, No. 10-15257 (9th Cir. Feb.14, 2011). The court found that a "sale" in pharmaceutical industry occurs with "the exchange of non-binding commitments" between a sales rep and a doctor by which "the manufacturer will provide an effective product [that] the doctor will appropriately prescribe." In 2010, the Second Circuit held just the opposite in In re Novartis Wage & Hour Litigation, 611 F.3d 141 (2d Cir. 2010). In that case the court relied upon the position of the Obama DOL, which filed an amicus brief on behalf of the sales reps. In the Christopher case, however, the Ninth Circuit rejected the notion that it should pay deference to the agency's interpretation of the FLSA. It looks like this issue may ultimately wind up before the Supreme Court.
Ignoring Supervisor's Phone Calls Sinks Employee's FMLA Claim, February 15, 2011
The issue of notice - what is enough and when it needs to be given - can make or break an FMLA case. In Righi v. SMC Corp. of Am., No. 09-1775 (7th Cir., Feb. 14, 2011), the Seventh Circuit held that an employee who did not immediately return his supervisor's calls, and who failed to specify how much leave he would need, could not proceed with his FMLA interference claim. Righi told his employer that he had to respond to a family emergency - his mother had lapsed into a coma. But he sent only one e-mail to his supervisor asking to take "the next couple days off," and then ignored more than one dozen phone calls from his supervisor over the next nine days. The court held that "Righi's failure to respond to these calls or otherwise contact his employer dooms his FMLA claim."
What does "to care for" mean under the FMLA? February 9, 2011
The FMLA provides that an employee may take leave to care for a parent, spouse, son or daughter who has a serious health condition. 29 U.S.C. § 2612(a)(1)(c). An employee can take leave to care for a parent or spouse of any age who, because of a serious mental or physical condition, is in a hospital or other health care facility, or who is at home but unable to care for his or her own basic hygienic or nutritional needs or safety. So, no question, an employee gets protected leave to deal with a parent or spouse whose daily living activities are impaired by such conditions as Alzheimer's disease, stroke, or clinical depression or who is recovering from major surgery or who is in the final stages of a terminal illness.
Only infrequently have courts considered where and how the leave needs to be taken. Some cases are pretty clear. Courts have found that "caring for" a family member includes an employee who is directly involved in providing psychological support for a spouse or parent. See, e.g., Scamihorn v. General Truck Drivers, 282 F.3d 1078, 1087 (9th Cir. 2002) (plaintiff drove his father to counseling sessions, spoke with his father about his father's grief, and may have been necessary to help his father meet basic needs). But there has to be some one-on-one time involved.
What about the employee who travels with her spouse who has a serious health condition? There had better be medical evidence that the trip was necessary for medical treatment for the serious health condition and that most of the time spent on the trip was for that purpose. In Tayag v. Lahey Clinic Hosp., Inc., 2011 U.S. App. LEXIS 1697 (1st Cir. 2011), the Third Circuit affirmed summary judgment to an employer who terminated an employee who had accompanied her seriously ill husband to the Philippines, where he sought faith-healing. There was no violation of the FMLA, because nearly one-half of the trip was spent visiting friends and family. The court was skeptical of the whole "faith healing" component - at no point during the entire trip did Mr. Tayag receive medical treatment or visit a health care professional.
Faith healing is addressed in section 825.118 of the DOL regulations, identifying others "capable of providing health care services," to "Christian Science practitioners." 29 C.F.R. § 825.118. Christian Scientists reject ordinary medical care as defined by the statute and so, as to a Christian Scientist patient, there is no duplication either for government insurance programs or for employers providing FMLA leave. Tayag did not claim that her husband's religion forbid ordinary medical care, and she had already taken FMLA leave a number of times to assist him in connection with receiving such care.
