Court Holds Employee Created A Direct Threat To The Workplace Due to His Heart Condition

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Published on Friday, 18 May 2012 16:58

Brian Wurzel worked for Whirlpool as a forklift driver. He suffered from Prinzmetal angina, which causes spasms in the coronary arteries. Wurzel could not predict when a spasm would occur, how severe it would be, or how long it would last. The spasms, which sometimes occurred at work, caused Wurzel to experience tightness in his chest, shortness of breath, numbness in his left arm, pain in his neck, and sometimes dizziness and fatigue. Although Wurzel acknowledged that he could not predict when a spasm would occur, he asserted that he could stop what he was doing before becoming incapacitated. Wurzel continued to experience spasms while on the job and the company’s human resources administrator required a medical clearance. Wurzel then provided a note from his physician that he could work with no restrictions.

Wurzel continued to experience spasms and eventually took a position in the company’s paint department, which did not require forklift driving but did require working around machinery.  THe spasms continued and Whirlpool required an independent medical examination; that physician concluded Wurzel could not work around moving machinery because it created a safety risk. Wurzel then went on sick leave, eventually returned to work, and subsequently filed suit against the company claiming disability discrimination in violation of the Americans with Disabilities Act (ADA).

On appeal from the trial court’s decision granting summary judgment in favor of Whirlpool, the court determined that “Whirlpool's determination that Wurzel posed a direct threat was based on a reasonable medical judgment, which relied on the most current medical knowledge and best available objective evidence and reflected an individualized assessment of Wurzel's abilities.” The court also concluded that “there is no evidence of a reasonably based medical judgment supporting the view that Wurzel did not pose a direct threat.” Read More.

Court Holds Starbucks Can Limit Number Of Pro-Union Buttons Worn By Employees

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Published on Thursday, 17 May 2012 02:18

In an appeal involving a lawsuit filed by the National Labor Relations Board (NLRB) against Starbucks Coffee Company (Starbucks) the Second Circuit Court of Appeals has held that Starbucks's enforcement of its one pro-union button dress code is not an unfair labor practice. The case involved employees from four Starbucks who were engaged in a highly visible union organization campaign.  In response, Starbucks mounted an anti-union campaign. The NLRB found that Starbucks committed numerous violations, including implementing a policy prohibiting employees from wearing more than one pro-union button on work clothes.

On appeal, the Second Circuit noted that Section 7 of the National Labor Relations Act guarantees all employees with the right to engage in concerted activities for the purpose of collective bargaining, and employers may not interfere with these rights. Further, "the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity." However, the Second Circuit held that the NLRB went “too far in invalidating Starbucks's one button limitation...‘Special circumstances justify restrictions on union insignia or apparel when their display may . . . unreasonably interfere with a public image that the employer has established.”’ Read More.

“Personal Attendant” May Be Exempt From Overtime

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Published on Thursday, 17 May 2012 01:38

When someone hires an employee to care for an elderly or disabled person in his or her home, the employee is usually not entitled to overtime pay depending on the type of work performed by the caretaker. Specifically, if the employee performs work of a "personal attendant," which refers to a person employed to supervise, feed, or dress a person who by reason of age, physical disability or mental deficiency needs supervision, the caretaker is exempt from overtime pay requirements. However, if the caretaker performs a "significant amount of work" (i.e. duties which constitute greater than 20% of the weekly work time) in addition to these tasks, such as housekeeping responsibilities, the caretaker is not exempt from overtime pay. Additionally, with certain exceptions, if the caretaker is a registered nurse employed to engage in the practice of nursing in the home, the nurse is not exempt from overtime pay requirements.  Read More.

Partner In Partnership Does Not Have Standing to File FEHA Claim

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Published on Thursday, 17 May 2012 01:09

Mary Fitzsimons filed a lawsuit against the California Emergency Physicians Medical Group (CEP) for alleged unlawful retaliation (based on her complaint of sexual harassment) pursuant to the California Fair Employment and Housing Act (FEHA). The trial court found for CEP and Fitzsimons appealed, alleging that the trial court erred in concluding that a partner does not have standing to assert a claim for retaliation under the FEHA against his or her partnership. On appeal, the court of appeal agreed that the FEHA does support a claim for retaliation by a partner against his or her partnership for opposing sexual harassment of an employee. Specifically, as the court noted, although the FEHA prohibits discrimination or harassment, and retaliation for complaining about such conduct, the fundamental basis for liability is the existence of an employment relationship between the one who discriminates and the individual claiming discrimination/harassment.  However, if there is no proscribed employment relationship, FEHA does not apply. Read More.

