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Illinois Treasurer extends family benefits to gay and lesbian employees in domestic partnerships

June 22nd, 2010  |  Published in Blog

Illinois Treasurer Alexi Giannoulias signed an Executive Order on June 13, 2010 providing gay and lesbian treasury department employees in domestic partnerships with the same family leave rights and benefits as married employees. The new office policy, which recognizes a domestic partnership as equivalent to marriage, allows gay and lesbian employees to take unpaid leave to care for a sick partner or relative or for the birth or adoption of a child. Giannoulias’ office is the first constitutional office or state agency to adopt such a policy, according to a statement. The EO effectively extends the Family and Medical Leave Act to gay and lesbian employees in committed relationships. The new policy changes also allow those employees to take maternity/paternity leave and bereavement leave following the death of their partner or partner’s immediate family.

The FMLA applies to married couples who are permitted to take up to twelve weeks of unpaid leave to care for a sick parent, spouse or child. But, according to FMLA, if an employee’s domestic partner or domestic partner’s child falls ill, he or she does not have legally protected leave. “Illinois is home to thousands of households with committed same-sex couples,” Giannoulias said. “But when a crisis occurs, these couples that own and live in the same home and emotionally and financially depend on one another do not have the same rights as married couples. We should not deny same-sex domestic couples those same rights.” Giannoulias believes this step will make the state more competitive with private sector employers, many of which already offer such benefits to their employees.

Giannoulias has taken other steps to recognize the rights of gay and lesbian employees. Shortly after taking office in 2007, he changed office policy to allow employees involved in domestic partnerships to receive the same health benefits as married employees and their dependents. Prior to the Giannoulias administration, the Treasurer’s Office had been the only constitutional office not to give health benefits to same-sex partners of state workers since the Governor extended the benefits in May 2006.

TILT: flu-like symptoms plaguing Gulf cleanup workers

June 17th, 2010  |  Published in Blog

The latest in a seemingly never-ending series of horror stories arising in the wake of the BP oil disaster in the Gulf of Mexico comes to us in the form of a new acronym: TILT, short for Toxicant-Induced Loss of Tolerance. Cleanup workers—formerly known as shrimpers, oystermen and fishermen, but now increasingly known as patients—have reported strange, flu-like symptoms such as joint pains, upper respiratory problems, difficulty breathing, stomach cramping, nervousness, inability to concentrate, balance difficulty, nausea, headaches, skin rashes, pain with or frequent urination.

Workers’ complaints to BP initially went unheeded as the company claimed it was unaware of any such problems and was slow to provide respirators to workers who  experienced symptoms from odors associated with both petroleum and the chemical dispersants used to combat the spill.

 According to InventorSpot.com, TILT (also known as Multiple Chemical Sensitivity) can be caused by exposure to diesel or gas engine exhaust, gasoline, tobacco smoke, insecticide, cleaning products like disinfectants or bleach cleansers, fresh tar or asphalt… even perfume-y odors, nail polish remover, or new furnishings. Pregnant women and asthmatics are most susceptible to TILT.

Despite a request to OSHA in late May by George Miller (D-Cal), Chair of the House Education and Labor Committee, to ensure that there were sufficient OSHA personnel dispatched to the Gulf of Mexico “to properly and aggressively protect the health and safety of those involved in the [BP] oil cleanup activities,” workers and citizens of Gulf communities are still getting sick.

While BP says it’s doing all it can to keep supplies stocked and has had to turn to foreign companies for help, the AP reports that, with demand so high for everything from plastic gloves, to oil-blocking booms and sand-sifting machines, finding enough items to outfit workers and protect the coast is an unending task. Added to that, the summer’s heat and humidity of the region pretty much ensures that we’ll be hearing  a lot more about TILT.

NLRB moving to electronic elections?

June 15th, 2010  |  Published in Blog

When Republican senators filibustered President Barack Obama’s nomination of Craig Becker to the National Labor Relations Board, they usually cited his alleged support of changes to the NLRB election process that would have offered a choice between unions, not between representation, or no representation. Becker’s opponents suggested that the former SEIU counsel would do whatever he could to tilt the labor election battlefield in favor of his old colleagues. As it turns out, those Senatorial worrywarts may have been right to be concerned.

On June 9th, the NLRB issued a Request for Information (RFI) on “industry solutions regarding…secure electronic voting services for both remote and on-site elections.” In other words, the NLRB is exploring the possibility of conducting elections through electronic/internet voting, a change that would represent a dramatic departure from the current manual ballot election process.

