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Pilot Reinstated, Paid Back Wages for Violation of Whistleblower Rights

karmstrong — Tue, 24 Jan 2012 13:39:16 +0000

An airline company has been ordered by the U.S. Department of Labor (DOL) to reinstate a former pilot and pay him an excess of one million dollars in back wages, interest and compensatory damages. The order was the result of an investigation by the DOL’s Occupational Safety and Health Administration (OSHA).

The pilot worked for AirTran Airways, a subsidiary of Southwest Airlines Co. based in Dallas, TX. He alleges that, in August of 2007, he was removed from flight status pending an investigative hearing relating to a reputedly abrupt increase in his reports of mechanical malfunctions – also known as PIREPs, for pilot reports. The airline’s internal investigative hearing in September of that year lasted a duration of a mere 17 minutes, and the pilot’s employment was terminated a week later. The reason given was that the pilot had not satisfactorily answered an inquiry concerning the increase in reports.

According to the OSHA investigation, the pilot did not refuse to respond to any questions, and his answers were appropriate. The OSHA believed that the company’s firing of the pilot was retaliation and would consequently violate the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (or AIR21), which offers protection for whistleblowers.

“Airline workers must be free to raise safety and security concerns, and companies that diminish those rights through intimidation or retaliation must be held accountable,” said OSHA Assistant Secretary Dr. David Michaels, in a DOL press release. “Airline safety is of vital importance, not only to the workers, but to the millions of Americans who use our airways.”

Michaels further stated that “retaliation against a pilot for reporting mechanical malfunctions is not consistent with a company that values the safety of its workers and customers. Whistleblower laws are designed to protect workers’ rights to speak out when they have safety concerns, and the Labor Department will vigilantly protect and defend those fundamental rights.”

An appeal can be filed with the DOL’s Office of Administrative Law Judges, but the reinstatement order will not be halted by the appeals process. AirTran Airways is a subsidiary of AirTran Holdings, Inc., which has headquarters in Orlando, FL. Southwest Airlines acquired AirTran Holdings, Inc. in May of this year and operates AirTran Airways as a wholly-owned subsidiary.

The OSHA oversees whistleblower protection provisions of 21 whistleblower protection statutes, including AIR21 and Section 11(c) of the Occupational Safety and Health Act. The OSH Act prohibits retaliation against an employee for exercising such rights as participation in safety and health activities, which could entail complaining to the OSHA and seeking an inspection, participating in an inspection, participating or testifying in any proceeding related to the inspection, or reporting a work-related injury, illness or fatality. Employees protected by the OSHA include those who report violations of the following types of laws: airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform nuclear, pipeline, public transportation agency, railroad, maritime and securities.

Employee Believes Pre-Shift Work Should Be Overtime

karmstrong — Fri, 20 Jan 2012 13:55:58 +0000

A woman working as a sewing manager resigned from her position and promptly sued her employers for overtime wages that she felt she was owed. The rulings from both a district court and an appeals court varied slightly, but the end result was the same.

The plaintiff was hired in 2001 and promoted in 2004 at Summit Seating, a manufacturer of seating for buses, trucks and vans. She was paid on an hourly basis, her job involving various duties and managing between seven and eight employees. In 2009, the woman alleged that her bosses had violated the Fair Labor Standards Act (FLSA), which requires that employees working more than 40 hours in a work week be paid overtime.

The overtime, the plaintiff claims, was a 15 to 45-minute period of time preceding her 5:00 a.m. shift. She stated that she frequently arrived early and handled numerous tasks, such as making coffee, prepping others’ workstations and models for production, and checking fabric patterns. She normally clocked in upon arrival, but if she forgot, she would write the start time on her time card. She acknowledged that she came in early to avert the “hassle” of getting subordinates ready by 5:00. Her employers typically arrived at 7:00 or 8:00 a.m. and never witnessed the woman performing work during this time.

In contrast, her sister (and co-worker) said in an affidavit that the plaintiff did not work before her shift, instead socializing and drinking coffee. The woman countered by claiming that other employees clocked in early and chatted with friends pre-shift, but her socializing was only around five minutes of the 15 to 45-minute window. The employee handbook required pre-approval for overtime, and the plaintiff never informed her bosses of her work prior to her shift, nor complained or otherwise reported any overtime incurred.

