DVD for Sexual Harassment Prevention SAMPLE

WEBINER SAMPLE “Latest HR Management"

Online Seminar

Sign up for our News Letter.

 

Employers’ spending on health coverage for workers spiked abruptly this year, with the average cost of a family plan rising by 9 percent, triple the growth seen in 2010.

Family plan premiums hit $15,073 on average, while coverage for single employees grew 8 percent to $5,429, according to a surveyreleased Tuesday by the Kaiser Family Foundation and the Health Research & Educational Trust. (KHN is an editorially-independent program of the foundation.)

Workers paid an average of $921 toward the premium ofsingle coverage and $4,129 for family plans.

The results mark a sharp departure from 2010, when the same survey found average family premiums up only 3 percent.

Although many benefit analysts say the federal health law’s requirements played only a small part in the rise, the results couldprovide political fodder for both supporters and opponents of the law.

“It’s problematic,” says Democratic pollster Celinda Lake, because the No. 1 concern cited about the health law is a fear that it will increase costs. Still, Lake notes that many Americans don’t know much about the law, so the news of rising premiums “could also fuel support for provisions in the law that require insurance premiums of 10 percent or more to be reviewed.”

Premium increases have played a starring role throughout the debate over the health care law.

Before the law’s passage in 2010, for example, insurer WellPoint’s effort to raise rates by as much as 39 percent for some of its California customers drew sharp criticism from the Obama administration and helped build support for the law in Congress.

Proponents of the law also point to this spring’s decision by Aetna to lower premiums for individual policies in Connecticut as an effect of the health law. Responding to the report, the White House weighed in with a blog post from Nancy-Ann DeParle, the assistant to the president and deputy chief of staff. She said provisions of the law are already beginning to slow premiums, pointing to another report released today by the Office of Personnel Management saying average premiums for the Federal Employees Health Benefits (FEHB) program will increase by 3.8 percent next year. Premiums increased 7.3 percent this year.

But opponents say the law adds costly new mandates – and has not shown results yet.

“Despite the president’s repeated promises that the Democrats health care law would lower the cost of health insurance, employers are still facing higher health costs,” said Ways and Means Health Subcommittee Chairman Wally Herger, R-Calif., in a written statement Friday.

Many factors drive premium growth, the main one being actual spending on medical care, including jumps in prices charged by hospitals and doctors and growing use of expensive new drugs and technologies. State
regulators have widely varying authority over premium increases for policiessold to individuals and small businesses. Currently, 26 states and the District of Columbia have the authority to veto rates deemed excessive for at least some types of health insurance. Additionally, seven states have the power to review rate increases in advance but not to block them.

Over the past decade, premiums have risen steadily, with double-digit increases seen from 2000-2004, the Kaiser survey and other tracking reports show. Growth in premiums moderated starting in 2006, averaging
about 5 percent for several years, the survey found.

The benefits firm Mercer reported earlier this year that per-worker health spending by employers rose at about 6 percent annually for about the past five years, rising to nearly 7 percent last year. Projecting future increases is harder, as many surveys estimate based on initial negotiations between insurers and employers, before changes to benefits are made to slow premium costs. In a study out last week, Mercer projected that
employers may see their health spending rise 5.4 percent next year, while a similar survey released in May by accounting firm PwC estimated an 8.5 percent rise next year.

Insurers often set rates well before they go intoeffect, using data to estimate coming expenses, including how much policyholders are expected to use medical services. Analysts have noted a slowdown in doctor office visits, births and elective surgeries they say is related to the economy.

One factor in this year’s increases was that “employers and insurers expected a faster economic recovery and geared premiums to higher levels of utilization,” says Drew Altman, president and CEO of the Kaiser Foundation.

The growth of premiums far outpaced the growth in workers’ wages – as it has for the past decade. Wages grew by 2 percent this year.

Although premiums rose, employers kept the percentage of the premium workers pay about the same: An average of 18 percent for single coverage and 28 percent for family plans. Still, with rising costs, workers
paid more, up an average of $132 a year for family coverage. Since 1999, the dollar amount workers contribute toward premiums nationally has grown 168%, while their wages have grown by 50 percent, according to the survey.

The results from Tuesday’s survey were drawn from the responses of more than 2,000 large and small businesses. The survey was done from January to May – well before the September start date of a rule requiring states to scrutinize rate increases of 10 percent or more for policies sold to individuals and small businesses.

Other provisions of the federal law were in effect, including those that allow parents to keep their children on their coverage until age 26, a ban on lifetime benefit limits and a requirement that preventive services, such as some cancer screenings, be offered without co-payments. Insurers are also barred in most cases from canceling policies ofthose who fall sick.

