LaborSphere, Author at Laborsphere

Home Care Workers to get Minimum Wage and Overtime Protections, DOL Decides

Effective January 1, 2015, almost 2 million home health and personal care workers will be entitled to be paid at least the federal minimum wage and receive overtime pay, under a final rule announced by the U.S. Department of Labor on September 17. According to new Secretary of Labor Thomas Perez, the final rule will give home care workers “parity” with direct care workers who work at institutional settings and will “ensure that direct care workers are available to elderly people who want to remain in their homes.”

The new rule will apply to all home care workers, including live-in workers, who are employed by a third party such as a home health agency. The rule will also require the family of an elderly or ill person when the worker performs medical duties or primarily performs domestic duties that benefit other household members.

According to DOL, the “vast majority” of the affected workers are employed by third parties and only a “very small” number of workers employed by families will be affected by the rule. Supporters of the rule argue that it will lift home care workers out of poverty and keep them in the workforce, thereby enabling them to help elderly and ill people in the comfort of their homes. Opponents assert the rule will reduce the work hours to avoid overtime and will result in pay reductions to home care workers, force patients out of their homes and into institutions and reduce business for home health agencies. Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, stated that DOL has estimated the rule would increase the cost of home care by $2 billion over the next decade.

New Jersey Legislative Update: Pay Equity Protection, Social Media and Employer Responses to Unemployment Insurance Requests for Information

August was a busy month for New Jersey lawmakers with Governor Christie signing two bills, one regarding pay equity and one concerning personal social media accounts that he had conditionally vetoed earlier, and a bill regarding the impact of an employer’s failure to respond to a request for information for purposes of unemployment insurance benefits. As described below, each bill will impact an employer’s compliance obligations and should be appropriately integrated into management practices.

Assembly Bill No. 2648 (A-2648), signed by the Governor on August 29, 2013, is a pay equity protection measure amending the New Jersey Law Against Discrimination (NJLAD) to bar employers from retaliating against employees who share information about the job title, occupational category or rate of compensation and other employment matters, or the gender, race or other protected characteristic of current or former co-workers when the inquiries are made to assist in investigating the possibility of unlawful discriminatory treatment in pay, compensation, bonuses, or benefits. It took effect upon enactment.

While the previously vetoed version of A-2468 would have protected those discussions under the State Conscientious Employee Protection Act, Governor Christie suggested that the amendment was more consistent with the underlying goals of the NJLAD, because that is the statute under which workplace discrimination claims are brought. Governor Christie noted that “[t]oo often in our past, women have seen their incalculable contributions to the workplace insufficiently compensated. We cannot allow that progress to succumb to ignorance.”

Assembly Bill No. 2878 (A-2878), also signed by the Governor on August 29, 2013, prohibits employers from requiring or requesting any employee or prospective employee to provide or disclose the user name or password or in any way provide the employer access to a personal account through the use of an electronic communications device. A-2878 further prohibits employers from retaliating or discriminating an individual who has, or was about to:
- Refuse to provide access to a personal social media account;
- Participate in any complaint, investigation, proceeding or action concerning a violation of the act; or
- Otherwise oppose a violation of the act.

Violations under the act are enforced through the Department of Labor and Workforce Development and violating employers could be subject to civil penalties up to a maximum of $1,000 for the first violation and $2,500 for each additional violation. Governor Christie’s veto of the original version of the bill was based on a determination that it was overbroad and needed to provide for specific employer rights.

A key employer protection in A-2878 allows employers to investigate compliance with applicable laws, regulations or “prohibitions against work-related employee misconduct” when the employer receives specific information regarding an employee’s personal social media account, and also to investigate an employee’s actions related to the “unauthorized transfer of an employer’s proprietary information, confidential information or financial data to a personal account.” The bill further clarifies that the employer is not prohibited from “viewing, accessing, or utilizing information about a current or prospective employee” that is available in the public domain.

New Jersey thus became the ninth State this year, and the twelfth State overall to enact legislation prohibiting employers from seeking or accessing current or prospective employees’ personal social media account information. Federal legislation similar to these state social media account password protection laws has been introduced, including: the Social Networking Online Protection Act (HR-537) and the Password Protection Act of 2013 (HR-2077).