The district court granted summary judgment in favor of Summit Seating. It believed activities performed prior to the plaintiff’s shift were “preliminary work,” which is work not afforded overtime, and de minimis, which, in legal terms, is attributed to matters that the court would deem trivial. The court further noted the fact that the employee did not complain or make her employers aware of the overtime. To prove an FLSA violation, she would have to show that her bosses had “actual or constructive knowledge of her overtime work.”

The U.S. Court of Appeals, Seventh Circuit, disagreed about the definition of the woman’s pre-shift tasks. It considered such work “integral and indispensable,” as it was being performed to ensure that production would be completed on schedule. The appeals court did, however, concur that the plaintiff cannot claim overtime because Summit Seating had no way of knowing about the work performed before the woman’s shift began. Her time cards are not sufficient proof of pre-shift work, as the FLSA states that employees who clock in early do not have to be paid. The plaintiff even reprimanded a subordinate for clocking in early, as it was against company policy.

Accordingly, the U.S. Court of Appeals affirmed the district court’s ruling.

Lady Gaga: “Bad Romance” Singer… a Bad Boss?

karmstrong — Wed, 11 Jan 2012 14:33:05 +0000

Working for a diva may have its perks. But a personal assistant to a celebrity is at that person’s beck and call, and sometimes all that work and time might not seem worth it. Especially when you aren’t being paid for it.

Jennifer O’Neill had such a job, employed for 13 months as a personal assistant to pop sensation and fame monster Lady Gaga, who was born this way: as Stefani Germanotta in New York. She claims that she was required to handle every task the Grammy Award-winning singer demanded, however menial it seemed. She oversaw Lady Gaga’s scheduling, finances and meals, ensuring that the celebrity was on time and that she had a towel as soon as she finished showering. O’Neill was by Lady Gaga’s side during her 2010 Monster Ball world tour, and the assistant alleges that she was hardly awarded time for breaks or meals or even sleep, so that she would be available at all times of the day and night. And for the singer who popularized the “meat dress,” certifying that individual outfits are accessible seems like a job all its own.

O’Neill’s job boasted annual earnings of 75,000 dollars, but here is the problem: she claims that she was never paid overtime. She filed suit in a Manhattan federal court last week, claiming nearly 380,000 dollars in back pay. The lawsuit was filed against Lady Gaga’s company, Mermaid Touring, Inc. The former assistant to the star stated that she was owed for approximately 7,168 hours of overtime. The suit also states that she is seeking unspecified damages. A spokeswoman for the celebrity saw no merit in O’Neill’s lawsuit.

The Fair Labor Standards Act (FLSA) states that an employer requiring or allowing a person to work overtime is typically required to pay “overtime premium pay” for all overtime hours. According to the Department of Labor, “employees covered by the FLSA must receive overtime pay for hours worked in excess of 40 in a workweek of at least one and one-half times their regular rate of pay.” Overtime pay for work performed on the weekends, holidays, or days that are usually days of rest are required only if the 40-hour limit has been exceeded. Working on a weekend or at night within the 40 hours would denote “extra pay,” which would entail an agreement between the employer and employee. The FLSA does not require pay for those instances or for double-time pay.

Another woman can attest to Lady Gaga’s high demands – though she evidently had no problems with overtime pay. A former personal assistant, Angela Ciemny, whose husband, David, previously worked as the singer’s tour manager, detailed some of her responsibilities in Maureen Callahan’s 2010 book, Poker Face: The Rise and Rise of Lady Gaga. Ciemny stated that she would often sleep in the same bed as the celebrity, who did not want to be alone. They also made up their faces together and would step into the shower simultaneously.

Railroad Company Ordered to Pay Terminated Employee $300,000

karmstrong — Tue, 27 Dec 2011 20:57:55 +0000

A Nebraska-based Union Pacific Railroad Co. has been ordered to reinstate an employee who had reported a work-related injury and was subsequently terminated. The Occupational Safety and Health Administration (OSHA), a section of the U.S. Department of Labor (DOL), issued the order for the company to pay the employee in Idaho a total of 300,000 dollars in back wages, compensatory damages, attorney’s fees and punitive damages.

