labor lawAdivision of labor law center

The Nebraska minimum wage will increase from $6.55 to $7.25 per hour on July 24, 2009. This is the same day as an increase to the federal minimum wage under the FLSA.

The federal Fair Labor Standards Act (FLSA) applies to employers who engage in interstate commerce, or who earn at least $500,000 per year. FLSA may also individual workers who are engaged in interstate commerce, even when the federal law does not apply to the entire business.

Federal, state and local government agencies are covered under FLSA, as are schools, hospitals and health care facilities. The U. S. Department of Labor’s Wage and Hour Division, www.dol.gov, enforces the FLSA.

In this struggling economy, an increase in the minimum wage could be a hardship to employers. The increase in 2009 is the last scheduled increase for at least a year. At present there is no federal minimum wage increase scheduled for 2010.

Many employers in Nebraska are covered by the FLSA. Those that do not fall under federal jurisdiction are covered by the Nebraska state minimum wage laws.

The Nebraska minimum wage mirrors the federal minimum. (more…)

Employers may need to implement new payroll procedures due to a recent 8^th U.S. Circuit Court of Appeals ruling on overtime.

In a Nebraska lawsuit against Famous Dave’s restaurant chain, the appeal court upheld the lower court ruling that the employer should have known that employees were working a more than one Famous Dave’s location.

The restaurant chain is based in Minnesota and has both franchise and company-owened locations throughout the Midwest.

The court found that most Omaha restaurants had policies prohibiting employees from working at more than one location. When an employee had permission to work at several locations, the employer had a system in place to combine the employees hours to calculate overtime.

However, Famous Dave’s  had no policy prohibiting employees from working at more than one location. A number of employees did work at two or more locations. Their hours were not combined to calculate overtime, (more…)

Since the beginning of 2008, several violent incidents have occurred in the workplace, emphasizing the need for all companies to put safety protocols into place to guard against violence on the job. These protocols should include emergency steps on how to react to violent acts, and what steps to take to help prevent these acts. All employees, managers and workers alike, should be trained in these steps.

OSHA reports that between 1992 and 2006, homicide in the workplace decreased almost 50%. However, recent tragic events suggest a reversal in that trend.

Every Nebraska employer should have a plan in place to prevent workplace violence.

Possibly the most alarming of these incidents occurred at Northern Illinois University (NIU) in DeKalb, Illinois. On February 14, former graduate student Steven Kazmierczak, armed with two guns burst into a NIU lecture hall and started shooting. Twenty-two people were hit, six of them fatally. Kazmierczak had recently transferred to the University of Illinois in Urbana/Champaign to do graduate study in social work.

Kazmierczak was described by professors as an award-winning student, calm and committed to his studies. Criminal Justice was a particular focus. Police, however, reported that Kazmierczak had been behaving erratically for three weeks, because he stopped taking his medications. These reported were disclaimed by the gunman’s girlfriend, Jessica Baty. She stated that Kazmierczak bought the guns for security, and had been stressed by school, but his behavior had not been out of the ordinary.

City council members of Kirkwood, Missouri were shot by a gunman on February 7. A political activist who had been thrown out of two previous council meetings, burst in and began shooting. Two police officers and three city officials were killed. The mayor was shot, too, but survived his wounds.

Another tragedy occurred at a Lane Bryant store in Tinley Park, Illinois, a suburb of Chicago, on February 2. A man posed as a delivery man and attempted to rob the store. Six women were in the store at the time. The gunman took them to the back room and bound them with duct tape. The store manager, however, had managed to put in a call to 911. When the gunman learned of the call, he “went crazy” and shot all 6 women. Only one woman survived.

Recent incidents of workplace violence in Illinois and Missouri are the two most recent episodes. Several attacks took place in 2007 as well.

From the tragic massacre at Virginia Tech to a stabbing at an Orlando Denny’s and an attempted “suicide by cop” at the University of Wisconsin Madison 2007 saw its share of workplace violence.

