Labor and Employment Issues and developments
By Edwin S. Hopson
On December 7, 2009, U.S. Secretary of Labor Hilda L. Solis laid out her “vision” in the Fall 2009 Regulatory Plan for the Labor Department’s mission of ensuring “there are good jobs for everyone.” [Emphasis in the original]. Secretary Solis described a “series of 12 specific strategic outcomes” which she hopes will result in achieving her vision. According to the Labor Department’s website, they are:
By Edwin S. Hopson
On December 10, 2009, the U.S. Senate’s Health, Education, Labor and Pensions Committee approved en masse eight persons nominated by President Obama to fill positions at the Equal Employment Opportunity Commission (EEOC), the Rehabilitation Services Administration at the Department of Education and the Women’s Bureau at the U.S. Department of Labor and several other agencies.
The approved nominees at the EEOC and Department of Labor are:
• Jacqueline A. Berrien, of New York, to be Chairperson of the Equal Employment Opportunity Commission.
• Victoria A. Lipnic, of Virginia, to be a Commissioner of the Equal Employment Opportunity Commission.
• Chai R. Feldblum, of Maryland, to be a Commissioner of the Equal Employment Opportunity Commission.
• P. David Lopez, of Arizona, to be General Counsel of the Equal Employment Opportunity Commission.
• Sara Manzano-Diaz, of Pennsylvania, to be Director of the Women’s Bureau, Department of Labor.
The nominees now move to the full Senate for confirmation.
By Debra Dawahare
In a published decision issued on November 20, 2009, the Kentucky Court of Appeals has upheld the Bullitt Circuit Court’s award of over $6 Million to two former employees of the Mt. Washington McDonald’s. In its decision in McDonald’s Corporation v Ogborn, the court considered a truly bizarre situation.
Between 1994 and 2004, an unknown hoaxer called fast food restaurants across the county, pretending to be a police officer. He convinced restaurant managers, employees, and outsiders to conduct strip searches and even sexual assaults upon victims the hoaxer had apparently pre-selected. The hoax was carried out more than 30 times at different McDonald’s restaurants, including several in Kentucky. According to the court’s opinion, McDonald’s legal department was aware of and had documented these facts, but the company nevertheless failed to warn or train its employees about this hoax, or to prepare them to respond appropriately so as to prevent the hoax from being repeated.
By Kim Koratsky
On December 3, 2009, the U.S. House passed a bill that will make the nation’s flight attendants and pilots eligible for 12 weeks of unpaid leave time each year under the Family and Medical Leave Act (FMLA). This legislation has already passed the Senate (by unanimous consent) on November 10, and is expected to be signed by the President. Senate Bill 1422, The Airline Flight Crew Technical Correction Act, clarifies the FMLA to accommodate flight attendants and pilots who, because of the airline industry’s unique calculation of work hours spent on overnights, layovers and waiting to be called to duty, currently do not qualify for leave time. The Bill’s original sponsor, Senator Patty Murray (D-WA) said, Read the rest of this entry »
By Michelle D. Wyrick
Title II of the Genetic Information Nondiscrimination Act (“GINA”) became effective on November 21, 2009. Title II of GINA prohibits the use of genetic information in making employment decisions, limits employers’ acquisition and disclosure of genetic information, and prohibits retaliation against individuals who oppose actions made unlawful by GINA or who participate in proceedings to protect their rights under GINA. The same remedies available under Title VII of the Civil Rights Act, including compensatory and punitive damages, are available under Title II of GINA. According to a press release from the Equal Employment Opportunity Commission (“EEOC”), which is charged with enforcing Title II of GINA, final regulations implementing Title II of GINA are currently under review by the Office of Management and Budget and will be issued after the review process is completed.
By Leila G. O’Carra
In the fable “The Monkey and the Cat,” the Monkey tricked the Cat into pulling tasty chestnuts out of a fire. The Monkey then ate all of the chestnuts and the Cat got a severely burned paw.
In employment law, the “cat’s paw” theory of liability applies when a neutral ultimate decision-maker acts as the conduit of a biased supervisor’s prejudice. Read the rest of this entry »
By Edwin S. Hopson
The U.S. Department of Labor on November 30, 2009, announced that it had posted on its website an updated version of its Employment Law Guide, a publication that describes the major employment laws administered by the agency including the Fair Labor Standards Act, Child Labor laws, the Family and Medical Leave Act, the Occupational Safety and Health Act, Labor-Management Reporting and Disclosure Act, Mine Health and Safety Act, Davis Bacon Act, Immigration and Nationality Act, and Worker Adjustment and Restraining Act.