Use of a remote online voting process, like the one used by the National Mediation Board, presents many concerns, some of which the NLRB appears to acknowledge in its RIF. Such elections are ripe for outside interference, and the RIF asks for information on existing safeguards that are employed to prevent vote manipulation. Electronic or internet elections also lack the benefit of a pre-designated voting location, which tends to be a convenient room in the workplace, thus creating the potential for decreased voter participation. Again, the NLRB appears cognizant of this concern, as the RIF asks for comparisons on participation levels in traditional and electronic elections.

This early in the process, the RIF also poses numerous questions. When would this election procedure be used? Would it entirely replace the traditional election? Or would it be used only when in-person voting is impractical, due to the dispersion of the workforce? If the NMB is the model for the NLRB is in this regard, the answer is likely that the NLRB means to replace the old model, not supplement it, as the NMB uses this model exclusively.

Which brings us back to Member Becker. Unions have been agitating for speedier elections, which they believe will decrease an employer’s ability to dissuade workers from opting for representation. Electronic/internet elections could be set up to take place within a very discrete period of time and, free from the prying/curious eyes of their peers, workers might feel more comfortable casting a quick vote. If speedier elections is the goal of the prospective change, then perhaps Becker’s opponents were right to be concerned.

Especially if this is only the first of many changes wrought by the Obama NLRB.

With a one-day strike temporarily averted, nurses and their employer will continue to “duke it out,” both in a California court and the court of public opinion

June 11th, 2010  |  Published in Blog

Recently, a California superior court judge granted a Temporary Restraining Order that halted the June 10th strike of nearly 10,000 University of California medical center nurses. This action was in response to a complaint seeking injunctive relief that was sought by the Regents of the University of California, represented by the Public Employment Relations Board’s (PERB), who argued that, among other things, the very collective bargaining agreement (CBA) between the parties included a “no-strike clause.” In the midst of all this legal wrangling, harsh criticism has been directed at each side by the other, and each seems to seek public support for their actions.

In response to the order preventing the strike, Beth Kean, Chief Negotiator for the California Nurses Association’s (CNA) UC Division claimed that “[o]ur number-one priority remains correcting the chronic staffing issues at University of California medical centers, which we have been unable to resolve through any other means…All the resources the University has wasted trying to silence the nurses will do nothing to solve the staffing crisis at UC hospitals, and nurses will not rest until their concerns are addressed.”

However, in its complaint, PERB contended that the CNA’s call for a one-day strike constituted a “prima facie violation of Government Code section 3571.1(c) and/or…section 3571(d)…and that the University…detail[s] substantial and irreparable injury if said work stoppage is not enjoined.” Beyond that argument, one could also surmise that nurses striking could mean less needed care for the very patients the CNA claims it was calling the strike to protect.

So who is right in this whole mess? On the one hand, if staffing conditions are really that bad, then what else can the CNA do but call a strike to symbolize their frustrations? However, if the CBA signed by the parties includes a no-strike clause, then the nurses and the CNA should abide by the contract terms they agreed to, right? Also, if staffing is a concern, and patients are the priority, then a strike would only serve to make that an even bigger issue, which is what their employer is arguing. Yet, this is also what the CNA want shown with a strike because it would highlight the need for more staff, and how important the staff is to the medical center.

This situation represents the classic employer-versus-employee-and-union problem that has been around ever since the first workers unionized to fight for their rights. It also highlights not only how the public can not only be used by both sides to try and advance their agenda, but also how, ultimately, it will be the public that suffers. Because, if more staff is truly needed and not hired, then patients/the public suffer(s), but if nurses, in mass, go on strike even for a day, then patients/the public suffer(s) as well. In this case, the judge required the CNA appear before the court on June 18, 2010 to show cause as to why a preliminary injunction should not be issued, so we may get at least a judicial clarification as to who is right, but there is not indication that even that ruling will solve the problems facing both parties.

Providing false SSN to obtain employment meets “intent to defraud” element of identity theft statute

June 3rd, 2010  |  Published in Blog

In a case that may put another tool at the disposal of those who have declared war on the illegal immigrant workforce, an Oregon appeals court has determined that an individual’s misrepresentation by providing a false Social Security Number on a Form I-9 in order to obtain employment was sufficient to satisfy the “intent to defraud” element of Oregon’s identity theft criminal statute (Oregon v Alvarez-Amador, June 2, 2010, Littlehales, J).