The DOL's "Bridge to Justice" means full employment for plaintiffs' lawyers, February 9, 2011
No one can say the Obama Administration is not looking out for unemployed attorneys. In December 2010, the DOL announced a collaborative partnering with the American Bar Association (ABA) to get more lawyers in a position to sue employers for FLSA and FMLA violations. Honest. According to the DOL website, when the DOL has determined it won't sue on its own, its Wage and Hour Division (WHD) will now connect workers to a local referral service that will, in turn, provide the workers with access to attorneys who may be able to help. As the DOL put it, "[t]his collaboration will both provide workers a better opportunity to seek redress for FLSA and FMLA violations and help level the playing field for employers who want to do the right thing."
But wait, there's more. When the WHD has conducted an investigation, the complainant will now be provided information about the WHD's determination regarding violations at issue and back wages owed. This information will be given to the complainants in the same letter informing them that the WHD will not be pursuing further action, and will be very useful for attorneys who may take the case. The WHD has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.
Die Hard Cheese-head, February 4, 2011
On Monday, January 24, 2011, John Stone woke up for work, got dressed, and put on a piece of attire that would ultimately cost him his job. Stone, a dedicated Green Bay fan, wore a Packers tie to his job as a salesman at a Chicago-area car dealership the day after the Bears lost to Green Bay in the NFC Championship game. Stone had been a Packers fan for over ten years and said that he was wearing the tie in honor of his grandmother, a Packers fan who had died earlier that week. When his boss saw him, he told Stone that he could either remove the tie or be fired. Apparently, the dealership has several promotions with the Bears, including sponsoring a “Most Valuable Bear” award that is given at the end of every game. Stone, taking the definition of die-hard to a new level, refused. His boss fired him on the spot. All was not lost, however, as Stone will be able to watch his beloved Packers this Sunday and, on an even happier note, he was able to secure a new job just days later – at a rival dealership.
NLRB Expands Scope of Protected Concerted Activity, February 4, 2011
On January 28, 2011, the National Labor Relations Board issued a decision that held that the firing an employee as a “preemptive strike” to stop the employee from complaining to other employees about wage discrepancies violated Section 8(a)(1) of the Act. A nurse at a Baltimore pharmaceutical company complained to her supervisor that South African employees were receiving favorable treatment, better pay, and were “taking over.” The employer terminated her immediately and she claimed it was an unfair labor practice. The Administrative Law Judge found that the company would not have discharged the nurse but for the conversation with her supervisor; that those conversations concerned terms and conditions of employment; but that, under Board law precedent, her actions did not constitute concerted activity. The NLRB, in a 2-1 decision, disagreed. The Board stated that, “If an employer acts to prevent concerted protected activity – to “nip it in the bud” – that action interferes with and restrains the exercise of Section 7 rights and is unlawful without more.” While the Board justified its holding at “consistent with other lines of Board precedent” it is clear that the Board is steadily increasing the realm of what is considered protected activity. Essentially, the Board held that it is an unfair labor practice to terminate an employee who might engage in protected concerted activity.
Davis-Bacon Repeal High on Republican Agenda, February 1, 2011
On January 20, 2011, the Republican Study Committee, a caucus of Republican House members, introduced the Spending Reduction Act of 2011, which aims to cut the federal deficit by $2.5 trillion dollars over the next ten years. Among the provisions of that bill is a call for the repeal or reform of the prevailing wage determination provisions in the Davis-Bacon Act. The repeal of Davis-Bacon has been a bastion of the Republican agenda since the 1970s. Republican members continually have introduced legislation in each session seeking a full repeal of the law, based largely on their assertion that it negatively affects the federal budget and harms employers. The 111th Congress saw the introduction of such legislation, and the 112th is obviously no different. Advocates assert that an outright appeal of Davis-Bacon would save taxpayers nearly $1 billion per year.
Dissention among the Republicans about the value of the Act means that a full repeal is unlikely, but the new House majority may achieve some measure of change by pushing to exempt certain infrastructure bills from prevailing wage law and by reforming certain portions of the law. The Republicans were successful in omitting prevailing wage law from bills to fund recovery projects following the Hurricane Katrina disaster. Similarly, they may have success in amending the manner by which the Department of Labor determines the prevailing wage rates in each category. In any case, it is likely that over the course of the current Congress, prevailing wage laws may change. Any employers with government contracts should stay aware of any amendments.
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