Valley Baptist Medical Center in Brownsville and Harlingen was forced to issue checks this month to some of its employees after a two-year investigation by the Wage and Hour Division of the U.S. Department of Labor concluded the hospital failed to pay for overtime and unused meal breaks.
The DOL ordered VBMC to issue the reimbursements based on provisions of the Fair Labor Standards Act. The reimbursements covered only the period between March 2009 and March 2011 because of a two-year statute of limitations that applies to recovery of back wages under the law.
According to a newspaper report, VBMC officials would not say how many em-ployees were involved or how much money was reimbursed.
In a big win for employers, the United States Supreme Court held last week that, under the Federal Arbitration Act, an arbitration agreement can prohibit an individual from commencing or participating in a class action.
In the case, AT&T Mobility v. Concepcion, the California Supreme Court had established a rule that an employment arbitration agreement was not enforceable if it waived an individual’s right to file a class action. U.S. Supreme Court, in a 5-4 decision, held that state laws cannot interfere with an arbitration agreement’s elimination of the class action mechanism to resolve disputes. In my personal opinion the decision, which was authored by Justice Scalia, is extremely outcome-oriented. It continues the conservative wing of the Court's pro states' rights (unless they inconvenience corporations) stance. The dissenting opinion does a good job of outlining the logical inconsistencies in the majority opinion.
While this was not an employment case, its importance in the employment law arena cannot be overemphasized. Employers may be able to use this decision to effectively eliminate all employment-related class actions, possibly including wage & hour collective actions for unpaid overtime. On the other hand, arbitration still has many drawbacks for employers. The cost of arbitration fees have steadily increased to the point where it is now quite a bit more expensive to arbitrate a case than to litigation in traditional courts. Additionally, arbitration outcomes are largely unappealable. These issues are not insignificant.
Despite its downsides, however, employers are increasingly inserting arbitration clauses with class-action bans into employment contracts, presenting them to employees on a take-it-or-leave-it basis. The Concepcion decision goes a long way towards eliminating an important means for enforcing longstanding civil rights and employee protections. The Court's activist efforts fly in the face of public opinion as well: according to recent polls, a solid majority of Americans (59%) opposes forced arbitration clauses in the fine print of employment and consumer contracts, including both men and women, as well as majorities of Democrats, Independents, and Republicans.
So what is an employee to do if faced with an arbitration agreement? First, don't just sign anything and everything that an employer puts in front of you. If your employer gives you an arbitration agreement and demands that you sign it, ask to take it home and read it. Then, visit with your co-workers and consider refusing to sign the agreement as a group. There is power in numbers.
Second, call your U.S. senators and your member of congress and encourage him or her to support passage of the Arbitration Fairness Act (AFA) of 2011. The AFA would ban forced arbitration in employment, consumer, and civil rights disputes.
A question that comes up often in my cases is whether an employee who is being treated as an independent contractor by his or her employer is correctly categorized as such or should instead be treated as an employee?
Is this really important? Yes. It is.
If an employer has mischaracterized an employee as an independent contractor, then the employer likely has not paid the correct amount of employment taxes on that individual. Instead, that tax burden has been improperly shifted onto the employee. Additionally, independent contractors are not entitled to overtime pay. Thus an employee who has been mischaracterized may be entitled to between 2 and 3 years' worth of unpaid overtime. That can add up to a lot of money.
This week, AP Business Writer Joyce Rosenberg has an excellent piece describing the basics of this issue and discussing some of the fundamental differences between the two categories. You can find it in today's San Antonio Express News. I would encourage you to check it out.
If you believe that you may have been mischaracterized yourself or if you are an employer that has questions about this issue, then I encourage you to seek the counsel of a Board Certified Employment Lawyer in your area.
"This is not a black holiday; it is a people's holiday," -- Coretta Scott King, Nov. 2, 1983.
A Baptist minister, King became a civil rights activist early in his career. He led the 1955 Montgomery Bus Boycott and helped found the Southern Christian Leadership Conference in 1957, serving as its first president. King's efforts led to the 1963 March on Washington, where King delivered his "I Have a Dream" speech. There, he expanded American values to include the vision of a color blind society, and established his reputation as one of the greatest orators in American history.
