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The Department of Labor (DOL) announced on March 8th that a California nursery has agreed to pay $457,000 in back pay and penalties following an investigation by the Labor Department’s Wage and Hour Division that found violations of the H-2A temporary worker program.

Sierra-Cascade Nursery Inc., of Susanville, Calif., agreed to pay $287,800 in back wages to 430 temporary workers and $169,200 in civil money penalties after WHD concluded the employer did not pay its workers properly and violated federal housing safety and health regulations required under the H-2A program.

“All employers must honor their legal obligations not only to domestic workers but also to workers coming into the U.S. under the H-2A visa program,” said Richard Newton, director of WHD’s Sacramento district office, which conducted the investigation. “Migrant, seasonal and temporary nonimmigrant farmworkers are among the most vulnerable and disadvantaged employees we see. It’s important that consumers know the food reaching their tables was produced by employees paid fairly for their work.”

Sierra-Cascade grows seedlings in California and Oregon and ships the plants to growers for replanting throughout the United States, Mexico, and Spain, according to DOL. The company used the H-2A temporary agricultural worker program to hire temporary workers to sort, count, and trim strawberry seedlings and plants at its facilities in Tulelake, Calif., and Susanville, DOL said.

The investigation found that Sierra-Cascade gave the workers an incomplete copy of their work contracts and changed the conditions of employment from those it originally promised. WHD also determined that Sierra-Cascade did not pay workers consistently for the time they were required to wait to board buses to and from the worksites and that the employer failed to maintain records of the workers’ daily start and end times and did not pay required wages when due.

The investigation further determined that Sierra-Cascade discriminated against 23 workers at its Tulelake facility for asserting protections afforded by the Immigration and Nationality Act and applicable regulations.

Sierra-Cascade also was cited because the housing it provided lacked heat; it employed H-2A workers in positions outside those included in their job orders, and it hired H-2A workers without first recruiting U.S. workers.

The H-2A temporary agricultural program establishes the requirements under which agricultural employers who anticipate a shortage of U.S. workers may bring nonimmigrant foreign workers into the country to perform temporary or seasonal agricultural work. 03.19.2012

Federal contractors can expect increased scrutiny of their compensation practices and policies by the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) in 2012, a senior OFCCP official said recently. But if contractors perform their own audits of compensation based on race and sex, she said, they should be able to “figure out  if there is a problem before we show up at their doorsteps.” The official added  that OFCCP has a multifaceted approach to compensation audits. “It’s not just about the ‘same job and different pay’ type of problems. It’s about what Executive Order 11,246 requires, which is nondiscrimination in compensation.”  03.19.2012

Good Friday, occurring this year on April 6, is two days before Easter Sunday and is the day that Christians commemorate the
crucifixion and death of Jesus Christ on the Cross. Easter is the day, according to the Christian faith, when Jesus returned to life from the dead three days after his death.

Easter, which is the single most important holiday day for Christians, is not a fixed holiday. The determination of when the Easter holiday is celebrated each year is a somewhat complicated calculation involving the full moon and the spring equinox. Basically, Easter is the first Sunday after the full moon following the northern hemisphere’s vernal or spring equinox. This year, Easter is celebrated on Sunday, April 8, 2012.

According to a survey of paid holidays conducted by the Society for Human Resource Management (SHRM), about 25% of U.S. employers observe Good Friday as a paid holiday. The only other religious holiday observed in the U.S. is Christmas with 95% of employers observing it as a paid holiday.

In addition, although Good Friday is celebrated as a national holiday in several countries that include Australia, Canada, Germany,
India, Indonesia, South Africa and the United Kingdom, it is not celebrated as a federal (national) holiday in the United States. However, it is a state holiday in a number of U.S. states including Connecticut, Delaware, Florida, Guam, Hawaii, Indiana, Kentucky (half-day), Louisiana, New Jersey, North Carolina, North Dakota, Puerto Rico, Tennessee, Texas and the U.S. Virgin Islands.

According to a Congressional Budget Office (CBO) report released recently, the new health care law, the Patient Protection and Affordable Care Act or PPACA, is unlikely to cause a sharp decline in employer-based health insurance coverage.

CBO, in conjunction with the congressional Joint Committee on Taxation, projected that 3 million to 5 million fewer people would have employer-sponsored coverage from 2019 through 2022 as a result of the Patient Protection and Affordable Care Act than would have been the case without the law.

Most of those losing employer-sponsored coverage would obtain it through the health insurance exchanges created under the law or through Medicaid and the Children’s Health Insurance Program, although some may become uninsured, the analysis said.

But as many as 20 million individuals could lose their employer coverage, or up to 3 million more actually could gain such coverage, by 2019, depending on different scenarios presented on how employers will react to the law, according to the analysis, CBO and JCT’s Estimates on the Effects of the Affordable Care Act on the Number of People Obtaining Employment-Based Health Insurance.

CBO said it is too early to tell how employers will react to provisions in the health care law regarding providing coverage to workers. But the Massachusetts health care law, which is similar to PPACA, appears to have increased employment-based health insurance since its enactment, the analysis said.