OSHA Begins Outreach Initiative on Hazards of Working Outdoors in Hot Weather

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Published on Wednesday, 16 May 2012 05:12

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has begun a national outreach initiative to educate employers and employees about the hazards of working outdoors in hot weather. Every year, thousands of workers across the country suffer from serious heat-related illnesses. If not quickly addressed, heat exhaustion can become heat stroke. Labor-intensive activities in hot weather can raise body temperatures beyond the level that normally can be cooled by sweating. Heat illness initially may manifest as heat rash or heat cramps, but quickly can become heat exhaustion and then heat stroke if simple prevention steps are not followed, such as drinking plenty of water and taking frequent breaks in the shade.

According to Secretary of Labor Hilda L. Solis, "For outdoor workers, 'water, rest and shade' are three words that can make the difference between life and death…If employers take reasonable precautions, and look out for their workers, we can beat the heat." In preparation for the summer season, OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum to be used for workplace training. Additionally, OSHA has a webpage for employers and employees regarding heat illness, which provides information and resources, including how to prevent heat illness and what to do in case of an emergency.  Read More.

EEOC Makes State Charge Data Available Online

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Published on Wednesday, 16 May 2012 04:11

The U.S. Equal Employment Opportunity Commission (EEOC) has made available for the public the private sector workplace discrimination charge statistics for each of the nation’s 50 states and U.S. Territories for fiscal years 2009-2011. The employment data provides a look at EEOC charge receipts, broken down by the basis of discrimination, as well as the percent of total state and national charges. The EEOC will update the state data when new charge statistics are available each fiscal year. Read More.

EBSA Issues New FAQs on Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act

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Published on Monday, 14 May 2012 15:50

The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued new FAQs on the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), which in general requires employment-based group health plans and health insurance issuers that provide group health coverage for mental health/substance use disorders to ensure equivalence between such benefits and their medical/surgical benefits. Two of the important questions and answers include: (a) Is it permissible for a health plan to define mental health coverage as consisting solely of inpatient care benefits?

“No. The Departments regulations set forth six classifications of benefits: 1) inpatient, in-network; 2) inpatient, out-of-network; 3) outpatient, in-network; 4) outpatient, out-of-network; 5) emergency care; and 6) prescription drugs. If a plan covers mental health or substance use disorder benefits in one of the six classifications, the plan must provide coverage in all of the classifications in which medical/surgical benefits are available. Therefore, a plan that provides medical/surgical benefits on an outpatient basis may not limit mental health or substance use disorder benefits to inpatient care only.”

And, (b) Are there plans that are exempt from MHPAEA? “Yes. While MHPAEA applies to most employment-based health coverage, there are a few important exceptions. Specifically, MHPAEA does not apply to small employers who have fewer than 51 employees. There is also an increased cost exemption available to plans whose costs increase by more than a specified amount and who follow guidance issued by the Departments. Additionally, plans for State and local government employees that are self-insured may opt-out of MHPAEA's requirements if certain administrative steps are taken (such as sending notice to enrollees). Finally, MHPAEA does not apply to retiree-only plans.” Read More.

Preventing Sexual Harassment in the Workplace

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Published on Thursday, 10 May 2012 18:53

The best way to prevent sexual harassment in the workplace, or to limit damages if it should occur despite preventative measures, is to implement effective policies and procedures designed to eliminate sexual harassment. Further, employers have a legal obligation to prevent sexual harassment in the workplace and must therefore take all reasonable steps to prevent discrimination and harassment from occurring. To meet these objectives and legal requirements, employers must provide information to employees on sexual harassment by either distributing a pamphlet that may be obtained from the Department of Fair Employment and Housing (DFEH), "Sexual Harassment is Forbidden by Law" (DFEH-185) or developing an equivalent workplace document, such as a sexual harassment policy contained in an employee handbook and/or standalone policy on sexual harassment, which meets the following requirements:

