Workplace Law Report Index-Summary

OCCUPATIONAL SAFETY AND HEALTH

– Airline Safety and Pilot Training Improvement Act

See LEGISLATION, FEDERAL, HR 3371

– Fines

– MSHA

See MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)

– Safety bonus properly factored into regular rate of pay for calculation of overtime covering same period, Wage and Hour Op. Letter, 400; text, 417

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA)

– Acetylene standard, final rule updates references, 1141
– Appointments and personnel changes

– – Barab appointed deputy chief, acting chief, In Brief, 553
– – Obama will nominate Michaels to head, In Brief, 1066

– Chemical process safety rule to be revised after Congressional request, accident report, 183:A–6 (9/24/09)
– Combustible dust

– – Citations, 667 issued following inspections in Ala., Fla., Ga., Miss., 976
– – Combustible Dust Explosion and Fire Prevention Act

See LEGISLATION, FEDERAL, HR 849

– – Rulemaking to begin, Solis announces OSHA hiring, enforcement, and emphasis programs, 610; advance notice of rulemaking, 1429

– Criminal cases referred to DOJ for prosecution under new program, House lawmakers review details, 640
– DOL semiannual regulatory agenda, 675
– Ergonomics, violence hazards will be cited using general duty clause, AFSCME nurses told, 640
– Field Operations Manual revisions released, settlement language triggers Senate scrutiny, 553
– Fines

See PENALTIES

– Hazard communication standard, OSHA proposes rule to align with U.N. globally harmonized labeling system (GHS), 1334
– Independent contractors, BLS to begin tracking fatalities in 2011 to aid OSHA, lawmakers, 289
– Injuries and illnesses, underreporting, recordkeeping emphasis program, 1399
– Injuries, illnesses, high-hazard sites targeted, surprise inspections planned for up to 4,500, letters sent since 1999, 813
– Inspectors, Congressional report directs agency to hire at least 30 more in 2009, 518
– Investigation, monitoring make a comeback at DOL as Solis vows more Wage and Hour, OSHA action, 330
– Multiemployer worksite, OSHA may cite general contractors for hazardous conditions faced by subcontractors' employees, no conflict with “controlling employer” policy (8th Cir.), 328
– Nurse and Health Care Worker Protection Act

See LEGISLATION, FEDERAL, HR 2381

– PPE, national consensus design standards incorporated into numerous OSHA updates, 1267
– Protecting America's Workers Act, Rep. Woolsey (D-Cal) to introduce OSH Act update in House, seek more stringent penalties, 235
– Respirators

– – Abbreviated Bitrex fit-testing protocol withdrawn over reliability concerns, 919
– – Protection standard, guidance issued on assigned protection factors, 517

– Risk assessment, DOL to scrap Bush-era “secret rule” lowering standards, 1235
– Site-Specific Targeting, manufacturing plants, nursing homes targeted for 2009 inspections, 1267
– Steel erection standard, compliance directive on fall protection, rescission planned, 1179
– U.N. globally harmonized labeling system (GHS), chemical hazard communication

– – Material Safety Data Sheets (MSDS) studies analyze flaws, challenge OSHA proposal, 124
– – Rule revisions, notice of proposed rulemaking sent to OMB for review, 775

– Voluntary compliance program, GAO criticism spurs improvements outlined in Barab memo, 1201
– Whistleblower protections

– – Enforcement inadequate, more resources, tracking needed, GAO reports to lawmakers, DOL agrees, 331
– – Protecting America's Workers Act

See LEGISLATION, FEDERAL, HR 2067

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION (OSHRC)

– Appointments and personnel changes, Rogers tapped to chair, 552
– Cintas, fatal laundry accident, House Democrats, UNITE HERE protest $2.76M settlement of six OSHA cases (OSHRC), 19
– Multiemployer worksite, OSHA may cite general contractors for hazardous conditions faced by subcontractors' employees, no conflict with “controlling employer” policy (8th Cir.), 328

ODEP

See DISABILITY EMPLOYMENT POLICY OFFICE (ODEP)

OFCCP

See FEDERAL CONTRACT COMPLIANCE PROGRAMS OFFICE (OFCCP)