Altman said the foundation’s research found that current rules in effect “could only have had a modest impact on premiums,” accounting for about 1.5 to 2 percentage points of the 9 percent increase. Other surveys, including a government analysis, also estimated the early rules’ effect on premiums in a similar range.

Michael Thompson, a principal at PwC, said his work with employers found that the new provisions had a negligible effect on premium costs, often because employers were already making benefit changes that shifted more costs to workers in order to slow premium growth.

The one provision of the new law that “had an almost universal impact” on employers was the one allowing parents to keep their adult children on their policies, Thompson said, although “interestingly it didn’t necessarily raise their per-head cost (because young people don’t cost as much to insure).”

Based on employer responses, the Kaiser survey estimated that employers added 2.3 million young adults to their coverage. Last week, the government’s National Center for Health Statistics found that the number of uninsured people ages 19 to 25 dropped by almost 1 million in the first three months of this year.

Premiums – and increases – vary widely around the country. Average increases for small businesses in Maine, for example, rose 17 percent this year, according to state data. Regulators in Oregon, meanwhile, approved small business increases ranging from zero to 15.6 percent, depending on the insurer. This month, Kaiser Permanente in California told 360,000 small businesses that it would reduce their already-in-effect
increases by 1.2 percent immediately, following discussions with regulators. (KHN is not affiliated with Kaiser Permanente.)

Marge Kraskouskas, vice president of human resources for the Hockomock Area YMCA in North Attleboro, Mass, says ten years ago, family coverage cost her firm $567 a month; now it’s $1,455.

Her rates rose 7 percent this year, “one of the lowest increases in years,” she said. “Still, I don’t care if you’re
talking 7 percent or 13 percent, it’s a killer in the budget.”

The premium report is “just the latest warning” that more needs to be done to address rising health car costs, said a statement from Karen Ignagni, president and CEO of America’s Health Insurance Plans, the
industry lobbying group. State and congressional lawmakers need to focus not just on insurers, but all the factors driving rising premiums, she said, including “soaring prices for medical services, changes in the covered population that have resulted in an older and sicker risk pool, and new benefit and coverage mandates that add to the cost of insurance.” 09-27-2011. Kaiser Health News.

Sabbaticals, or paid leaves for personal and professional development, have long been a basic benefit within the academic world. However, corporate sabbatical programs only go back about 50 years to when McDonald’s Corporation began offering eight weeks off for every 10 years of service. In general, paid sabbatical benefits are only offered by a small percent of U.S. employers. According to a 2009 Society of Human Resource Management benefits survey, paid sabbatical programs are offered only at 5% of U.S. companies. Other surveys by Wyatt Worldwide and Mercer Human Resources suggest somewhat higher usage at 15% to 20% when surveying the largest U.S. employers.

Paid sabbaticals have gained some popularity over the last four decades in Silicon Valley. Intel was one of the first companies in Silicon Valley to offer a paid sabbatical. At Intel, every seven years, each full-time
employee qualifies for eight weeks of leave with full pay and benefits which is in addition to regular vacations. In addition to Intel, several Silicon Valley/San Francisco Bay Area companies including Adobe, Advanced Micro Devices (AMD), Genentech, eBay, and Apple offer paid sabbaticals. Recently, the following California court case surfaced involving AMD and concerns when an employee might assume their employer, who provides paid sabbatical leave, is offering more vacation time and thus, is entitled to compensation for the unused sabbatical them when they conclude their employment.

California-based AMD was sued by a class of 1,432 former employees who claimed the company failed to pay them for sabbatical time they had earned but not used by the time they left the company.

Under AMD’s sabbatical policy, salaried employees with seven years of service were eligible for an eight-week fully paid sabbatical. The leave was forfeited if the employee did not use it before employment ended.

The former employees argued that the sabbatical program was really just extra vacation time. They asserted that the right to the sabbatical had vested for those who had worked seven years or more and they were therefore entitled to pay for the sabbatical; others with shorter tenure with AMD were entitled to pay for the unused sabbatical in proportion to the time they had worked for the company, the employees claimed.

The trial court dismissed the case before trial, finding that the sabbatical program offered a true sabbatical as matter of law—meaning there was no way a jury would find that it was actually vacation time. The class members appealed.

The fundamental question is whether the leave is deferred compensation earned over the course of employment or is intended to retain the most experienced or valued employees and enhance their future service to the employer.