The employee claims that, after informing the company of an injury sustained on the job, the man was given suspension without pay and then fired approximately three weeks later. As a result, he filed a whistleblower complaint with the OSHA. An investigation apparently supported the employee’s claim, believing that the suspension and termination were based solely on the man reporting an injury to the railroad company. This would be a direct violation of the whistleblower protection provisions under the Federal Railroad Safety Act (FRSA). According to the OSHA, the company had previously violated the FRSA in four additional instances in the U.S. since 2009.

As per the OSHA’s order, the company will reinstate the man’s position and cover the monetary compensation. The railroad company has also been ordered to not retaliate against the employee.

In a press release on the DOL’s website, Assistant Secretary of Labor for OSHA Dr. David Michaels said, “This case sends a clear message that OSHA will not tolerate retaliation against workers for reporting a work-related injury. An unreported injury is an uninvestigated injury. Nothing is learned that can help prevent the next injury. The safety of all workers is endangered when employers intimate injured workers so that they do not report injuries.”

A whistleblower complaint is one that alleges misconduct from a department or company. The OSHA’s whistleblower protection provisions were implemented to protect employees from retaliation for exercising rights afforded by the Occupational Safety and Health Act of 1970. Section 11(c) of the Act states: “No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.”

Rights protected by the OSH Act include an employee participating in safety and health activities, such as complaining to the OSHA, seeking and/or participating in an OSHA inspection, and reporting an injury, illness or fatality related to work. A retaliation claim filed with OSHA would entail an employee who was involved in a protected activity experiencing “adverse action” – generally defined as any action that would prevent a worker from partaking in protected activity. The OSHA lists the following as actions that may be deemed adverse: termination, blacklisting, demoting, denying overtime/promotion, disciplining, denial of benefits, failure to hire/rehire, intimidation, threats, reassignment that affects the likelihood of promotion and reducing pay/hours.

Many U.S. Employees Skipping Vacation and Staying at Work

karmstrong — Wed, 21 Dec 2011 05:57:23 +0000

Each year, numerous employees don’t utilize each of the available vacation days. The more vacation days an employee has, the greater chance, it seems, of that person missing one or more of those days. According to an article appearing on CNN Money’s website, recent surveys have confirmed that vacation days are getting left behind, and these days are adding up.

A survey by Expedia found that the majority of workers in the U.S. have 14 days of vacation every year but this year has only managed to use 12 of those days. That means that the employees are wasting 226 million days of vacation this year. The Bureau of Labor Statistics clocks the average employee working full-time at an annual salary of more than 39,000 dollars. Keeping that in mind, an excess of 34 billion dollars of vacation time is going right back to the boss.

According to the Expedia survey, many employees choose work over going on vacation because they cannot afford the traveling expenses. Another reason given by participants of the survey is a “lack of planning.”

Jennie Dede, Vice President of recruiting for Adecco, a job placement firm, said, “Now that companies are doing more with less, people have a hard time taking vacation because there’s so much work to do.” However, “most managers believe you should take the time to enjoy your family, enjoy your life and come back refreshed. Vacation is a time to decompress and get your head out of the water.”

Likely due to the current economic state of affairs, a great number of workers avoid vacations in favor of saving money to cut debt. They also may fear losing their jobs if they aren’t impressing employers. Managing director at TD Ameritrade Stuart Rubinstein said, “People feel that they need face time in the office. They worry that being out of the office might make them next on the list.”

A survey by Hotwire found that, on average, U.S. workers are abandoning 6.2 days of vacation days every year. Yet another survey, this one released by JetBlue, put the average at 11 days for this year, which would put the total at over two weeks. JetBlue’s survey additionally found that more than half of employees won’t use all of their vacation days. Furthermore, some employees were worried about asking their bosses for a vacation.

