Archive for August, 2011

NLRB Ends Chairwoman’s Term With Three Pro-Union Rulings

The National Labor Relations Board issued three rulings Tuesday that may have wideranging impact on the workplace. As I forecast last August, the board wanted very much to issue these rulings prior to the retirement of Chairwoman Wilma Liebman.

In all three cases, the board sided with the unions. The rulings will make it easier for unions to organize smaller workplaces, enhance a union’s ability to retain majority support via a “card-check” election, and give unions continued representation rights following the sale or merger of a business.

In each case, the board’s three Democrats outvoted the two Republicans to make a majority.

Here are the rulings in brief:

  1. Specialty Healthcare. The board ruled that a union can seek to oganize a group consisting solely of nursing assistants at a long-term care facility. The employer had wanted to include other nonprofessional employees in the unit.
  2. Lamons Gasket Co. This case involved “card check” elections in which employees sign cards to show their interest in joining a union. The board ruled that employees opposed to the union would no longer have the right to immediately challenge an employer’s recognition of a card-check vote.
  3. UGL-Unicco Service Co.  This case had to do with the period following a change of ownership in a company with a unionized workforce. The board ruled that when a company is sold, neither the new owner nor employees nor rival unions can stage an immediate challenge to the union. Instead, they must give a “reasonable period” and “fair chance” for the union to prove its merits in collective bargaining.

Whether you like unions or not, you have to consider these to be big wins for organized labor. But considering the straight party-line votes in each case, it means that if the next president is a Republican, these rulings could be put in jeopardy by new appointments to the board.

So these rulings aren’t necessarily cast in stone for all time.

Number of Workplace Deaths Virtually Unchanged From 2009

Staying with BLS for a moment, the government data gathering agency also reported recently that the number of workplace fatalities in 2010 was about the same as 2009.  The number actually went down by 4, from 4,551 to 4,547.

I suppose that’s considered good news, but think about it for a moment. That’s more people than died on 9/11. Alot of these deaths are preventable through some simple safety measures and by making safety a priority.

The Occupational Health and Safety Administration has a wealth of training materials to help us get that number down. And there are lots of private vendors out there with training programs to make your workplace safer.


Large Layoffs on the Rise-Don’t Forget WARN Notifications

It’s only a one-month snapshot of the economy, but last week’s release of data on “mass layoffs” in the United States provides some further confirmation of a weakening job market.

The Department of Labor’s Bureau of Labor Statistics reported that employers took 1,579 mass layoff actions in July involving 145,000 workers, seasonally adjusted, as measured by new filings for unemployment insurance.

“The manufacturing sector accounted for 28 percent of all mass layoff events and 33
percent of initial claims filed in July. A year earlier, manufacturing made up 25
percent of events and 31 percent of initial claims. Within this sector, the number
of claimants in July 2011 was greatest in the transportation equipment subsector.”

But the industry with the largest number of mass layoff initial unemployment claims (not seasonally adjusted) was the temporary services sector.  That provides a glimmer of hope, since it may be easier for workers to find temporary employment when the economy improves just a little bit. Which may be as good as it gets for a while.

The data cover layoffs of 50 or more employees beginning in a given month, regardless of duration.

Coincidentally, 50-employee layoffs are the minimum required for triggering of the plant notification requirements under the Worker Adjustment and Retraining Notification Act.


Wife Who Contracted Mesothelioma From Husband’s Clothing Cannot Sue Employer

Here’s an interesting situation. Husband gets asbestos fibers on his work clothes, then brings the fibers into the home. His wife contracts mesothelioma, most likely traceable to the fibers on her husband’s clothing.

Can the wife sue the husband’s employer? The Delaware Supreme Court recently ruled no. It said that the wife lacked a “special relationship” with the employer such that it would  owe her a duty of care.

Here, the court determined that DuPont was not responsible for the wife’s exposure, and had no legal obligation to her because her husband carelessly brought the asbestos into the home.

You can read more about the court’s ruling here.

Feds Announce Working Travel Reimbursement Rates for Next Fiscal Year

Business travel by federal employees to New York City might be curtailed next week, with Hurricane Irene bearing down on the city.

But travel is sure to pick up after the storm passes, and once it does the reimbursement rate for lodging in the city will go up also. According to new rates announced last week, NYC will have a peak lodging rate of $295 in September through December.

These are the so-called COMUS rates that the General Services Administration announces every year.

If the answer on Jeopardy were COMUS, the question would be “What Are Maximum Per Diem Rates for the Continental United States”?

Why do they matter for private sector employers? Because for all the government bashing that goes on, the private sector still patterns its reimbursement rates based on what the feds reimburse.

So, for example, U.S. government employees traveling to Washington, D.C. will qualify a maximum reimbursement from $211 to $226 a day in September and October and from $211 to $224 a day in March through June.

The highest daily lodging rate, $296, will apply in December through March in Vail, Colorado.

It makes for less than scintillating reading, but here are the rates as publised by GSA.

4-Part Test Announced for Distinguishing Unpaid Sabbatical and Paid Vacation Leave

When can an unused paid sabbatical leave be taken by the employee as paid vacation leave upon termination? A California Court of Appeal provided an answer recently, adopting a four-part test for making that distinction under California law.

In the case before the court, after the employee resigned and did not receive any pay-out for his unused sabbatical, he filed a class action claiming that the sabbatical was the legal equivalent of extra vacation for long-term employees.

The court sent the case back to the trial court for further development of the record. Along the way, it established this four-part test for determing whether paid time off qualifies as a sabbatical and by extension  when paid time of must be treated as vacation.

The factors of this new test are: (1) frequency of the leave; (2) length of the leave; (3) whether the leave must be in addition to regular vacation; and (4) whether the leave must be for the purpose of enhancing the employee’s value as an employee upon his or her return to work.

To learn more, go here.

“Me Too” Evidence Gets Boost in California Courts

Suppose you are a plaintiff in a sexual harassment lawsuit and you want to show that other women were also harassed by the same manager when you weren’t in the room or even employed by the employer. This evidence could significantly bolster your case. A pattern of discrimination is arguably more persuasive for a jury than a single instance–and more difficult for an employer to refute.

Well, now a California Court of Appeal has expanded the ability of sexual harassment plaintiffs to introduce what’s become known as “me-too” evidence. It ruled recently that such evidence is admissible to show discriminatory intent and to impeach the harasser.

To read more about the case and its implications, click here.