Workplace Law Report Index-Summary

OCCUPATIONAL SAFETY AND HEALTH

– MSHA

See MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA)

– Enforcement

– – Fatalities, civil penalties, criminal fines too weak to deter violations, progress at standstill, Senate panel advised, 612
– – Influenza pandemic preparedness, respirators, draft guidance ties stockpiles to industry exposure, 673
– – Inspections

– – – Focused inspections, seven industries added to selected group, 299
– – – High-hazard workplaces targeted in site-specific plan for 2008, 727
– – – Targeted inspection program focuses on federal agencies reporting numerous lost-time injuries in FY2006, 91

– – Present, future initiatives discussed, debated by ABA panelists, overview, 382

– Rules and regulations

– – Carcinogens, toxins, exposure risks, lawmakers urge Chao to scrap “secret rule” altering assessment methods, 1036; provision altering 45-year working life deleted, 1227; House hearing, proposal draws criticism, merits debated, 1256
– – Combustible dust

– – – Agency mulling options, including rule, House panel told, 381
– – – Combustible Dust Explosion and Fire Prevention Act

See LEGISLATION, FEDERAL, HR 5522

– – Confined spaces, power lines, cranes and derricks standards DOL semiannual regulatory agenda, 636
– – Copper, n-propyl bromide, silica, diesel particulates, TLVs, DOL use of ACGIH exposure guidelines lawful (M.D. Ga.), 671
– – Cranes and derricks, proposed rule pending, overview, 1283
– – Diacetyl standard, DOL semiannual regulatory agenda, 636
– – MINER Act, OSHA standards-writing staff asked to volunteer on MSHA rules to meet deadlines, 90
– – Personal protective equipment (PPE), training, employers required to provide under OSHA proposed rule, 1168
– – Prohibiting the Department of Labor's Secret Rule Act

See LEGISLATION, FEDERAL, HR 6660

– – Silica, beryllium standards, DOL semiannual regulatory agenda, 636
– – Workplace risk assessment

See LEGISLATION, FEDERAL, S 3566

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION (OSHRC)

– Bloodborne pathogens standard, nursing home had fair notice that related travel, treatment time compensable, OSHRC reversed (3d Cir.), 1226
– Blue Ridge Erectors, fall protection, willful violations ruling upheld (3d Cir.), 124
– Imputed knowledge of OSH Act breach, OSHRC order upheld on excavation contractor's willful trenching standard violations (U.S., rev den), 265

OFCCP

See FEDERAL CONTRACT COMPLIANCE PROGRAMS OFFICE (OFCCP)

OFF-DUTY CONDUCT

– Blogs, networking sites, web videos now generate many privacy disputes, speakers explore altered landscape, 1038
– 4th Amend., breathalyzer testing of off-duty police officer not unreasonable seizure despite fear of job loss (6th Cir.), 157

OFF-THE-CLOCK WORK

– Restaurant workers' class certification vacated where individual issues predominate (Cal. Ct. App.), 1047
– Wal-Mart Stores, class claimants win $6.5M in compensatory damages for state law claims (Minn. Dist. Ct.), 927

OFFICE ROMANCE

– ERISA, reclassification as independent contractor after breakup of romantic affair with boss not interference (7th Cir.), 252
– “Love contracts” between co-workers in consensual relationship may curb litigation, Analysis & Perspective, 223

OHIO

– Age and sex bias, disparate discipline policies, manager who violated store policy may proceed with suit (S.D. Ohio), 687
– Asbestos liability, “procedural” nature of state law requiring more threshold evidence than FELA saves it from preemption (U.S., brief sought), 854
– Cleveland, FLSA, partial win goes to police officers denied compensatory time off so city could avoid paying replacements overtime, disruption, finances key factors (N.D. Ohio), 290
– DaimlerChrysler shooting spree case remanded to state court, no LMRA preemption of state law negligence claims not based on CBA (6th Cir.), 502
– Emotional distress claim by arthritic former cashier denied disability accommodation fails, ADA claim survives (6th Cir.), 1243
– Home health care workers bargaining rights order may violate federal antitrust law, harm consumers, FTC warns, 301
– Military status, bias ban enacted, 99
– Nondisclosure of lung test results, tort claims remanded on jurisdictional grounds, no pact interpretation required (6th Cir.), 683
– Pregnancy bias, fired flight attendant's claim rejected (6th Cir.), 75; (U.S., rev den), 1351
– Prevailing wages, governor issues guidelines on covered jobs, builders, unions comment, 1323
– Public employees can sue for bias without first exhausting administrative remedies under civil service law, competing public policies reviewed (Ohio), 1005
– Sexual harassment complainant's car set on fire, employer potentially liable for retaliatory acts of co-worker, state law claim revived (6th Cir.), 245
– State actions summary, 29; 102; 165; 319; 451; 514; 582; 644; 703; 783; 858; 948; 1011; 1066; 1200; 1232; 1353; 1414
– Trade secrets

