labor lawAdivision of labor law center

An aerospace defense contractor based in Broomfield, Colorado was ordered to pay almost $1 million in back wages to 904 employees in four states plus the District of Columbia.

The U.S. Department of Labor charges that Ball Aerospace and Technologies, Inc. failed to pay $976,327 in overtime to employees in Colorado, New Mexico, Ohio, Georgia and Washington D.C.

According to sources, an investigation showed that once senior technicians reached the maximum hourly rate, they were arbitrarily and unlawfully changed to salaried-exempt status. The change in pay rate did not include a significant increase in responsibilities. Under federal law, in order to be exempt from overtime pay, employees must have decision-making powers, significant administrative duties or they must supervise three or more people. None of those conditions were met for the 111 technicians in question, so they are due $383, 235 in unpaid overtime.

In addition, all employees were routinely required to work through their lunch periods without any pay. Even if they were not able to take a lunch break, an hour was deducted from their time cards every work day. This violation resulted in payments of $593,092 to 793 employees.

Ball agreed to keep more accurate payroll records in the future, in compliance with the Fair Labor Standards Act or FLSA, and to pay all required wages to employees in the future.

In late July, the U.S. Department of Labor forced Desert Plastering, Inc., a Las Vegas Nevada firm, to pay nearly $1.2 million in back pay to 1060 employees. The feds found that Desert Plastering had not paid required overtime to lathers, finishers, plasterers and estimators who worked up to 58 hours per week.

In early July, the U.S. Department of Labor forced 107 subcontractors of KBR, Inc. of Virginia to pay some $1.5 million in back wages and benefits for up to 2,600 workers who participated in the Hurricane Katrina recovery project. The construction workers were involved in repairs to the Naval Construction Battalion Center in Gulfport Mississippi or the Naval Air Station/Joint Reserve Base in Belle Chasse, Louisiana. The U.S. Department of Labor is still searching for some of the workers involved in that case. Anyone who believes that they are owed back wages for these projects can contact the nearest U.S. Department of Labor office. The average payment per worker in that case was $616.

Earlier this year, under a voluntary agreement to prevent a federal suit, Wal-Mart, Inc. agreed to pay $33 million in unpaid overtime wages to 86,680 employees throughout the nation. An internal audit revealed that the company had incorrectly classified some employees as “salary-exempt” when in fact they were entitled to overtime pay. In other cases, the company admitted that it had based overtime pay on the employee’s base hourly rate, not including incentives and bonuses in the employee’s average rate as required by law.

The Fair Labor Standard Act requires that most U.S. employees be paid at least the federal minimum wage, which is currently $5.85 per hour. The FLSA also mandates that employees must be paid 1.5 times their usual hourly rate for each hour over 40 in a single work week.

Many employers mistakenly believe that any worker paid by salary is exempt from overtime. The FLSA does provide a number of exemptions to the overtime law for bona fide executive, administrative, professional and outside sales jobs. In general, employees must meet job duty and salary tests, to be exempt from overtime.

The U. S. Department of Labor Wage and Hour Division collected more than $171 in back wages for some 246,000 employees in 2006. Thos wages were a result of 31,987 “compliance actions” in 2006.

A thorny case in Paramus, New Jersey gives employers some guidance on what to do if HIPPA and OSHA regulations conflict.

A medical center recently reversed its suspension of a nurse after the U.S. Labor Department conducted a whistleblower investigation. The nurse was reinstated with full payment for past salary at the Bergen Regional Medical Center in Paramus.

The problem started when a nurse reported a violent workplace incident to her union, the Health Professionals and Allied Employees union (HPAE). The nurse named a patient who had assaulted her. The nurse was suspended for three days by her employer, who claimed that the report violated the patient’s right to confidential medical records.

The nurse, and eventually the U.S. Department of Labor, argued that the nurse was being unfairly discriminated against or punished for exercising her workplace health and safety rights. In this case, that would be the right not to be assaulted at work.

According to a recent study, nurses are as likely to be assaulted on the job as prison guards or policemen. Yet, all too often, nurses are told that being punched, kicked, spat upon and even attached with knives is simply “part of the job.” While a number of states, including Massachusetts, are taking measures to protect nurses, some employers lag behind.

“Our investigation found that this activity did not constitute a HIPAA violation because employees can report a threat of violence to a supervisor, union official or OSHA without violating HIPAA,” said Patricia K. Clark, OSHA’s regional administrator in New York, adding that the agency has published a fact sheet on the issue to prevent any future confusion.