In 1964, King became the youngest person to receive the Nobel Peace Prize for his work to end racial segregation and racial discrimination through civil disobedience and other nonviolent means. By the time of his assassination in 1968, he had refocused his efforts on ending poverty and stopping the Vietnam War. He was posthumously awarded the Presidential Medal of Freedom in 1977 and Congressional Gold Medal in 2004.
Martin Luther King, Jr. Day was established as a U.S. federal holiday in 1986.
The White House has endorsed legislation by Senator John Kerry (D-Mass.) and Representative Jim McDermott (D-Wash.) to protect workers from losing benefits and protections as the result of a tax loophole.
According to press material issued by Senator Kerry's office, the Fair Playing Field Act of 2010, which Kerry and McDermott introduced on September 15, will close a tax loophole currently allowing businesses to misclassify workers as “independent contractors,” thereby creating an unfair environment for businesses that play by the rules and an unfair environment for workers. The bill is cosponsored in the Senate by Senators Kirsten Gillibrand (D-N.Y.), Patty Murray (D-Wash.), Sherrod Brown (D-Ohio), Al Franken (D-Minn.), Daniel Akaka (D-Hawaii), Chuck Schumer (D-N.Y.), and Patrick Leahy (D-Vt.)
Current law provides a “safe harbor” loophole allowing employers to treat a worker as not being an employee for employment tax purposes, regardless of the worker’s actual status under the common law test, unless the employer has no reasonable basis for such treatment or fails to meet certain requirements.
If passed as currently written, the Fair Playing Field Act of 2010 would:
end the moratorium on Internal Revenue Service (IRS) guidance addressing worker classification;
require the Secretary of Treasury to issue prospective guidance clarifying the employment status of individuals for Federal employment tax purposes;
amend the provisions of the Tax Code that provide for reduced penalties for failure to deduct and withhold income taxes and the employee’s share of FICA taxes;
require persons who contract independent contractors on a regular and ongoing basis to provide a written statement to each independent contractor of the Federal tax obligations of independent contractors, the labor and employment law protections that do not apply to independent contractors, and the right of the independent contractor to seek a status determination from the IRS; and
require the Secretary of the Treasury to issue annual reports on worker misclassification.
Identical legislation was introduced in the House.
Worker misclassification has recently received increased attention by both the Administration and Congress. The President’s budget for the 2011 fiscal year includes provisions that target the misclassification of employees as independent contractors and are estimated to raise more than $7 billion in revenue over 10 years.
We get a high volume of basic HR-related questions here at the HR Lawyer's Blog. So many, in fact, that we are sometimes not able to respond to each and every one of them individually as we would like. So it occurred to us that it might be a good thing to post some of these questions and answer them publicly on the site. Thus we begin the first in what we hope will be a regular series titled "HR Questions."
Today's question involves application of the Fair Labor Standards ("FLSA") to travel time. A reader asks:
My job requires me to drive from home to various work sites all over the state for my job. The company does not provide me with a vehicle to drive so I have to use my own and they only start paying me for my time after I arrive at the work site. Is this legal?
Just a reminder that the federal minimum wage increases to $7.25 Today, July 24. With this change, employees who are covered by the federal Fair Labor Standards Act (FLSA) will be entitled to no less than $7.25 per hour.
The Employee Rights Advocacy Institute For Law & Policy and Public Citizen have completed a National Study of Public Attitudes on Forced Arbitration. The release is no doubt an effort to support the Arbitration Fairness Act, which is currently in Congress.
The study is based on a major national survey on mandatory arbitration of employment and consumer claims conducted by Lake Research Partners.
The survey of 800 likely voters nationwide found that:
A solid majority of Americans (59%) opposes forced arbitration clauses in the fine print of employment and consumer contracts, including both men and women and majorities of Democrats, independents, and Republicans.
Similarly strong majorities (59%) support the Arbitration Fairness Act. Support for the Act also crosses traditional gender and political divides.
Even after voters hear arguments in favor of, and opposed to, forced arbitration, opposition to the practice holds firm. Just one-third of the electorate supports the practice.
Roughly three-quarters of Americans believe they can sue an employer or company should they be seriously harmed or have a major dispute arise - even if they are bound by forced arbitration terms.
Most Americans are unaware of the rights being taken away from them. Approximately two-thirds cannot remember seeing anything about forced arbitration in either Terms of Employment or Terms of Agreement for goods and services.