In reversing the trial court, the Court of Appeals noted that the distinction between the two types of
leave, vacation and sabbatical, has never been clarified by a state court or the Legislature. To do so here, the court began by considering the definition of “vacation” within California Labor Code Section 227.3, which
prohibits employers from forcing employees to forfeit vested vacation time upon termination.

It determined that vacation is paid time off that:

  • accrues in proportion to the length of service,
  • is not conditioned on the occurrence of an event or condition, and
  • usually doesn’t impose conditions on the employee’s use of the time away

In contrast, the court found, a sabbatical is a conditional type of paid leave. Many corporate sabbaticals don’t require the employee to have a particular purpose or account for how his or her time is spent while on leave. The leave is provided simply for employees to “recharge their batteries,” the Court of Appeals said.

The problem is that corporate sabbaticals that are granted based only on length of service, and that impose no conditions on the time away, share elements with regular vacations. To determine whether a leave is indeed a sabbatical that can be lawfully forfeited, the court identified four factors that tend to show a
sabbatical leave is not regular vacation:

  • Frequency. Leave that is granted infrequently is more likely to be a sabbatical than vacation because it’s more likely that the leave is intended to retain experienced employees who have devoted significant chunk of time to the employer. The court suggested that seven-year intervals between the leaves would be an appropriate starting point for assessing corporate sabbaticals but acknowledged that greater or lesser frequency could be appropriate depending on the industry or company.
  • Length of leave. The leave must be long enough to achieve the employer’s purpose. For unconditional sabbaticals intended to reenergize the employee, the court said, the leave should be longer than the amount of time normally offered as vacation.
  • Vacation policy. Legitimate sabbaticals are always granted in addition to regular vacation. The employer’s regular vacation policy should be comparable to the average vacation benefit offered in the relevant market, according to the court. Otherwise, it reasoned, an employer might be tempted to offer a minimal vacation and reward senior staff with sabbaticals as a way to reduce financial liability.
  • Expectation of return to work. Because a sabbatical is intended to retain valued employees, its terms should incorporate some feature that demonstrates that the employee taking it is expected to return to work for the employer afterward.

The court emphasized that each case must be decided on its own facts. Turning to the leave program at issue, the court found that it included elements of both a vacation and a legitimate sabbatical. The Court of Appeals concluded that none of the evidence was decisive and returned the case to the trial court so a jury could decide the “crucial factual question: What is the true purpose of the program?” 09-27-2011. Article taken from Bureau of National Affairs with additional introduction information added by HRM Partners.

A federal district court properly exercised supplemental jurisdiction over the New York state labor law claims of waiters who alleged that a Manhattan restaurant impermissibly required them to share tips with ineligible employees and failed to pay them a “spread of hours” premium when they worked more than 10 hours each day, the U.S. Court of Appeals for the Second Circuit ruled Sept. 26 (Shahriar v. Smith & Wollensky Rest. Grp. Inc., d/b/a Park Ave. Rest., 2d Cir., No. 10-1884, 9/26/11)/

According to the Second Circuit, approximately 25 current and former waiters of Smith & Wollensky Restaurant Group Inc. and Fourth Walls Restaurant LLC, which do business as Park Avenue Restaurant, sued the companies in federal court under the Fair Labor Standards Act and New York Labor Law.

In affirming the lower court’s exercise of supplemental jurisdiction over the state law claims, the Second
Circuit held that the FLSA and NYLL claims “derive from a common nucleus of operative fact” because they arise out of the same alleged tip-sharing practices at Park Avenue. The appeals court also found that the NYLL claims raise no “novel or complex issue of state law” and that the state law claims do not “substantially predominate” over the FLSA claims.

The court also found no “compelling reason” to deny supplemental jurisdiction based on Park Avenue’s argument that the FLSA’s opt-in requirement for collective actions inherently conflicts with the opt-out provision for class actions certified under Rule 23 of the Federal Rules of Civil Procedure.

The Second Circuit joined the Seventh, Ninth, and District of Columbia circuits in concluding that any alleged incompatibility between the FLSA and Rule 23 “is not a proper reason” to deny supplemental jurisdiction under 28 U.S.C. § 1367. Nothing in the FLSA’s statutory language or legislative history precludes “joint prosecution of FLSA and state law wage claims in the same federal action,” the court said.

Additionally, the appellate court affirmed the district court’s class certification of the waiters’ NYLL claims,
finding that the employees satisfied Rule 23(a)‘s numerosity, commonality, typicality, and adequacy of representation requirements, as well as Rule 23(b)(3)‘s predominance requirement.

Judge Roger J. Miner wrote the opinion, joined by Judges Jon O. Newman and Gerard E. Lynch.