The survey from Expedia listed countries other than America that easily managed to find time for a vacation. The average worker in France was awarded 30 days and used all thirty. British employees is able to use all 25 of their available vacation days, and workers in Brazil and Spain likewise expunged all vacation days. Asian countries were similar to the U.S., with Japanese employees averaging five days out of 11 available.

Clem Bason, president of Hotwire, noted that “too many Americans are getting caught up in their everyday routine and are either forgetting to use their vacation or assuming travel for the remainder of the year is too expensive.”

New Policy Will Give Smokers in West Chester, PA, Fewer Places to Smoke

karmstrong — Wed, 30 Nov 2011 14:16:51 +0000

Smoking or non? The standard greeting at a restaurant is virtually unheard these days. Although there is no federal law prohibiting people from smoking indoors in public locations, some states, including California, Massachusetts and South Dakota, have adopted a statewide ban which would prevent smokers from doing just that. Now it seems that some places are making it even harder for people to find somewhere to light a cigarette.

In West Chester, Pennsylvania, a new policy on smoking was proposed by the Chester County Wellness Committee. The policy would prohibit anyone from smoking within 25 feet of any entrance to a county building, including the West Market Street building which houses administrative offices for the county. Smoking would only be allowed in specific places out of the public’s sight. This would pertain to not just county employees, but to any person(s) visiting the facilities, as well as clients and contractors.

The Wellness Committee consists of employees from Chester County’s Health Department and Human Resources Department. Human Resources Director Karen Florentine said, “What is happening is that people are having to walk through a cloud of smoke in order to enter our buildings.” She said that there were “concerns” about people “having to move through smoking areas.”

The new policy is expected to go into effect today, Nov. 30th. The Government Services Center in the West Goshen Township would be affected without delay, as a designated space for smokers has already been chosen. Such an area has not been selected for additional buildings, such as the Justice Center, the county prison, and two of the county’s libraries, but they are also anticipating the new policy and corresponding smoking areas.

Like many other cities and states, Chester County commissioners had previously prohibited smoking inside county offices and buildings. Consequently, people have been smoking just outside the buildings’ doors, leaving many others no choice but to walk through a cloud of smoke to enter a building.

“Slipstream smoke has been identified as a health hazard,” commissioners Chairman Terence Farrell said. “People who come into our buildings through a fog of smoke are being endangered even though they don’t smoke.”

One employee implied that passersby may not appreciate seeing a congregation of people smoking at a building’s entrance. Kathi Cozzone, commissioners Vice Chairwoman, suggested another potential advantage to the policy. She stated that, “if a couple of people stop smoking because they have to walk farther, that’s good.”

Director of facilities management Steve Fromnick said that the policy would be enforced by county staff or by the sheriff deputies who watch the buildings. Currently it is unknown if the policy will include Chester County district courts, as most of those offices reside in privately owned buildings rented by the county. President Judge James P. MacElree II will be meeting with magisterial district judges to decide on the policy’s relation to, or any similar policy for, the district courts.

Employees Can Now Receive Quality Investment Advice

karmstrong — Fri, 11 Nov 2011 14:59:28 +0000

For persons of 401(k)-type plans and individual retirement accounts (IRAs), investment advice is an often necessary but not readily available component. This is in part due to the Employee Retirement Income Security Act of 1974 (ERISA), which was passed to protect such participants but also implemented safeguards when receiving investment advice. Investment advisors are typically prohibited from retaining any compensation from investment vehicles recommended to people with plans or IRAs, as per the ERISA and the Internal Revenue Code’s regulations. As a result, valuable advice from a professional is narrow in its accessibility.

The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA), which administers and imposes the ERISA’s provisions, recently finalized its rule to executive provisions initially amended by the Pension Protection Act of 2006. The “statutory exemption” allows two ways in which professionals can receive compensation from investment advice that they have provided to participants.

The first such way is investment advice based on a computer model that has been certified as unbiased and applies investment theories that are “generally accepted.” The second way is that the advisor’s compensation is based on a “level fee.” In other words, the fees remain the same, regardless of what the participant has chosen for investments.

