Supreme Court Rejects Appeal on Aliens' Right to Vote in Union Elections
Earlier this month, the United States Supreme Court declined to review a ruling from the Court of Appeals for the District of Columbia Circuit holding that unauthorized aliens are "employees" under the National Labor Relations Act (NLRA) and therefore entitled to cast votes in a union election.
In Agri Processor Co. v. NLRB, the employees elected the United Food and Commercial Workers Union Local 342 as their bargaining agent in 2005 election; however, the employer refused to bargain with the union on the basis that 17 of the 21 employees who cast ballots were not legally authorized to work in the United States, and therefore not "employees" under the NLRA.
In a 2-1 decision that was affirmed by the D.C. Circuit, the National Labor Relations Board held that the certification of Local 342 was valid because the voters were employees under the NLRA even if they were hired in violation of the Immigration Reform and Control Act. That decision will stand now that the Supreme Court has passed on its opportunity to review the case. With the passage of the Employee Free Choice Act appearing all but certain, authorization cards signed by unauthorized alien employees will likely be held valid as well.
Cosmetology Teachers, Not Day Care Teachers, Overtime Exempt
Cosmetology teachers, but not day care teachers, are exempt from the Fair Labor Standards Act's (FLSA's) overtime and minimum wage rules, according to two recent opinion letters from the Department of Labor.
The FLSA contains an exemption for professional employees, including any “teacher in elementary or secondary schools.” Cosmetology teachers qualify for the exemption, according to the DOL, because they teach in an accredited secondary school and because their primary duty is "teaching and instructing students in cosmetology theory." Yes, you read that correctly: cosmetology theory. Click here to read the DOL's opinion letter on cosmetologists.
Day care teachers, on the other hand, do not qualify for the exemption because they do not teach in a qualifying institution. According to the DOL, “[u]nless the daycare center provides grade school curriculums, introductory programs in kindergarten, or nursery school programs in elementary education of the sort described in [the act], the instructors are not within the scope of the teacher exemption of the FLSA.” Click here to read the DOL's opinion letter on day care teachers.
What lesson can we learn from these opinions? The FLSA exemptions are highly technical and not always intuitive. If you are classifying your employees as FLSA-exempt, not only should you make sure the employees meet all of the duties tests under the statute and regulations, but also that your organization meets any requirements that may be imposed as well. For more guidance on the FLSA exemptions, read this compliance guide on the FLSA from our friends at the DOL.
DOT Issues Final Rule on Commercial Drivers' Hours
On November 19, the Department of Transportation's Federal Motor Carrier Safety Administration published a final rule on commercial drivers' hours. The key provisions:
- commercial motor vehicle drivers may continue to drive up to 11 hours within a single workday; and
- drivers may now reset their weekly limits after they have been off duty for at least 34 consecutive hours.
The final rule will take effect Jan. 19, 2009 (60 days after publication). Click here to download the Final DOT Rule. Click here to read the FMCSA's press release on the new rule.
Several advocacy and consumer protection groups are critical of the new rule, which they say puts fatigued and dangerous drivers behind the wheel. Click here to read Public Citizen's reaction. Don't be surprised if the Obama administration takes a new look at this rule in 2009.
Utah: Employee Commuting May Be Within "Course and Scope" of Employment
Last week the Utah Supreme Court ruled that an employee's commute may in some cases be within the course and scope of his or her employment, such that an employer may be held liable for the employee's negligence during the commute.
In Newman v. White Water Whirlpool, the defendant employed Bradley Sundquist as an installer of marble countertops and tile. In his job, Sundquist would drive White Water's materials and equipment to jobsites in his own truck and trailer. One morning, on his way to White Water's offices, Sundquist's truck collided with a car driven by plaintiff Newman, injuring him severely. Newman sued both Sundquist and White Water, alleging that Sundquist was acting in the course and scope of his employment at the time of the accident, thus making White Water jointly liable for his injuries. The trial court dismissed the lawsuit on the basis that Sundquist was merely commuting, and therefore not acting in the course and scope of his employment.