ORS 165.800(1) provides: “A person commits the crime of identity theft if the person, with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters or converts to the person’s own use the personal identification of another person.” The indictment of the defendant in this case alleged that he acted with “intent to defraud.”  After concluding that, under the statute, intent to defraud encompasses “intent to cause injury to another’s legal rights or interests,” the court held that a jury could conclude from the defendant’s misrepresentation on his Form I-9 that he intended to defraud the federal government – i.e., by making the intentional misrepresentation, the defendant intended to injure the federal government’s legal interest in enforcing its laws. Moreover, the history of the statute suggested that by misrepresenting his employment eligibility in order to induce his employer to give him a job that he was not legally eligible to have, the defendant also intended to defraud his employer. Accordingly, a lower court did not err by refusing to grant the defendant’s motion for judgment of acquittal for lack of evidence of intent to defraud anyone of anything.

Nonetheless, the appeals court reversed the conviction and remanded the case on the Sixth Amendment grounds that the Social Security Administration’s certification that the Social Security Numbers provided by the defendant did not belong to him, was testimonial evidence and, thus, its admission violated his right to confront the witnesses against him.

New NLRA rights posting requirement for federal contractors and subcontractors effective June 21

June 1st, 2010  |  Published in Blog

Effective June 21, 2010, federal contractors and their subcontractors will be required to post notices informing employees of their rights under the NLRA. The notice informs employees of their rights under the NLRA to organize and bargain collectively with their employers and to engage in other protected concerted activity. On May 20, 2010, the Department of Labor published in the Federal Register (75 FR 28368–28402) the regulations that require this notice pursuant to Executive Order 13496, which was signed by President Obama on January 30, 2009.

Where to get the poster. Contractors and subcontractors can acquire the poster from: (1) the federal contracting departments and agencies; (2) the Labor Department’s Office of Labor-Management Standards (OLMS) at (202) 693-0123 or http://www.dol.gov/olms/regs/compliance/EO13496.htm; or (3) field offices of the OLMS or the Office of Federal Contract Compliance Programs (OFCCP). Contractors may also reproduce and use exact duplicate copies of the department’s official poster.

Posting requirements. Federal contractors and subcontractors are required to post this employee notice conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity, including all places where notices to employees are customarily posted. Where a significant portion of a contractor’s workforce is not proficient in English, the contractor must provide the notice in the language employees speak. The OLMS will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements. Additionally, contractors and subcontractors who post notices to employees electronically must also post the required notice electronically via a link to the OLMS website. When posting electronically, the link to the notice must be placed where the contractor customarily places other electronic notices to employees about their jobs. The link can be no less prominent than other employee notices. Electronic posting cannot be used as a substitute for physical posting, however.

Contract clause and exemptions. Federal government contracting departments and agencies must include provisions requiring contractors to post the prescribed notice in every government contract, except collective bargaining agreements entered into by a federal agency, contracts for purchases under the Simplified Acquisition Threshold (currently set at $100,000), and in those cases where the Secretary of Labor exempts a contracting department or agency pursuant to the Executive Order. Government contractors must also include provisions requiring posting of the prescribed notice in all subcontracts, except those below $10,000.

Enforcement. Enforcement responsibilities for the notice requirements are shared by the OLMS and the OFCCP. The OFCCP is responsible for investigation of complaints, compliance evaluations, and conciliation and that agency will refer violations to the OLMS for enforcement. Compliance evaluations will be conducted by the OFCCP and may be limited to compliance with EO 13496 or may be included in a compliance evaluation conducted under other laws, Executive Orders, and/or regulations enforced by the Labor Department.

Noncompliance. The sanctions, penalties, and remedies for noncompliance with the notice requirements include the suspension or cancellation of an existing contract, debarment from future federal contracts and inclusion on a list published and distributed by the Director of OLMS to all executive agencies listing the names of contractors and subcontractors declared ineligible for future contracts as a result of non-compliance with these requirements. A contractor will have an opportunity for a hearing and an appeal before the imposition of any sanctions.

More information on these new regulations is available on the OFCCP website at: http://www.dol.gov/ofccp/regs/compliance/EO13496_Presentation.htm and the OLMS website at: http://www.dol.gov/olms/regs/compliance/EO13496.htm.