The New York Times has an important story out this week reporting that an audit of the federal agency charged with enforcing minimum wage, overtime and many other labor laws is failing in that role, leaving millions of workers vulnerable.
In a report scheduled to be released Wednesday, the Government Accountability Office found that the agency, the Labor Department’s Wage and Hour Division, had mishandled 9 of the 10 cases brought by a team of undercover agents posing as aggrieved workers.
More from the report:
In one case, the division failed to investigate a complaint that under-age children in Modesto, Calif., were working during school hours at a meatpacking plant with dangerous machinery, the G.A.O., the nonpartisan auditing arm of Congress, found.
When an undercover agent posing as a dishwasher called four times to complain about not being paid overtime for 19 weeks, the division’s office in Miami failed to return his calls for four months, and when it did, the report said, an official told him it would take 8 to 10 months to begin investigating his case.
“This investigation clearly shows that Labor has left thousands of actual victims of wage theft who sought federal government assistance with nowhere to turn,” the report said. “Unfortunately, far too often the result is unscrupulous employers’ taking advantage of our country’s low-wage workers.”
The report pointed to a cavalier attitude by many Wage and Hour Division investigators, saying they often dropped cases when employers did not return calls and sometimes told complaining workers that they should file lawsuits, an often expensive and arduous process, especially for low-wage workers.
The Wall Street Journal Blog and Paper has a story this week analyzing whether job discrimination plaintiffs get a raw deal in federal court
The WSJ piece examines that question, citing recent studies that show discrimination plaintiffs lose at a higher rate in federal court than other plaintiffs and more often get tossed out of court on summary judgments.
"From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy."
This is certainly not news to those of us that work in the employment law trenches day in and day out. Employment law is a different animal than most other types of cases that courts have to deal with. Often what is at issue is not what action was taken by an employer but rather what was in the decision-maker's heart when the action was taken. This has led to some pretty tortured legal tests and summary judgment standards across the country. And, the simple truth of the matter is that many judges have a reflexive dislike for the subjective nature of the cases. I think this gets reflected in judges being quicker to substitute their judgment for that of a jury in these types of cases.
The WSJ Blog article ends with a quote from a New York lawyer lamenting that plaintiff-side employment cases have gotten so hard to win that his firm won't take them anymore. I think this may be going overboard a bit. Employment cases are certainly not for the faint of heart but they are winnable.
One issue which may be contributing to this statistical anomaly is the fact that many employment cases are filed pro se or by lawyers who are not employment law specialists. This likely leads to a great many cases that are not properly prepared to face the defendant's inevitable motion for dismissal.
Representing a plaintiff in an employment-related lawsuit takes determination, hard work and a specialized knowledge of state and federal employment statutes and case law. Employment cases are nothing like personal injury cases. In my opinion, this is not an area of the law where lawyers should "dabble." The practice is chock full of counter-intuitive legal standards and procedural traps waiting for the unwary practitioner.
Coming Soon: I am working on a longer post discussing what you should keep in mind when looking for an employment law specialist to handle your case. Watch for it.
President Barack Obama signed the Lilly Ledbetter equal-pay bill into law today in front of cheering labor and women leaders. Standing beside him was the plaintiff in the discrimination lawsuit that eventually led to the passage of the law, Lilly Ledbetter.
Obama, choosing the Lilly Ledbetter Fair Pay Act as the first bill to sign as president, called it a "wonderful day" and declared that ending pay disparities between men and woman an issue not just for women, but for all workers.
Background
In 1979 Lilly Ledbetter began work at the Goodyear Tire and Rubber Company in its Gadsden, Alabama location, a union plant. During her years at the factory as a salaried worker, raises were given and denied based on evaluations and recommendations regarding worker performance, as is typical. All merit increases had to be substantiated by a formal evaluation. In March 1998, after she received an anonymous note Ledbetter inquired into the possible sexual discrimination of the Goodyear Tire Company with regards to her being paid less than her male counterparts. In July she filed formal charges with the Equal Employment Opportunity Commission. In November 1998, after early retirement, Ledbetter sued claiming pay discrimination under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. The jury found for Ledbetter and awarded back pay and damages. Goodyear appealed, arguing that all claims to damages before September 26, 1997 were void due to the statute of limitations placed on discrimination claims.
