As most New York employers are aware, the first annual notice to all employees required by the Wage Theft Prevention Act (“WTPA”) must be distributed by February 1, 2012.
The WTPA went into effect on April 9, 2011 and requires that all New York state employers provide a written notice to employees of their rate(s) of pay, designated pay day, the employer’s intent to claim allowances (like tip or meal allowances) as part of the minimum wage, and the basis of wage payment (whether paying by hour, shift, day, week, piece, etc.). The law requires that the notice contain the employer’s “doing business as” names, and that it be provided at the time of hiring, annually on or before February 1st of each year of employment, and within 7 days of a change if the change is not listed on the employee’s pay stub for the following pay period. The notice must be provided in the employee’s primary language, as identified by the employee, through translated notices provided by the Department of Labor.
With the written notice provided, the employer needs to receive an acknowledgement of receipt from each employee. In the case where an employee refuses to sign the acknowledgement of receipt, an employer should note the employee’s refusal on its copy of the notice.
Along with the annual February 1 notice, a notice is also required at the time that an employee is hired. 01.31.2012.
The Department of Labor (DOL) Wage and Hour Division on January 30 issues new proposed regulations under the Family and Medical Leave Act that would further explain the military family leave provisions and incorporate some special provisions for airline flight crews.
The new proposed regulations are in response to the National Defense Authorization Act for Fiscal Year 2012 which amended the FMLA to extend the military caregiver leave entitlement to eligible family members of certain veterans and to extend the qualifying exigency leave entitlement to eligible family members of the Regular Armed Forces.
The major provisions of the new rules include: (1) the extension of military caregiver leave to eligible family members of covered veterans with a serious injury or illness; (2) a flexible, three part definition of serious injury or illness of a veteran; (3) the extension of military caregiver leave to cover serious injuries or illnesses that result from the aggravation during military service of a pre-existing condition for both current service members and veterans; (4) the extension of qualifying exigency leave to eligible family
members of members of the Regular Armed Forces; (5) inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all service members (National Guard, Reserves, Regular Armed forces); (6) the addition of a special hours of service eligibility requirement for airline flight crew employees; and (7) the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.
Presently, the DOL is soliciting comments on the new rules and may make further changes prior to the final release. Additional information can be found on the Department of Labor’s website (www.dol.gov.opa/media/press/whd/WHD20120177.htm). 01.31.2012
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Please join us on Wed., Feb. 22, 2012 for a seminar on Labor Law & Human Resources Management Practices (Basics & Recent Updates) – conducted in Japanese by Mr. Akira Takahashi, HRM Partners, Inc.
This seminar will be conducted between 9:30 a.m. and 11:30 a.m. The location will be at 825 3rd Avenue, 2nd Floor, New York, NY 10022.
This is a “no charge” seminar. However, due to limited seating, you must contact Mr. Ryota Mitsugi at firstname.lastname@example.org.
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Please join us on Fri., Feb. 24, 2012 for a seminar on Rethink Basics of Human Resources Management Practices in the US – conducted in Japanese by Mr. Munero Ueda, HRM Partners, Inc.
This seminar is held in conjuction with PASONA N.A. Inc. and will be conducted from 9:30 a.m. to 12:00 p.m. The location for the seminar will be at Hilton Irvine/Orange County Airport at 18800 MacAuther Blvd., Irvine, CA 92612.
This is a “no charge” seminar. However, due to limited seating, you must contact PASONA N.A., Inc. directly to reserve seating.
The National Labor Relations Board’s (NLRB) Acting General Counsel Lafe E. Solomon issued a new report on January 24, 2012 on unfair labor practice cases involving employee use of social media and online communications, reviewing 14 cases recently considered by his office and describing the conclusions he reached about the rights of employees and the obligations of employers under federal labor law.
According to Memorandum OM 12-31, which updated an August 2011 report, the acting general counsel continues to take the view that employees using social media to engage in protected concerted complaints about their employment are protected by the National Labor Relations Act (NLRA), while employees who merely air individual gripes lack statutory protection.
Solomon’s report also provides guidance for employers drafting policies on employees’ social media use. The acting general counsel considered seven cases on policy language, and found that five employers had adopted overbroad policies that violated employee rights, while one employer had a lawful provision, and another started out with an illegal policy, but managed to amend it to conform to the NLRA.
Solomon discussed several cases in which NLRB’s Division of Advice was required to determine whether employees who engaged in online complaints were protected by Section 7 of the NLRA. Names of the parties were removed from the case summaries he provided.
In one case, an employee working for a chain of home improvement stores, upset that a supervisor reprimanded her in front of a company manager, updated her Facebook status with a comment that included an expletive and the name of the employer.
Several individuals, including one co-worker, indicated on the Facebook page that they “like” the comment, but when the employee later added an online comment that the company did not appreciate its employees, her co-workers did not respond to the posting. The employee was fired due to her Facebook comments.
NLRB held in Meyers Industries, 268 N.L.R.B. 493, 115 LRRM 1025 (1984), that an employee acts in concerted activity if the worker acts “with or on the authority of other employees and not solely by and on behalf of the employee himself.”
Solomon concluded that the home improvement company employee was not protected by the NLRA, observing that she “had no particular audience in mind when she made that post, the post contained no language suggesting that she sought to initiate or induce coworkers to engage in group action, and the post did not grow out of a prior discussion about terms and conditions of employment with her coworkers.”
