As the economy takes a hit and the federal government considers bailouts, unions are chomping at the bit to get the organizing started. An SEIU (Service Employees International Union) internal email was leaked on CNN.com on Monday. In the email, SEIU employees disclose a specific plan to organize employees in the banking industry. The reason for targeting the banking industry? Because “the banking industry is now being infused with billions of dollars.” The email lists specific potential targets for future organizing efforts, including Fannie Mae, Freddie Mac, Chevy Chase/ B.F. Saul, BB&T, SunTrust, Bank of America/ Countrywide, Wachovia/ Wells Fargo, PNC Bank/ National City, and Citigroup. This list does not mean that SEIU will only target these banks. It is understandable that SEIU would target the biggest banks first—but other banks are surely to follow, especially if the union is welcomed by employees who are nervous about the future of their employment. 

As unions anticipate unprecedented changes to federal labor law that will make it far easier for them to organize workers (see EFCA post), economic uncertainty and federal bailouts are providing unions with precisely the talking points they need to convince employees that they are on uncertain ground without a union. As we have been discussing in our EFCA briefing sessions, it is important that employers in all industries develop a proactive strategy now that will protect them against union organizing campaigns in the future.

The Sixth Circuit weighed in on an issue that has split the federal courts and has joined the Seventh and Ninth Circuits in holding that disabled former employees lack standing to sue under Title I of the Americans with Disabilities Act. McKnight v. Gen. Motors Corp., No. 07-1479 (6th Cir., Dec. 4, 2008). The Court found that three General Motors Corp. retirees lacked standing under the ADA to challenge the reduction of their pension benefits when they started receiving Social Security disability benefits. 

Continue Reading Disabled Former Employees Lack Standing to Sue under ADA

Posted in EEO

On November 18th, the Cuyahoga County Common Pleas Court in San Allen v. Ohio BWC issued an injunction prohibiting the Ohio Bureau of Workers’ Compensation from enacting its current group rating plan and requiring it to enact a retrospective rating plan for the policy year starting July 1, 2009. At its core, the decision requires the BWC to set premiums retrospectively, as requested by the plaintiffs, who were a collection of employers that had seen their premiums increase as a result of having been excluded from a group based on claim experience. Historically, the rates have been set prospectively by the BWC despite statutory language that the court said requires the retrospective rating. In reaching its conclusion, the court noted its expectation that its decision would result in lowering base rates for state-funded employers at the expense of the significant discounts that group-rated employers have been receiving.

Often citing its belief that the discounts given to group-rated employers are excessive and actuarially unsound, the BWC has been working to reduce the level of discounts provided to group-rated employers for more than a year. It is therefore unclear at this time whether the BWC will appeal this decision. In addition, it is important to note that the BWC argued that, despite the statutory language indicating that the group rating program should be retrospective in nature, the legislature, in fact, intended a prospective rating plan. If that is the case (and recognizing, of course, the changes to the legislature since enactment of the group rating program), the Bureau conceivably could seek a legislative fix. As of now, however, state funded employers should anticipate no changes in their December 2008 or July 2009 premium bills.

 

This past week’s national and local news have both included accounts of employees being disciplined for allowing their curiosity to get the best of them. According to CNN.com, Verizon Wireless has fired an undisclosed number of its employees for accessing cell phone records of President-Elect Obama without authorization. In addition, on November 22nd, the Columbus Dispatch reported that four senior managers at the Ohio Department of Job and Family Services have been disciplined for improperly mining state computers for confidential information on "Joe the Plumber." Previously, Governor Strickland had suspended the OJFS director for her role in the incident.

These incidents demonstrate the privacy and confidentiality risks posed by a company’s own employees. Coincidentally, this week Cisco Systems, Inc. released the third in a series of white papers arising out of its global study of data leakage. Cisco’s findings suggest that data losses caused by employee behavior — whether malicious or inadvertent — have the potential to cause greater financial losses than attacks that originate outside the company. Employee behaviors not only put customer (e.g. Obama) and general public ("Joe the Plumber") data at risk but also corporate trade secret information. The Cisco data suggests that, although it remains important to plug any holes in computer systems to protect against outside intrusions, employers should be spending more time addressing employee behaviors that are putting data at risk. For those who are interested, the Cisco papers can be found at http://cisco.com/en/US/netsol/ns895/index.html.

