labor lawAdivision of labor law center

The Mine Safety and Health Administration (MSHA) recently published a final rule to increase protections for miners who work in underground coal mines with sealed-off abandoned areas. The regulation appeared on the April 18, 2008 edition of the Federal Register.

The final rule, which replaces the Emergency Temporary Standard (ETS) that went into effect last May, increases the pounds per square inch (psi) pressure that seals must be able to withstand in the event of an explosion and adds other important safeguards to protect miners.

“This final rule goes beyond the requirements Congress set forth in the Mine Improvement and New Emergency Response, or MINER Act, which necessitates that mine seals be stronger than the 20 psi explosive pressure minimum established in 1992,” said Richard E. Stickler, acting assistant secretary for mine safety and health. “Under the new rule, operators must strengthen the design, construction, maintenance and repair of seals, as well as sample and control atmospheres behind certain seals. Seal strength must be designed to at least 50 psi.”

The final rule also has a number of other protections that will improve miner safety. According to MSHA, these regulations include:

• Air sampling behind seals that are less than 120 psi and withdrawal of miners when a dangerous condition is discovered.
• Removal of potential ignition sources from sealed areas.
• Increased training for those involved in seal sampling and construction.
• Requirements for design certification of seals.
• Enhanced recordkeeping to ensure compliance by mine operators.

In addition, under the new regulations, seal manufacturers and mine operators have six months to submit revised seal applications and ventilation plans, respectively, to comply with the final rule. Otherwise, because the final rule replaces the seals ETS from May 2007, it is immediately effective.

The regulations also require a three-tiered approach identical to that in the ETS, requiring additional strength where sealed atmospheres are more dangerous.

A certified supervisor for construction and repair of seals with senior management of the mine operator required to certify seal compliance with the MSHA-approved ventilation plan.

There are just the latest changes to the federal mine safety regulations in the wake of the mine tragedy at Crandall Canyon mine in

Earlier this year, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) published a final rule in the Federal Register that revises existing standards for mine rescue teams for underground coal mines.

The changes to the mine rescue strategy are a direct result of last year’s tragic failed rescue mission at Crandall Canyon mine in Emory, Utah. That effort was led by Richard Stickler, MSHA Acting Assistant Secretary for Mine Safety.

The MSHA final rule implements Section 4 of the Mine Improvement and New Emergency Response (MINER) Act of 2006 to improve overall mine rescue capability, mine emergency response time and mine rescue team effectiveness.

Another change to the law calls for increased quantity and quality of mine rescue team training.

“The presence of qualified, well-trained mine rescue teams is one of our greatest assets during a mine emergency,” said Richard E. Stickler, Acting Assistant Secretary of Labor for Mine Safety and Health. “This regulation will help ensure that no matter where or when a mine accident occurs, dedicated men and women will be readily available and properly trained to assist in the rescue of their comrades underground.”

Reportedly, one of the problems at Crandall Canyon was that rescue team members were unavailable or poorly trained.

The revised mine safety standards go into effect immediately, for all applicable types of mines from salt mines to diamond and coal mines. Many workers are surprised to learn that every state in the nation, from Hawaii to Alaska and Florida to Maine, has mines of some sort.

The economy in Michigan isn’t at its best, and the jobless rate is quite high. Several companies have moved plants to neighboring states where the minimum wage is lower, such as Indiana with a minimum of $5.85 per hour.

On July 24, 2008, the Indiana minimum will go up to $6.55, and will still be less than Michigan’s minimum on that date of $7.40.

The minimum wage in Michigan has increased from $5.15 per hour in 2005 to $6.95 in 2006, to $7.15 in 2007. On July 1, 2008, another 25 cents per hour will be added the Michigan minimum wage, bringing it to $7.40.

Governor Jennifer Granholm has been the champion of these increases, but some people are wondering about the timing of the increases. With so many people losing their jobs, critics fear increasing the minimum wage may worsen the situation.

Another consideration relates to the U. S. Department of Labor regulation that any employee covered by both state and federal minimum wage is entitled to the one which provides greater benefit. In Michigan, the state minimum is 85 cents higher than the federal minimum so practically every worker is entitled to the state minimum wage.

The Michigan Minimum Wage Law covers every company that employs 2 or more workers over 16 years old. Workers who put in more than 40 hours per week are eligible to be paid overtime, which is 1.5 times the employee’s regular hourly rate.