According to the court, the waiters sued Park Avenue in federal court in January 2008, alleging that the restaurant violated the FLSA’s and NYLL’s tip credit provisions.

Specifically, they claimed the restaurant improperly shared their tips with an individual whom they contended was a manager, as well as employees who did not provide direct customer service, including “expediters,” “dishwashers,” “silver polishers,” and “coffee makers.”

They also claimed the restaurant violated NYLL’s “spread of hours” rule, which requires employers “to pay
servers an extra hour’s pay at the regular minimum wage for each day they work more than ten hours.”

The U.S. District Court for the Southern District of New York in November 2009 retained supplemental
jurisdiction over the waiters’ state law claims pursuant to 28 U.S.C. § 1367, and granted their motion to certify a class of approximately 275 employees under FRCP 23.

On appeal, the Second Circuit ruled that the district court did not abuse its discretion in exercising supplemental jurisdiction over the waiters’ NYLL claims.

Under Section 1367, the court explained, a district court may exercise supplemental jurisdiction over state
law claims if they “are so related to” the federal claims within the lawsuits such that “they form part of the same case or controversy.”

Here, the waiters’ NYLL and FLSA claims form part of the same case or controversy because they “derive from a common nucleus of operative fact” in that they arise “out of the same compensation policies and practices of Park Avenue,” the court said.

Section 1367(c) provides four factors under which a district court may deny supplemental jurisdiction over
state law claims, but none apply in the instant case, the court said.

For example, the waiters’ NYLL claims are “straightforward” and “do not appear to raise a ‘novel or complex issue of [s]tate law,’ ” the court said.

Nor do the state law claims “substantially predominate” over their FLSA claims, the court said, given that “a determination as to the FLSA claims may decide the [waiters’] NYLL claim” since both claims “arise from the same set of operative facts.”

The court rejected Park Avenue’s argument that the NYLL claims would substantially predominate over the FLSA claims simply because the state class action could potentially include more class members than an FLSA collective action. Potential class member disparity, the court said, “is not enough to affect the supplemental jurisdiction analysis.”

Additionally, the Second Circuit found no “compelling reason” for the district court to deny supplemental
jurisdiction under Section 1367(c)(3).

Park Avenue argued that supplemental jurisdiction should have been denied based on the “inherent conflict” between the FLSA’s opt-in requirement for workers seeking to join a collective action and FRCP 23(b)(3)’s automatic inclusion of workers in a class action unless they affirmatively opt out.

Disagreeing with the company, the Second Circuit joined the Seventh, Ninth, and District of Columbia circuits in determining that “supplemental jurisdiction is appropriate over state labor law class claims in an action where the court has federal question jurisdiction over FLSA claims in a collective action.”

The court said nothing in the FLSA’s plain statutory language or legislative history “restrain[s] any remedies
available to employees under state law or as affecting a federal court’s ability to obtain supplemental jurisdiction over state employment actions.”

The FLSA’s “savings clause” at 29 U.S.C. § 218(a), which explicitly permits states to “mandate greater overtime benefits than the FLSA,” also demonstrates that Congress intended for state wage laws to co-exist with the FLSA, the court said.

“We do not view Congress’s creation of the opt-in provision for FLSA collective actions as a choice against, or a rejection of, Rule 23‘s opt-out process for state law class actions,” the Second Circuit said.

The court acknowledged that the Third Circuit in De Asencio v. Tyson Foods Inc., 342 F.3d 301, 8 WH
Cases2d 1729 (3d Cir. 2003), reversed a district court’s exercise of supplemental jurisdiction over poultry workers’ Pennsylvania wage and hour claims in an action that also included FLSA claims. However, the court distinguished the instant case from De Asencio where novel and complex questions of state law predominated over the FLSA claim.

In addition, the Second Circuit ruled that the district court did not abuse its discretion in granting class
certification under FRCP 23.

The appellate court agreed with the district court that a class of approximately 275 waiters satisfied Rule
23(a)(1)‘s numerosity requirement. The district court also properly found “questions of law or fact common to the class,” as required by Rule 23(a)(2), given that the waiters’ NYLL claims “all derive from the same compensation policies and tipping practices of Park Avenue” and the claims “arise” under the same state statutes and regulations, the court said.

Further, a determination that tip-ineligible employees were improperly included in the waiters’ tip pool would “affect every plaintiff” so as to meet Rule 23(a)(3), which requires the “claims or defenses of the representative parties [to be] typical of the claims or defenses of the class,” the court said.

