Although Memorial Day today is more thought of as the official marker for summer and a time to have a backyard barbeque, family picnic or trip to the beach, its past harkens to a more somber meaning. Formerly known as Decoration Day, it originated after the American Civil War to honor to dead Union soldiers of the Civil War. Even prior to this, in the Southern U.S., a practice sprang up to decorate Confederate grave, mostly during May, in Richmond and other cities during the Civil War.

By the early 20^th century, the holiday began to transition to an occasion for more general expressions of memory as people visited graves of their deceased relatives in cemeteries, whether they had served in the military or not. As the 20^th century moved on beyond World War II, it became a long weekend increasingly devoted to parades, shopping, family gatherings, trips to the beach as well as the famous Indianapolis 500 auto race.

From its beginning, the name for the holiday gradually changed from “Decoration Day” to “Memorial Day.” The term “Memorial Day” didn’t become more common until after World War II and wasn’t declared the official name until 1967.

Besides the extra day off, parades, concerts, barbeques, and retail shopping sales, many Americans today still observe Memorial Day by visiting cemeteries and memorials. In addition other traditions include: observing a national moment of remembrance at 3:00 pm local time, flying the U.S. flag at half-staff from dawn until noon local time and volunteer groups placing American flags on each grave at national cemeteries.

From everyone at HRM Partners, we wish you a happy, safe & restful Memorial Day holiday!

Denying enforcement of an NLRB ruling that the button limit violated Section 8(a)(1) of the National Labor Relations Act, the appeals court found that Starbucks encouraged workers to wear numerous buttons promoting its products. The company was entitled to avoid a “dilution” of its message by employees wearing multiple union buttons, Judge Jon O. Newman wrote for the appeals court.

The court also remanded to NLRB the case of an employee and union supporter who was fired after using obscenities in a public area of a New York Starbucks store. Newman and Judge Ralph K. Winter said the board’s customary four-part test for determining whether an employee has lost NLRA protection should not be applied to behavior that occurs in the presence of an employer’s customers. Judge Robert A. Katzmann concurred in the remand, but disagreed with the majority’s reading of NLRB precedent.

According to the decision and NLRB records, the disputes before the court arose out of organizing efforts by the Industrial Workers of the World (IWW) at four New York stores.

From 2004 to 2007, IWW supporters held protests and made numerous statements to news media. The court said Starbucks responded by using “a number of restrictive and illegal policies” that limited employees from engaging in pro-union activity that was protected by the NLRA.

Acting on unfair labor practice charges filed by IWW Local 660, the board, then consisting of Chairman Wilma B. Liebman and Member Peter C. Schaumber, issued a decision in 2009 (354 N.L.R.B. 876, 187 LRRM 1113 (2009)) finding that the company engaged in a variety of unfair labor practices.

The company petitioned for review in the U.S. Court of Appeals for the District of Columbia Circuit, but the court dismissed the proceedings at the request of the parties, and the board set aside the two-member decision after the U.S. Supreme Court held in New Process Steel LP v. NLRB, 130 S. Ct. 2635, 188 LRRM 2833 (2010), that the authority of the five-seat board could not be delegated to a panel with fewer than three members.

A three-member board panel reviewed the case and issued a decision in 2010 (355 N.L.R.B. 636, 189 LRRM 1493 (2010)) mostly affirming the rulings of the two-member panel. Starbucks petitioned for review in the Second Circuit, and NLRB filed a petition to enforce its order.

Newman said the first issue before the court was the board’s decision that the company violated the NLRA by enforcing a rule that permitted employees to wear one, but only one, union button at work.

The company had settled an NLRB unfair labor practice case in March 2006, the court noted. In the settlement, Starbucks gave up a total ban on union buttons and substituted a policy that permitted “reasonably-sized-and-placed buttons or pins that identify a
particular labor organization or a partner’s support for that organization,” with certain safety exceptions.