Senate Bill No. 2739 (S-2739), signed by the Governor on August 19, 2013, amends the New Jersey Unemployment Compensation Law to ensure that employers promptly respond to Division of Unemployment and Temporary Disability Insurance (Division) requests for information about claims for unemployment benefits. In accordance with this Bill, if the Division erroneously pays a benefit because the employer failed to respond in a “timely or adequate manner” to a Division request for information related to the claim and the employer has an established pattern of failing to respond to these requests, the Division is prohibited from relieving the employer’s account for the charged benefit payments. A benefit payment is “erroneous” when it would not have been made but for the employer’s failure to make a “timely and adequate” response. The “pattern of failing” is established when the employer repeatedly fails to respond to Division requests for information related to a claim for benefits, unless the number of failures is less than three or less than two percent of the number of Division requests, whichever is greater.

The act does not specify what is considered “timely or adequate,” but pre-existing statutory language provides an employer with ten days after the Division request to respond before the Division relies entirely on other sources to make a determination of wages and time worked. Employers who previously may have failed to respond because it might result in a denial of benefits to the claimant now have more of an incentive to comply.

Kate Gold and Elena Min Author Daily Journal Article

Los Angeles Partner Kate Gold and associate Elena Min recently authored for The Daily Journal an article on changes to Section 218.5 of California’s Labor Code. The change, enacted through Senate Bill 462, curbs an employer’s ability to recover prevailing party attorney fees and costs in a lawsuit seeking unpaid wages, fringe benefits, or health and welfare or pension fund contributions.

Scheduled to go into effect January 1, 2014, the amendment limits recovery of attorney fees and costs by a prevailing employer “only if the court finds that the employee brought the court action in bad faith.”

Kate and Elena said the amendment “strips employers of one possible weapon in their arsenal for deterring nonmeritorious wage and hour claims.”

“Attorneys for plaintiffs and defendants will likely disagree with the consequences of the amendment as well as its premise – that the two-way fee recovery of existing Section 218.5 has had a chilling effect on employees’ wage and hour claims under that section,” they wrote. “But the bottom line is that “bad faith” is a high standard to meet and the amendment makes fee recovery in Section 218.5 actions an uphill battle for employers.”

FMLA Protected Leave Now Available To Same-Sex Spouses

United States Secretary of Labor, Thomas Perez, recently issued an internal memorandum to department staff outlining the Department of Labor’s plan to issue guidance documents which will, among other things, make protected leave available to same-sex couples under Family and Medical Leave Act (“FMLA”). This action comes as the Department prepares to implement the Supreme Court’s recent decision in U.S. v. Windsor, which struck down the provisions of the Defense of Marriage Act (“DOMA”) that denied federal benefits to legally married same-sex spouses. Calling it a “historic step toward equality for all American families,” Secretary Perez noted that the Department of Labor will coordinate with other federal agencies to make these changes “as swiftly and smoothly as possible.”

Secretary Perez stated that guidance documents would be updated to remove references to DOMA and to “affirm the availability of spousal leave based on same-sex marriages under the FMLA. This change is of great consequence to same-sex spouses who previously were unable to access the job-protected leave provided under the FMLA. Now, eligible same-sex spouses will be able to take FMLA leave for certain specified family and medical reasons, including caring for a spouse with a serious health condition, and generally will be returned to their original position or another position with equivalent pay, benefits and status. The new interpretation reflected in the Department’s updated guidance documents will be effective immediately.

In the Department’s official blog, Modern Families and Worker Protections, Laura Fortman, the principal deputy administrator of the Wage and Hour Division, announced on August 13, 2013 that revisions had already been made to various FMLA guidance documents to reflect the changes necessitated by U.S. v. Windsor. Fortman clarified that the “changes are not regulatory, and they do not fundamentally change the FMLA.” They merely expand the universe of employees who are eligible for FMLA benefits by including legally married same- sex couples. The updated documents can be viewed at these links:

Fact Sheet 28F
FMLA PowerPoint (slide 12)
WHD Field Operations Handbook Chapter 39d03(d)(1) (p.23 of PDF)
WHD Opinion Letter FMLA 98 (header)

Although Secretary Perez did not specifically address the question, the updated guidance documents indicate that the Department only intends to expand FMLA benefits to same-sex spouses in the 13 states and the District of Columbia that have recognized same-sex marriage. As an example, Fact Sheet#28F, Qualifying Reasons for Leave Under the Family and Medical Leave Act, defines “spouse” for purposes of FMLA leave as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.” In contrast, the Office of Personnel Management announced on its website that benefits will be extended to Federal employees and annuitants who have “legally married a spouse of the same sex, regardless of the employee’s or annuitant’s state of residency.”

As initial steps to implementing these changes, employers should inform or train human resources personnel regarding the availability of FMLA leave to eligible employees under the specified definition of spouse; review internal procedures and leave documentation to ensure compliance, and finally, review employee handbooks and policies to include provisions for same-sex couples where appropriate.