The U.S. Department of Transportation’s (DOT’s) previously announced mandatory direct observation of specimen collection for return-to-duty and follow-up controlled substances test (see my October 28th post) has been stayed. The United States Court of Appeals for the District of Columbia Circuit has issued an administrative stay, which temporarily delays implementation of DOT’s direct observation requirement. As a result of the court-ordered stay, DOT has announced that direct observation by DOT-regulated employers for these two types of tests will remain optional and at the employer’s discretion. We will keep you posted on further developments.

 

As we noted Monday, the Department of Labor (DOL) published its long-awaited final regulations implementing the Family and Medical Leave Act (FMLA) last Friday. The new rules will become effective January 16, 2009.

Most of the changes in the new regulations were foreshadowed when the DOL first released a set of proposed amendments in February 2008. Although the final regulations differ in significant ways from the original regulations drafted in 1995 by the previous presidential administration, they have stayed pretty consistent with the amendments proposed earlier this year. There are a few new beneficial tools for employers, but there are some new obligations as well.

Continue Reading 2008 Final Regulations for the FMLA: A Summary

On November 18, 2008, the Federal Motor Carrier Safety Administration (FMCSA ) issued a news release stating its adoption as final the provisions of the Agency’s December 17, 2007, interim final rule concerning hours of service (HOS) for commercial motor vehicle (CMV) drivers. This final rule allows CMV drivers to continue to drive up to 11 hours within a 14-hour, non-extendable window from the start of the workday, following at  least 10 consecutive hours off duty (11-hour rule). Drivers also cannot operate a truck if they have worked more than 60 hours in a given week.   The rule allows motor carriers and drivers to continue to restart calculations of the weekly on-duty limits after the driver  has at least 34 consecutive hours off duty (34-hour restart). This rule is effective January 19, 2009.

In the news release, FMCSA Administrator, John Hill, also noted that in 2006, the Agency proposed a rule that would require drivers and trucking companies with serious or repeat hours-of-service violations to track their hours-of-service using electronic on-board recorders (EOBRs). The final rule for EOBRs is pending.

On November 14, 2008, the Department of Labor (DOL) issued its new final regulations implementing the Family and Medical Leave Act of 1993 ("FMLA"). These regulations represent the first changes and additions to the regulations since they were first issued in 1995.

As previously noted in this space (see "Proposed FMLA Regulations Largely Disappointing for Employers"), the DOL had originally issued a set of proposed amended regulations on February 11, 2008, which had left the employment legal community wondering whether publication of final regulations could be completed before the end of the year. In a 752-page flourish (available in its entirety here: http://www.federalregister.gov/OFRUpload/OFRData/2008-26577_PI.pdf), the DOL kept its promise.

Continue Reading DOL Issues Final FMLA Regulations

National banks may be missing out on a defense available to them against certain state-law employment claims brought by terminated bank officers. In particular, the National Bank Act (NBA) allows national banks to dismiss officers “at pleasure, and appoint others to fill their places.” This provision has been interpreted to mean that state-law tort and contract wrongful discharge claims by terminated bank officers are preempted and, thus, subject to dismissal. See, e.g., Boesch v. Champaign National Bank, Case No. 24014 at 6 (9th App. Summit Cty., June 30, 2008); Schweikert v. Bank of America, Case No. 06-2137 (4th Cir. April 1, 2008).

The NBA preemption defense applies, however, only when a bank’s board of directors makes the termination decision or delegates the authority to do so and then ratifies the decision. The board’s ratification need not occur before or on the termination date, but it needs to occur as promptly afterward as possible.

Continue Reading National Bank Act May Preempt Certain Bank Officer Employment Claims

Of course, no one can be certain of the exact workplace effects of Tuesday’s Presidential election results. But, at least one major change in employment law is pretty certain – and it is a change that all employers, large and small, in all industries, should be planning for now.

President-Elect Obama has stated clearly his support for the proposed Employee Free Choice Act (EFCA). His election, together with additional Democratic seats picked up in the Senate and Congress, make the passage of EFCA in 2009 a very strong likelihood. That will mean the most dramatic change in labor law in this country in decades.

As a reminder, there are two significant provisions of the EFCA: First, unions will be able to demand bargaining rights based solely on cards that they can pressure employees to sign face-to-face. The protection of a secret-ballot election will be taken away. Second, if labor negotiations between a union and employer for a first contract reach impasse, an outside arbitrator will dictate the terms of that key first contract.

Continue Reading Election Results – Immediate Workplace Issues