FLSA violations:  Liability for wage and hour violations under the FLSA can extend “any person acting directly or indirectly in the interest of the employer in relation to an employee.” This has been interpreted to include individuals who have significant control over the employment relationship and particularly those who made decisions leading to the FLSA violation. For example, a federal district court in Florida allowed a hotel employees’ wage claims to proceed against a hotel manager while the action against the hotel itself was stayed in bankruptcy (Bullock v LVN Prop Mgmt, LLC (D. Fla. 2012)). Despite the manager’s protestations that employees were hired and managed by a third party who contracted with the hotel, the court found questions of fact on the extent to which the manager, who was also part owner of the hotel, controlled the employment relationship. Employees testified that she directed some of their daily activities; signed payroll checks; was at the hotel daily to observe work that was being done; and commented and criticized such work.

FMLA violations:  Under the FMLA and its implementing regulations, any person “acting in the interest of the employer” (e.g., a supervisor) may be individually liable for violations of the FMLA. Some courts have ruled that liability turns on whether the individual exercised sufficient control over the conditions of the employment. In 2012 for example, the Third Circuit ruled that an employee, who had Type II diabetes, could sue her supervisor individually under the FMLA.  The appellate court reasoned that he acted in the employer’s interest while carrying out his role as supervisor; he exercised control over her employment situation; and exercised substantial authority over the termination decision, even if he lacked final authority to fire her (Haybarger v Lawrence County (3rd Cir. 2012)).

OSHA safety violations:  In a St. Louis case against Andre Stone & Mason Work, Inc., the Eighth Circuit ordered the arrest of the original owner of a company and the owner of the successor company for repeatedly failing to comply with court sanctions regarding OSHA violations. The owners failed to pay fines and correct worker safety violations related to fall hazards, scaffolding deficiencies, power tool guarding, and other hazards associated with multiple construction projects (Case Nos. 06-2609 and 07-2304).

Payroll taxes:  I.R.C. Sec. 6672(a) makes “any person” having the responsibility to collect and pay over the employment taxes liable for a trust fund recovery penalty. In one case, an officer of a corporation, who was also a shareholder, was held liable in connection with the corporation’s unpaid withholding taxes. He was a responsible person with respect to the payroll taxes because he owned company stock, served as its director, signed loan documents on its behalf, approved business sites, reviewed sales data, directed payments to certain creditors to reduce debt the he had personally guaranteed, and had the authority to hire and fire senior employees and accountants involved in payroll operations (Erwinv. United States, (4th Cir. 2010)).

State discrimination laws:  Although individuals are generally not held personally liable under federal anti-discrimination laws such as the ADA, Title VII, and ADEA, they may be personally liable under a state’s laws. For example, the Supreme Court of Arkansas ruled that a nurse who was fired after complaining of sexual harassment by a doctor could proceed, under Arkansas Civil Rights Act, on an individual sexual harassment and retaliation claim against the doctor who supervised (Calaway v Practice Mgmt Servs, Inc  (Ark. 2010)). Similarly, an employee who worked in a county jail was allowed to proceed on her individual claims, under California’s Fair Employment and Housing Act, against two officers who allegedly aided and abetted her employer’s racial harassment against her by making offensive and threatening comments to her (Davis v Prison Health Servs (N.D. Cal. 2011)).

Training for compliance:  As these cases indicate, managers and supervisors have more than their jobs to lose by failing to comply with employment laws. Educating such high-level employees on the potential for them to be held personally liable could serve as a powerful incentive not only for their own compliance, but also the compliance of workers over whom they have supervision. By way of illustration, employers should include real cases, like the above, when training supervisors and managers on the importance of complying with employment laws.

Title II of GINA protects job applicants, current and former employees, labor union members, and apprentices and trainees from discrimination based on their genetic information. Title II of GINA, like VII of the Civil Rights Act of 1964, as amended, covers employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs, as well as federal sector employers.

GINA was signed into law on May 21, 2008; Title II became effective on November 21, 2009. The commission has issued interpretive regulations under GINA (75 FR 68912), as well as a final rule implementing changes to its administrative and procedural regulations (74 FR 63981).