Starbucks managers interpreted the authorization for “buttons or pins” to limit employees to wearing one union pin at a time. The court said several employees were asked to remove IWW buttons from their clothing before they began work. IWW’s buttons, the court said, had the union’s initials in white letters on the red background of a button that was less than one inch in diameter.

Newman said an NLRB administrative law judge found, and the board agreed, that Starbucks did not have a legitimate
business interest in restricting displays of IWW buttons. The company encouraged employees to wear large numbers of buttons promoting Starbucks products.

Customers would not immediately recognize the company buttons as Starbucks-sponsored, the ALJ said, because the union buttons were “no more conspicuous than the panoply of other buttons employees displayed.”

The Second Circuit found that “the Board has gone too far in invalidating Starbucks’s one button limitation.” Starbucks had a right to shape its public image by encouraging or requiring employees to wear its product buttons, the court said. “The company is also entitled to avoid the distraction from its messages that a number of union buttons would risk.”

Citing the example of one employee who attempted to display eight union pins on her pants, shirt, hat, and apron, Newman said “wearing such a large number of union buttons would risk serious dilution of the information contained on Starbucks’s buttons.”

Denying enforcement of the NLRB finding that maintaining and enforcing the button rule was an unfair labor practice, the court concluded, “The company adequately maintains the opportunity to display pro-union sentiment by permitting one, but only one,
union button on workplace clothing.”

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In the April 27 filing, the employees delineated the settlement’s terms and urged the court to grant preliminary approval.

The 2011 lawsuit alleges that Yelp!, which allows users to review everything front dentists to diaper delivery services, violated the Fair Labor Standards Act, the California Labor Code, and the California Industrial Welfare Commission Wage Order for misclassifying sales representatives as exempt.

Yelp! makes money selling advertisements by representatives who make calls to potential sales leads, according to the complaint. The representatives, who are paid a base salary and can increase their pay through performance, were not exempt from overtime, the suit alleges.

According to the settlement motion, Yelp! contends that the employees’ claims have no merit and a majority of class members, including two of the named plaintiffs, signed releases preventing them from bringing the claims asserted in the filing. Yelp! also argues that a class action prohibition implemented in February 2012 bars class members from pursuing claims in this filing on a class or collective action basis.

The proposed settlement calls for $5,000 in incentive payments to the three named plaintiffs; $312,500 for attorneys’ fees and $10,000 for costs, $7,500 payable to the state Labor Workforce Development Agency under the Private Attorney General Act; and
$25,000 in fees to the settlement administrator.

Yelp! agreed to contribute 75 percent to 100 percent of the employer’s share of payroll taxes depending on the number of qualifying workweeks claimed.

The court is being asked to approve a national class, comprised of 454 reps employed by Yelp! between May 11, 2008, and Dec. 31, 2011, and a California class, an estimated 488 individuals employed reps from March 29, 2007, through Dec. 31, 2011.

Under the settlement agreement, the maximum California class payment is $586,667 and $293,333 to the national class members. Individual payments will be paid based on the total number of weeks worked in covered positions during the relevant class period.

The total amount Yelp! will pay depends on how many class members participate. In no event will Yelp! pay less than half the maximum gross amount attributed to the California class, according to the agreement. 05.13.2012

Through the support of her parents up to now, Hannah has been able to modestly live in a shared New York City rent-controlled apartment. However, her parents suddenly cut her off and tell her to go and ask her so-called employer to pay her a salary finally after two years. Unfortunately, within 30 seconds of asking her boss for a salary, he kindly points to a stack of resumes for replacing her, informs her “I’m really going to miss your energy” and wishes her luck in finding a job.

Although Hannah is a fictitious character, there are possibly hundreds of thousands of real-life Hannah’s working as unpaid interns these days. Some employment experts estimate that undergraduates work in more than one million internships a year with almost half being unpaid. In addition, a recent released report stated that about 54% of Bachelor’s degree holders under 25
last year were jobless or under-employed, the highest percentage in at least the last 11 years.