Though the minimum wage for regular workers will increase, the minimum for tipped workers will not. The current minimum is $2.65 per hour. After July 1, 2008, workers who earn tips of at least $4.75 per hour may be paid the tipped rate. Employees who earn less that $4.75 per hour must be paid a high enough rate so that tips and wages combined equal the federal minimum wage.

With these changes to the minimum wage rates, all employers must bring their labor law posters up to date.

Michigan Comp Time

One unique feature of Michigan minimum wage law will remain unchanged. Every Michigan employer with 2 or more workers over the age of 16 is covered under the Michigan Minimum Wage Law of 1964. This law permits these employers to grant workers comp time, in some cases, instead of paying overtime wages.

Michigan is one of the few states that grants compensatory time (paid leave at a future date), instead of overtime. The FLSA (Fair Labor Standards Act of 1938) prohibits comp time, however, except for non-profit organizations. Therefore, any Michigan employer that is covered under FLSA may not grant comp time to its employees.

Eligibility details are outlined in MCL 408.384a (8) of the Michigan Compiled Laws.

Michigan employers not covered by FLSA may grant comp time, but only if the worker presents a request for it in writing. The Michigan Department of Labor and Economic Development states that coercing, intimidating, or making comp time a condition of a worker’s employment is prohibited.

If an employer wants to cancel a comp time program, it must provide employees with at least 2 months notice.

To be eligible to receive comp time, an employee must receive 10 days paid leave each year. If a worker doesn’t receive 10 days of paid leave, the company must pay the worker overtime wages.

Employees can accrue comp time up to 240 hours. When a worker leaves the job, he or she must receive payment for any unused comp time.

When an employee puts in a request to use comp time, the company must comply. There is an exception to this rule. If the worker’s absence would cause too great a disruption, the employer is within its rights to deny the request. All comp time must be paid at the employee’s wage when the time was earned.

Comp time is earned at the same rate as overtime pay. For every hour worked over 40 hours in week, the employee gets 1.5 hours of comp time. For example, John works 45 hours one week and elects to take comp time. His 5 hours of overtime earn him 7.5 hours of paid time off.

The U.S. Department of Labor recently announced awards totaling $125 million to 69 community colleges across the country under the President’s Community-Based Job Training Grants Initiative.

One of those grants, in the amount of $1,858,528 was awarded to the University of Alaska at Fairbanks, to train healthcare workers.

The money goes to community colleges and other local training facilities to help prepare workers of all ages to compete for jobs in high-growth industries. The 69 grants were awarded to the top competitors out of a field of 341 applications in response to a competition announce in August, 2007.

“Community colleges are in a unique position to prepare local workers for careers in high-growth industries,” said Secretary of Labor Elaine L. Chao. “The $125 million awarded today will expand enrollment in education and training programs and provide more workers with the skills they need to succeed.”

Community-Based Job Training Grants aim to strengthen the role of community colleges in promoting the U.S. workforce’s full potential. The program was initiated in 2005, with 72 grants. The second round of 70 grants was made in 2006.

The 69 grants for 2008 will benefit workers in 36 states, including Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin.

“Preparing local residents for careers in growing hometown industries is critical to improving the quality of life of thousands of Americans,” said acting Assistant Secretary of Labor for Employment and Training Brent R. Orrell. “These programs will provide participants not only with the skills needed to gain employment, but the change to enter into careers that offer opportunities for advancement.”

The Community-Based Job Training Grants help workers prepare for careers in high-growth industries where skilled workers are in high demand. The program trains workers for high-paying jobs with progressive career advancement. The grants are awarded to community colleges in areas where industries need workers with a particular set of skills. For example, a grant for training in the energy industry may be awarded to a community college in New Mexico near a cluster of nuclear power plants that require more skilled workers.

A number of factors have contributed to changes in the American workforce over the years. These include:

• Technology and innovation
• Globalization
• Aging of the workforce

Increasingly, businesses in certain industries have difficulty finding trained workers. Nationwide, these industries include health care, energy, advanced manufacturing, construction, biotechnology and logistics. In addition, employers in some areas need workers with specific skills, such as the hospitality industry in Crescent City, California and the movie industry in Culver City, California.