The Utah Supreme Court disagreed, holding that a jury could find that Sundquist was acting in the course and scope of his employment at the time of the accident. Why? Because Sundquist's job required him to drive his truck carrying the employer's equipment and materials, and then returning unused materials to White Water, reasonable minds could conclude that he was not merely commuting but was in fact returning materials to his employer. If so, that would mean Sundquist was working at the time of the accident and White Water is liable for his negligence.
Utah employers should pay close attention to this ruling. Employees who merely commute to and from work without performing any duties during the commute are not acting in the course and scope of their employment and employers will not be liable for any accidents that they might cause. Employers may, however, be liable for the negligent acts of employees who are driving as part of their job duties. If you have an employee whose "commute" includes occasional job duties (such as ferrying equipment and supplies, talking on a cell phone, reviewing documents, etc.), you should realize that their negligence might be imputed on your company and take any appropriate steps to ensure that they are driving as safely as possible.
Employee Free Choice Act Tops List of Anticipated L&E Legislation
In case you missed it, Barack Obama will be the next President of the United States! And both houses of Congress will be controlled by Democratic majorities. Wondering what this will mean for labor and employment law? So are we! But we've gone a step further and made some educated guesses on what to watch out for.
- The Employee Free Choice Act (EFCA). The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. If passed, it is expected to drastically increase union organizing and unionization rates. The Stoel Rives World of Employment will be watching this one very closely.
- The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT). No, it's not an Aretha Franklin song. The "RESPECT" Act would reverse the NLRB’s recent rulings that clarified the requirements to be a "supervisor" under federal labor law. RESPECT would dramatically increase the number of employees who could unionize. Sock it to me!
- The Paycheck Fairness Act and the Equal Remedies Act. These statutes—competing versions to address the same issue—would reverse the U.S. Supreme Court’s recent Ledbetter ruling addressing the statutes of limitations under Title VII. Both would enable plaintiffs to press viable claims going back much further in time.
- The Civil Rights Act of 2008. The proposed amendments to the civil rights laws would make numerous changes including removal of damage caps on sex, religion, and disability discrimination, as well as retaliation lawsuits.
- The Employment Non-Discrimination Act (ENDA). ENDA would amend Title VII to add sexual orientation as a protected class.
- The FOREWARN Act. This amendment to WARN would increase the notice period for plant closings or mass layoffs from 60 to 90 days.
- Minimum wage. President-elect Obama has also expressed his support for raising the minimum wage to $9.50 per hour by 2010.
- Family and Medical Leave Act (FMLA). President-elect Obama has also indicated his support for expanding the Family and Medical Leave Act to cover companies with 25 or more employees (currently 50).
The World of Work will be watching this legislation closely and will bring you updates as they occur. For more information now, check out this update on pending legislation from Stoel Rives.
DOL Issues Final FMLA Regulations
Today the Department of Labor published its Final Regulations Implementing the Family and Medical Leave Act (FMLA). They go into effect on January 16, 2009 (60 days after publication). Click here to download the final FMLA regulations. (Warning! The document is 762 pages long! However, much of that is a handy explanation of the changes and the comments the DOL received.)
The final regulations address many aspects of FMLA, the federal law that provides eligible employees the right to take unpaid leave for certain absences, such as: the birth or adoption of a child; to care for a child, spouse, or parent with a serious health condition; or because of the employee’s own serious health condition. The final regulations also address new military family leave entitlements enacted as part of the National Defense Authorization Act, which provides leave rights to employees who provide care for covered servicemembers with a serious injury or illness.
Highlights of the final regulations include:
- Incorporation of new military family leave requirements into the regulations, with specific guidance on administering military leave
- Clarification on administering intermittent leave, including an explanation of when an employee may be transferred during intermittent or reduced schedule leave
- Clarification on employee eligibility following breaks in employment such as extended leaves
- Clarification on what constitutes a "serious health condition," including revised definitions of "incapacity" and "continuing treatment"
- Clearer guidelines for administering pregnancy and childbirth leaves
- Consolidated guidelines on adoption leave
- Clarification of how to count holidays in cases where an employee takes leave in increments of less than a full workweek.
- Clarification on administering leave to care for a parent
- A new requirement that when an employee gives less than 30 days' notice of a foreseeable leave, the employee must explain the reason for failing to give 30 days' notice
- An explanation of how much information an employer can obtain in the medical certification to substantiate the existence of a serious health condition and the employee’s need for leave due to the condition
There are many more minor changes, too many to list in a single blog post. To get the full picture, download the final regulations.