Although the district court made no express finding as to the adequacy of the representative plaintiffs for the class, as required by Rule 23(a)(4), the Second Circuit said “there is nothing in the record to suggest that the class representatives are inadequate.”

Last, the appellate court found that Rule 23(b)(3)‘s requirement that “class-wide issues predominate over
individual issues” was satisfied.

The waiters sufficiently alleged that all were subject to a uniform tip-sharing policy, the court said. If the
waiters succeed in proving that Park Avenue improperly required them to share their tips with tip-ineligible employees, they “will likely prevail on [their NYLL] claims, although class plaintiffs’ individualized damages will vary,” the court said. 09-27-2011. Bureau of National Affairs.

Employers will be able to reclassify their workers and come into compliance with the tax system at a low cost under a settlement program launched Sept. 21 by the Internal Revenue Service.

The program is intended to help taxpayers struggling with the complexity of outdated worker classification rules and give them a fair chance to straighten things out, IRS Commissioner Douglas Shulman said in a Sept. 21 news briefing.

Under the new initiative, unveiled in Announcement 2011-64, employers who prospectively treat their workers as employees can make a minimal payment covering past payroll tax obligations rather than waiting for an IRS audit, Shulman said.

Instead of facing back taxes, penalties, and interest for three years of misclassification, taxpayers will be able to pay about 10 percent of the taxes for the most recent of those years, he said.

The Voluntary Classification Settlement Program (VCSP) also provides that taxpayers will not be liable for any interest or penalties and will not be audited on classification issues for prior years.

“For us, this is about doing the right thing,” Shulman said. In answer to questions from reporters, he said that while IRS is targeting small businesses with the new program, it is open to everyone.

Shulman said the program is intended to offer a simpler solution to a complicated problem. IRS has been legally prohibited from writing new rules since a test to determine a worker’s status became law in the late 1970s, he noted.

To be eligible, an applicant must:

• consistently have treated the workers in the past as non-employees;

• have filed all required Forms 1099 for the workers for the previous three years; and

• not currently be under audit by IRS, the Department of Labor, or a state agency concerning the classification of these workers.

IRS said in a news release that interested employers can apply for the program by filing Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before they want to begin treating the workers as employees.

According to the agency, participating employers will be subject to a special six-year statute of limitations for the first three years under the program. This is in contrast to the usual three-year statute of limitations that applies to payroll taxes, IRS said.

In answer to questions, Shulman said it is unclear how many employers might come into the program or how much money it would generate. He emphasized that IRS would maintain a “robust audit program” for taxpayers who have deliberately skirted the law. 09-23-2011. Bureau of National Affairs.

Foreign-owned and -controlled firms would have to report less information about some aspects of their businesses to the federal government every five years, under revised regulations proposed Sept. 21 by the Commerce Department’s Bureau of Economic Analysis (BEA) (76 Fed. Reg. 58420).

The proposed revisions to regulations for the benchmark survey of foreign direct investment (15 CFR Part 806) would raise reporting thresholds and eliminate several items of information collected, while adding some new questions, BEA said in a notice published in the Federal Register.

BEA and the Office of Management and Budget will take public comment on the proposal for 60 days.

The benchmark survey is BEA’s “most comprehensive survey of such investment in terms of subject matter,” the agency said. BEA uses the results to derive annual estimates of foreign direct investment activity from more frequent surveys of a sample of firms.

“These data are needed to measure the size and economic significance of foreign direct investment in the United States, measure changes in such investment, and assess its impact on the U.S. economy,” BEA said.

BEA’s most recent report on majority-owned U.S. affiliates of foreign multinational corporations showed that in 2009, these businesses reduced employment at a faster pace than the U.S. private sector as a whole.

All businesses that are at least 10 percent owned or controlled by foreign firms or individuals are required under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108) to provide information to the U.S. government on sales, employment, finances, and other activities. BEA previously revised regulations for firms participating in the annual surveys.

The amount of information required to be reported varies by the size of a U.S. affiliate’s assets, sales or gross operating revenue, and net income, according to BEA’s notice. The larger the company the more information is required. To minimize the reporting burden on smaller foreign-owned companies, BEA proposes to increase the reporting thresholds for three categories of firms. The new thresholds for the categories would be, in order: over $300 million in assets, sales or revenues, or net income, up from $175 million; over $60 million, up from $40 million; and $60 million or less. The smallest firms are subject to minimal recordkeeping requirements.