Law firms charge different rates to different clients for same work, report finds

May 27th, 2010  |  Published in Blog

Seventy-eight percent of law firms charge different hourly rates to different clients for similar work, with the largest rate differences ranging from $350 to $1,000 an hour, according to initial findings in the “Real Rate Report,” an analysis of billing for 3,448 partners, associates and paralegals with multiple clients that provides a look into actual rates charged, law firm staffing behavior and matter phase costs. The full report, expected in September, is a partnership between CT TyMetrix, part of CT, a Wolters Kluwer business and provider of Web-based legal operations management solutions for corporate law departments and claims organizations, and the Legal and Compliance practice at The Corporate Executive Board (NASDAQ: EXBD), and the industry’s first analysis of more than $4 billion in law firm billings to corporate clients.

Among other initial findings in the report, the median partner rate was significantly lower than reported. In 2009, law firm partners charged up to $1,590 per hour for work with major corporate customers. However, when the total hours billed at each rate are considered, the report found that the year’s median partner rate was $340 per hour – meaning the rates billed by partners were much lower than the typical “rack” rates reported by commissioned surveys.

Major topics covered in the Real Rate Report include:

  • Actual rates charged by law firms to major corporate clients by geography, work and matter type, matter phase, timekeeper roles, including paralegal, associate and partner timekeeper practice areas and experience levels.
  • Law firm staffing behavior, including staffing ratios, timekeeper billing patterns, red flags to watch for and a breakdown of how billing behavior has changed in the past three years.
  • Portraits of typical corporate legal matters across law firms by type, length and cost of specific matter phases, timelines from service to billing and strategies to save by using regional or smaller law firms.

Rhode Island representative proposes immigration enforcement bill similar to Arizona’s new law

May 25th, 2010  |  Published in Blog

Immigration enforcement legislation, similar to Arizona’s controversial law, was introduced by Rhode Island Rep. Peter Palumbo (R), on May 18. House Bill 8142 proposes that for any lawful contact made by a state or local law enforcement official or law enforcement agency, where reasonable suspicion exists that a person is an alien unlawfully present in the United States, a reasonable attempt must be made to determine the immigration status of that person, except if the determination would hinder or obstruct an investigation. The proposed legislation would also provide that if a person is arrested, a determination of the person’s legal status must be made prior to being released. Immigration status is to be verified with the federal government, pursuant to the Immigration and Nationality Act. A law enforcement official, or agency, would not be permitted to solely consider race, color, or national origin in implementing the law, except to the extent permitted by the United States or Rhode Island Constitution.

The bill would also provide that a person would be presumed not to be an illegal alien, if he or she provides to a law enforcement officer, or agency, any of the following: (1) a valid Rhode Island driver’s license. (2) a valid Rhode Island non-operating identification license. (3) a valid tribal enrollment card or other form of tribal identification. (4) if the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

As with Arizona’s law, House Bill 8142 would also make the following unlawful:

• for a person operating a motor vehicle to stop on a street, roadway, or highway to attempt to hire, or pick up, passengers for work at a different location, if the vehicle blocks or impedes the normal flow of traffic;

• to transport or move an unauthorized alien or to conceal, harbor, or shield an unauthorized alien; and to encourage or induce an alien to come to Rhode Island, in violation of the law.

The legislation also makes it unlawful for an illegal alien to be in the United States to apply for work, solicit work in a public place, or to perform work as an employee, or as an independent contractor, in Rhode Island. Employers would be prohibited from knowingly employing an unauthorized alien and violators would be required to terminate the unlawful employments, sign an affidavit of compliance, and would be subject to a three-year suspension, for a first offense, and would face revocation of all licenses held for failure to submit the affidavit or for a subsequent violation. The bill would also prohibit local governments from limiting or restricting enforcement of federal immigration laws. If enacted, the legislation will take effect upon passage.

Subcommittee hears testimony on use of credit checks for prospective employees

May 20th, 2010  |  Published in Blog

A hearing held last week by the House Subcommittee on Financial Institutions and Consumer Credit on “the use of credit information beyond lending” discussed the impact of credit reporting and credit scores on consumers seeking employment and insurance with regard to the Equal Employment for All Act (H.R. 3149).

Introduced by Rep. Steve Cohen (D-Tenn.), the bill, which would amend the Fair Credit Reporting Act (FCRA), prohibits the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions. The bill makes exceptions to such prohibition for employment: (1) which requires a national security or Federal Deposit Insurance Corporation (FDIC) clearance; (2) with a state or local government agency which otherwise requires use of a consumer report; or (3) in a supervisory, managerial, professional, or executive position at a financial institution.