A recent New York Times article this past weekend (NYT, May 5, 2012, “Graduates Flock to Unpaid Internships) brought back to mind Hannah and her dilemma. According to the article, unpaid post-college internships have existed for decades in the film and non-profit workplaces but have more recently spread to fashion house, book and magazine publishers, marketing companies, public relations firms, art galleries, talent agencies and even law firms. Most likely, as a sign of the tough economic times, lots of companies are trying to take advantage of a situation where they need to get work done but they can’t afford it because their budgets aren’t what they used to be before the financial crash.

The NYT article goes on to describe several interns, one being an intern performing unpaid personnel work for Fox Searchlight Pictures on the film, “The Black Swan.” He’s now part of a class-action lawsuit against that company to win back pay. The article also describes unpaid interns spending long working hours performing menial task including running errands, doing coffee runs for staff and picking up people’s dry cleaning.

If you’re an employer and reading this, here’s the deal or at least the legal one. First, if you’re going to “employ” an intern to do actual work (e.g., making copies, picking up your complicated coffee order at Starbucks, making a Staples run, etc.), you can do so. However, you do need to pay them at least minimum wage. Minimum wage laws prohibit employers from hiring employees for
less than a certain hourly rate. Unpaid interns can be exempt from these rules. However, the U.S. Department of Labor makes it clear that for the intern to be exempt from minimum wage laws, he/she must get something for his or her time.

With that said, there are six “enforcement criteria” that an employer must satisfy, in order to properly classify a worker as an intern:

1. The intern’s training, even though it includes actual operation of the employer’s facilities, is similar to that given in a vocational school;
2. The intern’s training is for the benefit of the trainee or student;
3. The intern does not displace regular employees, but rather work under their close supervision;
4. The employer does not obtain or receive an immediate advantage from the intern’s activities and, on occasion, the employer’s operations may be actually impeded;
5. The interns are not necessarily entitled to a job at the conclusion of the training period; and,
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in training.

If the criteria are not met, the intern will be considered an employee and subject to federal and state wage and hour laws including that the intern must receive compensation and the employer must deduct all applicable taxes and follow all required regulations including meal and rest breaks. From a practical stand-point, most of the unpaid internships that I have witnessed don’t even come close to meeting these requirements. Plus, this certainly doesn’t come close to meeting good corporate governance practices that everyone spends so much time talking about in their recruitment literatures.

In summary, the Labor Department has been fairly pathetic in dealing with this growing issue up to now. However, it now says that it is going after firms that fail to pay interns properly. Furthermore, it is expanding its efforts to educate companies, colleges and students on the law regarding internships.

Professional and business services were the leaders in new job growth with the addition of 62,000 jobs. Education and health services added 23,000; retail, 29,000, and Manufacturing, 16,000. On the opposite side, Transportation and Warehousing cut 17,000 jobs and governments reduced their numbers by 15,000, including 12,000 by local governments.

05.07.2012

Of particular note is the Labor Force Participation Rate. This number fell again in April to  63.6%. That’s the second decline in a row and the lowest rate since December  1981.

05.07.2012

In general, non-farm employment increased by 115,000 in April with the unemployment rate slightly decreased to 8.1% from 8.2% the previous month. This is particularly disappointing in that between December and February, new jobs rose by an average of 252,000 a month. Beginning from the March Employment Situation Report, however, the numbers began to slide but were still over 200,000.

Professional and business services were the leaders in new job growth with the addition of 62,000 jobs. Education and health services added 23,000; retail, 29,000, and Manufacturing, 16,000. On the opposite side, Transportation and Warehousing cut 17,000 jobs and governments reduced their numbers by 15,000, including 12,000 by local governments.

Please refer to Employment Situation Summary – Tables A & B for additional detail.  05.07.2012

In general, the new guidelines make it harder for employers to have a blanket policy that excludes anyone with a criminal record.
The EEOC states that while employers may legally consider criminal records for making hiring decisions, a policy that excludes all applicants with a conviction could violate employment discrimination laws because it could have a “disparate impact” on racial and ethnic minorities. Furthermore, an employer wanting to exclude applicants with criminal records would need to show that the exclusion was job-related and consistent with business necessity.

