United States: Mid-Term Elections Derail Labor Law Initiatives, But Agencies Press On

In the blink of an eye, the chances of passage of the Employee Free Choice Act (EFCA) seemed to evaporate in the wake of the Republicans come back in the fall 2010 mid-term elections. Other Democratic initiatives, such as the Paycheck Fairness Act, also seemed to have been put to the side of the road. Most employers breathed a sigh of relief at the apparent demise of EFCA, a proposed amendment to the National Labor Relations Act that threatened to eliminate the secret ballot election for a union representation.

• In Minnesota, a Federal Court jury awarded nearly $2 million to a former Seagate Technology engineer, who claimed that he was lured from his job in Texas to the State of Minnesota to take a nonexistent position in this state. The jury found that the employer had violated a state statute, which was enacted in 1913, making it illegal to knowingly induce a person to come to the State to accept a job when those promises are false. Employers who attempt to recruit employees from other states, or even within the state from one location to another, should be careful that the representations they make regarding the new position are accurate.
• Federal and state departments of labor are stepping up their investigations into employer misclassifications of employees as "independent contractors." Many companies occasionally hire so-called "contract workers," to perform specific tasks or to work for the company on a temporary basis. If those individuals are engaged directly, however, and not through a bona fide staffing agency, regardless of what the employer thinks of their legal status, they may in fact be "common law employees." This misclassification most often is discovered when the individual files for unemployment compensation, claims a job-related injury, or in an audit of the individual's income tax returns. The U.S. Department of Labor has said that investigations of misclassification cases are a top priority, and that the Internal Revenue Service recently announced plans to audit some 6000 companies for employment tax compliance issues.
• The National Labor Relations Board has made news recently by issuing a complaint against an employer who disciplined an employee for derogatory comments made about the employer and a supervisor on the employee's Facebook page. The complaint alleges that the employer's policy against blogging and internet posting is overly broad. A hearing before an administrative law judge is scheduled to be held in January 2011. The case is American Medical Response of Connecticut, Inc., Case 34-CA-12576. This appears to be the first time that the NLRB has stepped into the social media website arena, but it does not appear to be the last. In this regard, the Board, in a case where it found that the employer had violated the Act, recently ordered not only that the large blue and white traditional paper notice be posted on the employer's premises, but that the employer distribute a copy of the notice electronically through its e-mail system. A Board majority noted that electronic communications "are overtaking, if they have not already overtaken bulletin boards" and that the new board policy will apply to all cases, not merely cases in which the employer's conduct is deemed to be egregious. J & R Flooring Inc., d.b.a. J. Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010).
• A recent Administrative Opinion of the Wage and Hour Division Administrator under the Family and Medical Leave Act has clarified the definition of "son or daughter" under the FMLA as it applies to an employee who cares for a child but is not the child's natural parent. These situations are sometimes referred to as "in loco parentis." The FMLA and its regulations already include biological and adoptive children. But neither existing law nor regulations addressed situations where individuals have merely assumed obligations without going through legal formalities. These situations may include grandparents taking care of a grandchild or other relatives, such as aunts or uncles, assuming responsibility for raising a child after the death of the child's parents. The administrator's opinion states that "either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent. In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts." For employers, this means that they should not assume that the absence of a formal adoption or other legally recognized relationships will preclude employees from taking leaves of absence to attend to persons in their care. The Administrator's Interpretation is No. 2010-3, issued June 22, 2010.
• The U.S. Occupational Safety and Health Administration, earlier this year, proposed new regulations interpreting its noise protection standards. However, on November 19, 2010, the agency announced that it would extend by 90 days to March 20, 2011 the date for comments on the proposed action. Many employer groups oppose the new noise standards proposed by OSHA on the grounds that they will be too costly. Further information may be found on OSHA's website at www.osha.gov.

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