OFF-THE-CLOCK WORK

– FedEx, five subclasses of drivers certified for class actions but three stayed (N.D. Cal.), 597
– LoJack, FLSA, Cal., technician's time commuting in company car, preliminary activities not compensable, but postliminary activities claim viable (9th Cir.), 1187
– Pre-route safety inspections, 11th Amend. no bar to bus driver's FLSA collective action against Pa. transit agency (U.S., rev den), 779
– U.S. Steel, overtime, walking to and from workstations, FLSA collective action (N.D. Ind.), 1414
– Wal-Mart

– – Minn. class action, settlement of $54.25M, civil penalty approved (Minn. Dist. Ct.), 800
– – Payment of up to $640M settles 63 pending state and federal wage suits, 5; $65M - $85M settlement of over 30 claims wins preliminary approval (D. Nev.), 764
– – Wash. workers' class claims settled for $35M, approved (Wash. Super. Ct.), 1053

– Walking time, hours spent donning, doffing not compensable under USW pact, but FLSA dispute over time spent walking to and from locker rooms goes to trial (W.D. Pa.), 965

OFFICE ROMANCE

– Valentine's Day survey shows dating co-workers popular U.S. practice, 221

OHIO

– Age bias, pretext, $6M verdict upheld, but $10M punitives violate due process, remanded (6th Cir.), 386
– Akron, sexual orientation bias ban enacted, In Brief, 1043
– Asbestos liability, “procedural” nature of state law requiring more threshold evidence than FELA saves it from preemption (U.S., rev den), 82
– Destruction of computer files, faithless servant doctrine, denial of compensation (Ohio Ct. App.), 1352
– Labor legislation, 2008, DOL reports, 236
– Racketeering, Cintas suit against UNITE HERE, IBT rejected, “corporate campaign” to coerce neutrality/card check pact not attempted extortion (S.D.N.Y.), 352
– State actions summary, 89; 163; 238; 367; 445; 529; 586; 645; 716; 783; 851; 1011; 1071; 1149; 1206; 1275; 1303; 1371; 1433
– Whistleblowing

– – Currency trader's state law firing claim properly removed to federal court, Edge Act controls lawsuit related to international banking (M.D. Ohio), 261
– – Municipal worker's mistaken report to state EPA made in good faith, protected, but punitive award for unlawful firing rejected (DOL ARB), 554

OIL AND GAS

– ChevronTexaco, ERISA, workers hired through staffing agencies common law employees eligible for retirement benefits, claim revived as timely (S.D.N.Y.), 285
– Drug testing, return-to-work and follow-up, DOT observed urination rule for safety-sensitive jobs upheld (D.C. Cir.), 707; DOT reinstates rule (D.C. Cir.), 1065
– El Paso Corp., ADEA, cash balance plan, Ledbetter Act applied to revive accrual rates challenge (D. Colo.), 1219
– Energy Safety Servs., ADA, driving not major life activity even in rural area, improper jury instruction triggers reversal, remand (U.S., rev den), 522
– ExxonMobil, ADEA, EEOC suit over grounding of cporporatem pilots at age 60 revived, reliance on FAA rule for BFOQ defense improper (5th Cir.), 1225
– FLSA, irregular hours, service station operator's fixed-salary method not qualified as Belo plan for overtime, Wage and Hour Op. Letter, 442; text, 454
– Metro Fuel Oil, FLSA, truck dispatchers denied overtime may sue for back pay, liquidated damages, administrative exemption not shown (E.D.N.Y.), 220

OKLAHOMA

– Firearms in locked vehicles, OSH Act general duty clause does not preempt amendments to state laws banning guns in workplace, injunction reversed (10th Cir.), 286
– Labor legislation, 2008, DOL reports, 236
– State actions summary, 25; 163; 445; 645; 783; 1011; 1071; 1433

OLDER WORKERS

– Protecting Older Workers Against Discrimination Act

See LEGISLATION, FEDERAL, HR 3721, S 1756

OLDER WORKERS BENEFIT PROTECTION ACT (OWBPA)

– Severance accord signed by former budget manager not “knowing and voluntary” waiver, claim proceeds (D.N.J.), 873

OLMS

See LABOR MANAGEMENT STANDARDS OFFICE (OLMS)