More Alaska Community Grants

The Community-Based Job Training Grants increase the capacity of community colleges to provide training in local high-growth, high-demand industries. They achieve this goal through the development of training curricula in collaboration with local industry. In addition, the grants enable community colleges to hire qualified faculty, arrange work-study programs, internships and other on-the-job training experiences, and upgrade the school’s equipment used for training.

The grants assist local schools in training new as well as experienced workers in identified growth industries. The ultimate goal is employing workers or increasing their retention, and increasing employee’s wages, while meeting the needs of businesses within targeted industries for skilled workers.

The grants are employer-focused and build on the President’s High Growth Job Training Initiative, a national model for demand-driven workforce development implemented by strategic partnerships between the workforce investment system, employers, and community colleges and other training providers. The primary purpose of the Community-Based Job Training Grants is to build the capacity of community colleges to train workers to develop the skills required to succeed in high growth/high demand industries

The U.S. Department of Labor values its strong partnerships with business and industry. Labor Department officials believe that they drive the success of regional economies and assure the nation’s continued economic competitiveness on a global scale by putting Americans to work.

For employers, the Workforce Investment System can be a valuable addition to the company Human Resource department. For the nation, it is a valuable tool to transform the workplace for the 21^st –century economy. Employers can increase profitability through a number of incentives offered in the programs, including tax credits and government training assistance.

These programs can reduce recruiting costs and increase employee retention through screening and referral of skilled candidates while developing a more competitive workforce.

The High Growth Job Training Initiative focuses on job-training in a number of high-growth fields where there are more jobs than skilled applicants. Initially, the program identified 14 sectors that are projected to add new jobs to the economy or fuel growth in other industries in the 21^st century. In addition, some of these industries are existing or emerging businesses being transformed by new technology, requiring new skills for workers. The targeted sectors include: include: Advanced Manufacturing, Aerospace, Automotive, Biotechnology, Construction, Energy, Financial Services, Geospatial Technology, Health Care, Homeland Security, Hospitality, Information Technology, Retail and Transportation.

A New Jersey employer has agreed to pay more than half a million dollars in back wages to employees across the nation.

According to an April 28, 1008 announcement by the U.S. Department of Labor, Quest Diagnostics Inc. has agreed to pay 238 employees across the country overtime totaling $688,772.

The company earned kudos from the U. S. Department of Labor for promptly agreeing to pay the past due amounts.

“The Labor Department is always pleased when we present our findings to an employer and are met with cooperation rather than resistance,” said George Rioux, director of the Wage and Hour Division’s district office in Boston. “Employers should know that the Wage and Hour Division is committed to ensuring that workers are paid properly for all the hours they work.”

Quest Diagnostics based in Madison, New Jersey analyzes drug tests, including employment and pre-employment drug screening, across the nation. The company claims to be the nation’s leading provider of diagnostic testing, information and services.

Quest provides about 36 tests for doctors, hospitals and clinics to screen for a variety of conditions from HIV, Herpes and Hepatitis to Kidney Function and Rheumatoid Arthritis.

In addition, the company offers a number of services for employers, including health & wellness testing, OSHA compliance, and drug testing for occupational medicine providers.

Quest Diagnostics also offers free online presentations for employers on topics such as using hair analysis to test for drug abuse in the workplace.

Following an investigation, the Labor Department determined that employee’s with the title of client systems analyst and senior client systems analyst were misclassified as salaried exempt by Quest Diagnostics. The employees should have been classified as salaried non-exempt and paid overtime when working more than 40 hours per week.

Under the federal Fair Labor Standards Act or FLSA, most employees are entitled to overtime when working more than 40 hours per week. Usually, a worker must be paid 1.5 times the employee’s usual hourly rate when working more than 40 hours.

Some employees are exempt from the overtime provisions of the FLSA, including executives, administrators and highly paid professionals. These positions are known as “salaried exempt” for that reason. In some cases, highly paid computer professionals are exempt from overtime regulations. However, as this case proves, not all IT employees are covered.

Employers should be aware that not every salaried employee is exempt from overtime. Some workers who are paid on a salary basis are still entitled to overtime when they work more than 40 hours per week. Those “salaried non-exempt” workers include employees in a number of positions.