HIPAA requires that medical facilities including doctors, hospitals and clinics protect the privacy of a patient’s medical records and information. Any person or organization that furnishes bills or is paid for healthcare is covered under the law, as are most employers. Under most circumstances, and individual must give written consent before their healthcare records can be shared. However, employees may disclose protected information when they are reporting conditions that pose a serious threat to patients, employees or the public.

In addition to reversing the suspension, the medical center agreed to reimburse the nurse’s full salary for the three-day suspension. The employer will also expunge any reference to the suspension from her personnel file.

With demand for healthcare workers and especially nurses reaching, an all-time high, the issue of violence in the workplace is gaining importance. Nurses in the emergency room and those in psychiatric wards are the most likely to be attacked.  Yet, many hospitals fail to protect employees, according to the Massachusetts Nursing Association. Many nurses are told to ignore attacks by patients, even when they result in potentially life-threatening situations. Others are discouraged from reporting attacks, and told that dealing with enraged, combative patients is simply part of the job.

Some states are taking measures to correct this problem. A bill currently before the Massachusetts House of Representatives would require health care providers to implement a comprehensive program to prevent workplace violence, including attacks against nurses. The bill would require that employees develop annual risk assessments and develop violence protection plans. It would also require workplaces to provide counseling for victims of violence.

Among those testifying at the hearing were several nurses who are recent victims of workplace violence. These include an emergency department nurse at St. Elizabeth’s Medical Center who was exposed to HIV and Hepatitis C when an intoxicated patient tried to punch her, dislodging an IV line. The nurse had to undergo a debilitating round of medication to prevent infection, which has left her sick, weak and depressed.

In another case, the relative of a patient threatened a nurse, telling her that he would be waiting in the parking lot after her shift. When the nurse reported the threats to the police over her supervisor’s objections, she was suspended for three days. At the nurse’s request, the police escorted her outside after her shift, where they found the assailant waiting near her car with a knife.

An Associate Professor at the University of Massachusetts, Craig Slatin, said nurses that are often subject to physical violence, racial slurs and threats from patients and the relatives of patients. “Managers don’t understand the seriousness of these issues and how they relate to the care of their workers,” he said.

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The U.S. Department of Labor recently announced a new program to celebrate the 17th Anniversary of the Americans with Disabilities Act.

It’s hard to believe, but in 1980, it was perfectly legal for an employer to refuse to hire someone…simply because that person had a disability. Workers who became disabled were routinely fired, even when a simple, inexpensive modification to equipment would have made it possible for the employee to continue to work.

In one case, “Betty”, an employee who needed to use a telephone headset, was fired from a job as a receptionist. In another, “Joe” had to use a wheelchair after an auto accident. He offered to install a simple wheelchair ramp at his own expense, so he could keep working at his office job. Instead, the employer let him go. In order to contest that firing, Joe had to be carried up the steps of the city courthouse…because it was not handicap accessible. 

Today, of course, any of those actions would be illegal. More than 18 million people with disabilities are employed nationwide. Public buildings are routinely designed to give access to people with handicaps. Older buildings must meet similar standards when they are renovated.  By law, employers must make “reasonable accommodations” for handicapped workers. Firing an employee – or refusing to hire them – simply because they are handicapped, is unlawful discrimination.

All of these changes have come about due to the Americans with Disabilities Act, or ADA.

While the ADA has greatly increased mobility and opportunity for disabled workers, studies show that small businesses lag behind larger corporations in hiring handicapped workers. That’s why a recently introduced program targets the smaller employer.

The Office of Disability Employment Policy recently introduced a new video specifically for small businesses. The video describes how small businesses can save time and money, and increase productivity, by recruiting, hiring and training employees with disabilities.

The free video features a roundtable discussion of actual small business owners discussing how proactive efforts and innovation have yielded high returns for their companies. The three small business owners from across the country have been identified by the U.S. Department of Labor for leadership, and commitment to hiring individuals with disabilities.

“This year, we are celebrating the 17th anniversary of the Americans with Disabilities Act. While much progress has been made in the last 17 years, still more needs to be done to help workers with disabilities be fully recognized as integral members of our workforce,” said U.S. Labor Secretary Elaine L. Chao. “To help Americans with disabilities access greater opportunities in our workplaces, this video promotes the fact that recruiting workers with disabilities is a smart business strategy.”

The ODEP is the nation’s first assistant secretary-led office that specifically addresses policies that impact the employment of people with disabilities.

In recent years, the ODEP has developed innovative methods for the 3,500 One-Stop Career Centers nationwide to serve people with barriers to employment, including individuals with disabilities. It has established DPNs, or Disability Program Navigators, to assist workers with disabilities in identifying and using resources in 45 states.

