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This edition of The Employer’s Legal Resource is devoted to what is on the horizon in employment law. It is a new year which will usher in a new President and Congress. Undoubtedly, there will be changes.
Upcoming FMLA audio conferences
NEW FMLA REGULATIONS: Are you ready?
DSDA will present a three-part audio conference to get your company ready to meet the challenge. Each audio conference will begin at 2 PM CST and last for 1.5 hours. All you need is a phone line.
January 8 - FMLA Documents (policy requirements, DOL forms, etc.).
January 15 - How to operate day-to-day under the new regulations.
January 22 - Military Caregiver Leave and Qualifying Exigency Leave.
The first hour of each conference will be devoted to presentation of written materials by DSDA. The last half hour is for your questions. The audio conferences are free, but space is limited. For more information or to register your business for one or more of these sessions, contact Alessa at afrench@dsda.com.
Labor Relations
EMPLOYEE FREE CHOICE ACT (EFCA)
As we have seen on so many occasions, the name or nickname of a new law often misstates its true purpose. One such law on the horizon is the Employee Free Choice Act (“EFCA”). If enacted, EFCA will make fundamental changes to the National Labor Relations Act, which governs the relationship between employers and employees. Non-unionized employers especially need to be wary of EFCA because it eases the process for unionizing your workers.
Currently, under the National Labor Relations Act, if a union wants to unionize a particular employer, it must obtain signed union authorization cards from at least 30% of the employees it seeks to unionize. Often times, unions will not submit the authorization cards unless more than half of the employees have signed the cards. If the union submits the cards to the National Labor Relations Board, the Board will set a date for an election. Both the union and the employer then campaign on the pros and cons of union representation and the employees vote by secret ballot. Unions lose approximately half of the certification elections, and they never know which employees voted for or against the union representation.
If EFCA becomes law, unions will be able to bypass the election process entirely simply by proving that a majority of employees in a given work unit have signed authorization cards. Once the NLRB verifies the accuracy of the authorization cards, the employer is legally obligated to recognize the union and to negotiate a collective bargaining agreement.
Card-based union certification would happen without the benefit of a campaign period during which both the union and the employer would educate employees about the pros and cons of unionization. It would also occur without the fairness of a secret ballot and NLRB-supervised election process. Conceivably, an employer could be completely unaware of a union organizing campaign until it is advised that a union now represents one or more groups of its employees.
Once the union has been certified as the employees’ bargaining representative, EFCA stipulates the parties must begin contract negotiations within ten days and come to an agreement on a union contract within 90 days. If they fail to agree to a union contract, either party would have the right to request a mediator from the Federal Mediation and Conciliation Service. If the parties still fail to agree on a contract, the FMCS would compel them to arbitration. The arbitrator’s decision on the terms of the union contract is final, unappealable, and binding for two years. This process fundamentally changes an employer’s ability to negotiate in good faith, but refuse to sign an agreement that it does not support. If an employer chooses to risk a strike, it is free to walk away from the negotiations. Under EFCA, a newly unionized employer must abide by an agreement set by an arbitrator if the parties cannot agree on their own to the terms and conditions of employment.
Most significantly, these signed certification cards do not have an expiration date. Thus, if EFCA passes, employers will need to begin a never ending election campaign to educate its workforce. First, employees need to understand the legal significance of signing a union certification card. Second, employers need to know that a union may approach your employees not only at the office, but also at home and other public places. Third, employees need to understand what unions can and cannot do for them before they are presented with the decision of whether to sign the authorization card. Finally, employers need to review or implement a lawful no-solicitation / no-distribution policy and ensure that they are enforced consistently and uniformly.
In 2007, this law passed the House of Representatives and was defeated on a procedural motion in the Senate. With the Democrats’ majorities in both the House and Senate and President-elect Obama’s stated intention to sign the bill, passage of EFCA could come very quickly.
By Michael C. Redman, mredman@dsda.com
Respect Act
The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act would amend the National Labor Relations Act to change the statutory definition of “supervisor”. Currently, any employee who is considered a supervisor is not covered under the NLRA and is not allowed to join a union.