1. The illegality of sexual harassment is described;

2. The definition of sexual harassment under state and federal laws is detailed;

3. A description of sexual harassment, utilizing examples is provided;

4. The internal complaint process of the employer is explained to employees;

5. The legal remedies and complaint process available through the DFEH is detailed;

6. Directions on how to contact the DFEH are provided;

7. The protection against retaliation for opposing the practices prohibited by law or for filing a complaint with, or otherwise participating in investigative activities conducted by, the DFEH is detailed.

Further, an employer’s sexual harassment policy should contain provisions advising an employee about the scope of his or her rights if the employee is subjected to sexual harassment in the workplace; the employer’s commitment to fully and effectively investigate any complaint of sexual harassment; the employer’s assurance that if harassment has occurred, the employer will take prompt and effective remedial action.

In addition to the above, employers should train all individuals in the workplace on the employer’s policies regarding sexual harassment and post the required notices regarding discrimination and harassment in conspicuous locations in the workplace. And, all employees should be made aware of the seriousness of a violation of the employer’s sexual harassment policy.

Employers with 50 or more employees must also provide at least two hours of classroom or other effective interactive training and education by a qualified trainer regarding sexual harassment to all supervisory employees, and to all new supervisory employees within six months of assuming a supervisory position. Thereafter, covered employers must provide sexual harassment training and education to each supervisory employee once every two years. Read More.

Employer and Employee Arrested for Workers’ Compensation Fraud

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Published on Thursday, 10 May 2012 17:08

Sied "Mike Zarrin" Zarrinsaray, 52, his wife Ronak Barazandeh, 43, the owners of United RMR Enterprises, Inc. of San Jose, and their employee, Chad Oberquell, 40, were arrested for alleged workers' compensation insurance fraud. The maximum sentence for each is five years in state prison. as well as a potential $50,000 in fines and restitution.

The California Department of Insurance (CDI) Fraud Division Detectives, conducted an investigation and allegedly found that on August 26, 2010, Oberquell, an employee of ITR Industries, reported a work-related knee injury to his employer. Subsequently, Oberquell’s co-workers reported that Oberquell had actually injured his knee while working a weekend job with their competitor, United RMR Enterprises, and that company allegedly did not report the work injury to their carrier workers' compensation insurance carrier, the State Compensation Insurance Fund (SCIF). If the workers’ compensation claim filed by Oberquell is found to be fraudulent, the loss to ITR Industries' workers' compensation carrier would be approximately $16,000.

During the CDI’s investigation, investigators also allegedly uncovered evidence that United RMR Enterprises was paying Oberquell, and others, cash wages, and also allegedly was not reporting these employees as part of their payroll to SCIF, nor to the California Employment Development Department (EDD) for tax purposes. Further the forensic audit allegedly determined that United RMR Enterprises failed to remit approximately $15,700 in workers' compensation premiums to their former carrier, SCIF.  Read More.

CA Supreme Court Holds Prevailing Party is Not Entitled to Attorney’s Fees in Meal And Rest Period Cases

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Published on Tuesday, 08 May 2012 16:08

On April 30, 2012, the California Supreme Court issued a published decision addressing whether the prevailing party in meal and rest period cases may recover attorney’s fees. Specifically, the Court considered when, if ever, a prevailing party in a section 226.7 action for an alleged failure to provide meal and rest breaks may be awarded attorney's fees. The Count concluded that the labor code does not authorize an award of attorney's fees to a party that prevails on a section 226.7 claim.  

In reaching its decision, the Court noted that “the legislative history shows that the Legislature (a) considered including a one-way fee-shifting provision in favor of employees in section 226.7, (b) ultimately deleted the provision from the final version of section 226.7, and then (c) gave no indication that section 218.5's two-way fee-shifting rule should apply to section 226.7 claims, even as (d) it adopted amendments to section 218.5 as part of the very same legislation that created section 226.7. We believe the most plausible inference to be drawn from this history is that the Legislature intended section 226.7 claims to be governed by the default American rule that each side must cover its own attorney's fees.” Read More.