By a 5-4 margin, the Supreme Court ruled in favor of Goodyear, holding that a person must file a claim of discrimination within 180 days of a company's initial decision to pay a worker less than it pays another worker doing the same job, regardless of whether the employee even learns of the discriminatory decision during this short time frame.
Democrats, women's groups, labor groups, and even some Republicans ridiculed the Court's decision as obviously absurd. For all practical purposes it eliminated any remedy for gender-based pay discrimination in the United States. Some lower courts started to apply the same logic in other cases, ruling that disabled residents of an apartment complex had to sue to enforce ADA accessibility standards within 180 days of the building being built, even if they did not live there at the time.
The Lilly Ledbetter Fair Pay Act
In 2007, several Democratic members of Congress introduced the Lilly Ledbetter Fair Pay Act, which revised the law to state that the 180-day statute of limitations for pay discrimination resets with each new discriminatory paycheck. The bill became an issue in the 2008 Presidential election campaign, with Barack Obama supporting the bill, and John McCain opposed to it. The plaintiff in the case, Lilly Ledbetter, appeared in campaign ads for the Obama campaign and had a speaking role at the Democratic National Convention.
Today, the bill became law. The measure, which amends the 1964 Civil Rights Act, also applies to discrimination based on factors such as race, religion, national origin, disability or age.
More Information
Here are some links to additional information, audio and video:
Barack Obama has nominated California Democratic Rep. Hilda Solis as his labor secretary. Solis, the daughter of two Hispanic immigrants, has been in Congress since 2000. She has never served on the House Education and Labor Committee. She currently serves on the Select Committee on Energy Independence and Global Warming.
Solis received her degrees from California State Polytechnic University, Pomona and the University of Southern California and worked for two federal agencies in Washington, D.C. She was elected to the California State Assembly in 1992 and to the California State Senate in 1994. She was the first Hispanic woman to serve in the State Senate, and was re-elected there in 1998. She became known for her work toward environmental justice and was the recipient of the John F. Kennedy Profile in Courage Award in 2000.
Solis is well-liked by labor. Service Employee International Union ("SEIU") President Andy Stern hailed the nomination of Solis:
"As someone who has pounded the pavement knocking on doors for Hilda Solis in her first upset campaign in California, I can tell you firsthand that this woman is about opening doors for millions of Americans who get up and go to work each day.
From the streets of Los Angeles where she marched with the janitors who were fighting for jobs with dignity that can support a family through SEIU's Justice for Janitors campaigns, to the halls of Congress where she has been an outspoken supporter of healthcare rights for all, a livable minimum wage, and workers' right to come together for a voice on the job, Hilda Solis has never backed down from the good fight to make the American Dream available to all."
You can find Congresswoman Solis' Homepage here. It has links to her statements and bills that she is attached to.
The Associated Press quoted Randy Johnson, vice president for labor issues at the U.S. Chamber of Commerce, with regard to what the response of business groups would be to her nomination: "There’s a new sheriff in town, but they’ll still have to deal with the business community, and they know it. We would hope she will continue to support programs that help educate employers about voluntary compliance with the law rather than pursue heavy-handed enforcement.”
As promised, here is additional information regarding what each of the presidential candidates plans to do with regard to workplace and HR issues. This information is taken directly from the candidates' respective campaign websites without any editing or alteration whatsoever.
John McCain
John McCain is calling for National Commission on Workplace Flexibility and Choice. This Commission would bring together a bi-partisan set of leaders representing workers, small and large employers, labor, and academics. The Commission would make recommendations to the President on how modernizing our nation’s labor laws and training programs can help workers better balance the demands of their job with family life and to enable workers to more easily transition between jobs.
The Commission would examine the following issues that John McCain believes are important to workplace flexibility and choice:
Modernizing the nation’s labor laws so that they allow for more flexible scheduling arrangements
Ensuring that the nation’s labor laws don’t get in the way of working at home
Promoting telework so that workers can spend less time commuting
Making health more portable so that workers don’t lose their benefits when they switch jobs
Ensuring that workers can choose retirement plans that best suit their needs
Providing workers with more choice in job training assistance so that they can build the skills they need for new and better jobs
Barack Obama
Obama will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama will ensure that his labor appointees support workers' rights and will work to ban the permanent replacement of striking workers. Obama will also increase the minimum wage and index it to inflation to ensure it rises every year.