In this case, the U.S. Department of Labor ruled that the client systems analysts and senior client systems analysts nationwide were “salaried non-exempt” workers who must be paid overtime.

Quest Diagnostics also agreed to pay the workers all wages due, including overtime, in the future.

The Wage and Hour Division concluded 30,467 compliance actions and recovered a record $220 million in back wages for more than 341,000 employees in the 2007 fiscal year. Back-wage collections in 2007 represent a 67 percent increase over back wages collected in fiscal year 2001. The number of workers receiving back wages has increased by 58 percent since fiscal year 2001.

Quest’s quick compliance when contacted by the Labor Department is in contrast to a number of other employers in recent history. In a recent case, Aggregate Industries was found to owe more than $1 million in overtime to truck drivers who were paid on a per-load basis. Although the company agreed to properly pay workers in the future, it refused to cough up the back wages. The U.S. Department of Labor has filed a suit in an effort to force the employer to pay up.

Indiana is one of several states with a minimum wage tied to the federal minimum wage. This means that when the federal minimum wage increases, so does the Indiana state minimum wage. The next raise will occur on July 24, 2008, when both the federal and Indiana state minimum will go up 70 cents from $5.85 to $6.55 per hour.

The Wage and Hour Division of the Indiana Department of Labor is responsible for enforcing the minimum wage law.

The federal minimum wage is enforced by the U. S. Department of Labor’s Wage and Hour Division.

The Fair Labor Standards Act (FLSA) details who is eligible for the federal minimum wage. Any business conducting interstate commerce must pay its workers the federal minimum. In some cases, even if the company as a whole doesn’t engage in interstate commerce, employees who deal with out-of-state customers may be eligible. FLSA applies to schools, hospitals and health care facilities and all government agencies (local, state and federal). In addition, all companies with annual revenue greater than $500,000 are required to pay its workers the federal minimum wage.

In Indiana, the state minimum wage law also applies to smaller companies in the state. Also in Indiana, employees under the age of 20 may be paid a training wage of $4.25 per hour during the first 90 days on the job.

Employees who work more than 40 hours in one payroll week are entitled under both federal and Indiana law to overtime pay at 1.5 the normal hourly rate.

Tipped workers can be paid $2.13 per hour. This practice applies as long as the employees receive an average of $3.72 per hour in tips. Otherwise, the company must pay the worker enough so that tips and wages equal the minimum wage. After July 24, 2008, the tips must equal at least $4.37 per hour.

Overtime for tipped workers must equal at least $8.78 per hour in salary and tips. After the minimum wage increases on July 24, 2008, this amount will increase to $9.83 per hour.

The Indiana state minimum wage doesn’t apply to all state employees. Several exceptions, (subsections (a) – (p) of the Indiana Code 22-2-2-3) permit employers to pay employees in certain groups a wage lower than the state minimum. Note that though these workers are exempt from the state minimum wage, they may be eligible for the federal minimum wage.

Workers at many summer camps may be legally paid less than the minimum wage. The reasoning is that these employees perform duties for camping, recreational or guidance facilities, which are often operated by nonprofit charitable, religious or educational organizations.

If an employee is less than 16 years old, he or she may be paid a wage lower than the minimum. This exception also applies to independent contractors, commissioned salespeople, and anyone who works for his or her parent, child or spouse.

Persons attending regular classes at a school, college or university who also work for that school can receive wages at a rate lower than the state minimum wage. Nursing students, medical interns, residents, student funeral directors are examples of this type of employee. To be exempt, the institutions must be chartered or approved by law, and the students must be enrolled and attending classes.

Organizations that provide assistance to the disabled through rehabilitation, therapy or employment may pay their disabled (physical and mental) employees less than the minimum. These organizations, however, must be nonprofit to be exempt.

The Indiana state minimum wage law has a specific exception for members of religious orders who work for that order. For example, licensed, commissioned or ordained ministers, sextons, Christian Science readers and rabbis would be exempt. Volunteers who provide services for charitable or religious organizations are also exempt.

A lot of workers doing agricultural labor are exempt from the state minimum wage. Workers raising, shearing or caring for bees, wildlife, livestock, furbearing animals or poultry also come under the exceptions to the Indiana state minimum wage law. Employees who work with fruit and vegetables, specifically drying, packing, processing, packaging and freezing, are exempt, too.