On the other hand, an employee working for a collections agency was engaged in concerted activity when she posted a Facebook status update with an expletive complaining that a supervisor had reassigned her without good cause. The employee’s posting was followed by an online dialogue that included expressions of support by other employees, who added their own criticism of the employer and even discussed a possible class action against the company.
In the collections agency case, Solomon said, “the Charging Party’s initial Facebook statement, and the discussion it generated, clearly involved complaints about working conditions and the Employer’s treatment of its employees and clearly fell within the Board’s definition of concerted activity, which encompasses employee initiation of group action through the discussion of complaints with fellow employees.”
NLRB held in Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646, 176 LRRM 1044 (2004), that an employer violates Section 8(a)(1) of the NLRA if it maintains a work rule that employees would reasonably understand to prohibit NLRA-protected activity. Solomon applied the principle in seven recent cases, paying close attention to the
language of employer policies on social media use or public comments by workers.
In the case of the home improvement store that lawfully fired an employee, Solomon found that the store’s social media policy was unlawful. The policy instructed employees they should generally avoid disclosing their employment on social media unless they are discussing employment terms and conditions in an “appropriate” manner.
Solomon found that the rule implicitly prohibited “inappropriate” discussion of employment conditions and that employees would reasonably interpret it as forbidding conduct protected by Section 7 of the NLRA.
The same policy contained what Solomon described as a “savings clause”—a statement assuring employees that the policy would not be interpreted or applied in a manner that would interfere with their NLRA rights, which were briefly described.
But the acting general counsel said the savings clause did not justify an otherwise unlawful policy. An employee could not reasonably be expected to know that the clause would protect conduct the policy otherwise indicated would be “inappropriate,” he concluded.
In another case cited in the report, a company that operates clinical testing laboratories had a broadly worded prohibition on disclosure of confidential, sensitive, or nonpublic information that Solomon found unlawful. The policy failed to give employees a context or examples that would clarify their right to engage in Section 7 activity, and would require employees to obtain company approval before engaging in protected acts, he said.
Solomon also found that the testing company unlawfully maintained a policy prohibiting use of the company’s name or service marks outside the regular course of business unless management approval was obtained first.
The acting general counsel said restricting the use of a company name and logo in “protected concerted activity, such as in electronic or paper leaflets, cartoons, or picket signs” would interfere with employee rights under the act.
“Although an employer has a proprietary interest in its service marks and in a trademarked or copyrighted name, we found that employee use in connection with Section 7 activity would not infringe on that interest,” the acting general counsel concluded.
He found that the employer’s legitimate interest in avoiding public confusion about its name or identify and the public’s interest in not being misled “are not remotely implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the Employer in the course of engaging in Section 7 activity.” 01.29.2012
A federal district court in New York has granted preliminary approval to a $99 million proposed settlement of a nationwide wage and hour class action against Novartis Pharmaceuticals Corp. potentially benefiting more than 7,000 current and former sales employees, representatives for both sides announced Jan. 25 (In re Novartis Wage & Hour Litig., S.D.N.Y., No. 06-MD-1794, preliminary approval of settlement 1/25/12).
The proposed settlement, which stems from a pair of 2006 lawsuits filed under the Fair Labor Standards Act and California and New York laws, is pending before Judge Paul A. Crotty in the U.S. District Court for the Southern District of New York. Crotty granted preliminary approval Jan. 25 and has scheduled a May 31 fairness hearing.
The proposed agreement covers five subclasses of Novartis sales representatives who allege they were denied overtime pay in violation of the FLSA and state laws. 01.29.2012
Big news coming out of the the Walt Disney Company regarding dress code changes. The Company just announced that it has updated its famous dress code — known as the Disney Look — to allow employees to grow more facial hair. But the rules still forbid visible tattoos, body piercings (other than the ears for women), “extreme” hairstyles or colors. (Shaved heads are OK for men, but a no-go for women.)
Starting from February 3, 2012, employees can show up to work with a beard or a goatee without worry, as long as it is shorter than a quarter of an inch. Soul patches are still not allowed.
The company has enforced rules that have earned it a reputation as having one of the strictest dress codes in the corporate world. Its ban on facial hair started when Disneyland opened in 1955.
And the dress code has become part of the Disney corporate lore. In 2000, the company allowed mustaches, as long as they didn’t extend beyond the corners of the face. Until 2010, women were required to wear pantyhose with skirts and couldn’t wear sleeveless tops. Even now, straps have to be at least 3 inches wide. 02.25.2012
California’s injury and illness prevention program (IIPP) requiring employers to have a written plan to avert and reduce workplace hazards has failed to reduce fatalities and injuries, according to a recent RAND Corporation draft report released on January 12, 2012.
the specific subsections of the IIPP.’’
The number of charges filed under federal anti-discrimination laws hit new record highs in fiscal year 2011 according to a report filed by the Equal Employment Opportunity Commission (EEOC) on January 24, 2011. There were nearly 100,000 charges were filed with EEOC during 2011 with the agency securing more than $450 million for workers through administrative enforcement and litigation. Charges against employers most commonly involved claims of retaliation (alleged in 37,334 charges), followed closely by race bias (alleged in 35,395 charges), according to statistics provided. 01.25.2012