Ensure Freedom to Unionize: Obama believes that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA's passage and sign it into law.
Fight Attacks on Workers' Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB's "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
Protect Striking Workers: Obama supports the right of workers to bargain collectively and strike if necessary. He will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
Raise the Minimum Wage: Barack Obama will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.
Create New Job Training Programs for Clean Technologies: The Obama plan will increase funding for federal workforce training programs and direct these programs to incorporate green technologies training, such as advanced manufacturing and weatherization training, into their efforts to help Americans find and retain stable, high-paying jobs. Obama will also create an energy-focused youth jobs program to invest in disconnected and disadvantaged youth.
Improve Transition Assistance: To help all workers adapt to a rapidly changing economy, Obama would update the existing system of Trade Adjustment Assistance by extending it to service industries, creating flexible education accounts to help workers retrain, and providing retraining assistance for workers in sectors of the economy vulnerable to dislocation before they lose their jobs.
End Tax Breaks for Companies that Send Jobs Overseas: Barack Obama believes that companies should not get billions of dollars in tax deductions for moving their operations overseas. Obama will also fight to ensure that public contracts are awarded to companies that are committed to American workers.
Reward Companies that Support American Workers: Barack Obama introduced the Patriot Employer Act of 2007 with Senators Richard Durbin (D-IL) and Sherrod Brown (D-OH) to reward companies that create good jobs with good benefits for American workers. The legislation would provide a tax credit to companies that maintain or increase the number of full-time workers in America relative to those outside the US; maintain their corporate headquarters in America if it has ever been in America; pay decent wages; prepare workers for retirement; provide health insurance; and support employees who serve in the military.
Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama will expand it to cover businesses with 25 or more employees. He will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children's academic activities; and expanding FMLA to cover leave for employees to address domestic violence.
Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.
Expand High-Quality Afterschool Opportunities: Obama will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve a million more children. Obama will include measures to maximize performance and effectiveness across grantees nationwide.
Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Obama will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.
Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
Expand Flexible Work Arrangements: Obama will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.
Barack Obama recently spoke at some length regarding his views regarding labor and workplace issues. The video of his remarks is included below. Leave a comment and tell us what you think.
P.S. I am looking for video of McCain addressing work-related issues and will post it up as soon as I find it.
On Tuesday, the petitioner filed this reply brief in the case of Tyson Foods, Inc. v. de Ascencio. The issue is “whether the time spent donning light protective gear constitutes ‘work’ under the Fair Labor Standards Act if the activities do not require a significant level of exertion.” The cert. petition can be found here and the respondent’s brief in opposition here, while the opinion of the Third Circuit can be found here.
Last week a California court ordered Starbucks to pay its California baristas more than $100 million in back tips and interest that the coffee chain paid to shift supervisors. California law prohibits managers and supervisors from sharing in employee gratuities. According to the court's finding, Starbucks illegally took a huge amount of money from the tip pool to pay shift supervisors, rather than paying them directly.
Starbucks spokeswoman Valerie O'Neil said the company planned an immediate appeal of the ruling, calling it "fundamentally unfair and beyond all common sense and reason."
Christopher J. McKinney is board certified in Labor & Employment Law by the Texas Board of Legal Specialization. His practice is dedicated to civil litigation matters, with a particular emphasis on cases involving state and federal employment laws. As a...More...
We are frequently asked questions involving overpayment of unemployment from the Texas Workforce Commission (TWC): What is an overpayment? Why do I have an overpayment? Must I repay anMore...
When a company pays you through a staff leasing company, the name of the leasing company is on your paycheck or pay stub, and the leasing company is your employer.More...
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Arbitration Act, an arbitration agreement can prohibit an individual from commencing or participating in a class action.
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that we are sometimes not able to respond to each and every one of them individually as we would like. So it occurred to us that it might be a good thing to post some of these questions and answer them publicly on the site. Thus we begin the first in what we hope will be a regular series titled "HR Questions.".jpg)
the daughter of two Hispanic immigrants, has been in Congress since 2000. She has never served on the House Education and Labor Committee. She currently serves on the Select Committee on Energy Independence and Global Warming.