Currently, the definition of “supervisor” is defined as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
The bill, if passed, would significantly narrow the definition by removing the terms “assign” and “responsibility to direct” from the Act’s definition. In short, a supervisor’s duties would consist of hiring, firing, and disciplining employees. Managing day to day work assignments and job assignments of employees would no longer qualify a person as a supervisor. The legislation would also dictate that an employee cannot be classified as a “supervisor” unless the employee engages in managerial duties “for a majority of the individual’s work time.”
There are some practical effects on your business if this law passes. First, if EFCA passes, your supervisors could suddenly find themselves as members of a union – even if they do not want to be members. Second, the supervisors would have divided loyalties to the union, as their bargaining agent, and the employer from whom they usually take their direction. Finally, in the event of a labor strike, supervisors would not be available to assist management to keep the business operating as smoothly as possible. If this law passes, you should evaluate each current supervisor’s job description and job duties. Revisions to those duties may be necessary to ensure that your supervisors continue to be properly classified as such and exempt from the NLRA.
By Michael C. Redman, mredman@dsda.com
Wage and Hour
LILLY MAY HELP EMPLOYEES EXPAND THEIR RIGHT TO SUE FOR WAGE DISPARITY AND PROVIDE MORE DAMAGES TO PREVAILING EMPLOYEES
Who is Lilly Ledbetter and why should employers care about her? Lilly Ledbetter was a long term employee of Goodyear Tire & Rubber Company. She sued Goodyear claiming she was paid less than men with comparable experience in comparable jobs. In other words, she claimed that Goodyear had made a discriminatory pay decision in violation of the Equal Pay Act. The Supreme Court ruled that Lilly filed her claim too late. The Court said Lilly’s claim arose when her employer decided to pay her less money, and Lilly did not file her claim within the required period following that pay decision. The Court also ruled that a new claim did not arise every time Lilly received a paycheck that reflected the discriminatory decision. According to the Court, Lilly had one shot and she missed it.
Although the Ledbetter decision was very employer friendly, it provided the basis for two not so friendly pieces of legislation which will be addressed by Congress in 2009. The first bill, the Lilly Ledbetter Fair Pay Act, would amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Rehabilitation Act of 1973 to overturn the Ledbetter Court’s determination of when the time in which a claim may be brought starts. The Court said it started when the payment decision was made. This proposed legislation says it starts every time an employee receives a paycheck reflecting a discriminatory pay decision. This law will make claims easier for employees, like Lilly, who do not learn about pay differences until long after the pay decision has been made.
The second bill, the Paycheck Fairness Act, would make compensatory and punitive damages available as remedies in Equal Pay Act claims, as well as authorize class action suits. In addition, the Paycheck Fairness Act may make it easier for employees to learn of wage discrimination earlier. The Act would forbid employers from requiring employees to keep their wages secret from each other. Although a ban of this secrecy practice is already included in the National Labor Relations Act and state laws in California and Illinois, many employers continue to insist that discussion of wages is not allowed.
Both of these bills have previously passed in the House. Despite strong support from Senators Clinton and Kennedy, both stalled in the Senate with President Bush threatening to veto the Paycheck Fairness Act if passed. But, with the new administration being viewed as more friendly to these proposed changes to federal law, it is expected that both bills will be reintroduced in 2009. Stay tuned for developments.
By Rebecca M. Fowler, rfowler@dsda.com
Employee or Contractor?
EMPLOYEE MISCLASSIFICATION PREVENTION ACT
Before leaving wage and hour issues, we would be remiss if we did not mention the Employee Misclassification Prevention Act. This legislation would amend the Fair Labor Standards Act to require employers to keep records of non-employees who perform labor or services for remuneration and would impose a special penalty on employers who misclassify persons as non-employees. Over the last several years, spurred by such high-profile cases as the ones against Federal Express, increased attention has been given to the classification of independent contractors, temporaries, and the like. Taxing authorities and the courts have been scrutinizing an employer’s assertion that certain persons are not “employees” entitled to the full benefits of its other employees (e.g., wages with appropriate withholdings taken, employer-sponsored benefit plans, etc.). This law would increase the responsibilities of employers to ensure that persons who are employees are compensated as an employee, not an independent contractor.