At the Denny’s restaurant on International Drive over Labor Day weekend of 2007, a 40-year-old waitress died of stab wounds inflicted by her estranged husband. Several families were leaving Walt Disney World at the time and witnessed the incident. Both coworkers and customers chased the man, who escaped over a fence, leaving a shoe behind.

OSHA, the Occupational Safety and Health Administration, said the shooter had shown several warning signs of workplace violence. He had exhibited fits of rage and was not seeking treatment for his history of mental illness. He developed obsessive crushes on women he barely knew, then engaged in stalker-like behavior and jealousy toward them that was completely out of proportion to events. Cho also had an unhealthy interest in weapons.

Two 17-year-old students were shot to death during a tragic event in September at Delaware State University. Following the shooting the campus was put on lockdown and the 1,700 students on campus were confined to their dormitories. Many of the students were contacted by cell phone about the incident and the lockdown.

For the employed spouse of an injured soldier, the amount of unpaid leave has just increased dramatically.

Instead of the usual 12 weeks in a year available under the Family and Medical Leave Act (FMLA), you can now take 26 weeks, or more than 6 months.

The change is effective immediately, and is a result of the new National Defense Authorization Act (NDAA) of 2008, passed at the end of January.

The U.S. Labor Department is rushing to develop a set of regulations based on the new law. Information should be published when it becomes available, probably in several weeks. In the meantime, employers are expected to act in good faith to comply with the law.

Under the NDAA, it appears that employers will continue to be able to count paid leave time against the 26 weeks of unpaid leave time. He or she must inform the employee in advance, however, that the paid leave is being deducted from the 26 total weeks of leave.

President Bush in December of 2008 vetoed the first version of the expanded FMLA when it was attached to the National Defense Authorization Act. At the time, the President said his veto was not because of the FMLA expansion, but because the larger bill would “risk imposing financially devastating hardship on Iraq that will unacceptably interfere with the political and economic progress everyone agrees is critically important to bringing our troops home.”

That remark opened the way to a reprise of the expanded leave, and in January of 2008 it passed handily.

The NDAA allows spouses, parents, sons and daughters to take the FMLA leave to nurture an injured soldier who is either regular military or a member of the Reserve or National Guard on deployment. Under some conditions, aunts, uncles and cousins (“next of kin” in the new law) may qualify.

Besides being used to care for an injured soldier, the time may be used if a soldier is called to active duty or will be deployed imminently. That use of the NDAA is likely to be taken advantage of by spouses of Reserve or National Guard members.

The Family and Medical Leave Act (FMLA) was passed in 1993. It was not until the National Defense Authorization Act of 2008, however, that any major changes to the FMLA were made.

The new NDAA expands coverage for relatives of injured soldiers and soldiers on active duty.

The U.S. Department of Labor is busy developing regulations based on the new legislation. Details are sketchy yet, so it is not known yet whether all the FMLA’s rules will continue to apply.

The FMLA is the groundbreaking legislation that provided up to 12 weeks annually of job protected, unpaid leave.

The time may be used if the worker is seriously ill or must care for a member of the “immediate family” who is ill. “Immediate family” is defined as a spouse, child, or parent.

The law also allows workers to take the leave to care for and bond with a newborn child, a newly adopted child, or a new foster child under age 18. In that capacity it is a common maternity or paternity leave.

The FMLA only covers companies with 50 or more workers within 75 miles, although 11 states in the U.S. have extended the law to cover smaller firms.

Employers are allowed to count paid leave, such as sick time or PTO (Paid Time Off) against the 12 weeks of FMLA. However, the employee must be notified of that intention in writing before his or her leave begins.

“Job protected” means the employee is entitled to the same or similar work when he or she returns. If the same job cannot be provided then the employer must provide one with similar pay, duties, working conditions, and benefits.

While the FMLA limits leave to care for “immediate family,” some states have expanded that. Hawaii, for example, allows workers to take job protected unpaid leave to care for grandparents or in-laws.

Before the passage of the FMLA, employers were under no obligation to keep an employee who had to take time because of serious illness, even if the worker underwent chemotherapy or major surgery.

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.