In addition to Chairman Luis Gutierrez (D-Ill) and Member Maxine Waters (D-Ca), panelists offering testimony included: Michael T. McRaith, Director, Illinois Department of Insurance, on behalf of the National Association of Insurance Commissioners; David Snyder, Vice President and Associate General Counsel, Public Policy, American Insurance Association; John Wilson, Director, Analytics, LexisNexis Risk Solutions; Chi Chi Wu, Staff Attorney, National Consumer Law Center; Mark Rukavina, Executive Director, The Access Project; Stuart K. Pratt, President and CEO, Consumer Data Industry Association; Anne Fortney, Partner, Hudson Cook, LLP.

In his opening remarks, Gutierrez stated that the subcommittee’s intent in holding the hearing was to look at the disparities in the system while maintaining the core framework of credit information as a risk-management tool. Citing a classic Catch-22 situation, he noted that “pre-employment consumer credit checks are increasingly widespread, trapping many people in a cycle of debt that makes it harder to pay off their debts and harder for them to get the job that would allow them to pay off their debts,” adding that “the current system facilitates the denial of employment to those who have bad debt, even though bad debt often times results from the denial of employment.”  Expressing concern that consumers have to deal not only with the inaccuracy of their credit scores, but also the difficulty in getting negative information removed, Rep. Waters also requested that “witnesses can inform us about whether or not credit scores are a proxy for race and if so, what impact that is having on the ability of minority consumers to obtain credit.”

Speaking on behalf of the Consumer Data Industry Association, President and CEO Stuart Pratt cited a recent survey conducted by the Society for Human Resources Management that concluded, among other things, that: only 13% of employers consider credit information for all job applicants; 47% of employers consider credit information for applicants of certain positions (i.e., jobs that involve handling money); and, if a negative credit incident is found, employers are overwhelmingly (87%) giving the applicant an opportunity to explain the circumstances of the incident, which is more than what the FCRA requires. Also, while noting that the vast majority of employers do not use credit as a “yes or no” proposition, but provide prospective employees with the opportunity to explain their circumstances, Pratt argued that it would be premature to change current law and further restrict the flow of data for risk management without a full inquiry.

Despite what you’ve heard, new NMB rule does not destroy democracy

May 18th, 2010  |  Published in Blog

The rule recently passed by the National Mediation Board, one which will make it easier for workers in the airline and railway industries to organize, has drawn a lot of heat since its announcement on May 11th. The question is, why?

Senator Johnny Isakson (R-GA) immediately introduced a “disapproval” resolution that would stop the NMB from enforcing its recently promulgated rule, calling it a “radical change” that would allow a minority of workers to force “permanent” recognition of a union upon an unwilling or unwitting majority of their fellow workers. So undemocratric, but never fear, because Johnny Isakson is here. “I will do everything in my power,” said the good Senator, “to stop this backdoor attempt to shift the balance between labor and management.” Never mind that, according to Isakson’s own release, the resolution must be passed by the Senate and the House of Representatives before being signed by the same President that Isakson accuses of trampling fairness in his haste to grant favors to his union buddies.

Yesterday, the Airline Transport Association of America (ATA) filed suit against the NMB, asking a district court to enjoin the agency from enforcing what the ATA called “disappointing and puzzling.” As with Senator Isakson, the airline trade organization decries, in its complaint, the deprivation of rights and the potential for upending the “stability” between airlines and unions that has been a hallmark for years.

So what it is that these folks are protesting? Did the NMB decide that, from now on, the minority wins? Nope, the NMB has decided that, from now on, if you don’t vote in a representation election, it’s as if, well, you didn’t vote.

I know, shocking. It’s the same idea as every political election you’ve ever voted in, but until this rule, it’s not the way air and rail employees were allowed to vote. Until this rule, workers who didn’t vote in an election were presumed to have, essentially, cast a vote. Against representation.

Think about that for a moment. If, in 2008, the presidential election counted the votes of all the Americans who didn’t vote – approximately 170 million – as no votes against President Obama and Senator McCain, we’d still be having elections to determine the winner.

That’s all this rule does. It says that if you have an opinion regarding unionization, then cast a vote because. It assumes that yes votes are yeses and no votes are no’s and non-votes shouldn’t determine the outcome. Not so shocking after all.

The ATA’s suit does make one very good point however. The same rules should apply in both representation and decertification petitions. Because a yes is a yes, no matter the context of an election.