More on Brinker: What Happens if an Employee Works Through Lunch?

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Published on Tuesday, 08 May 2012 15:18

The bottom line is that if the employer knew or should reasonably have known that the employee worked through his or her meal period, the employer must pay the employee for the time worked. Thus, it is important that employers maintain records evidencing that an employee took a meal period because, according to a separate opinion issued by two of the seven California Supreme Court justices in Brinker: "If an employer's records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided." Although this is not a binding part of the Brinker decision, employers should note that if there is a dispute between an employee and employer over whether or not a meal period was provided, the employer will need employee records to establish that the meal period was provided. 

Even though the Brinker court held that a meal period penalty is not required in situations where the employer provides a meal period but the employee continues to work, if the employee continues to work, and the employer knows or should reasonably know that the employee worked through the meal period, the employer will owe the employee regular pay for the time worked. However, the employer is not required to monitor employees to ensure that they are taking their required meal periods. Employers must also still provide meal periods by the end of the fifth hour of work, although employees may take an early meal period.

Employer Settles Race Discrimination Lawsuit for $600,000

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Published on Monday, 07 May 2012 18:20

Race discrimination and retaliation violate Title VII of the Civil Rights Act of 1964. And, as a recent case demonstrates, race discrimination claims can be costly for employers. The case involves Bankers Asset Management, Inc., a real estate company in Little Rock, that has agreed to $600,000 to former employees and a class of applicants to settle a race discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity (EEOC). According to the EEOC, the company allegedly excluded black applicants for jobs based upon their race.

The EEOC also alleged that the company then retaliated against other employees and former employees for opposing or testifying about the race discrimination, by demoting employees, by forcing one of the employees out of her job, and by suing others in state court. In addition to the settlement amount, the company must: (1) provide mandatory annual three-hour training on race discrimination and retaliation to all of its employees; (2) have its president or another officer appear at the training to inform staff of the company’s non-discrimination policy; that the company will not tolerate such discrimination; and the consequences for discriminating in the workplace; (3) maintain records of complaints of race and retaliation discrimination; (4) provide annual reports to the EEOC regarding such complaints; (5) issue a memo to one of the hiring officials explaining that the company does not discriminate on the basis of race and retaliation; and (5) post a notice to employees about the lawsuit that provides the EEOC’s contact information.

EEOC General Counsel David Lopez commented on the settlement stating that “Excluding qualified individuals from job opportunities because of their race or in retaliation for exercising protected rights are fundamental violations of the laws we enforce…As this case demonstrates, the EEOC is prepared to vigorously pursue such cases and resolutions that help ensure that workplaces will be free from discrimination. Recent cases we have filed alleging hiring discrimination, such as our suit against Bass Pro, demonstrate this continued commitment.” Read More.

NLRB Finds Employer’s Facebook Posts Were Unlawful

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Published on Monday, 07 May 2012 06:53

The National Labor Relations Board (NLRB) has ruled that an employer’s Facebook posts were unlawful. The case involves Jimmy Johns, a restaurant chain. Some of its employees were complaining that the company was not providing its employees with paid sick leave. Specifically, they put up posters near Jimmy John’s restaurants showing two identical sub sandwiches side by side with text that read in part, “CAN’T TELL THE DIFFERENCE? THAT’S TOO BAD BECAUSE JIMMY JOHN’S WORKERS DON’T GET PAID SICK DAYS. SHOOT, WE CAN’T EVEN CALL IN SICK.” In response to this protected activity, an employee started a Jimmy John’s Anti-Union Facebook page. The page was accessible to anyone with a Facebook account. A co-owner of Jimmy John’s made a post on the Facebook page encouraging people to take the posters down, and an assistant manager criticized one of the employees complaining about the sick leave policy. Employees and the assistant manager also posted negative comments about the employee.

Subsequently, the company terminated several of the employees complaining about the sick leave, and others were disciplined. The employees then filed an unfai r labor practices charge with the NLRB. The NLRB found that some of the employer’s posts were  unlawful, specifically those that encouraged individuals to text one of the complaining employees and tell him “how they feel,” because, according to the NLRB, this was encouraging harassment of the employee for protected activities. Read More.