Sixth Circuit Approves NLRB Micro-Bargaining Units

On August 15, 2013, the Sixth Circuit Court of Appeals affirmed the National Labor Relations Board’s (NLRB or the Board) controversial ruling in Specialty Healthcare, 357 NLRB No. 83 (2011), which has allowed the proliferation of what some term “micro-bargaining units.” This decision makes it easier for unions to organize employees from all industries into smaller units than in the past and makes it challenging for employers to successfully challenge smaller bargaining units.

The Board’s Specialty Healthcare decision overruled its decision in Park Manor Care Center, 305 NLRB 135 (1991), which set forth the Board’s previous test for determining the appropriateness of a bargaining unit in non-acute healthcare facilities. Park Manor Care established a “pragmatic and empirical community of interest” approach that considered traditional community-of-interest factors, as well as evidence considered relevant by the Board during rulemaking concerning acute-care hospitals and the Board’s prior experience involving the types of facilities in dispute or units sought. In Specialty Healthcare, the Board ruled that an employer claiming that the proposed bargaining unit should include additional employees must be able to show that the excluded employees share an “overwhelming community of interest” with the employees in the proposed bargaining unit. Under Specialty Healthcare, numerous decisions have found small units appropriate that would not have been approved under previous Board law.

In Kindred Nursing Ctrs. E., LLC v. NLRB, Case No. 12-1027 (6th Cir. Aug. 15, 2013), the successor in interest to Specialty Healthcare’s facility in Mobile, Alabama challenged the Board’s ruling that a bargaining unit of Certified Nursing Assistants “constituted an appropriate unit.” Pursuant to Specialty Healthcare, the Board had found a unit of fifty-three CNAs to be an appropriate bargaining unit, while Kindred Nursing argued that the bargaining units should have included an “additional eighty-six non-supervisory, non-professional service and maintenance employees.” In its attack on the Specialty Healthcare decision, Kindred Nursing argued that the Board had abused its discretion because it

“adopt[ed] a new approach and [did] not return to applying the traditional community-of-interest approach; (2) [did] not ‘reiterate and clarify’ the law by adopting the overwhelming-community-of-interest test, but inappropriately imports this test from another area of labor law; (3) violat[ed] section 9(c)(5) of the National Labor Relations Act in its application of the traditional community of interest test and adoption of the overwhelming-community-of-interest test; and (4) [made] all of these changes through adjudication instead of rulemaking.”

In rejecting Kindred Nursing’s arguments, the Sixth Circuit first stated that it must uphold both the Board’s bargaining unit determination and its interpretation of the National Labor Relations Act (“NLRA”) unless the Board had abused its discretion. The Court noted that in exercising its discretion, the “Board must cogently explain why it has exercised its discretion in a given manner.” Citing oft-quoted precedent that the Board must select an appropriate unit and is not required to select the most appropriate unit, as well as the principle that the Board has the discretion to develop standards for determining the appropriateness of a bargaining unit, the Sixth Circuit found that it was in the Board’s discretion to overrule its own precedent and adopt a test based on prior Board precedent – even if it represented a material change in the law. Furthermore, the Court found that the Board had not departed substantially from prior law as it had previously relied upon the overwhelming-community-of-interest test in prior cases, and that it had explained its reasons for adopting its new standard. The Court noted that the Board’s new test had been approved by the District of Columbia Circuit prior to the Board’s holding in Specialty Heatlhcare. See Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008).

The Court also rejected Kindred Nursing’s arguments that the Board improperly changed its bargaining unit standards by adjudication rather than by rulemaking, and that Specialty Healthcare violated Section 9(c)(5) of the NLRA. The Court first noted that the Supreme Court had specifically held in NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), that the Board is not precluded from choosing adjudication as a method of developing new standards. As for Kindred Nursing’s Section 9(c)(5) argument, the Court held the Board’s decision did not violate this Section 9(c)(5) because it does not assume that a requested bargaining unit is per se appropriate; rather, Specialty Healthcare requires an employer to make the showing of an overwhelming community of interest only after the proposed bargaining unit is deemed appropriate.[1]

In light of the approval of the District of Columbia and Sixth Circuits, it is likely that Specialty Healthcare’s “overwhelming-community-of-interest” test will be the rule unless or until the make-up of the Board changes sufficiently, which is unlikely during the remainder of President Obama’s second term, or it is reversed by the U.S. Supreme Court. Moreover, it has been applied in industries beyond non-acute healthcare facilities. With the increased risk of targeted organizing campaigns aimed at small units of sympathetic employees, the need for employers in all industries to proactively consider union avoidance strategies has never been more important.