Even if this law were not to pass, you can expect the heightened scrutiny to continue. If you are treating certain persons as non-employees and you believe it is a close call, you should consult qualified legal counsel to help you assess the situation before your “non” employee sues you or the government comes calling for back withholdings.
By Kristen L. Brightmire, kbrightmire@dsda.com
Anti-Discrimination Laws
EMPLOYMENT NON-DISCRIMINATION ACT (ENDA)
In 30 states it is legal to fire an employee because of the person’s sexual orientation. In 38 states it is legal to fire an employee because of gender identity. The Employment Non-Discrimination Act addresses discrimination in the workplace by making it illegal to fire, refuse to hire, or refuse to promote employees simply based on a person’s sexual orientation. It would reinforce the principle that employment decisions should be based upon a person’s qualifications and job performance. Another version of the bill would also bar discrimination based upon a person’s gender identity. The bill has had success in the House of Representatives and the Senate; however, the threat of a Presidential veto from President Bush effectively killed the legislation. President-elect Obama has indicated his willingness to sign some form of non-discrimination legislation.
What ENDA Does
ENDA extends federal employment discrimination protections currently provided based on race, religion, sex, national origin, age, and disability to sexual orientation and, perhaps, gender identity. ENDA also prohibits public and private employers, employment agencies, and labor unions from using an individual’s sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion, or compensation. To redress complaints and grievances, ENDA provides for the same procedures, and similar, but somewhat more limited, remedies as are now permitted under Title VII and the Americans with Disabilities Act. As drafted, ENDA also applies to Congress and the federal government, as well as employees of state and local governments.
What ENDA Does Not Do
As with other non-discrimination laws, there are certain exceptions. The law would not apply to businesses with fewer than 15 employees, to religious organizations, or to the uniformed members of the armed forces. Additionally, there would be no quotas, affirmative action, or preferential treatment based on sexual orientation or gender identity.
Significantly, the law would not allow a "disparate impact" claim similar to the one available under Title VII of the Civil Rights Act of 1964. Therefore, an employer is not required to justify a neutral practice that may have a statistically disparate impact on individuals because of their sexual orientation or gender identity. For example, extending benefits to “spouses” as opposed to “domestic partners” would not result in a disparate impact claim. Finally, the law is not retroactive. Therefore, you need not worry about past instances of discrimination.
If ENDA becomes law, employers will need to revise their employment policies and, more importantly, educate their workforce on the law’s new requirements.
By Michael C. Redman, mredman@dsda.com
Leaves of Absence
FAMILY AND MEDICAL LEAVE ACT
Last spring, we saw the law expand to provide Military Caregiver Leave and Qualifying Exigency Leave related to military service. In November, the Department of Labor gave us hundreds of pages of new regulations. But, do not rest upon the belief that this will be the end of it for awhile. There are a couple of bills which might get some attention from the new Congress and Administration.
The Healthy Families Act requires employers with 15 or more employees to provide up to seven days paid leave for the illness of the employee or family member. While this bill has been mostly inactive, certainly it is not off the books.
The Family Leave Insurance Act would require that employers providing FMLA leave make the first eight weeks paid.
The Crime Victims Employment Leave Act, sponsored by incoming Chief of Staff Rahm Emanuel, would provide that the FMLA also cover leave for victims of violent crime and domestic violence and immediate family members of violent crime and domestic violence to attend court proceedings related to such crimes.
Although we cannot predict how the FMLA will change, rest assured it will.
By Kristen L. Brightmire at kbrightmire@dsda.com
Eye on the Courts
PREVIEW OF LABOR AND EMPLOYMENT CASES ON THE U.S. SUPREME COURT’S DOCKET FOR DECISION IN 2009
(Editor’s Note: This article is the second of a two part series as 2008 gives way to 2009. In this article we preview the important labor and employment cases pending before the U.S. Supreme Court which we anticipate will be decided in 2009. Last month summarized the important U.S. Supreme Court cases in the labor and employment area that were decided in 2008. To read that edition, click here)
The U.S. Supreme Court has granted certiorari in seven important labor and employment cases, with decisions expected by the time the Court’s 2008 term ends in June 2009. Here is a summary of pending cases:
Locke v. Karass (appeal from 1st Circuit) (oral argument held October 6, 2008). The Supreme Court will decide whether a state may condition continued public employment on payment of agency fees to finance litigation outside of non-union employee’s bargaining unit.