SSA Bans ALJs From Conducting Online Searches About Claimants

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Published on Monday, 07 May 2012 06:25

The Social Security Administration (SSA) has advised its administrative law judges (ALJs) that they may not use information obtained from online sources when deciding cases, a tool used by some judges to uncover fraudulent claims. SSA officials said ALJs cannot trust information posted online, and the process of searching ror information could compromise protected private information. The SSA’s ban covers all Internet sites, including social media sites such as Facebook.  Sen. Tom Coburn, an Oklahoma Republican, disagreed with the SSA’s decision, and in a letter to the Social Security Commissioner stated that “If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website, such information should be used by [adjudicators] to determine if the claimant was truly disabled.”

The controversy highlights the ongoing questions about the information individuals make available about themselves online, and how others, such as employers and government agencies may use that information for such things as hiring decisions, disciplinary procedures, and uncovering fraudulent claims. Social Security officials advised that they are not opposed to using information obtained from the Internet, but they do not want the “front-line deciders” searching for such information. Instead, such online searches should be a function for fraud investigators. According to Kia S. Green, a spokeswoman for the agency, “Adjudicators should do what they are trained to do — review voluminous files to determine eligibility for disability benefits. Office of Inspector General fraud investigators should do what they are trained to do — vigorously follow up on any evidence of fraud.” Read More.

NLRB Alleges Arbitration Agreement Used by “24 Hour Fitness” is Unlawful

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Published on Thursday, 03 May 2012 19:19

Employers continue to face legal challenges to workplace arbitration agreements. Recently, the National Labor Relations Board (NLRB) issued a complaint alleging that 24 Hour Fitness USA, Inc. violated federal labor law by insisting that all employment-related disputes be resolved by individual arbitration versus class action. The California-based corporation, requires employees to agree in writing, as a condition of employment, to forego any rights to collective or class action lawsuits or arbitrations. According to the NLRB, the requirement violates the National Labor Relations Act (NLRA).

The NLRB initiated an investigation following a charge filed by an employee from the 24 Hour Fitness center in San Ramon, California. The NLRB alleges that the company is attempting to enforce its no-class-action policy by asserting it in litigation brought by employees in numerous cases, seven of which are cited in the complaint. In each case, employees, who are not represented by a union, sought to bring workplace-related claims, such as wage and hour violations, on a class-wide basis. In response, 24 Hour Fitness sought to compel the employees to submit their claims to individual arbitrations, referencing the arbitration policy contained in its employee handbook. The complaint calls for a hearing before an Administrative Law Judge on June 11, and seeks an order requiring that the company stop maintaining and enforcing that portion of its employee policy that prohibits collective and class action. Read More.

According to the 5th Circuit, “Indefinite Leave is Not a Reasonable Accommodation”

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Published on Thursday, 03 May 2012 18:54

In a recent unpublished decision from the 5^th Circuit, the federal appellate court ruled that “Indefinite leave is not a reasonable accommodation.” Although this is not a citable decision, it is interesting to consider the court’s analysis in a case involving an employee claiming disability discrimination pursuant to the Americans with Disabilities Act (ADA). The case involves Andrew Amsel (“Amsel”) who worked for the Texas Water Development Board (TWDB) which is a state agency that provides water planning, financial and technical assistance, and data collection for the State of Texas. Amsel worked in various positions until his termination in August 2007. During his time working with TWDB, Amsel suffered from several medical conditions including ischemic heart disease, functional class IV angina, and a major digestive disorder. From 1997 to 2005, Amsel worked in TWDB’s information technology group as a Systems Analyst and was provided significant telecommuting accommodations that allowed him to work from home despite his health difficulties.

In August 2004, Amsel’s position was identified as one that faced outsourcing. As a result of the additional stress this caused, Amsel sought treatment from his primary care physician, who recommended that Amsel be provided a flexible work schedule that would allow him to continue telecommuting. Amsel then met with the company’s Human Resources Director about the doctor’s recommendation. TWDB determined that Amsel qualified to fill a back-up role to a TWDB employee in another department. However, his telecommuting was ultimately reduced from about two hours a day to one hour a day. In 2007, Amsel traveled to Thailand to receive cardiac stem-cell treatment. Upon Amsel’s return, he was unable to return to work but requested assignments he could perform from home or the ability to transition back to part-time. TWDB did not agree to this because Amsel was on sick leave and not expected to work. Amsel’s doctor then submitted another FMLA request indicating that Amsel was “unable to work at all” under his present condition. However, Amsel was ineligible for additional FMLA leave because he had not worked 1250 hours in the previous calendar year. TWDB thus awarded Amsel 720 hours from the sick-leave pool.