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[1] The Supreme Court has interpreted section 9(c)(5) to prohibit the Board from approving bargaining units “based solely upon the extent of organization.” NLRB v. Metro. Life Ins. Co., 380 U.S. 438, 441-442 (1965).

Significant Illinois and Massachusetts Non-Compete Rulings

Two recent cases should give employers pause as to whether their restrictive covenants with their at-will employees are enforceable. On May 28, 2013, a United States District Court in Massachusetts held that under Massachusetts law, a confidentiality agreement signed by an at-will employee was unenforceable where the employee’s title, duties, remuneration and other terms of employment had materially changed since signing the agreement. Then, on June 24, 2013, an Illinois Appellate Court held that unless an at-will employee is employed for at least two years, restrictive covenants the employee signed at the beginning of employment are unenforceable for lack of adequate consideration. Moreover, the Illinois court held it was irrelevant whether the employee quits or is terminated before two years of employment. While the rulings rely on the applicable state law, they address important points that may have broader application than only in Massachusetts and Illinois.

In Smartsource Computer & Audio Visual Rentals v. Robert March et al, D. Mass. (May 28, 2013), Smartsource filed an action to enforce its noncompete agreements with its former employee, March. March was hired by Smartsource in 2006 as a Senior Account Executive, and signed an offer letter with a simple confidentiality agreement/restriction. In 2007, March was promoted to Branch Sales Manager, in 2008 to Regional Sales Manager, in 2010 to Regional General Manager, and again in 2012 to Regional Sales Manager. With each change his job responsibilities and compensation changed. Citing to Massachusetts law, the court denied the requested injunctive relief to Smartsource. Although stopping short of a definitive ruling on the merits, the court noted that “it may well be under [Massachusetts case authority], March’s 2006 confidentiality agreement has been abrogated, and he is not bound by any restrictive covenants.” March and the Massachusetts cases cited therein suggests that when material changes to an employment relationship are contemplated, the employer should consider revisiting the existing restrictive covenant agreement and consider whether a new agreement is advisable.

More recently, the Illinois Appellate Court for the First District (Cook County) in Eric D. Fiefield et al v. Premier Dealer Services, Inc., (Ill. App. Ct., 1st Dist. June 24, 2013), answered the question as yet definitively unanswered in Illinois: What additional employment period after the signing of a restrictive covenant agreement is sufficient consideration to make the agreement enforceable against an at-will employee? The Court answered at least two years, even where the employee signs the restrictive covenant at the outset of employment. Fiefield had worked for the predecessor company that was acquired by Premier. Fiefield was then hired by Premier in late October 2009, and as a condition of employment Fiefield was required to and did sign an employment agreement containing a two-year restrictive covenant. Fiefield signed the agreement on October 30, 2009 and started work on November 1, 2009. On February 12, 2010, Fifield resigned to go to work for a competitor. Fiefield and his new employer then filed suit against Premier seeking a declaratory judgment that the restrictive covenant agreement was unenforceable. The circuit court ruled the agreement was not enforceable because it lacked consideration. Premier appealed and the Appellate Court affirmed, agreeing that there was inadequate consideration. The court held that regardless of whether Fiefield had signed the agreement before he started work or after he started work, “Illinois courts have repeatedly held there must be at least two years or more of continuous employment to constitute adequate consideration in support of a restrictive covenant…This rule is maintained even if the employee resigns on his own instead of being terminated.”

The Premier decision will surely send employers in Illinois scrambling to reconsider the validity of their at-will employee restrictive covenant agreements in Illinois. However, help may be on the way as Premier has filed a petition for leave to appeal the decision to the Illinois Supreme Court. Granting review is within the Court’s discretion, and the Illinois Chamber of Commerce and other employer groups are backing Premier’s bid. Even if the case is not reviewed or reversed, however, there are a number of possible solutions to the Premier consideration problem. These include offering employees consideration for the non-compete in addition to simply offering at-will employment (such as a “bonus” payment or possibly elaborating on the consideration offered to include, for example, training, access to customers and valuable confidential information and trade secrets) or offering employees some form of term employment contract.

If you have at-will employees with restrictive covenants less than two years old, and you view confidentiality and restrictive covenant agreements important to your business, or if your agreements with your employees significantly predate their current job positions, compensation and other conditions, these cases should sound the alarm to review your competitive advantage protections.