Democrats Had Votes to Pass EFCA in July, But…

They couldn’t muster the 60th vote, says Senator Tom Harkin, D.-Iowa, one of the sponsors of the Employee Free Choice Act (EFCA), which detractors have dubbed the Employee Forced Choice Act.

The 60th vote needed to choke off a filibuster over the measure belonged to Ted Kennedy, but when Harkin phoned Kennedy’s doctor to get the okay for him to spend three days in the capital, the good doc said no. His patient was too ill.

It’s not clear what was in the version of EFCA that was set to become law, and Harkin ain’t talkin’.

Business groups, led by the U.S. Chamber of Commerce, have focused on the so-called card check provision of EFCA, which would allow for unionization to take place once organizers obtained signatures from more than 50 percent of affected workers. But an even more ominous and onerous provision would force a union contract down the company’s throat if three months of negotiations with the union didn’t result in any agreement.

Harkin had this to say:

"I will not say [what was in the bill] because it was closely held, it never leaked out and it still hasn’t," Harkin said. "I took it off the front-burner and put it on the back-burner so it is still on warm, OK?"

In other words, look for the bill to haunt the halls of Congress once again after whatever happens to health care finally happens.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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A First? Labor Contract Dissolved in Municipal Bankruptcy

The City of Vallejo, Calif., has been in bankruptcy court for quite some time now, running up a legal tab of about $5 million, but it’s made some progress in getting most of its labor contracts voluntarily renegotiated to lower its obligations.

Not so the electrical workers’ union, however. The group never agreed to a new contract, so U.S. Bankruptcy Court Judge Michael McManus simply dissolved the existing contract. Now it’s back to the negotiating table, but gone immediately are $860,000 in pay raises due over the next two years.

Legal observers say this may have been the first time that a judge had dissolved a labor contract in a Chapter 9 bankruptcy proceeding (Chapter 9 covers government entities). In doing so, Judge McManus ruled that a municipal proceeding could dissolve a labor contract so long as it followed the same standards applied in a corporate bankruptcy.

The International Brotherhood of Electrical Workers (IBEW) said it has not decided whether to appeal the decision, but in the meantime would be conferring with "attorneys and international reps."


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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EEOC Writes Lilly Ledbetter Law into Compliance Manual

The Equal Employment Opportunity Commission (EEOC) has codified the Lilly Ledbetter Fair Pay Act into its Compliance Manual, incorporating the law’s standard that the statute of limitation on discriminatory pay practices resets each time a paycheck is issued, regardless of when the initial discriminatory pay decision was made.

The 2009 Fair Pay Act, to recount, overturned the 2007 Supreme Court decision in Ledbetter v. Goodyear that dated the statute of limitation as beginning the day the decision was made to pay someone in a discriminatory fashion.

The statute of limitation runs 180 days in states that lack state fair employment practice agencies and 300 days in states that do have such agencies.

The Compliance Manual makes it clear, however, that, unlike salaries, pensions are considered to be paid in full upon retirement, so the statute of limitation would commence from the date of retirement and would not be renewed upon issuance of new retirement checks.

"Therefore," according to the manual, "to avoid potential timeliness issues, an individual who is considering challenging his or her pension benefits is strongly encouraged to file a charge within 180/300 days after retirement."

To help employers and human resources professionals stay in compliance with the Lilly Ledbetter Fair Pay Act and other similar pieces of legislation, Personnel Concepts has prepared a Fair Pay Discrimination Compliance Kit. Get your copy today–it’s comprehensive and easy to read and follow.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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American Apparel Gets Audited, Will Lay Off 1500 Illegal Workers

Though the Obama administration has dropped the “no match” rule that created a safe harbor for employers who lay off workers whose Social Security numbers don’t match their names, the layoff route is still the route of choice for employers who get caught with illegals on their workforce.

Such is the case with American Apparel in Los Angeles. A recent audit found 1,600 employees who were illegal immigrants and another 200 with various documentary problems, including faked SSNs. According to the Los Angeles Times, the company will now lay off 1,500 illegal workers, while promising to consider rehiring them if they get the immigration status straightened out. The number represents 10 percent of the overall workforce.