BEA proposes to eliminate several items from the benchmark survey. Many of the items were eliminated from the annual survey beginning in 2008, while others are being proposed for elimination because they are no longer used, because the information is collected on other surveys conducted by BEA, or because the quality of the data collected has been poor, the agency said. The items proposed to be eliminated include: the breakdown of employment and employee compensation by occupational classification; the breakdown of total employee compensation into wages and salaries and employee benefit plans; the composition of external finances; manufacturing employment by state; property, plant, and equipment by state; commercial property by state; the number of employees covered by collective bargaining agreements; and the location of the primary U.S. headquarters of the U.S. affiliate. The agency proposes to add questions to the benchmark survey concerning accounting, banking activities, equity in foreign parent companies, and intercompany debt.

The proposed changes to the survey are expected to result in a reduction in the total reporting burden for approximately 19,950 U.S. affiliates to 194,150 hours, from 209,650 hours for the 2007 benchmark survey. 09-22-2011. Bureau of National Affairs.

With more and more companies pushing health insurance premium and deductible costs toward their employees as well as moving into health insurance packages that just a few years ago would be considered low-cost catastrophic plans, it is being reported from Mercer, a large benefits consulting company, that healthcare expenses for U.S. employers are expected to increase next year at the lowest rate in more than a decade. Despite this fact, however, it is also being noted that the cost of benefits for workers is likely to outpace the growth of their earnings.

According to Mercer’s survey of approximately 1,600 employers, companies expect their bills for health benefits to rise 5.4% on average next year, the smallest increase since 1997. The smaller increase reflects cost-cutting efforts by employers. Many are moving workers into lower-cost health plans or slashing expenses by raising insurance deductibles.

In the absence of any cost-cutting, employers said they expect their average health benefit costs to rise 7.1% That’s down from about 9% each of the last five years. The lower increase is partly the result of workers staying away from doctors in the tough economy, the Mercer survey found. Corporate programs to improve employee health also may be having a positive effect, the report said.

“Earlier risk identification and health education … are keeping people with health risks and chronic conditions away from the emergency room,” said Susan Connolly, a Mercer partner. “And consumers are more aware that overuse and misuse of healthcare services will directly impact their wallets as well as their employer’s budget.”

Even as the growth rate for costs slows, employers still expect to pass on many costs to workers by raising deductibles, co-payments to visit the doctor or contributions to insurance premiums, the survey found.

Mercer said its survey offered an initial forecast for 2012 and that final results from 2,800 employers will be released by the end of the year. 09-22-2011. The Los Angeles Times.

The National Labor Relations Board (NLRB) has finalized its new notice, “Employee Rights Under the National Labor Relations Act” and has made it available for download from their website, at www.nlrb.gov. On that site, you can also refer to a memo that contains a series of frequently asked questions on topics such as what the notice says, where it must be posted, which employers are subject to the rule, and how the rule will be enforced.

In general, most private employers are required to post the new notice. It must be posted on bulletin boards where other government posters are placed no later than November 14, 2011.(note: as of October 2011, NLRB has postponed the effective date until January 31, 2012).  Please note that although the new poster is available for purchase by several private vendors, an employer is in full compliance by downloading and printing the poster for free from the NLRB website.

In addition, now is as good time as any to check to make sure your labor law posters are updated. Although a rare occurrence, a state or federal official can walk into your company at any time unannounced to audit your labor law postings. Not having updated labor posters can easily result in a fine.

We do advice our clients to review and update their labor law posters periodically. You can either choose to purchase the posters from a private company or download, print and post them yourself for free to save money. Overall, it’s a practical time saver to purchase the posters either annually or at least every other year. However, you do need to keep them updated. A typical problem that many companies encounter these days is they receive, on a continuous basis throughout the year, what appears to be an “official looking” poster requirement update that attempts to scare you if you don’t comply and write a check to get the update. This can cost hundreds of dollars per work site if you’re not careful to review what you’re buying. I think lots of the private poster companies think that most companies consider this issue “chump change” and will just write a check and not worry any further. However, instead of buying new posters every time a new poster is released, you are in full compliance by downloading and printing any updates and placing them nearby your older ones. 09-21-2011. HRM Partners.

The Department of Labor on Sept. 19 announced new agreements with the Internal Revenue Service and several states to share information and coordinate efforts to combat the misclassification of employees as independent contractors. It appears that “more companies are using business models that attempt to change, obscure, or eliminate the employment relationship” by using “subcontractors, independent contractors, franchises, third-party management agreements, labor contractors, and staffing companies,” Labor Secretary Hilda Solis said. Employers that skirt the rules gain an unfair advantage over law-abiding employers by avoiding certain costs, such as payroll taxes. In addition, misclassification can result in employees being denied the minimum wage, overtime pay, unemployment insurance, and workers’ compensation benefits, Solis said. 09-20-2011. Bureau of National Affairs.