On June 2, 2011, the Commission proposed to amend its recordkeeping regulations to add references to GINA and sought public comment (76 FR 31892). Only one comment was received by the agency and it was supportive of the proposed amendment. Neither the existing recordkeeping regulations nor the final rule requires the creation of any documents. The final rule merely imposes the same record retention requirements under GINA that are imposed under Title VII and the ADA — any records made or kept must be retained for the period of time specified in the Title VII and ADA regulations.

Further information about the final rule may be obtained by contacting Thomas J. Schlageter, Assistant Legal Counsel, (202) 663-4668, or Erin N. Norris, Senior Attorney, (202) 663-4876, Office of Legal Counsel, 131 M Street, NE, Washington, D.C. 20507.

“The survey findings are like barometer that tells us something about the mood in today’s workplace,” said Michael Haid, senior vice president for Right Management, which provides talent development and outplacement services to Fortune 500 companies. “Employees are clearly in a grumpy mood, a trend we’ve tracked for more than a year. In better times we probably would have found just a minority complain that their energy is being sapped and so forth, but now it is almost a majority of employed North Americans who seem to be unhappy.”

The prevailing bad mood is related to workplace pressures that were building for the past three years, believes Haid. “In recent surveys Right Management found that fewer workers feel they may step away from their desk for a lunch break or even take all the vacation due them. And we learned that many feel trapped in their job or resent that they’re expected to respond to work emails on the weekend. Meanwhile, staffs are leaner and workloads bigger. Our new findings are consistent with this prior research and are an indicator of poor morale at most organizations.”

Unfortunately, the widespread disaffection stems from factors largely beyond the control of most employers, said Haid. “The job market is sluggish, job mobility is down, businesses aren’t expanding fast enough, yet every day the job has to get done. The good news, I suppose, is that so many workers are nevertheless engaged and productive, despite the pressures they face.”

Haid advises employers to develop proactive strategies to engage people in their work. “Some efforts may be simple or obvious, such as acknowledging that times are difficult. Sometime it’s just necessary to be seen trying to make a difference. And for larger organizations the engagement strategy needs to be more sophisticated, but genuine as well.”

Source: Right Management; www.right.com.

Overall, 2010 wasn’t terrible for labor on the state level. They saw anti-collective bargaining laws pass in Ohio and Wisconsin, but they overturned the former in a referendum and have forced a recall election for Walker. In New Hampshire, a right-to-work bill was unable to defeat a gubernatorial veto and Indiana’s Mitch Daniels shot down similar legislation in his own state. By the time the New Year’s confetti was ready to drop, organized labor could have been forgiven for thinking that the worst was behind it.

Not so fast, fellas.

2012 has seen a rush of anti-union legislation and labor seems a bit taken aback. Indiana, on Wednesday, February 1, became the first state in a decade to enact right-to-work legislation, after Daniels signed a bill that passed the state Senate only hours earlier. The Senate voted 28-22 to pass the legislation. House Bill 1001 was passed by the Indiana House one week earlier and similar legislation was a point of contention for the last year. In 2011, Democratic representatives left the state in order to deny a quorum on the bill. At that time, Daniels said that he did not support bringing the bill forward, because the voters had not been prepared for the push. Beginning at the end of 2011, however, Daniels signaled that he was ready to sign right-to-work legislation. Oklahoma was the last state to enact such legislation, and Indiana is the first state in the rust belt to make the switch.

In response, Richard Trumka of the AFL-CIO could barely muster a snort of protest, calling it a “shame.” Trumka seemed dazed by the swiftness of the passage of a bill that seemed deader than Marley’s ghost last year.

Meanwhile, Arizona may soon follow Wisconsin and Ohio in barring collective bargaining by public employees. The state senate’s Committee on Government Reform voted to pass a bill that would prohibit all state and local governments and school districts from bargaining with public employee unions.

Under S.B. 1485, state and local governmental entities would be barred from recognizing or negotiating with a union representing its employees. It would not affect current contracts, but unions would be unable to negotiate a successor contract.

The committee also voted to pass three other bills. S.B.1484 would bar employers from deducting union dues from employee paychecks without their authorization. S.B.1486 bars cities and counties from paying release time to workers who are actually doing union business. S.B.1487 bars government entities from withholding union dues from employee paychecks.

Not to be outsdone, the Michigan House of Representatives, on Wednesday, February 1, passed a package of labor reform bills sharply criticized as blatant anti-union measures. The legislation was introduced last week in the House Oversight, Reform and Ethics Committee and must now be passed by the state Senate before being sent to Governor Rick Snyder.