ON-CALL TIME

– FLSA

– – Not compensable as “hours worked” despite restrictions, Wage and Hour Op. Letter, 84; text, 95
– – Pay not required unless actually called to duty during on-call periods, Wage and Hour Op. Letter, 398; text, 413
– – Travel time during on-call periods generally not compensable unless substantial distance, Wage and Hour Op. Letter, 398; text, 413

OPERATING ENGINEERS (IUOE)

– LMRDA, internal elections, password protection rule for campaign Web sites lawful despite restrictions on member access (D.C. Cir.), 876
– Local 66, ERISA, withdrawal liability, hold harmless agreement enforceable, no public policy violation (3d Cir.), 1263
– Local 150, LMRDA implies right of action for breach of fiduciary duty to labor organization, union may sue former officer (7th Cir.), 578; (U.S., rev den), 1403

OREGON

– Constructive discharge, Jordanian banquet captain's complaint about Hispanic co-workers not job or public duty, demotion no public policy violation, verdict overturned (Ore. Ct. App.), 228
– Labor legislation, 2008, DOL reports, 236
– Rehabilitation Act, public defender office not a program receiving federal financial aid under Section 504, accommodation claim properly rejected (9th Cir.), 1289
– Religious accommodation bill enacted, In Brief, 1042
– RLA no bar to state wage law class action, revived, “ordinary,” “complete” preemption distinguished (9th Cir.), 143
– State actions summary, 25; 89; 163; 294; 445; 529; 586; 645; 783; 925; 1071; 1206; 1275; 1303; 1371
– Unemployment insurance, expanded eligibility enacted, In Brief, 616
– Whistleblowing, independent investigation, firing decision by higher-up precludes biased subordinate's personal liability, verdict favoring county worker vacated (9th Cir.), 260

ORGANIZING

– Ark. secret ballot amendment twice rejected for ambiguous text, 821
– DPPA

See DRIVER'S PRIVACY PROTECTION ACT (DPPA)

– Employee Free Choice Act (EFCA)

See LEGISLATION, FEDERAL, HR 800, S 1041

– Neutrality

See NEUTRALITY AGREEMENTS

– Professor/arbitrator urges substantive, procedural fixes for “sick” NLRA, speakers debate need for reforms, Special Report, 846
– RiteAid of Pa., company not bound to arbitrate UFCW organizers' access to newly-acquired nonunion stores (M.D. Pa.), 546
– Salting

See SALTS

– Salts

See SALTING

– Secret Ballot Protection Act

See LEGISLATION, FEDERAL, HR 1176, S 478

– ULPs

See UNFAIR LABOR PRACTICES (ULPs)

OSC

See SPECIAL COUNSEL OFFICE (OSC)

OSHRC

See OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION (OSHRC)

OVERTIME

– Airport screeners, FLSA collective action preempted, TSA has complete discretion in setting pay levels (Fed. Cl.), 1287
– Alaska, property interest, bill retroactively depriving flight crews of earned pay violates constitutional takings, contracts clauses (Alaska), 799
– All Pro Logistics, FLSA, trucker with intrastate delivery route not subject to Motor Carrier Act overtime exemption, employer must pay (N.D. Ill.), 869
– Business or company pilots, FLSA “position of non-enforcement” reaffirmed, Wage and Hour Op. Letter, 403; text, 407
– Cal. Private Attorneys General Act allows labor code claims to be brought as representative action without meeting class action requirements (Cal.), 908
– Cal., reducing hours, salaries of exempt staff no salary basis violation if temporary (DLSE Op. Letter), 1221
– Cintas, misclassified drivers, negotiations underway on terms of $22.75M nationwide settlement (N.D. Cal.), 1188
– City convention manager exercising discretion, judgment is exempt administrative employee, Wage and Hour Op. Letter, 401; text, 405
– Class arbitration waiver, bar on seeking civil penalties on behalf of other employees unconscionable, unenforceable (Cal. Ct. App.), 391
– Clear Title of Ark., FLSA, retaliation, closing agent fired for overtime demands can pursue pay claim, punitive damages (E.D. Ark.), 1252
– Construction contractor's deposition queries about FLSA claimants' immigration, residency, citizenship status unlawful (N.J. Super. Ct.), 750
– Deductions from base pay to reclaim bonuses already paid destroys salary basis, exempt status under FLSA (6th Cir.), 696
– Dry cleaner must defend FLSA claims of “serial plaintiff” press operator (S.D. Fla.), 71
– Dual action, class certified under Ill. law, FLSA claims advance individually (N.D. Ill.), 1222
– Employer-defined workweek, 9-day schedule in 2-week period does not trigger FLSA pay requirements, Wage and Hour Op. Letter, 363; text, 376
– Entitlement, requiring EEOC employees to take compensatory time instead of pay for excess hours worked willful FLSA violation (Arb., FMCS), 467
– Family Dollar, store managers not exempt executives under FLSA, $35.6M judgment affirmed (11th Cir.), 8; (U.S., rev den), 1365
– Family-Friendly Workplace Act