The Employment Law Guide has been drafted in plain language and covers recent changes in employment laws, including the increase in the federal minimum wage and an expansion of the Family and Medical Leave Act relating to leave for qualified relatives of veterans to care for ill or injured uniformed service members or to fulfill obligations that arise when a relative is called to active duty in the military. The Guide also includes a chapter on child labor regulations in the agriculture industry and another on the Defense Base Act, which provides workers’ compensation benefits to civilian employees working outside the United States on U.S. military bases or under certain contracts with the U.S.
The department also has another on-line resource called FirstStep that constitutes an “overview advisor” that allows employers to quickly and easily determine which federal employment laws apply to them by answering a few simple questions. Each chapter in the Employment Law Guide corresponds to the laws addressed in the FirstStep advisor.
The updated Employment Law Guide and FirstStep are both are available at http://www.dol.gov/elaws/ or http://www.dol.gov/compliance/.
By Glen Krebs
Immigration and Customs Enforcement has issued an announcement that they will be auditing several employers to determine if they are using undocumented workers. ICE will also be reviewing I-9 forms and other employment documents. The attached News Release from ICE explains in more detail. Are your documents in order? If you would like to prepare for a potential audit or if you have been notified that ICE will visit you, please feel free to contact Mr. Glen Krebs in our Lexington office 859-288-7409. ICE employer audits memo 11-2009
By Edwin S. Hopson
The U.S. Equal Employment Opportunity Commission (EEOC) has revised its Notice to Employees poster that all employers with 15 or more employees must post. The poster was revised to include information about the Genetic Information Nondiscrimination Act of 2008 which is effective November 21, 2009, as well as the Americans with Disabilities Act Amendments Act of 2008. The EEOC website link to be used to order the new poster on line is:
http://archive.eeoc.gov/posterform.html
According to the EEOC press release, there are several ways for employers to comply with the posting requirements of the law:
1. Print the supplement below and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.
2. Print and post the EEOC’s November 2009 version of the “EEO is the Law” poster.
3. Order a new poster through the EEOC Clearinghouse at the address provided below. Please note that the EEOC poster is on backorder and will be shipped when the poster becomes available in the near future.
The new poster will also be available in Spanish, Chinese and Arabic before the GINA statute becomes effective on November 21, 2009.
If you need more than ten copies of the poster, you should contact:
U.S. Equal Employment Opportunity Commission Clearinghouse
P.O. Box 541
Annapolis Junction, MD 20701
Fax: (301) 206-9789 or call: 1-800-669-3362 (voice) 1-800-800-3302 (TTY)
To order the poster, complete and submit the form contained on the EEOC website link referenced above.
By Laurel Cornell
On October 30, 2009, the Occupational Safety and Health Administration (“OSHA”) issued the largest fine in OSHA history against BP for failing to rectify safety hazards after a 2005 explosion at a Texas refinery which killed 15 workers and injured 170 others. The $87 million record fine was implemented following a six month OSHA investigation, which exposed hundreds of violations by BP of a 2005 settlement agreement to correct known hazards at the Texas refinery, the third largest in the United States.
More specifically, OSHA determined that BP had committed 270 violations of the 2005 agreement, which totaled more than $56 million in penalties. In addition, Agency investigators uncovered 439 new willful violations for failure to repair pressure release safety devices, which resulted in an extra $30.7 million penalty. The $87 million fine is more than four times the size of any previous OSHA sanction, and replaces the previous $21.7 million fine BP agreed to pay after the 2005 explosion as the largest in OSHA history. This record fine came after Labor Secretary Hilda Solis’s repeated declarations to take a more aggressive approach in pursuing and enforcing wage and labor laws, and demonstrates how serious (and painful) a company’s failure to comply with the OSHA regulations can be.
Fined parties have fifteen (15) days to decide whether to pay the penalties and take corrective action, or to contest the fines through the hearing process. BP has indicated that it will contest the fines.
Kim Koratsky
Edwin Hopson