There are further stipulations for both putative methods of providing investment advice. With regard to the application of a computer model, it must be certified before use as unbiased and meeting the requirements by an independent expert. The rule additionally suggests determining qualifications and a process of selection for the aforementioned expert who certifies the computer models. The level-fee requirement was clarified by stating that investment advisors are not permitted compensation from any party that varies based on what the participant has chosen.

The updated regulations also require that the “advice arrangement” is authorized independently of the investment advisor or any of its associates. Investment advisors maintaining records is likewise required for those relying on the exemption. An annual audit should be established for both the computer models and the level-fee arrangements, managed by an auditor who is not associated with the person providing the investment advice. Advisors would also be required to supply disclosures to plan participants.

The DOL hopes that the new exemption will help participants receive higher quality investment advice. Participants should benefit from lower fees and expenses, avoid excessive and poorly timed trading, be able to diversify their portfolios with less uncompensated risk, improve their level of compensated risk, or pay less excess tax. The Department predicts a reduction in “investment mistakes,” from an annual cost of anywhere between seven to 18 billion dollars to a cost between two to five billion. Finally, the DOL has estimated the costs for disclosures to participants, authorization of plans, auditing of plan arrangements, and certification of computer models, costs which would likely drop in the subsequent years of implementation.

The final rule will go into effect Tuesday, Dec. 27, 2011.

Reporting New Hires May Help Stop Misuse of Unemployment Benefits

karmstrong — Tue, 08 Nov 2011 15:13:07 +0000

Employers are required by law to report new hires to the Department of Labor (DOL). Making such a report is filed in the specified time may assist the DOL in restricting some people who exploit the benefits of unemployment insurance (UI).

According to a press release from the Idaho Department of Labor, well under half — approximately 30 percent — of employers in Idaho abide by the New Hire Reporting Act of 1997, which states that all new hires or rehires must be reported within 20 days. The law was initially passed for recovering child support. It helps identify employees who owe child support so that their wages can be garnished. Since 1997, the results have been compelling, with child support collected via wages moving from less than a third to over half.

However, the law also assists the DOL in locating people who are being overpaid for unemployment insurance. Of those collecting for unemployment, a number of them have returned to work but continue receiving UI checks every week. With so many employers not reporting new hires, it can take the DOL months to track down employees still claiming unemployment, which makes it considerably more problematic to recoup overpayments.

The DOL compares a list of those receiving unemployment benefits against the new hires on a weekly basis. With this, the department can halt additional benefits being paid to claimants who have returned to work, as well as initiate an investigation into the person(s) unlawfully receiving UI. The DOL has retrieved an excess of three million dollars in overpayments since the recession, which, according to the National Bureau of Economic Research, started in December of 2007 (though the Bureau further stated the recession ended in June of 2009).

The department will be increasing education on benefits and taxes for both UI claimants and employers, as well as augmenting training for staff to better aid claimants in sustaining proper use of unemployment benefits. Likewise, the DOL will work on employers having real-time information on employee separations and link directly with the IRS to utilize federal tax refunds as a means of recouping overpayments. The current computer system for benefits and tax payments, which is over 30 years old, will be updated with a new system, in an effort to assist the DOL.

The Department of Labor Director Roger B. Madsen stated: “Unemployment benefits play a critical economic role in Idaho, ensuring that workers laid off during severe recessions like this last one get some assistance in paying their bills so they’re still here when the economy picks up and employers need them.”

Madsen further stated that the DOL is trying to maintain the validity of UI and manage overpayments. The department’s recent implementations is an effort to stop false claims for unemployment benefits and ensure that employers pay only the unemployment tax for which they are legitimately responsible.

Employers Learn a Little More About FMLA

karmstrong — Thu, 03 Nov 2011 14:55:42 +0000

Every employer has had questions about the FMLA (Family Medical and Leave Act) and how to enforce policies concerning employees’ reasons for leave.

Bradd N. Siegel, from the Porter Wright firm in Columbus, OH, and an editor at Ohio Employment Law Letter, recently spoke at the Advanced Employment Issues Symposium in Nashville, TN. He specifically discussed difficulties in comprehending employers’ guidelines for FMLA leave. In an interview conducted after the symposium, Siegel stated that his “objective was to help the audience understand what they don’t understand about the regulations.”