See LEGISLATION, FEDERAL, HR 933

– FedEx ground delivery drivers exempt independent contractors, not employees, jury finds (Wash. Super. Ct.), 507
– FLSA, Bush-era opinion letters, DOL releases 40, withdraws 20, 345
– FLSA compliance spotlighted by aggressive plaintiff's bar, proactive Solis, management attorney offers tips, 978
– Fluctuating workweek, back pay for misclassified workers, divide biweekly compensation by number of hours actually worked to get regular rate of pay, Wage and Hour Op. Letter, 401; text, 404
– Forced vacation leave during temporary plant shutdown has no effect on salaried workers' FLSA-exempt status as long as guaranteed salaries met, Wage and Hour Op. Letter, 362; text, 373
– Fuel oil truck dispatchers may sue under FLSA, N.Y. law for back pay, liquidated damages, administrative exemption not shown (E.D.N.Y.), 220
– Ill., forced holidays reduced future pay, not current pay, professional employees remained exempt under state law (Ill. App. Ct.), 663
– Independent contractor income not counted for FLSA highly-compensated employees exemption (S.D.N.Y.), 1322
– Insurance agents may be subject to FLSA outside sales or administrative exemptions, depending on duties, form of pay, Wage and Hour Op. Letter, 441; text, 451
– Irregular hours, service station operator's fixed-salary method not qualified as Belo plan, Wage and Hour Op. Letter, 442; text, 454
– “Job” rates, flat sum based on construction labor bid, not hours worked, violates FLSA, Wage and Hour Op. Letter, 443; text, 456
– Landscaper fired after filing wage/benefit form with state DOL has viable FLSA retaliation claim (D. Vt.), 1054
– Landscaping firm qualifies as “employer” under FLSA, RICO, fired workers seeking class status may sue (C.D. Cal.), 540
– LoJack, FLSA, Cal., technician's time commuting in company car, preliminary activities not compensable, but postliminary activities claim viable (9th Cir.), 1187
– Mandatory arbitration enforceable where auto dealer pact easily readable by non-native English speakers who could speak, read, and write English (D. Md.), 1024
– Marketing executive paid commissions exempt outside salesperson under FLSA despite never closing a sale (11th Cir.), 191
– Mass., independent contractor misclassification, exotic dancers employees entitled to overtime (Mass. Super. Ct.), 1189
– Mich., questioning firm's compliance with state law was protected whistleblower activity, fired accountant may sue (Mich. Ct. App.), 1031
– Misclassification, unanimous jury awards $2.48M to assistant store managers, FLSA class action (D.N.J.), 316
– Mortgage consultants' Cal. class certification overturned, predominance inquiry faulted (9th Cir.), 988
– New Day Fin., mortgage account executives not required to arbitrate FLSA collective action claims, mandatory clause, waiver unenforceable (E.D. Pa.), 1190
– N.Y. Foundling, private nonprofit independent contractor for NYC social services agency not a FLSA-covered “enterprise” (2d Cir.), 1127
– Nonprofit child-care institution not FLSA-covered enterprise despite payroll link to employee leasing firm, Wage and Hour Op. Letter, 399; text, 415
– On-call time

See ON-CALL TIME

– Paralegal who accepted offer of judgment properly denied fees and costs due to attorney's discourteous professional conduct (11th Cir.), 315
– Pharmaceutical sales representatives