Though it has dropped the “no match” rule, the Obama administration has actually stepped up workplace inspections for illegal immigrants, shifting away from the Bush administration’s strategy of conducting immigrant raids and rounding up illegals for deportation.

The result, however, is a string of American Apparel-like stories.

Employers need to stay in compliance with the provisions of the Immigration Reform and Control Act (IRCA) of 1986 by certifying the work-eligible status of all their employees through use of the I-9 form (and in certain situations the E-Verify system). To help with the process of certifying worker eligibility, Personnel Concepts has developed a comprehensive but easy-to-follow I-9 Compliance Kit. Get yours today.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Low-Wage American Workers Report Widespread Abuse

A study done by the Center for Urban Economic Development, the National Employment Law Project, and the UCLA Institute for Research on Labor and Employment has turned up some startling statistics revealing persistent wage abuse.

Surveying 4,300 low-wage workers in Chicago, Los Angeles and New York, the consortium found that:

  • 26 percent reported being paid less than the minimum wage;
  • 76 percent reported not being paid overtime when due;
  • 25 percent reported off-the-clock work with 70 percent of those saying it was never compensated;
  • 41 percent reported suspicious or illegal payroll deductions;
  • 20 percent said they lodged complaints with management or tried to start a union, and of those, 43 percent said they were retaliated against;
  • 50 percent of those who reported workplace injuries said they were retaliated against;
  • 68 percent experienced a pay-related violation of some sort.

Other findings include:

  1. FLSA violations are more prevalent in certain industries such as apparel and textile manufacturing, personal and repair services, and in private households;
  2. African-Americans are three times more likely to experience an FLSA violation than white employees; and
  3. Employees employed by companies with less than 100 employees are more likely to experience FLSA violations than those employed by larger companies.

The Department of Labor (DOL) has already announced plans to strengthen its Wage and Hour Division (WHD) by 250 inspectors, and this week the Department of Justice (DOJ) announced plans to hire 50 additional attorneys for enforcement of civil rights violations. The message from the Obama Administration is that wage abuse will no longer be tolerated.

To help employers stay in compliance with employment and wage and hour laws, Personnel Concepts has developed a trio of useful tools that you should seriously consider investing in:  The FLSA Salary Basis Compliance Kit, The FLSA Overtime Rules Compliance Kit, and The Workforce Reduction Compliance Kit. Get yours today and keep costly regulatory audits and legal hassles at bay.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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New User-Friendly USCIS Home Page: See It Here First

Revised USCIS Home Page

You can say you saw it here first (all except for the red border, which is a result of using Vista’s snipping tool). It’s the revised United States Citizenship and Immigration Services (USCIS) home page, redesigned to make it more user friendly for finding forms and checking on one’s immigration processing status.

If you want to see more page views along with explanatory text, check out this USCIS PDF.

The revised site is set to debut on Sept. 22.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Pfizer to Pay Largest Criminal Fine Ever in U.S. History

Pharma-giant Pfizer has agreed to pay the largest criminal fine in U.S. history–$1.195 billion–for marketing its drug Bextra for unapproved “off-label” uses. The company ran afoul of the Food, Drug and Cosmetic Act when it chose to market Bextra for purposes other than the anti-inflammatory treatment for which it was approved by the Food and Drug Administration (FDA).

Along with subsidiary Pharmacia and Upjohn Co., Pfizer will fork over a total of $2.3 billion to settle its health care fraud suit by the Department of Justice (DOJ), the largest such settlement in U.S. history.

A cool $1 billion of the settlement is to settle allegations under the False Claims Act that the company marketed four drugs–Bextra, Geodon, Zyvox and Lyrica–for off-label purposes for which they were not FDA-sanctioned.

Whistleblowers who alerted the DOJ to the Pfizer off-label marketing will earn $105 million out of the settlement.

The rest will go to Dr. Ezekiel Emanuel to create a death panel.

Oops, just kidding on that last one!