Siegel provided some details of his presentation, in which he answered questions that employers may have. For instance, employers should allow a minimum of 15 days for an employee to turn in a medical certification for leave. If there is a notice of deficiency — meaning that perhaps the medical certification is in any way insufficient — employers should allow a minimum of seven days for a response.

Siegel further stated, in relation to the time limits, “there’s a practicability… qualifier.” The allowance of time may vary from each individual employee depending on the circumstance. This also applies to the issue of charging employee “attendance points” when said person is late at getting certification to employer.

Another issue discussed in the interview was intermittent leave, as Siegel cited “an interesting dichotomy between return to work certifications for non-intermittent versus intermittent leave.” Intermittent FMLA leave, or “reduced leave schedule,” is typically used when an employee has a condition, such as migraine headaches or asthma, which may require the person to take off work for short periods of time dependent upon the condition, as opposed to scheduling leave within a definite timeframe. Intermittent leave may truncate an employee’s workday or workweek and may include the person moving from full time work to part time.

“Under intermittent leave,” Siegel said, “the employer can require return to work certifications only if there’s been no return to work certifications within the last 30 days, and most importantly, if there are reasonable safety concerns.” Return to work certifications are forms that need to be completed by the employee and a health care provider. The health care provider will use the form to state that the employee can perform all functions of his/her job or to list any necessary restrictions.

Siegel continued: “That raises some questions about what do you do if you have received a certification within the last 30 days, the employee has come back to work, and a new and more serious concern has presented itself. Under the regulations, because you already had one within the 30 days, you’re required to restore him without conditioning a return on the adequate certification.”

Siegel will speak again about FLMA concerns at the Advanced Employment Issues Symposium to be held in Las Vegas, NV, on Nov. 17-18. The symposium is being presented by HRHero and BLR.

Human Resources Professionals Needed

matthew — Wed, 12 Oct 2011 03:00:38 +0000

As the economy continues to face problems, there is one segment that is experiencing growth. According to one recent report there is increasing demand for Human Resources professionals. As companies face more competition and trends in business, Human Resources professionals with certain skills are being sought. They are needed to deal with issues like executive compensation, talent management, and benefits administration.

“According to Wanted Analytics, a Quebec City-based research firm that focuses on employment trends, the demand for HR professionals has increased by 28 percent in the past year,” according to information from an HREOnline.com article. Over 6800 positions were posted online in August 2011 up 33 percent from that same period in 2010. “The five most common advertised HR job titles were recruiter, human resource assistant, payroll specialist, human resource specialist and payroll clerk, according to the report,” according to the same article. Cities with the most hiring were New York, Washington, Chicago, Los Angeles and Boston.

Recruiters are looking for candidates with strong business analytics and the ability to teach leadership skills. One of the concerns for businesses is the loss of seasoned employees due to retirement. Human Resources staff will be needed to provide management training and create a culture that encourages retention of employees. Succession of employees will be a major component in key fields. As the recession continues, ways of doing more with less will be common practice.

Employees will also be needed in the area of benefits and insurance for employees. New changes in health care laws and reforms may impact benefits for employees. Human Resources professionals will be needed to help interpret these laws effects on business and the choices employees will have for their health care.

Previously this year, Inc. magazine predicted that job training and career consulting would be one of the industries in demand for 2011. In a competitive job market, job seekers try to improve their skills to improve their skills to be more attractive to employers. People who may not be able to find work over an extended period of time will look into retraining in a field that may be in demand for work.

Recruiters and staffing firms are seeing increased need in their fields for professionals. Some companies may be anticipating more hiring in the future if the economy improves. Many companies are seeing increased need for recruiting staff. In one example this past summer, Sodexo USA outsourced hiring of potential recruits . The company’s in house recruiters were busy with above normal hiring needs. The high unemployment has meant there are increased numbers of applicants for open positions. More support is needed in identifying quality candidates among applicants.

As companies prepare for new challenges and changes, competent Human Resource staff will be needed. Personnel with the ability to help companies adapt will be essential to future growth. As industries face future challenges Human Resources staff will be at the forefront of dealing with problems and developing solutions.