Registered nurses in California have given notice they will engage Sept. 22 in one-day strikes at 34 hospitals throughout the state, the California Nurses Association/National Nurses United announced Sept. 9.

The strikes will affect some 23,000 RNs at facilities of the large hospital chains Sutter Health and Kaiser Permanente, as well as at Children’s Hospital and Research Center in Oakland, Calif.

In addition to the strikes by CNA-represented RNs, the National Union of Healthcare Workers has given notice to Kaiser Permanente it will stage limited-duration strikes Sept. 21-23 affecting 4,000 health care workers statewide.

NUHW has been in negotiations with Kaiser for a first contract for one and one-half years in Southern California and nearly one year in Northern California, union spokesman Leighton Woodhouse said Sept. 12.

The 17,000 RNs at Kaiser represented by CNA will join NUHW caregivers on the picket line Sept. 22 for a 24-hour sympathy strike.

Although the Kaiser registered nurses are not in contract negotiations and successfully avoided health care cuts in their last round of bargaining, they plan to strike in solidarity with other frontline health care workers at the hospitals who are fighting takeaways, Woodhouse said.

The nurses also believe they would be next in line for cuts if Kaiser succeeds in cutting benefits for NUHW members. . Zenei Cortez, one of CNA’s co-presidents, told BNA in August that CNA believes that “some unions have conceded to takeaways with Kaiser” and “we want to nip [further takeaways] in the bud.” If Kaiser achieves its agenda with all the other unions, then it will come after the nurses when their contract expires in 2014, she added.

“Despite enjoying record profits over the last two years, Kaiser administrators are insisting on implementing major reductions to workers’ healthcare coverage and retirement benefits,” NUHW said Sept. 8 in a statement announcing the strike plans.

“NUHW members have refused to roll over and accept management’s demands and are holding the line against cuts which Kaiser intends to impose upon tens of thousands more employees represented by other unions as their contract come up for renewal over the next several years,” the union said.

Other issues at the NUHW-Kaiser bargaining table include employer proposals to replace workers’ defined benefit pension plans with a defined contribution plan, elimination of health care coverage for future retirees, and disagreement about union calls for contractually enforceable safe-staffing guidelines for nurses and staffing levels sufficient to guarantee timely access to care for mental health patients, the union said.

The union will stage strikes at Kaiser hospitals from Sacramento to San Diego. A three-day strike will begin at Kaiser’s flagship Southern California hospital—Kaiser Los Angeles Medical Center—on Sept. 21 affecting more than 1,100 employees. In Southern California, about 1,200 social workers and psychologists will conduct a two-day strike on Sept. 21-22. In Northern California, about 1,500 mental health professionals and optical workers will strike for 24 hours beginning at 6 a.m. on Sept. 22.

Kaiser spokesman John Nelson told BNA Sept. 12 that the employer is negotiating in good faith and will continue to do so. “Our proposals will ensure Kaiser Permanente will remain a great place to work for NUHW-represented employees, and that they will continue to receive highly desirable, market-competitive compensation and benefits. Although NUHW has had our economic proposals for a month or more, they have not responded with counter proposals. Instead, their response has been to strike, rather than negotiate on these matters. This is deeply disappointing and counterproductive,” he said.

While Nelson said the hospital recognizes NUHW’s legal right to conduct a strike, he said that “a CNA-sanctioned work stoppage is inconsistent with the CNA contract that just went into effect on Sept. 1. In fact, Kaiser Permanente and CNA negotiated this contract earlier this year with the mutual goal of labor peace. The contract specifically states, under the header, ‘No Strikes or Lockouts’ that ‘There shall be no strikes, lockouts or other stoppages or interruptions of work during the life of this Agreement.’ ”

CNA, however, denied that the Kaiser contract restricts their right to engage in a sympathy strike. “Kaiser has always recognized our rights and the rights of other employees to engage in sympathy strikes with other unions,” Idelson told BNA Sept. 12. By stating otherwise, he said, Kaiser is “making unilateral changes in their interpretation of this contract.”

Kaiser hospitals affected by the CNA sympathy strike would include facilities in Sacramento, Roseville, San Jose, Santa Clara, Redwood City, San Francisco, South San Francisco, Oakland, Richmond, Hayward, Fremont, Santa Rosa, San Rafael, Vallejo, Vacaville, Walnut Creek, Fresno, Stockton, Manteca, and Modesto.