If employers drop health care coverage, that would increase the cost of the health care law, CBO said. But those costs likely would be offset by higher tax revenue since employers would offer higher taxable wages in lieu of insurance coverage, it added.

The analysis examines the incentives for employers to offer or not offer health insurance under the law, as well as a range of estimates of sources of coverage and federal budgetary outcomes that would result from the law under alternative assumptions about employers’ behavior.

The analysis is a follow-up to a report released by CBO March 13 that estimated that the law would cost about $50 billion less than CBO said a year ago.

CBO in its March 15 analysis considered four alternative scenarios that could govern employer behavior under the health care law, other than the middle course they selected when estimating how many workers would lose coverage as a result of its implementation beginning in 2014.

CBO said the law is unlikely to cause employers to jettison coverage in a dramatic way because it leaves in place current financial incentives to provide coverage and creates others. But it added that “there is clearly a tremendous amount of uncertainty about how employers and employees will respond to the set of opportunities and incentives under that legislation.”

“In addition to the uncertainty surrounding employers’ and employees’ decisionmaking, there is uncertainty regarding many other factors, including the future growth rate of private insurance premiums and the number of individuals and families who will have income in the eligibility ranges for Medicaid, CHIP, and exchange subsidies,” the analysis said.

The cost of coverage to the federal government varies under the four scenarios, from a decrease of $82 billion over 11 years to an increase of $45 billion, CBO said.  03.17.2012

On March 8, A California state judge approved a $35 million settlement ending claims that software giant Oracle Corp. denied overtime to some 1,700 employees (Oracle Wage & Hour Cases v. Oracle Corp., Cal. Super. Ct., No. JCCP004597, final approval granted 3/8/12).

Judge Steven Brick of the California Superior Court in Alameda County signed off on the settlement he preliminarily approved last fall.

Plaintiffs alleged that the Redwood Shores, Calif., company failed to pay overtime and missed meal and rest breaks to quality assurance, customer support/technical analysts, and project managers. The litigation claimed violations dating to April 2003 at Oracle and PeopleSoft Inc. Oracle purchased Pleasanton, Calif.-based PeopleSoft in December 2004.

The settlement ends two of three cases that were coordinated before Brick (Garcia v. Oracle Corp., Cal. Super. Ct., No. RG07321026; Krimsky v. Oracle Corp., Cal. Super. Ct., No. SCV 23970; and Anderson v. Oracle Corp., Cal. Super. Ct., No. CIV 469916). Brick certified the class in the case Leticia Garcia brought in 2007 in October 2010.

The cases, filed in California Superior Court in Alameda, Placer, and San Mateo counties, allege violations of the California Labor Code and the California Business & Professions Code Section 17200, the unfair business practices act.

Quality assurance engineers continue be classified as exempt employees while Oracle reclassified customer support/technical analysts and project managers, Ho said. QAs were paid for overtime through November.

The net settlement amount is $23.55 million. The five class representatives each will receive $30,000. The average class members will receive is slightly more than $14,000, with more than 50 class members each receiving in excess of $50,000, according to the plaintiffs’ motion for final approval. Settlement amounts are pro rata based on workweek.

Class counsel of Goldstein, Demchak, Weltin Streb & Weltin in Oakland, and Flynn, Delich & Wise in San Francisco will share $10.5 million in legal fees. Approved costs totaled $670,000, Ho said.

Under the settlement, $100,000 will be paid to the California Labor & Workforce Development Agency as payment for claims of penalties under the state Private Attorneys General Act.

Half of any unclaimed funds would be split equally by the Alexander Community Law Center at Santa Clara University and the Legal Aid Society Employment Law Center. The other half will be split between the Wounded Warrior Project and the Tenderloin Tech Lab of the St. Anthony Foundation in San Francisco.  03.17.2012

Fourteen San Francisco restaurant workers will receive $230,535 in unpaid overtime under terms of a settlement between the restaurant and the California Department of Industrial Relations Division of Labor Standards Enforcement, the labor commissioner’s office announced March 8.

The state last December charged the owners of Big Lantern Restaurant in San Francisco with violating Labor Code Section 1197.1 for failing to pay the minimum wage after an investigation following a worker’s wage claim.

The owners of the popular Chinese restaurant had until March 7 to pay $170,750 to restaurant workers and $63,084 to delivery drivers, according to the settlement. Workers, who are mostly immigrants, will receive sums from $457 to $38,881. The restaurant also paid $5,300 to the DLSE.

The state worked with the San Francisco Office of Labor Standards Enforcement, the Asian Law Caucus, and the Chinese Progressive Association in the investigation. The same collaboration was credited last month in workers at two San Francisco Vietnamese restaurants—Pho Clement and Pho Clement 2— recovering $316,000 in back wages and tips, and for missed meal and rest breaks.