House Bill 5023 states that public employees shall neither go on strike nor initiate a lockout. Employees who violate the prohibition would be fined either one day’s wages for each day they engaged in the work action, or $500 for each day; unions would be fined $5,000 for each day that public employee members went on strike.

House Bill 5024 would allow employers to sue striking workers who get in the way of their businesses. Workers found in violation would be subjected to daily $1,000 fines and unions would face daily $10,000 fines.

Lastly, House Bill 5025 would make it illegal for employers to deduct union dues and contributions from employee paychecks without the express, written consent of the employee.

If Michigan follows Indiana and Ohio down the path of tough anti-union legislation, organized labor better watch out. The pitchforks are out and the budget cutting axes are sharp.

House Bill 1001 was passed by the Indiana House one week earlier. It will bar companies and unions from negotiating a contract that requires non-members to pay fees for the representation unions are required to give them.

The legislation has been a point of contention for the last year. In 2011, Democratic representatives left the state in order to deny a quorum on the bill. At that time, Daniels said that he did not support bringing the bill forward, because the voters had not been prepared for the push. Beginning at the end of 2011, however, Daniels signaled that he was ready to sign right-to-work legislation. Oklahoma was the last state to enact such legislation, and Indiana is the first state in the rust belt to make the switch.

The Associated Builders and Contractors (ABC) praised the legislature for approving the bill. Eric Regelin, its National Chairman, said that “[n]o American should be forced to join a labor union just to keep a job, and no resident of Indiana should be required to pay dues to an organization he or she does not believe in.”

Unions fiercely condemned the signing, with Indiana State AFL-CIO President Nancy Guyott saying that the law will put the state on “a path that will lead to lower wages for all working Hoosiers, less safety at work and less dignity and security in old age or ill health. Indiana’s elected officials have given the wrong answer to the most important question of this generation.”

“Employers face a difficult balancing act as they continue to manage human capital costs without losing competitive advantage in important markets,” said Ed Hannibal, partner and leader of Mercer’s Global Mobility business for North America. “Signs of economic recovery, particularly in emerging markets, and a continuing mismatch in talent supply and demand mean that multinational employers must continue to deploy workers outside their home countries. Yet, the total cost of moving a senior executive with family abroad for a multi-year commitment, including compensation, benefits and special accommodations, can easily be three times base pay.”

The beginning of a new calendar year is an opportune time for employers to take a careful look at their overall global mobility strategy to make sure it matches business goals and is working well. The following action items give concrete steps that HR and other executives can take now to make sure that 2012 is a year that they optimally manage their international assignments.

Source: Mercer;http://www.mercer.com.

Although the compromise agreement would do away with language repealing the NMB’s 2010 rulemaking, which facilitated unionization of the rail and air industries, the new provisions would, according to the group, “drastically rewrite the Railway Labor Act.” The group contends that a requirement that at least 50 percent of a prospective unit support the union before an election could be held was crafted “without labor’s input and without due deliberation by labor and management in both the railroad and airline industries.”

Moreover, the unions say that the new requirement is a reversal of decades of precedent.

“A rewrite of long standing labor law deserves proper and due consideration through the normal deliberative process,” the unions wrote. “This is particularly true of this law which was uniquely created through labor and management negotiations. Unilaterally changing that law without labor’s input and without due deliberation threatens to unravel its carefully balanced goals of labor stability and uninterrupted commerce.”

There are other ramifications as well, according to the unions.

“Airline and rail workers would suffer significant losses as contracts are jettisoned, collective bargaining rights are cut and legal hurdles [are] placed in the way of gaining a voice at work,” the unions say. They are calling on the Senate conferees to the House-Senate conference on the legislation to remove the provisions amending the RLA and pass a “clean FAA Reauthorization.”

The unions are: United Auto Workers; Communications Workers of America; Association of Flight Attendants-CWA; International Brotherhood of Electrical Workers; American Federation of Government Employees; International Association of Machinists; National Education Association; Brotherhood of Locomotive Engineers and Trainmen-IBT; Brotherhood of Maintenance of Way Employees-IBT; Brotherhood of Railroad Signalmen; Service Employees Local 32BJ-National Conference of Fireman and Oilers; Sheet Metal Workers; United Steelworkers; Teamsters; American Train Dispatchers Association; Transportation Communications Union-IAM; Amalgamated Transit Union; United Transportation Union; and UniteHere!