– – Not FLSA-exempt outside salespersons where primary duty is explaining products to physicians (D. Conn.), 539
– – “Selling,” “obtaining orders” not defined by Cal. law, question certified whether subject to outside sales or administrative exemption (9th Cir.), 627
– – Subject to outside sales, administrative exemptions under FLSA, Cal., N.Y. laws (S.D.N.Y.), 109

– Public agency firefighters covered by partial FLSA exemption for up to 28-day work period, vacation buy-backs excluded, but not attendance stipends, Wage and Hour Op. Letter, 441; text, 449
– Puyallup Tribe, FLSA applies to tribal land retail store that employs nonmembers, engages in interstate commerce, treaty no bar (9th Cir.), 568
– Race track jobs not FLSA-exempt despite state law duties, racing officials' claims revived (4th Cir.), 629
– Recreation exemption

– – Catering firm and recreational establishment not “single establishment” despite exclusive service contract, employees not exempt, Wage and Hour Op. Letter, 402; text, 409
– – Town beach open less than 7 months in calendar year is “recreational establishment,” seasonal lifeguards exempt, Wage and Hour Op. Letter, 402; text, 406

– Regular rate of pay, hourly base rates vary for 8-hour, 12-hour shifts, FLSA (9th Cir.), 1444
– Res judicata, prior class settlement (N.D. Okla.), 1321
– Reserve pay, hours that victim assistance specialist served same agency as reserve police officer on special assignment for more than nominal pay count towards overtime, Wage and Hour Op. Letter, 86; text, 97
– Retaliation, fair distribution of work, UNITE HERE (W.D.N.Y.), 1418
– Retaliation, TRO barring NYCPD internal affairs department from investigation or discipline related to officers' FLSA suit at issue, remanded for explanation (2d Cir.), 192
– Safety bonus

– – Payment for emergency communications operators remained discretionary despite pact, not included in regular rate of pay for calculation of overtime, Wage and Hour Op. Letter, 56; text, 60
– – Properly factored into regular rate of pay for calculation of overtime covering same period, Wage and Hour Op. Letter, 400; text, 417

– Salary basis rule

– – Paid time off, use of leave bank, substitution of leave without salary change preserves exempt status, Wage and Hour Op. Letter, 397; text, 414
– – Voluntary or mandatory time off, FLSA-exempt status may be lost if salary deductions taken for reduced hours during downturn, Wage and Hour Op. Letter, 397; text, 411

– SCA coverage, FLSA suit (N.D. Ill.), 1385
– Store managers, attendance at 7-week training program for area manager positions does not alter FLSA-exempt executive status, Wage and Hour Op. Letter, 83; text, 100
– Teachers

– – Athletic instructor's exempt professional status not affected by recruiting work, Wage and Hour Op. Letter, 57; text, 61
– – School district's occupational therapy assistants not FLSA-exempt professionals despite training, certification, Wage and Hour Op. Letter, 56; text, 58

– Training time, FLSA

– – Child care, in-service general training not employer-specific, voluntary after-hours program not compensable, Wage and Hour Op. Letter, 361; text, 372
– – Job-related training for equipment used at work compensable, including classwork preparation performed at home, Wage and Hour Op. Letter, 361; text, 373
– – Where required to improve job performance, after-class study hours compensable, but employer may limit duration, Wage and Hour Op. Letter, 361; text, 374

– Tyson Foods, no overlap, meat workers' collective FLSA, Kansas claims advance (D. Kan.), 278
– ULPs, concerted job action, 10-days' notice required for overtime refusal by hospital workers, UHW faulted (9th Cir.), 1092
– Undocumented kitchen worker's claim he used fake identity for extra hours not credible, claim rejected (S.D. Texas), 253
– UPS, meal and rest breaks, recordkeeping, account managers seek $100M in Cal., FLSA class claims (S.D. Cal.), 1163
– Wal-Mart, payment of up to $640M settles 63 pending state and federal wage suits, 5; $65M - $85M settlement of over 30 claims wins preliminary approval (D. Nev.), 764
– Wells Fargo, FLSA overtime, IT worker misclassifications, class certification (N.D. Cal.), 1446
– Workers' compensation, court withdraws ruling that Cal. labor code guarantees additional benefits for extra hours worked in-state by nonresidents, seeks clarification (9th Cir.), 252

OWCP

See WORKERS' COMPENSATION PROGRAMS OFFICE (OWCP)