New Bicycle Tax Credit Takes Effect in 2009
Here's another new employment law that goes into effect on January 1, 2009: the Bicycle Tax Credit (BTC). Passed as part of that $700 billion bailout plan we've all heard so much about, the BTC allows employers to reimburse employees up to $20 per month for bicycle-commuting related expenses; the employer can then claim a tax deduction for the reimbursements. Click here for an informative article on the tax credit from the San Francisco Chronicle. (Even though he eventually voted against the bailout bill that contained the BTC, the tax credit is the brainchild of Oregon Congressman Earl Blumenauer, a long-time bicycle advocate who just happens to be this author's congressman.)
If you are interested in starting a bike commuting reimbursement program at your workplace, you might want to consult a tax lawyer to make sure you follow all legal requirements. Want more information on bike commuting? Here's our favorite bike blog, bikeportland.org.
The Employee Free Choice Act: Maybe Not a Done Deal?
As reported earlier in the Stoel Rives World of Employment, the Employee Free Choice Act (EFCA) will be a high priority for Congress and President-Elect Obama in 2009. 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.
Two things prevented EFCA from passing into law back in in 2007 - an almost certain veto from President Bush, plus opposition from the Republican minority in the United States Senate. 51 Senators voted for cloture on EFCA - 50 Democrats (all except one who was absent) plus Pennsylvania's Arlen Specter; however, 60 votes are needed to end debate and bring the bill to a vote. Now that the Democrats appear on the cusp of controlling 59 Senate seats, assuming Arlen Specter maintains his support for EFCA, there's nothing to stop the bill from passing, right?
Not so fast, warns FiveThirtyEight.com's Nate Silver. Arkansas Democrat Blanche Lincoln has now indicated that she's not so keen on EFCA and might vote no. Her no vote would leave the Democrats one vote short of stopping a Republican filibuster. Click here to read the rest of Nate Silver's fascinating analysis of EFCA in the Senate. And don't forget to keep following the Stoel Rives World of Employment for more EFCA updates.
Obama Nominates Rep. Hilda Solis as Labor Secretary
Today's New York Times is reporting that President-Elect Barack Obama will nominate California Representative Hilda Solis as his administration's Secretary of Labor, the cabinet-level position that oversees the Department of Labor.
John Sweeney, head of the AFL-CIO (a coalition of labor unions) praised the appointment of Solis to the position. And not without good reason: Solis has been a champion of the Employee Free Choice Act (EFCA), which labor unions have made their #1 legislative priority for 2009. The EFCA 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.
Of course, if the unions are happy about the Solis pick, you can bet some employers are not. As reported in the Times, the U.S. Chamber of Commerce, a pro-employer group, expressed "disappointment" over the selection of a labor secretary that supports EFCA, but promised to work with Solis.
The selection of Solis should not come as a surprise: President-Elect Obama has voiced his support for EFCA and other pro-employee legislation, and was expected to select a like-minded labor secretary. This selection does not, however, mean that EFCA will pass without a fight. Don't be surprised if the Republicans use their filibuster power either to delay its passage or to win some pro-employer concessions before allowing it to pass.
Siemens Settles FCPA Case for Record $800 Million
On December 15, German engineering company Siemens AG and three of its subsidiaries pleaded guilty to multiple violations of the Foreign Corrupt Practices Act (FCPA). Siemens also reached a settlement agreement with the Securities and Exchange Commission (SEC) under which Siemens will pay a record $800 million (a $450 million criminal fine and $350 million in disgorgement of profits ) and retain an independent compliance monitor for a four-year term. Combined with penalties levied by the German government, Siemens will pay a total of $1.6 billion to settle the bribery charges. That's no typo: $1.6 billion. That's a Dr. Evil ransom.
What did Siemens allegedly do that was so bad? According to the U.S. Attorney General's office, among other things, Siemens paid over $800 million in bribes to foreign officials. Perhaps Siemens didn't realize that the FCPA makes it illegal to bribe a foreign official to get business. The FCPA also requires issuers (companies whose stocks trade on U.S. exchanges) to have internal controls and to maintain accurate books and records.
Want to avoid ending up paying $1.6 billion to settle a case? The U.S. Department of Justice has published this handy Layperson's Guide to the FCPA. If you do business overseas, be sure that your employees are trained on the FCPA and understand the limitations it places on their actions abroad.
Starbucks Wins Round in Class Action over Applications' Marijuana Questions
Earlier this month, Starbucks scored an important procedural victory from the California Court of Appeals, which ruled that a class of employees lacked standing to sue over questions the coffee chain asked on its employment applications about prior marijuana convictions. Click here to read the opinion in Starbucks v. Superior Court.
Despite the apparent victory, this case teaches an important lesson for California employers: make sure your employment applications do not inquire about minor marijuana possession convictions that are more than two years old. Such questions violate California Labor Code Sections 432.7 and 432.8. In the Starbucks case, even though the court held that the applications violated the statute, there was no evidence that any of the class members had been harmed; the outcome would have been different had the class consisted of employees who were denied employment based on their answers to the question, or employees who disclosed that information in response to the unlawful question.
EEOC Deadlocks Over ADA Amendments Act Rules
The Equal Employment Opportunity Commission (EEOC) split yesterday over whether to approve a notice of proposed rulemaking on the ADA Amendments Act (ADAAA). The commissioners voted 2-2 on whether to approve a set of proposed rules that had been drafted by EEOC's Office of Legal Counsel. Under the EEOC's rules, a tie vote is the same as a "no," meaning the proposed rules will not be presented to the public for comment. (For those of you suspecting political motives, you could be right: the two Republican Commissioners voted in favor of releasing the rules, and the two Democrats voted no.)