Despite these high costs, the survey suggests workers are unclear about the biggest drain to their wallet. When asked which work expense they most want to be reimbursed for by their employer, 42 percent of employees chose commuting costs and only 11 percent chose lunch expenses. However, the average American’s commuting cost is $123 a month or approximately $1500 a year, which is well below the average annual lunch tab of $2000.

“Small — but consistent — expenses add up quickly over time, and it can be difficult for consumers to realize it because they’re only spending a few dollars at a time. But, as our survey shows, those few dollars can quickly turn into a few thousand dollars,” said Jodi Chavez, senior vice president, Accounting Principals. “Additionally, when you look at it over a worker’s lifetime, that number grows exponentially. Consider the average American who works for about 40 years, starting their first job around age 22. By the time they retire at age 62 they would have spent at minimum $120,000 on coffee and lunch, not including inflation.”

This is especially true for young American workers. The survey found that younger professionals (ages 18-34) spend almost twice as much on coffee during the week than those ages 45+ ($24.74 vs. $14.15, respectively). They also shell out more for lunch, spending an average of $44.78 per week on lunch compared to their older colleagues who spend $31.80 per week. However, it seems American workers of all ages are starting to realize the effect this incremental spending has on their personal bottom line. According to the survey, one-third (35 percent) of employees have made it a financial goal to bring lunch instead of buying it in 2012.

Other survey findings include:

• Better food and coffee in the office might help cut back personal spending. Perhaps because of how much they’re spending outside the office, American workers would like companies to invest in better food and drinks in the office. One-quarter (25 percent) of Americans wish their company would invest in better vending machine snacks and 22 percent of American workers would like their company to invest in better coffee in the office.
• Employers should focus on the “simple pleasures” to keep employees happy. Although better food and drinks would be a plus, employees most want to see their companies invest in better office equipment (46 percent) and more comfortable office chairs (32 percent) in 2012.
• Corporate discounts do not factor into employees’ purchase decisions. Companies looking to attract new candidates shouldn’t focus on corporate discounts as a selling point. The majority (82 percent) of employees say corporate discounts matter little or not at all when buying a new product or service.

“As the recovery gains momentum and companies look to attract and retain talent, they should consider worrying less about big-ticket discounts and focus instead on what will impact their employees’ happiness every day,” said Chavez. “Small improvements around the office, such as better equipment, food and drinks, can make a big difference in workers’ morale. After all it is often the little things in life that tend to make people the happiest.”

Source: Accounting Principals; www.accountingprincipals.com.

The proposed rule would implement amendments extending the entitlement of military caregiver leave to family members of veterans for up to five years after leaving the military; currently, only family members of service members who are currently serving are covered. The amendments would also expand the FMLA’s military family leave provisions by extending qualifying exigency leave to employees whose family members serve in the regular armed forces. Currently, only families of National Guard members and reservists are covered.

The proposed rule would also implement amendments that make FMLA benefits more accessible for airline flight crew employees by adding a special hours-of-service eligibility requirement for them. It would also add specific provisions for calculating the amount of FMLA leave used, which better take into account the unique hours worked by crew members.

“Keeping the basic promise of America alive means ensuring that workers, from our servicemen and servicewomen who keep us safe at home to the flight crews who keep us safe in the skies, have the resources, support and opportunities they need and have rightfully earned,” said Secretary Solis. “The proposed revisions announced today are an important step toward keeping that promise.”

Form 300A is the OSHA log of work-related illnesses and injuries and is used to track each recordable injury or illness that occurred in the previous year. Employers must keep an OSHA log for each establishment or site. If an employer has more than one establishment, it must keep a separate OSHA log and annual summary for each physical location that is expected to be in operation for at least a year. Employers may use as many sheets as are necessary to record all injuries and illness.

From February 1 through April 30, 2012, covered employers must post Form 300A in a location where notices are customarily posted. For those employees without a fixed worksite, employers must make available a copy of the summary.

Note that some employers are exempt from this posting requirement. Employers are exempt if they employ 10 or fewer employees. Those employees are listed on OSHA’s website:  www.osha.gov/recordkeeping/ppt1/RK1exempttable.html. You can download a copy of Form 300A at www.osha.gov/recordkeeping/RKforms.html.