– – “Faithless servants,” firm awarded $23M for ex-employees' collusion with rival (Ohio Ct. C.P.), 86
– – Memorized data qualifies as stolen secrets under state law (Ohio), 217

– Workers' compensation

– – Crack cocaine dealer considered “employed,” ineligible for continued benefits (Ohio), 77
– – Elderly blind man's interaction with customers does not show ability to work, benefits termination properly denied (Ohio), 1395
– – Retaliation, union trucker terminated as voluntary quit may sue (N.D. Ohio), 929

OIL AND GAS

– Energy Safety Servs., ADA, driving not major life activity even in rural area, improper jury instruction triggers reversal, remand (10th Cir.), 1396
– Jobs, Energy, Families, and Disaster Relief Act

See LEGISLATION, FEDERAL, S 3335

– OSHA inspections, seven industries added, 299
– Payson Sys. USA, DOL recovers $842K in overtime back wages following FLSA probe, 46
– Pipelines, return-to-work and follow-up drug testing, DOT rule expands use of observed urination for safety-sensitive positions, 1036; rule delayed, 1195
– Texas One Petroleum, overtime, certification denied on lone claimant's FLSA collective action (S.D. Texas), 1085

OKLAHOMA

– Drug testing, UPS driver who failed test cannot sue for procedural violations of state law, DOT standards control industry (10th Cir.), 806
– Immigration, enforcement of E-Verify provision blocked, preemption “substantially likely” (W.D. Okla.), 763
– Invasion of privacy, intrusion upon seclusion claims viable for weight loss center sales consultant, but firing claims rejected (W.D. Okla.), 1003
– State actions summary, 29; 229; 384; 451; 703; 948; 1066; 1353

OLMS

See LABOR MANAGEMENT STANDARDS OFFICE (OLMS)

ON-CALL TIME

– Exelon ARCOS system, linemen required to be within 2-hour drive and reachable by phone or beeper not working, FLSA class claims properly dismissed (7th Cir.), 493
– FLSA, hours worked, fluctuating pay duty reflects workload, ability to use for personal purposes, Wage and Hour Op. Letter, 1097; text, 1103

OPERATING ENGINEERS (IUOE)

– Campaign Web sites, LMRDA, union rule requiring locals to maintain passwords lawful to block nonmember access (D.D.C.), 1434
– Local 30, real estate buyer's refusal to hire IUOE engineers was ULP, NLRB upheld (D.C. Cir.), 214
– Local 150, decertification, employer's explanation to strike replacements not coercion, new election not warranted (NLRB), 83
– Miss. Riverboat Council, assignment of obligations, neutrality/card-check pact not binding on successor owner of casino which had closed operations (5th Cir.), 936

OREGON

– Dept. of Agric., equal protection class-of-one theory not available to public employee claiming discharge for arbitrary reasons (U.S., rev grant), 94; (oral arg), 576; class-of-one not applicable in public employee context (U.S., aff), 793; text, 816
– Disability bias, accommodation ruling against firm that fired medical marijuana user upheld (Ore. Ct. App.), 843
– 4th Amendment, public safety not implicated in library page position, mandatory drug and alcohol test to combat societal problem unreasonable search (9th Cir.), 405
– Minimum wage, hike announced, tied to CPI, In Brief, 1323
– Safety and health, retail manager has valid wrongful discharge claim based on reasonable belief in ergonomics violations, but not based sexual activity, HIV transmission risk (D. Ore.), 399
– State actions summary, 29; 165; 319; 451; 582; 644; 703; 783; 858; 948; 1066; 1200; 1291; 1414
– Whistleblower retaliation, after-hours videotaping at food services warehouse violated loitering ban, not protected (D. Ore.), 9
– Workers' compensation, retaliation, Starbucks barista entitled to jury trial (D. Ore.), 243