California employers are required to pay time-and-one-half overtime for hours worked in excess of eight in a day and 40 in a week, and double time after 12 hours a day or beyond eight hours on the seventh consecutive working day.  03.14.2012

Spring is here! With nature showing its new greenery, this is a great time of year to get INSPIRED for some new ideas. Here’s to a great springtime along with longer days, warmer weather and positive thoughts.

The U.S. Department of Labor’s Bureau of Labor Statistics (BLS) released the U.S. Employment Situation Report for February on Friday, March 9 showing national unemployment unchanged at 8.3% but a continued strong three month trend in job growth. Overall, 227,000 net jobs were created in February. In addition, both January and December’s job growth numbers were revised to 284,000 and 223,000 respectively.

Overall, since the beginning of December 2011, the U.S. has added 734,000 jobs. Although there are other factors that are of concerns such as the wage growth not keeping up with inflation, continued high numbers of unemployed people, fast rising fuel prices and continued economic problems in Europe, this latest report definitely improves the mood of most people and shows that U.S. employers are definitely hiring again.

Total non-farm payroll employment rose by 227,000 with private-sector employment adding 233,000 jobs in several categories including professional & business services, healthcare, leisure & hospitality, manufacturing and mining. The Report provides the following job growth/decline changes in thousands:

Industry Feb. 2011 Dec. 2011 Jan. 2012 February 2012
Mining/Logging 73 62 83 24
Construction 3 8 10 6
Manufacturing 37 28 52 31
Wholesale Trade 12.8 14.7 14.5 8.4
Retail Trade 5.4 6.8 26.1 -7.4
Transportation & Warehousing 25.1 5.1 16.1 10.6
Information -4 1 -20 -1
Financial activities 3 5 -1 6
Prof. & business services 49 72 76 82
Education & health services 29 33 37 71
Leisure & hospitality 57 28 46 44
Government -37 -11 -1 -6


Following circuit precedent, the U.S. Court of Appeals for the Seventh Circuit March 7 ruled the Americans with Disabilities Act does not require employers to reassign employees who lose their current jobs because of disabilities to other vacant jobs they are
qualified to perform (EEOC v. United Airlines Inc., 7th Cir., No. 11-1774, 3/7/12).

The Equal Employment Opportunity Commission had sued United Airlines under the ADA, challenging the airline’s reasonable accommodation guidelines. Those guidelines said that while “transfer to an equivalent or lower-level vacant job” may be a reasonable accommodation for an employee unable to perform his or her current job because of disability, the reassignment process is “competitive” and the disabled employee will not automatically receive the vacancy if a better-qualified candidate applies.

The EEOC contended that United’s policy violates the ADA, which EEOC argued requires an employer to reassign a disabled
worker to a vacant job for which he is qualified. A federal district court granted United’s motion to dismiss, citing the Seventh Circuit decision in EEOC v. Humiston-Keeling, 227 F.3d 1024, 10 AD Cases 1665 (2000), for the principle that an employer’s
competitive transfer policy does not violate the ADA.

The EEOC argued on appeal that the U.S. Supreme Court decision in US Airways Inc. v. Barnett, 535 U.S. 391, 12 AD Cases 1729
(2002), undermines Humiston-Keeling and that the Seventh Circuit should change its interpretation of the ADA. EEOC argued that the law requires as a reasonable accommodation the reassignment of a disabled worker over a more qualified nondisabled candidate if the disabled individual is “at least minimally qualified” for the job and the employer cannot prove undue hardship.

Affirming the judgment for United, a Seventh Circuit panel said Humiston-Keeling remains good law, but it also strongly suggested en banc review of the issue.

“EEOC’s interpretation may in fact be a more supportable interpretation of the ADA, and here we think that this is likely,” Judge Richard D. Cudahy wrote. “However, the EEOC must do more to force an abandonment of stare decisis. In order to provide this court
with a compelling reason to deviate from precedent, the EEOC must show that Humiston-Keeling is inconsistent with an on-point Supreme Court decision or is otherwise incompatible with a change in statutory law.”

Since the Seventh Circuit previously has ruled the Supreme Court’s decision in Barnett did not undercut the ADA interpretation in Humiston-Keeling, the appeals panel said it would adhere to Humiston-Keeling.

“However, there is no harm in lessening this split [among federal circuit courts on the reassignment issue] if, in fact, Barnett undermines Humiston-Keeling,” Cudahy wrote. “In that respect, the present panel of judges strongly recommends en banc
consideration of the present case since the logic of EEOC’s position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive with or without consideration of Barnett.” Judges Michael S. Kanne and Diane S. Sykes joined in the decision.  03.11.2012

The Patient Protection and Affordable Care Act has eliminated lifetime limits on health benefits for more than 105 million Americans, according to a new report from the Department of Health and Human Services. Prior to the law’s prohibition of lifetime dollar limits on essential health benefits, some plans already provided coverage without such caps. However, HHS
estimated that 70 million people in large employer plans, 25 million in small employer plans, and 10 million in individual policies faced lifetime limits that have now been lifted under the law.  03.07.2012.