What does this mean? The ADAAA will go into effect January 1, 2009 without any interpretive regulations to help us navigate the new law. The ADAAA requires the EEOC to create new regulations, but does not set any deadlines. When the EEOC does make new regulations, it will publish them and allow public comment for 60 days before the regulations may take effect. And if the Commissioners remain deadlocked, it make take an appointment from President-Elect Obama to break the tie.
For more information on the ADAAA, check out the Stoel Rives World of Employment's ADAAA Archives.
Supreme Court to Hear Mixed-Motive Age Discrimination Case
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Last week, the United States Supreme Court agreed to review Gross v. FBL Financial Services, Inc., a case involving whether a plaintiff alleging a claim under the Age Discrimination in Employment Act must present "direct evidence" of discrimination to be entitled to a mixed-motive jury instruction.
A mixed-motive case in one where the evidence shows that an impermissible factor - such as age - was considered in making an employment decision even if the employer also based the decision on other permissible factors. In Gross, the plaintiff prevailed after a jury trial in which the jury was instructed that it was sufficient that the plaintiff proved age was a "motivating factor" in his employer's decision to terminate his employment. (A "motivating factor" is considered an eaiser burden of proof than "direct evidence"). The Eighth Circuit Court of Appeals reversed, holding that the "motivating factor" standard applies only to cases brought under Title VII of the Civil Rights Act of 1964 (i.e., sex, race, national origin and religious discrimination claims) and that Gross needed to prove his case with direct evidence to be entitled to a mixed-motive instruction.
Do employers need to be concerned about this case? Not really. This is one of those cases that means more for us lawyers than it does for our clients. If the Court rules for Gross, it will make certain types of age discrimination marginally easier for plaintiffs, but this will not change an employer's obligation to base employment decision only on permissible factors, such as performance, and not on impermissible factors, such as age.
Minnesota Wal-Mart Employees Get $54 Million Christmas Present
Wal-Mart Stores Inc. announced yesterday that it will pay $54.25 million to settle a class-action lawsuit over allegations that Wal-Mart made its employees work during break time and off the clock after regular working hours. The class consists of approximately 100,000 current and former hourly employees who worked at Minnesota Wal-Marts and Sam's Clubs between September 11, 1998 and November 14, 2008. Click here to read MSNBC's coverage of the settlement.
This isn't Wal-Mart's first major settlement, and it might not be the last: according to Wal-Mart's 10-K filings with the SEC, it has to date settled 76 similar class-action lawsuits across the country. The lesson for employers? Carefully follow the wage and hour laws of each state in which you do business. If you have employees in Minnesota, the state's Department of Labor and Industries has a great website with lots of valuable compliance tips and information.
IRS Sets 2009 Standard Mileage Rates
Do you reimburse your employees for mileage for business driving? If so, get ready to pay a little less: effective January 1, 2009, the standard mileage reimbursement will drop to 55 cents per mile, down from the 58.5 cents per mile it has been in the last half of 2008. Why the drop? Well, prices at the pump are down sharply from where they were six months ago. For more information, click here to read the IRS Press Release on the new mileage rates. Or for a lot more information, click here to read Revenue Procedure 2008-72, which explains the new mileage rates in detail.
Washington's Minimum Wage To Rise to $8.55 January 1, 2009
Washington employers get ready to give your minimum-wage employees a raise: effective January 1, 2009, Washington's minimum wage will increase to $8.55 per hour, allowing Washington to maintain the highest minimum wage in the country. For more information, click here to read the Department of Labor and Industries' Press Release. Washington's current minimum wage is $8.07 per hour.
As previously reported in the Stoel Rives World of Employment, Oregon's minimum wage will increase to $8.40 also effective January 1, 2009. Following voter initiatives, both Oregon and Washington now tie their minimum wages increases to the Consumer Price Index.
The federal minimum wage is now $6.55 per hour, but will go up to $7.25 per hour effective July 24, 2009. For information on minimum wages in other states, check out this interactive map of the United States showing minimum wage rates, available from the U.S. Department of Labor.
Oregon's New Smokefree Workplace Law Takes Effect January 1, 2009
Since 2002, the Oregon Smokefree Workplace Law has made most workplaces smokefree. Effective January 1, 2009, a new law will expand the number of indoor workplaces that are required to be smokefree, and prohibit smoking within 10 feet of entrances, exits, windows that open, and ventilation intakes of workplaces and public places.
Workplaces and public places that must now be smokefree include but are not limited to:
- Bars and taverns, including bar areas of restaurants
- Bowling centers
- Bingo halls
- Private and fraternal organizations
- Employee break rooms
- Restaurants
- Private offices and commercial office buildings
- Retail and wholesale establishments
- Manufacturing plants and mills
- Truck stops
- Child and adult day-care
- Assisted living facilities
- Movies theaters and indoor entertainment venues
- Hotels and motels (Exception: up to 25% of guest rooms may be designated as smoking rooms by the owner or entity in charge)
- Work vehicles that are not operated exclusively by one employee
That's right - no more smoking in the day care center! There are some exceptions to the new law, but they are few:
- Certified smoke shops
- Cigar bars
- Hotel/motel rooms designated for smokers
- American Indian ceremonies
Employees and the public will be able to report violations of the new law once it takes effect by calling a toll-free number or completing an online complaint form. If your business is caught violating the laws, it can be fined $500/day or $2000 per 30-day period. For more information, including compliance tips, check out the State of Oregon's Smokefree Workplace website.