ORGANIZING

– Coercion, HR managers' interruption of organizers seeking card check authorizations in employee dining room not improper surveillance of union activity (9th Cir.), 154
– Conflicts of interest, networks' bid to disqualify WGA's law firm from also representing reality show employees rejected, valid waivers signed (Cal. Ct. App.), 766
– DPPA

See DRIVER'S PRIVACY PROTECTION ACT (DPPA)

– Employee Free Choice Act (EFCA)

See LEGISLATION, FEDERAL, HR 800, S 1041

– Labor neutrality, employers urge justices to rule that NLRA preempts Cal. law (U.S., oral arg), 395; NLRA preempts, state-funded employers' non-coercive speech lawful (U.S., rev, rem), 832; text, 886
– Teaching and Research Assistant Collective Bargaining Rights Act

See LEGISLATION, FEDERAL, HR 5838, S 2891

– ULPs

See UNFAIR LABOR PRACTICES (ULPs)

OSC

See SPECIAL COUNSEL OFFICE (OSC)

OVERTIME

– Accountant not paid on salary-basis entitled to overtime, liquidated damages, no administrative exemption (M.D. Tenn.), 1051
– Amusement business exemption denied where seasonal dog race firms operated as single entity, intermingled funds (11th Cir.), 148
– Bakery workers' N.Y. opt-out class action certified, citing immigrant's fear of FLSA opt-in (E.D.N.Y.), 370
– Blue Cross and Blue Shield of Minn., business decision not linked to 401(k) plan, no ERISA fiduciary breach (D. Minn.), 938
– Breaks, meal and rest, missed time treated as hours worked, pay rules explained, Wage and Hour Op. Letter, 1096; text, 1101
– Bureau of Prisons, pre-shift waiting time, meetings de minimis burden, manuals not orders to perform, FEPA claims properly denied (Fed. Cir.), 623
– Calculations

– – Exempt salaried employees' pay requirement is $455 per week, prorating to reflect reduced hours barred, Wage and Hour Op. Letter, 354
– – Timekeeping, computer training at home requires time sheets reflecting starting, ending times, Wage and Hour Op. Letter, 354

– California

– – Drywall firm sued for $5M in back pay, benefits (Cal. Sup. Ct.), 77
– – Exemption enacted for salaried computer professionals, 1321
– – Pharmaceutical sales rep meets state's outside sales exemption despite no direct selling (C.D. Cal.), 42

– Car wash industry, N.Y. finds widespread violations, 1173
– CC Servs., material damage adjusters who process claims for insurance-company clients exempt administrative employees (7th Cir.), 41
– Chinese Daily News reporters' class awarded $5.9M, includes interest, penalties (C.D. Cal.), 333
– Civil Rights Act of 2008

See LEGISLATION, FEDERAL, HR 2159, S 2554

– Civilian Army recruiters who find candidates but do not enroll perform promotional work, not sales, no outside sales exemption (10th Cir.), 959
– Collective actions, waiver of opt-in requirement valid, opt-out class arbitration may proceed (4th Cir.), 150; (U.S., rev den), 1347
– Constructive discharge, aviation mechanic's pay demands prompted 'quit or be fired' ultimatum, FLSA claim may proceed (W.D. Ky.), 624
– Discovery, FLSA, restaurant delivery personnel need not produce tax returns to show number of work hours (S.D.N.Y.), 463
– Domestic services exemption, home health care agency's challenge to state wage requirement rejected (Pa. Commw. Ct.), 1217
– Donning and doffing

See CLOTHES CHANGING

– Dow Chem., mandatory training, back pay settles engineers' claims, DOL accord, 181
– Eli Lilly, misclassification, notice of sales representatives' FLSA collective action preliminarily approved (S.D. Ind.), 289
– Ernst & Young, fired tax analyst exempt despite few duties, lack of responsibility due to poor performance (N.D. Cal.), 370
– Evidence, showing that management altered time records negates need to show specific days and hours, claim revived (7th Cir.), 994
– Family-Friendly Workplace Act