On June 6, 2007, Amsel  advised TWBD that he was still interested in working from home, but that he was still not released to work. Subsequently, Amsel’s position was eliminated due to budget cutbacks. Amsel then sued TWDB for disability discrimination pursuant to the Americans with Disabilities Act (ADA).

The district court granted TWDB’s motion for summary judgment and Amsel appealed. On appeal, the 5^th Circuit observed that “TWDB provided various accommodations hroughout his tenure, allowing Amsel to telecommute, providing a flexible work schedule, and creating a new position for him when stress exacerbated his conditions.” Further, as the court noted “the evidence undisputedly reflects that Amsel was completely unable to come to work at the time of the adverse employment action. Indeed, though his e-mails to TWDB expressed a desire to work from home, Amsel himself clearly indicated that he was not cleared to work. Amsel was only “qualified” if he could do the job with reasonable accommodation. Amsel, however, was not able to come to work and had not been in the office for months at the time of his discharge. Indefinite leave is not a reasonable accommodation. ‘Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect.’”

The 5^th Circuit thus held that “that Amsel was not ‘qualified’ for his job at the time of his dismissal because he could not perform the job’s essential functions. Because Amsel was not a ‘qualified individual’ with a disability, he cannot establish a prima facie case of disability discrimination under the ADA or the Rehabilitation Act.” Read More.

Court of Appeal Holds Arbitration Agreement Was Illusory and Unenforceable

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Published on Wednesday, 02 May 2012 17:54

In a recent case, Peleg v. Neiman Marcus Group, Inc., the Court of Appeal, 2^nd District, held that an arbitration agreement entered into by Amir Peleg, and his employer, Neiman Marcus Group, was illusory and therefore unenforceable. Peleg, is a gay Jewish male of Israeli national origin. He worked at a Neiman Marcus store in Beverly Hills and allegedly performed his duties in an exemplary manner. In 2008, Neiman Marcus discharged Peleg, allegedly because of his national origin, religion, and sexual orientation in violation of the Fair Employment and Housing Act (FEHA). He was also allegedly harassed and subjected to retaliation for the same reasons. Peleg exhausted his administrative remedies under the FEHA and received a right-to-sue letter. He then filed a lawsuit and Neiman Marcus sought to enforce an arbitration agreement (Agreement) that the parties had signed. However, the Agreement contained a modification provision stating that Neiman Marcus could amend, modify, or revoke the arbitration contract on 30 days‘ written notice and at the end of the 30-day period, a contract change would apply to any claim that had not been filed with the American Arbitration Association (AAA).  

Peleg argued that the employer‘s unilateral right to make changes rendered the Agreement illusory. The 2^nd District agreed, concluding that “an arbitration contract containing a modification provision is illusory if an amendment, modification, or revocation — a contract change — applies to claims that have accrued or are known to the employer...Were it otherwise, the employer could amend the contract in anticipation of a specific claim, altering the arbitration process to the employee‘s detriment and making it more likely the employer would prevail.”  Read More.

Independent Contractor Misclassification Costs Employer $500,000

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Published on Wednesday, 02 May 2012 16:01

The Department of Labor’s Wage and Hour Division (DOL) filed a lawsuit against Hawkins Tree and Landscaping Inc., and its owners, Michael Hawkins and Dawn Hawkins for violations of the Fair Labor Standards Act (FLSA).  The lawsuit alleged, and the company and its owners eventually conceded, that they failed to properly pay workers time and one-half for hours worked over 40 hours in a workweek, failed to maintain adequate records of hours worked, and misclassified workers as independent contractors.  As a result, Judge Susan Richard Nelson of the U.S. District Court for the District of Minnesota entered a finding that the workers were employees of Hawkins and not independent contractors. Furthermore, a consent judgment against the company and its owners was entered by the court ordering them to pay back wages and liquidated damages in the amount of $478,000 to 57 current and former laborers, drivers, crew leaders and foremen of the company, and to pay $22,000 in civil money penalties. In addition to the monetary award, the consent judgment also enjoins the company and its owners from any future FLSA violations; requires Hawkins Tree and Landscaping to retain a certified public accounting firm to conduct bi-annual audits of its pay practices to determine compliance with the FLSA; and, requires that the ccompany provide all employees information on the FLSA in English or Spanish. 