Kennedy v. Plan Adm. For Dupont Savings (appeal from 5th Circuit) (oral argument held October 7, 2008). Though not a labor or employment law case as such, this case is important to employers because the question to be decided is whether ERISA’s qualified domestic relations order (QDRO) provision is the only valid way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under ERISA.
Crawford v. Metropolitan Government of Nashville and Davidson County (appeal from 6th Circuit) (oral argument held October 8, 2008). The Supreme Court will decide whether the anti-retaliation provision of Title VII protects an employee from being terminated because the employee cooperated with the employer’s internal investigation of another employee’s claim of sexual harassment.
Ysursa v. Pocatello Education Association (appeal from 9th Circuit) (oral argument held November 3, 2008). The Supreme Court will decide whether an amendment to a state’s right to work law, which amendment prohibits state political subdivisions to make payroll deductions for political activities, violates the First Amendment.
14 Penn Plaza, LLC v. Pyett (appeal from 2nd Circuit) (oral argument held December 1, 2008). The Supreme Court will address whether an arbitration clause in a collective bargaining agreement constitutes a waiver of a union employee’s right to sue in court for violation of anti-discrimination statutes.
AT&T Corporation v. Hulteen (appeal from 9th Circuit) (oral argument held December 10, 2008). Prior to the Pregnancy Discrimination Act, the employer’s predecessor had a service credit policy which granted full service to temporary disability leave other than pregnancy leave. At issue is whether a plan facially discriminatory before the 1979 effective date of the Pregnancy Discrimination Act can result in liability to the employer.
Gross v. FBL Financial Services, Inc. (appeal from 8th Circuit) (oral argument to be scheduled). The question presented to the Supreme Court is whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive jury instruction in a non-Title VII discrimination case.
By Jon E. Brightmire, jbrightmire@dsda.com
What's New at DSDA
ANNOUNCEMENTS
Save the Date: March 26 (Tulsa), April 2 (OKC)
The Employer's Legal Resource 2009 Workshop
New administration...
new regulations…
and a new world for employers?
Plan to spend the day with us where we will be discussing the renewed importance of non-union employers understanding labor law, the FMLA, the ADA Amendments Act, and other topics designed to ensure you are ready for the new year.
DSDA welcomes Attorney Jeff Rambach
Jeffrey C. Rambach joins DSDA in its Tulsa office. He will practice in the areas of taxation, trust and estates, mergers and acquisitions, probate, tax litigation and tax-exempt organizations. Among his many areas, Jeff has represented companies seeking to obtain approval in advantageous Oklahoma economic incentive programs such as the New Jobs Act and ad valorem and state sales and income tax exemption incentives available to new and/or expanding businesses in Oklahoma. Jeff has almost 20 years of experience in his field. Jeff can be reached at jrambach@dsda.com. Welcome Jeff.
DSDA Water Law Group
James C. Milton and Kassandra M. Bentley were selected to participate in Regional Input Meetings as part of the Oklahoma Comprehensive Water Plan. Mr. Milton participated in the input meeting for the Elk City region, while Ms. Bentley participated in the input meeting for the Tulsa region. The Oklahoma Comprehensive Water Plan is a strategic guide for managing Oklahoma's water resources over the next fifty years. The Plan was first published in 1980 and updated in 1997. The Oklahoma Water Resources Board is currently engaged in a five-year study designed to update the Plan.
DSDA Attorney to premiere film at Sundance
The film Barking Water, written and directed by Sterlin Harjo of Tulsa and produced by DSDA’s attorney Chad Burris, will premiere at the 2009 Sundance Film Festival January 15-25 in Park City, Utah.