“Today’s landmark settlement is an example of the Department of Justice’s ongoing and intensive efforts to protect the American public and recover funds for the federal treasury and the public from those who seek to earn a profit through fraud. It shows one of the many ways in which federal government, in partnership with its state and local allies, can help the American people at a time when budgets are tight and health care costs are increasing,” said Associate Attorney General Tom Perrelli.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Despite Company Bankruptcy, Court Finds Managers Liable for Wages

The decision may not even resonate outside the court’s jurisdiction, but the Ninth Circuit Court of Appeals has found that individual managers can be held liable for former employees’ back wages even after a company has gone bankrupt.

In a Nevada case, Boucher v. Shaw, former employees sued the CEO and CFO of the bankrupt parent company for back wages. After a District Court dismissal, the Nevada Supreme Court held that such action was not permissible under that state’s laws, but the Appeals Court found wording in the Fair Labor Standards Act (FLSA) that made the CEO and CFO (who jointly owned 100 percent of the defunct company) liable.

First, the Court noted that the FLSA defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .” 29 U.S.C. § 203(d). Citing cases going back to Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947), the Court then noted:

[T]he definition of “employer” under the FLSA is not limited by the common law concept of “employer,” but “ ‘is to be given an expansive interpretation in order to effectuate the FLSA’s broad remedial purposes.’ ” The determination of whether an employer-employee relationship exists does not depend on “isolated factors but rather upon the circumstances of the whole activity.”

Again, this decision may not have legs or reverberate too far outside Nevada since it’s been remanded back to the District Court that originally found no legal standing for the claim and thus dismissed it. Also, it’s not clear whether the CFO and CEO would still have been considered liable had they not also been the company owners.

This is one we’ll watch to see what develops since it could have far-reaching effects.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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September’s Here, and So (Probably) Is E-Verify (Finally)

Despite the united efforts of the U.S. Chamber of Commerce and politicians trolling for the future votes of (suddenly amnestied) illegal immigrants, the Department of Labor is implementing the Bush-era mandate for contractors to use E-Verify. Everything E-Verify (unless delayed again or even canceled) thus takes hold a week from today, on Sept. 8, 2009.

E-Verify is an online system that checks Department of Homeland Security (DHS) and Social Security Administration (SSA) databases to determine if a person is legally authorized to work in the United States. It is used in concert with the United States Customs and Immigration Services (USCIS) form I-9, which must be held by all employers for all their employees in the United States.

The much-delayed Bush regulation was assailed because it requires those with federal contracts of $100,000 or more (and subcontractors with contracts of $3,000 or more) to E-Verify all current and future employees.

The Chamber and others instituted legal proceedings, claiming that the E-Verify enabling legislation did not provide for mandated use. The U.S. District Court of Maryland, however, rejected all opposition claims and affirmatively categorized federal contracts as “voluntary,” so that E-Verify usage could be rejected by not applying for the contract (and thus its use could not be considered as mandated).

Ironically, several states have long required E-Verify usage, and businesses have learned to live with it.

Personnel Concepts has a comprehensive I-9 Compliance Kit that will help all employers, whether using E-Verify or not, to comply with federal employment verification laws.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Off the Radar and Off the Clock: Some FLSA Misconceptions

We’ve just posted a new white paper in that section on the Personnel Concepts new Web site entitled “Popular Misconceptions,” in which we examine the ingenious ways that employers seek to stay off the overtime-pay radar of the Department of Labor (DOL).

Let’s look at one of those methods: Say Employer A sends 20 hourly employees to training on a Saturday. He calls it “voluntary,” but the employees sense that they’d better go or suffer the consequences.

Calling it “voluntary” and “off the clock,” Business A Head Owner Guy says he doesn’t have to pay overtime for the extra day of work beyond 40 hours that week.

What does the FLSA (Fair Labor Standards Act) and DOL say?

Wrong! Since the employees felt pressure to attend, and since the benefits of their attending fell mainly on the company, all 20 of them deserve time-and-a-half for the training.

Let’s put it this way: About the only way an employer can send employees to training and avoid paying them is to say something like, “Okay, go study whatever you like this weekend and I’ll pay for it.” The workers head off to yoga, meditation, screenwriting and start-your-own-business classes voluntarily and without benefit primarily to the company. Since Head Boss is a Nice Guy, he doesn’t have to pay them overtime.

For more information, check out the white paper.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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