"The misclassification of employees as independent contractors is a serious threat to both workers, who are entitled to good and safe jobs, and to employers who obey the law and are undercut when others use illegal practices," said Nancy J. Leppink, deputy administrator for the Wage and Hour Division. "The Department of Labor is committed to remedying employee misclassification and ensuring compliance to protect and enhance the welfare of the nation's workforce."  Read more.

DOL Recovers $4.83 Million in Back Wages From Wal-Mart for More Than 4,500 Workers

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Published on Tuesday, 01 May 2012 22:22

Wal-Mart Stores Inc., has agreed to pay $4,828,442 in back wages and damages to more than 4,500 employees nationwide following an investigation by the U.S. Department of Labor's Wage and Hour Division (DOL) that found violations of the federal Fair Labor Standards Act's overtime provisions. Wal-Mart has also agreed to pay $463,815 in civil money penalties. The alleged violations related to current and former vision center managers and asset protection coordinators at Wal-Mart Discount Stores, Wal-Mart Supercenters, Neighborhood Markets and Sam's Club warehouses. The DOL alleged that Wal-Mart failed to compensate these employees with overtime pay, considering them to be exempt from the FLSA's overtime requirements. However, the DOL’s investigation apparently determined that the employees were nonexempt and consequently Wal-Mart owed them for overtime pay for any hours worked beyond 40 in a week.

According to Secretary of Labor Hilda L. Solis, "Misclassification of employees as exempt from FLSA coverage is a costly problem with adverse consequences for employees and corporations…Let this be a signal to other companies that when violations are found, the Labor Department will take appropriate action to ensure that workers receive the wages they have earned." The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in executive, administrative, professional and outside sales positions, as well as certain computer professionals, provided the employees meet certain criteria regarding their job duties and are paid on a salary basis at not less than $455 per week (the federal standard). It is important for employers to recognize that job titles and job descriptions do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the DOL’s regulations. Read More.

Proposed Bill Bans Employers From Requiring Employees to Reveal Online Information

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Published on Monday, 30 April 2012 16:14

A New York Congressman, Rep. Eliot Engel (D-N.Y.) has introduced federal legislation, the “Social Networking Online Protection Act” (SNOPA) that would make it illegal for employers and educational institutions to require an applicant or current employee (or a potential or current student) to reveal personal online information as part of the hiring, enrollment or disciplinary process. Engel stated in a letter seeking support from fellow members of Congress “As you know, social media and networking has become such a widespread part of communications in our country, and around the globe. However, a person’s digital footprint is largely unprotected…There have been countless examples of employers requiring an applicant to divulge their user name and password as part of the hiring process. Additionally, some universities, and even secondary schools, have required the student either divulge their personal information, or grant the institution access to the personal account by ‘friending’ the student." 

SNOPA would prohibit employers from requiring that job applicants or current employees provide their social networking passwords or "other means of accessing a private account"; it would also ban post-secondary schools from disciplining students for failing to provide such access, or from discriminating against applicants who refuse to provide such access. Engel also comment in his letter that "These coercive practices are unacceptable, and should be halted…We have to draw a line between what is publicly available information, and what is personal, private content. I think we would all object to having to turn over usernames and passwords for email accounts, or even worse, to bank accounts. User-generated social media content should be no different." In March, Republicans in the House blocked a measure that would have allowed the Federal Communications Commission (FCC) to stop the practice of employers forcing workers to reveal their Facebook passwords. Recently, Maryland became the first state to enact legislation preventing employers from demanding that job applicants and employees provide their social networking passwords.  Read More.