Frankie is dying. Irene hasn't forgiven him. And they are racing against time to find their way home. Theirs is the story of love that never dies and the consequence of our actions. Frankie is sick and Irene is the only one there to help. He must go home one last time. And, like so many times before, Irene is extending herself beyond her common sense. The two set out on a journey that becomes more than getting home; confronting the past, love, understanding, and self discovery. Barking Water is a tale of great love that looks at what brings us all together. It's a tale of home...and what it takes to get there.
Starring Casey Camp-Horinek and Richard Ray Whitman, the film was shot in and around the cities of Ponca City, White Eagle, Holdenville, and Pawhuska, Oklahoma.
Dates to Remember
CALENDAR OF NOTABLE EVENTS
January 7, 2009
Kristen L. Brightmire will be on a panel for the Oklahoma Bar Association in a program entitled, “FMLA Regulations Effective January 16: Are you Ready?” For more information about this OBA/CLE Webcast Seminar, click here.
January 8, 2009
Kristen L. Brightmire and Courtney L. Bru will present an audio conference entitled “New FMLA Regulations: FMLA Documents.” For more information or to sign up, please contact Alessa at afrench@dsda.com. Space is limited for this free audio conference.
January 11, 2009
OSHA’s new rules clarifying that Personal Protective Equipment (“PPE”) violations are subject to per person penalties take effect. In other words, according to the rule, “each covered employee is required to receive PPE and training and…each instance when an employee…does not receive the required PPE or training may be considered a separate violation subject to a separate penalty.” Given the number of employees that must receive PPE and training, it is important that you understand the possible financial implications of failing to comply with the existing rule requirements. For more information, click here or contact DSDA attorney Sharolyn C. Whiting-Ralston at swhiting@dsda.com.
January 15, 2009
Kristen L. Brightmire and Courtney L. Bru will present an audio conference entitled “New FMLA Regulations: How to operate day-to-day under the new regulations.” For more information or to sign up, please contact Alessa at afrench@dsda.com. Space is limited for this free audio conference.
January 20, 2009
James C. Milton and Kassandra M. Bentley will be speaking at a seminar on the Rules of Trust Administration at the Best Western Saddleback Inn, in Oklahoma City, Oklahoma. This seminar is designed to provide continuing education for bankers, accounting professionals, financial planners, insurance professionals, and attorneys. The seminar will provide information on types of trusts, the duties and responsibilities of trustees, and the handling of trust disputes. For more information, click here.
January 22, 2009
Kristen L. Brightmire and Courtney L. Bru will present an audio conference entitled “New FMLA Regulations: Military caregiver leave and Qualifying exigency leave.” For more information or to sign up, please contact Alessa at afrench@dsda.com. Space is limited for this free audio conference.
February 2, 2009
USCIS Revises Employment Eligibility Verification Form I-9. Beginning February 2, employers will no longer be able to accept any expired documents as part of the verification process. Under the old rule, documents establishing identity only, also known as “List B Documents,” were acceptable to prove identity, even if expired. Documents on this list include, for example, driver’s licenses, state ID cards with photographs, and school ID cards with photographs. The new rule also adds additional documents that employees may present to demonstrate both identity and employment authorization, also known as “List A Documents.” These new acceptable documents include certain I-551s that appear on foreign passports and certain admission documents for persons holding passports from Micronesia or the Marshall Islands. The new rule does not require employers to complete a new I-9 form for existing employees. Employers should use the new form only for employees hired on or after February 2, 2009, and for reverifications performed thereafter. For more information, click here or contact DSDA attorney Hilary L. Velandia at hvelandia@dsda.com.
February 11, 2009
James C. Milton, Kassandra M. Bentley, and Alicia J. Edwards will be speaking at a seminar on Oklahoma Water Laws and Regulations at the Hilton Garden Inn Tulsa South, in Tulsa, Oklahoma. This seminar is designed to provide continuing education for engineers, surveyors, and attorneys. The seminar will provide information on the Oklahoma Comprehensive Water Plan, water quality laws, and recent developments in the area of water laws. For more information, click here.
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