labor lawAdivision of labor law center

A recent report suggests that Kansas employers should be particularly vigilant about safety regulations and equipment on Wednesdays. According to the latest state accident report by the Kansas Department of Labor, more workplace injuries requiring time off occur on Wednesday, than on any other day.

The report, focusing on non-fatal accidents, was issued in conjunction with the Bureau of Labor Statistics, is for 2006, the last year for which final statistics are available.

“The Kansas Department of Labor has a wealth of data, but more importantly, we have programs (more…)

The US Department of Labor recently announced two grants totaling nearly $4 million to train workers in Kansas.

Fort Scott Community College received a grant of almost $2 million to train workers in the construction industry. The grant of $1,994,474 will be used to hire additional faculty and improve the curriculum at the school, located in Fort Smith Kansas.  The school has locations in Fort Scott, Pittsburg, Frontenac and Paola. It offers technical training programs in conjunction with local employers John Deere and Harley Davidson, in addition to a Heating and Air Conditioning program.

Garden City Community College received a grant of $1,999,939 for programs to train workers in the construction and energy fields. Garden City CC was established in 1919, one of the state’s first 4 community colleges. The school offers an Associate Degree in Applied Sciences, among other programs.

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Last month, the Kansas state legislature tabled a bill that would have increased the state’s minimum wage to $5.85 per hour.

Kansas has the lowest state minimum wage in the nation, at $2.65 per hour. The next lowest rate is in Georgia, where the state minimum wage is $5.15 per hour. The Kansas rate has remained at that level for more than 20 years. According to Kansas State Representative Tom Sawyer, a Democrat from Wichita, that’s an embarrassment.

The bill before the Senate Commerce Committee was Senate Bill 466. It would have tied the Kansas minimum wage to the federal minimum wage, which is currently $5.85 per hour. This measure would have increased the state minimum wage to $6.55 per hour on July 24, 2008 and to $7.25 per hour on July 24, 2009 when the federal minimum wage increases.

At a committee hearing, advocates for the working poor said the state rate was outdated, unjust and an embarrassment.

“It’s fair, it’s just and something we ought to be doing,” said Sen. Roger Reitz, R-Manhattan.

Minimum wage is a perennial issue in the Kansas legislature. Usually, the bill to increase it is introduced by a Democrat, and defeated by the Republican majority. That’s exactly what happened in March 2008.

“This is a matter of respect for honest work and the people who do it,” said Kansas Representative Stan Frownfelter, a Democrat from Kansas City.

However, the Republican majority believes that wages should be determined by the market, and not set by the state.

Despite the low state minimum wage, the average hourly worker earns more than $7.00 per hour in Kansas as well as other parts of the nation.

Under the federal minimum wage law, the FLSA or Fair Labor Standards Act, most employees in the state are entitled to $5.85 per hour. The FLSA covers employers with more than $500,000 in revenue per year. The federal minimum wage also covers employees who engage in interstate commerce, which is the majority of Kansas workers.

Republican representatives point out that most minimum wage jobs are entry level positions for unskilled workers. As soon as the worker gains skills, he or she is usually paid more.

In this particular case, Representative Mike O’Neal, a Republican representing Hutchinson, moved to send the bill back to committee. The motion passed, effectively killing the bill, at least for this legislative session.

The vote to table the bill was mostly split along party lines, with most Republicans voting for it. However, Representatives Pat Colloton of Leawood and Tim Owens of Overland Park voted to keep the bill on the docket. Both are Republicans.

Many Kansas University students spoke out in favor of the bill.

Only about 19,000 workers in Kansas are actually paid less than $5.85 per hour. Most of them are agricultural or domestic service workers not covered by the federal minimum wage.

There are 12 US states where the state minimum wage is tied to the federal minimum wage. They are Indiana, Idaho, Maryland, North Carolina, North Dakota, Oklahoma, South Dakota, Texas, Utah, Virginia, Montana and Nebraska. In addition, the minimum wage for small employers in Ohio is tied to the federal rate. Ohio defines small employers as companies with annual revenues less than $255,000.

Two states, Georgia and Wyoming, have minimum wages still at $5.15 per hour. That is the lowest state minimum wage, other than the rate in Kansas. In those states, increases at the state level have not been voted since the federal minimum wage was passed in 2007.

The federal minimum wage was $5.15 per hour from 1996 to 2007.

A new expansion of the FMLA leave provides as much as 26 weeks of unpaid and job protected leave.

The National Defense Authorization Act (NDAA) guarantees the leave to spouses and relatives of Reserve and National Guard members called to active duty.

The law was signed by the President on January 28, 2008, and went into effect immediately on that day. It essentially increases the total amount of unpaid leave for those who qualify from 12 to 26 weeks annually.

Spouses, sons, or daughters may take the time to care for a member of the Reserve, National Guard or other armed services who is currently getting medical treatment. That could include recuperation, mental or physical therapy, or outpatient treatment. It would also include caring for a soldier on what is called the temporary disability retired list for a serious injury or illness.

NDAA also allows employees to take as much as 26 weeks for “any qualifying exigency” that results from a spouse, daughter, son, or parent of the worker being on active duty. It also applies if the relative has been notified that active duty is imminent.