Nearly 800 CNA-represented RNs at Children’s Hospital Oakland have been working without a contract since July 2010. The strike Sept. 22 at the urban pediatric hospital will be the nurses’ third strike over the hospital’s proposals to increase employee out-of-pocket health care expenses.

Children’s administration “is taking advantage of the economic times and trying to roll back improvements we have won over many years through our CNA contract,” RN Martha Kuhl said Sept. 9 in a statement. “Everyone deserves health care and if nurses can’t afford health care, who will be able to?”

The nurses said the proposed health care costs would be prohibitively expensive for nurses to bring their own children to get care at the hospital where they work.

CNA members’ one-day strike at Sutter Health hospitals is induced by what they said is “Sutter’s unprecedented demands for some 200 sweeping cuts in patient care and nurses’ standards on top of months of widespread reductions in availability of patient care services, motivated by commercial concerns.”

CNA, which represents about 5,000 Sutter Health RNs, is currently in contract negotiations with the company for renewal of 12 collective bargaining agreements that expired June 1 through Aug. 31, union spokesman Idelson said Sept. 12.

CNA has been resisting Sutter proposals to restrict the ability of RNs to advocate for patients in making clinical assessments of staffing and other patient needs, the union said.

The nurses also object to Sutter proposals that would “force nurses to work when sick, … subject nurses to arbitrary discipline based on benchmark budget goals, and sharply raise out-of-pocket costs by thousands of dollars for nurses and their families.”

“We staunchly refuse to be silenced on patient care protections,” Sharon Tobin, a 24-year RN at Sutter Mills-Peninsula in Burlingame, said in a statement Sept. 9. “A common theme throughout management’s proposals is removing our presence on committees that address important patient care issues and nursing practices. As nurses, we speak up, and we insist on standards that safeguard our patients, but Sutter doesn’t want to hear about anything that might cut into their huge profits.”

Sutter hospitals affected by the strike include Alta Bates Summit facilities in Berkeley and Oakland, Mills-Peninsula in Burlingame and San Mateo, Eden Medical Center in Castro Valley and San Leandro, and Sutter hospitals in Vallejo, Santa Rosa, Antioch, Novato, and Lakeport.

Sutter and Children’s representatives were not available for comment. 09-20-2011. Bureau of National Affairs.

A Redondo Beach, Calif., ordinance barring people from standing on streets or highways to solicit work, business, or contributions from motor vehicle occupants violates the First Amendment right to free speech, the U.S. Court of Appeals for the Ninth Circuit held 9-2 in a Sept. 16 ruling (Comite de Jornaleros de Redondo Beach v. Redondo Beach, 9th Cir. (en banc), No. 06-55750, 9/16/11).

The appeals court affirmed a federal district court’s grant of summary judgment to day laborer associations Comite de Jornaleros de Redondo Beach and National Day Laborer Organizing Network on their facial constitutional challenge to the ordinance. The district court in April 2006 enjoined the city’s enforcement of the ordinance.

The city failed to tailor the law narrowly to achieve its goal of improving traffic flow and safety at two major intersections without reaching a significant amount of non-problematic speech, such as Girl Scouts selling cookies and people seeking disaster relief fund donations, Judge Milan D. Smith wrote for the Ninth Circuit majority. The city had less restrictive alternatives, including the enforcement of already existing traffic laws, the court found.

The Ninth Circuit reheard the case en banc after an appellate panel in June 2010 reversed 2-1 the district court’s judgment. The full appeals court overruled its decision in ACORN v. Phoenix, 798 F.2d 1260 (9th Cir. 1986)—which upheld a Phoenix ordinance that prohibited people from standing on a street or highway to solicit, or attempt to solicit, employment, business, or contributions from the occupants of any vehicle—only to the extent it is inconsistent with the en banc ruling.

Smith wrote a special concurrence in which he reasoned that the ordinance also is unconstitutional because it is a content-based restriction on speech that does not survive strict scrutiny and, in any case, does not leave open ample alternative channels for day laborers to engage in their protected speech.

Judge Sidney R. Thomas joined the special concurrence, while Judge Susan P. Graber joined as to the content-based speech restriction finding. Judge Ronald M. Gould also wrote a short separate concurrence, stating that he would find the ordinance constitutional if the city designated a permissible area for day laborer solicitation.

In a strongly worded dissent, Judge Alex Kozinski expressed serious doubt that the ordinance regulates speech as opposed to conduct. He argued that the law makes no content-based distinctions and can be construed “quite sensibly to exclude all legitimate overbreadth concerns.” Judge Carlos T. Bea joined in the dissent. 09-19-2011. Bureau of National Affairs.