The EEOC, with the updated guidelines, is calling for employers to conduct individualized assessments of job applicants in a way
that examines the nature and gravity of the criminal offense, the time passed since the offense and the nature of the job applied for.

The EEOC is pursuing this area in many ways because of a couple of trends over the past decade. First, there has been a huge
increase of employers accessing computer-based arrest and conviction records. In 1996, 51% of employers conducted criminal back checks on applicants. Today, 90% of employers are doing so. In addition, there are numerous reports of erroneous arrest and conviction records as well as many cases that are supposed to be sealed but being released to employment screeners. The second trend is even more important. Basically, there has been a huge increase in the number of Americans who have been arrested for minor offenses, due to “zero tolerance” policing.

The EEOC guidelines make it clear that an arrest alone is not evidence of illegal conduct or grounds for employment exclusion.
Furthermore, if an applicant does have a criminal conviction, the employer must review the seriousness of the offense, the time that has lapsed since the crime was committed, and the relevance of the crime to the specific job opening.

In summary, if you have an employment policy today where you reject anyone that marks, “yes” to the question, “Have you ever been convicted of a crime?” you could be in violation of the law. The following are some practices to consider regarding the new guidelines:

1. Review your employment recruitment practices. If you are rejecting every applicant simply because of an arrest or conviction, you need to eliminate this practice.
2. If you are going to reject an applicant because of a criminal offense, you need to identify the criminal offense based on all evidence, determine the duration of exclusions for criminal conduct based on all evidence, include an written individual assessment of the situation including a written justification for excluding the applicant from employment.
3. Make sure anyone involved in hiring and employment decision making is aware of the new guidelines and subsequent policy changes in your practices.
4. When asking questions to an applicant about criminal records, limit inquiries to records for which exclusion would be job-related for the job and/or business necessity.
5. Make sure that background check information is kept confidential. This includes that you need to seriously consider how you organize your personnel files so that such information as arrest and conviction records are not readily available to
   any hiring decision maker requesting to review a personnel file.

The EEOC guidelines, contained in a 52-page publication, can be downloaded by going towww.eeoc.gov/laws/guidance/arrest_conviction.cfm.

When WHD investigators find violations, they pursue appropriate remedies, including the collection of back wages, the assessment of civil money penalties and liquidated damages, and litigation

As part of the Los Angeles initiative, the division will conduct unannounced investigations at restaurants in the San Fernando Valley, Hollywood, West Hollywood, West Los Angeles, and other areas of Los Angeles County.

In the past six years, WHD’s Los Angeles office found FLSA violations at 72% of the restaurants it investigated. Those violations resulted in $2.2 million in minimum wages and overtime back wages owed to more than 1,400 workers.

From 2006 through 2011, the division’s Portland, Ore., office found FLSA violations at 79% of the 281 restaurants it investigated. Those violations resulted in more than $3 million in minimum and overtime back wages owed to more than 1,600 workers.

During the same period, the division conducted more than 1,800 investigations of restaurants along the West Coast and found that 71% were in violation of the FLSA, resulting in more than $12 million in back wages owed to more than 9,500 employees.

According to the Labor Department, limited profit margins—particularly at low-cost, ethnic food establishments—prompt some
employers to keep their labor costs low by using illegal tactics, including failing to pay employees for all their work hours, forcing employees to perform work duties “off the clock,” and incorrectly designating employees as exempt
from overtime.

Other violations include paying nonexempt employees a flat salary regardless of their overtime hours and paying cash wages completely “off the books,” which can lead to underpayment of wages and to tax liabilities.

Illegal deductions from workers’ wages for uniforms, breakages, customer walk-outs (instances of people leaving without paying for meals), and cash register shortages also are common. WHD also has discovered child labor violations, such as minors operating hazardous equipment such as dough mixers and meat slicers. 05.03.2012