The legislation likely includes taking time off to care for a child or children when a member of the family is deployed, although that would not go into effect until the Secretary of Labor comes up with final regulations regarding how “qualifying exigency” is defined. In a seeming contradiction, the Labor Department is encouraging employers to offer the leave immediately.

The U.S. Labor Department has begun developing regulations for the new policy following the President’s approval. While those regulations are being developed, the Labor Department is expecting employers to act “in good faith” to comply. The NDAA essentially amends the FMLA. As a result, the Labor Department suggests that companies use existing FMLA procedures, such as those for substitution of paid leave and medical certification.

In Kansas as in all other states in the U.S., workers are protected by the Family and Medical Leave Act (FMLA) of 1993.

Under the FMLA, employees are guaranteed up to 12 weeks of job protected, unpaid leave annually.

Now, for the first time since the Act’s passage, a major expansion of the law has occurred. The National Defense Authorization Act (NDAA) of 2008 is so new that the U.S. Department of Labor is still developing regulations based on the legislation, so details are sketchy. It is not known yet whether all the FMLA rules will apply. The NDAA expands leave for relatives of injured soldiers and soldiers called to active duty.

The FMLA may be used if a worker is seriously ill. It may also be used to care for a member of the “immediate family” who is ill. “Immediate family” is defined as spouse, child, or parent. Some states such as Hawaii have expanded the definition to include grandparents and in-laws.

Employees may also use the 12 weeks of FMLA leave to bond with a newborn child, a newly placed foster child under 18 years old, or a newly adopted child. That makes the Family and Medical Leave Act one of the most common forms of maternity or paternity leave.

Under some conditions employers may count paid leave, including sick time and so-called Paid Time Off, toward a worker’s FMLA time, but only if the employee receives notice before the leave begins, in writing, that the time will be applied.

FMLA leave is “job protected.” That means an employee is entitled to the same job when he or she returns to work. Barring that, workers must be given a job with the same pay, working conditions, benefits, and duties.

The FMLA is limited to firms with 50 workers or more within a 75-mile radius, but 11 states in the U.S. have enlarged FMLA to include smaller companies. They have also increased the range of coverage. In Hawaii, employees may take their time off to care for a seriously ill in-law or grandparent.

Before the Family and Medical Leave Act passed in 1993, it was up to an employer whether to allow a worker to job-protected leave if the employee was seriously ill.

The BNSF Railway recently paid $800,000 to settle an age discrimination lawsuit brought by the EEOC. The EEOC alleged that BNSF denied older employees certain benefits brought under an exit incentive plan.

According to the EEOC, 137 current and former employees were denied benefits under an exit incentive program, because they were already eligible to retire. The Burlington, Northern and Santa Fe Railroad, or BNSF, offered exit incentives to clerical employees in an effort to reduce staff. However, it illegally failed to offer those same incentives to older employees who became eligible to retire at age 60.

BNSF Railway Company operates one of the largest North American rail networks, with about 32,000 route miles in 28 states and two Canadian provinces.

The exit offer included employees in Kansas City, Fort Worth, and Alliance, Nebraska. However, it excluded any employee old enough to qualify for retirement. Employees may retire from GNSF when they reach the age of 60 with 30 years of service with the company. The employees were eligible for a pension from the federal Railroad Retirement plan.

Under the exit incentive plan, employees who stopped work early received $2,500 per month for three years, or a lump sum of $90,000. However, no employee over the age of 60 was offered the exit incentive.

When the clerical jobs were abolished, many of the workers were “bumped” into lower-paying jobs and retired as a result. The EEOC identified several of the 102 employees who were involved.

Erma Gossage was 63 when she was denied the opportunity to participate in the exit incentive plan offered to younger workers. Because the three years of exit incentive pay qualified as employment, Gossage would have qualified for a higher pension with the plan.

Ellen Foste was a 72-year-old clerical employee who was offered a choice. She could retire, or take a job driving a van at night. Foste had 27 years of employment with the BNSF. If she had been offered the exit incentive, she would have qualified for a full pension under the federal Railroad Retirement plan.

The railroad argued that the exit incentives were designed to motivate employees who were not eligible for a federal Railroad Retirement plan pension to retire early. The amount offered by the company was equivalent to the payments under the Railroad Retirement plan. BNSF also argued that more than 100 people over 60 who were not eligible for retirement were offered exit incentives.

Barbara Seely, Attorney in the St. Louis EEOC District Office, and lead counsel on the case, said, “Under Railroad Retirement Board rules, retirement eligibility is directly tied to age. Denying employees benefits because they are eligible to retire is age discrimination. Employees who are old enough to retire don’t necessarily want to stop working; they are entitled to receive the same benefits as younger workers.”

Donald Munro, lead counsel for BNSF, responded by stating, “BNSF is committed to a discrimination-free workplace and has always maintained that its voluntary early retirement programs do not discriminate in any way on the basis of age. The railroad decided to settle to avoid the substantial cost of further litigation, but in doing so insisted on an express statement that there is no admission of liability.”

BNSF denies any wrongdoing in the matter, and insists that it is simply settling the claim in an effort to avoid a lengthy, expensive lawsuit with the EEOC – the U.S. Equal Employment Opportunity Commission.

This finding underscores the fact that early retirement or exit incentives must be uniformly offered to all employees, regardless of age. Since only older employees are qualified for retirement, by definition, any policy that excludes those qualified for retirement is discrimination under the law.