The Office of Disability Employment Policy (ODEP) was authorized by Congress in the Department of Labor’s 2001 budget. This was the first time that the agency had been promoted to sub-cabinet status, headed by an Assistant Secretary of Labor.  Recognizing the need for a national policy to ensure that people with disabilities are fully integrated into the 21st Century workforce, the Secretary of Labor Elaine L. Chao delegated authority and assigned responsibility to the Assistant Secretary for Disability Employment Policy. ODEP is a sub-cabinet level policy agency in the Department of Labor.

The Office of Disability Employment Policy provides national leadership by developing and influencing disability-related employment policy as well as practice affecting the employment of people with disabilities. Its vision is “A world in which people with disabilities have unlimited employment opportunities.”

Sometimes, being a hero isn’t all it’s cracked up to be. Vincent Rennich is a non-smoker who claims that exposure to second-hand smoke at the casino where he worked caused him to develop lung cancer. He became an outspoken critic of smoking in the workplace, earning the 2007 Smoke Free Hero of the Year award by Americans for Nonsmokers’ Rights.

Now, the New Jersey employee claims that he has been illegally fired for testifying about his case.

Casinos are the last bastion in the battle for smoke-free workplaces in many states. A number of states, including Illinois, have recently enacted smoking bans that include casinos. Others, like Michigan, are considering such a ban.

On April 15, 2006, New Jersey enacted a law that bans smoking in most workplaces. The law bans smoking in most offices and workplaces. It does, however, permit smoking in tobacco stores, cigar bars and casinos.

Rennich, a native of Somers Point, New Jersey, was just one worker who testified about the dangers of second-hand smoke in the workplace, during a recent hearing before the New Jersey Senate Health, Human Services and Senior Citizens Committee. Rennich’s testimony specifically concerned casinos.

Rennich urged the committee to consider a ban on smoking in casinos. After working at the Tropicana Casino and Resort in Atlantic City for 26 years, Rennich developed lung cancer. According to medical experts, lung cancer is rare in non-smokers. Rennich’s doctors concede that his daily, prolonged exposure to second-hand smoke probably was a factor in him developing the deadly disease.

Rennich, who has never smoked a cigarette in his life, discovered the disease only by accident – literally. Rennich had x-rays and medical tests after being involved in an automobile accident, which uncovered the lung cancer. Since his treatment for cancer began, Rennich has become a vocal advocate for smoking bans at casinos, including the New Jersey Smoke Free Air Act.

After the hearing, state Senator Robert Singer, a republican from Burlington, Mercer, Monmouth and Ocean, thanked Rennich and the other casino employees for testifying. The Senator specifically noted that “you’ve put your jobs on the line”, a comment that some felt could be a veiled threat.

In fact, New Jersey, like most other states, has stringent whistleblower laws that prevent firing or any retaliation against workers who act in good faith to report serious problems in the workplace.

The testimony was just the latest in Rennich’s quest for justice in the case. One year ago, he sued the Tropicana for providing an unhealthful workplace that caused his cancer.

One week after Rennich’s testimony, he was fired from the Tropicana Casino and Resort in Atlantic City, where he had worked for more than 26 years. The suit claims that the termination is a violation of the New Jersey Conscientious Employee Protection Act.  

A casino spokesperson insists that Rennich’s termination had nothing to do with his visibility as an advocate of smoking bans in casinos. The Tropicana was recently sold by the Aztar Corporation, to Columbia Sussex Corporation. In less than 3 months, Columbia Sussex has laid off about 700 employees. Columbia Sussex cites the 15% reduction in workforce as a simple cost-cutting move.

Rennich’s attorney is not buying that explanation.  “I think it’s simply too convenient (to say) that his termination is part of a larger downsizing, given the very outspoken and public position that Mr. Rennich has taken regarding a smoke-free workplace,” Rennich’s attorney, Jeff Carton of White Plains, N.Y. said in a news conference.

“I don’t know anything about the other 700 people, I just know what they did to me,” Rennich added. “It’s just wrong. It’s pretty obvious they used that excuse to try and silence me.”

According to Rennich, the firing has created personal and financial problems for his family. Unable to find another job, he has paid $1,300 for health benefits. Rennich spends most of his time speaking against smoking in the workplace.

Despite lost wages, emotional pain and legal fees, Rennich has vowed to continue his struggle for non-smoker’s rights in the workplace, “Until they close the lid on me, I’m not going to give up.”