"Blonde Jokes" Support Workplace Emotional Distress Claim
Usually when I get an employment lawsuit alleging "negligent infliction of emotional distress," I chuckle to myself and immediately begin drafting a motion to dismiss. However, a recent case out of the Washington Court of Appeals may indicate that NIED claims are not totally frivolous!
In Strong v. Wright, the plaintiff sued her former supervisor because he told "blonde jokes" (apparently plaintiff was blonde), made fun of her house, ridiculed her husband's job, and referred to her as a "bum mother" because she put her son in therapy. The plaintiff alleged that this treatment "caused her to vomit and to have anxiety attacks, depression, and heart palpitations." Really. Blonde jokes=heart palpitations.
The trial court granted the defendant's motion for summary judgment, reasoning that the claims were nothing more than a run-of-the-mill workplace dispute. The Washington Court of Appeals reversed, holding that the events went beyond a mere workplace dispute. One of the facts that helped the court reach this decision: the defendant stood so close to plaintiff while telling the blonde jokes that his spit would fly and hit her face, constituting an "assault" under Washington law.
What's the lesson here for employers? Even though none of the supervisor's conduct violated federal or Washington discrimination or harassment law (although the blonde jokes could be construed as race or national origin discrimination under Title VII), employers still need to watch out for boorish and demeaning workplace behavior. Courts appear willing to find a way--or even create a way--to continue policing the workforce. Lastly, whatever you do, DO NOT let your employees visit this website full of blonde jokes.
California Overtime Laws Cover Nonresidents Who Work in California
Do California wage and hour laws - including their daily and weekly overtime provisions - apply to non-residents who occasionally perform work in California? Yes, according to a decision from the Ninth Circuit Court of Appeals earlier this month. Click here to read the court's decision in Sullivan v. Oracle Corp.
In Sullivan, Oracle sent employees who regularly lived and worked in Arizona and Colorado to California on temporary assignments to train Oracle's customers on the use of its software products. The plaintiffs sued under California law for daily and weekly overtime when they worked in California. Oracle argued that Arizona and Colorado law should apply because the employees regularly work and live in those states. (Of course, the plaintiffs would not have been entitled to any overtime pay under Arizona or Colorado law). A district court sided with Oracle and granted its motion for summary judgment. However, the Ninth Circuit overturned that decision and held that “California's employment laws govern all work performed in the state, regardless of the residence or domicile of the worker.”
What does this mean for employers? If you have non-California employees working in California, even on temporary assignment, make sure that you comply with California's unique wage and hour and overtime laws. For more information on California law, including its daily and weekly overtime provisions, check out this helpful FAQ from the California Labor Board.
Salvation Army Settles "English Only" Lawsuit with EEOC
A Massachusetts federal court last week approved a consent decree settlement of an Equal Employment Opportunity Commission (EEOC) lawsuit against the Salvation Army over the firing of two Spanish-speaking employees who failed to adhere to the employer's "English only" policy. To read the consent decree in that case, click here.
In that suit, the EEOC had accused the Salvation Army with national origin discrimination under Title VII for enforcing an English-only policy that required its thrift store employees to speak only English in the workplace, even when on breaks. The EEOC argued that the English-only policy violated Title VII because it was not justified by “business necessity," as it was used to terminate two clothes sorters who had no customer contact.
Under the consent degree, the Salvation Army will adopt new policy that employees shall use English in the workplace “to the best of their abilities when speaking to any other employee, beneficiary, customer, or a supervisor"--however, the policy will allow non-English speaking employees to speak their native language during work breaks and to use languages other than English with customers who speak the same foreign language.
This case is a reminder to employers that English-only policies may only be used and enforced if English is a "business necessity." Requiring employees to speak English during working time when speaking to customers, supervisors and coworkers is generally accepted. However, requiring employees to speak only English during breaks or in private, or requiring employees to demonstrate English proficiency when English is not a bona fide job requirement is highly risky. If you have or are considering an English-only policy for your workplace, you may want to ask your employment attorney to review that policy. To read the EEOC's guidance on English-only policies, click here.