See LEGISLATION, FEDERAL, HR 6025

– Farm Stores Grocery, “store managers” win claim, FLSA exemption depends on duties, not designation (11th Cir.), 400
– Field preemption bars Ill. law claim against interstate rail line, RLA issue unripe (7th Cir.), 1216
– Firefighter exemption, paramedics and fire medics responsible for fire suppression exempt regardless of actual duties (11th Cir.), 336
– Gotham Registry, FLSA, referral service required to pay nurses even where not authorized (2d Cir.), 145
– Gristede's, FLSA, misclassified NYC grocery managers prevail, counterclaims ruled retaliatory (S.D.N.Y.), 1218
– Holiday work at premium pay does not entitle claimant to overtime for same week (Cal. Ct. App.), 798
– Insurance “sales leaders” employees, not exempt independent contractors, under economic realties test (5th Cir.), 1365
– J. Siebold Constr., $1.2M, retaliation bar settles N.Y. charges, 1041
– Jin Hua, $110K in back pay settles DOL claims against restaurant supply firm (E.D.N.Y.), 996
– Joint employment, police officers working off-duty hours for separate government entity may not combine hours in overtime calculations, Wage and Hour Op. Letter, 353; text, 355
– KFC, class decertification bars arbitration of claims, ex-members must sue as individuals (D. Minn.), 45
– Law enforcement exemption, city jailers partially exempt under FLSA, Wage and Hour Op. Letter, 1098; text, 1105
– Lifeguards subject to amusement and recreational exemption, claims against employer, staffing firm rejected (D.D.C.), 1050
– Mandatory arbitration, Cal. statutory right to sue for overtime unwaivable, class action ban unenforceable where significantly more effective in vindicating rights (U.S., rev den), 470
– Misclassification, commission-paid sales employees' jobs diverse, certification of FLSA collective action denied (N.D. Cal.), 334
– Mortgage underwriter exempt administrative employee despite quarterly salary adjustments (2d Cir.), 1391
– Natl. Freight (NFI), failure to prove driver engaged in interstate commerce propels FLSA case to trial (M.D. Fla.), 1182
– N.H., delivery drivers, sales merchandisers covered under new state law, 1040
– N.M. Minimum Wage Law amended to eliminate loophole, In Brief, 164
– N.Y., garment contractor and owners charged in sweatshops sweep with $5M in wage violations, records fraud, 1040
– Nurses, N.Y. bars mandatory overtime, natural disasters exception, 1172
– Nurses, N.Y. legislators ban mandatory extra hours, enactment expected, 920
– NYC juvenile workers' “gap time” under FLSA 40-hour threshold, comp time, pay schemes lawful (S.D.N.Y.), 660
– On-call time, hours worked, FLSA fluctuating pay duty reflects workload, ability to use for personal purposes, Wage and Hour Op. Letter, 1097; text, 1103
– Oracle, FLSA, Cal. class suits settled for $1.2M, preliminarily approved (N.D. Cal.), 1428
– Outside sales exemption, FLSA

– – McLane, retail merchandising specialists not exempt outside salespeople, $156M settles DOL charges against wholesale grocery distributor, 208
– – Pharmaceutical sales reps' lawsuits raise novel 849.1 application to white-collar workers, Special Report, 445

– Outside sales, sellers of novelties at special store events exempt, Wage and Hour Op. Letter, 1096; text, 1099
– Pay schedules, FLSA allows 1-week adjustment to school district's bi-weekly pay period for administrative convenience, Wage and Hour Op. Letter, 1065; text, 1075
– Payson Sys. USA, DOL recovers $842K in overtime back wages following FLSA probe, 46
– Pharmaceutical promotional reps probably exempt as administrative employees, but not as outside salespersons (S.D.N.Y), 838
– Portal-to-Portal Act, FLSA statutory changes, court rulings trigger DOL proposed rule to align regulations, overview, 1049; comment period extended, In Brief, 1196; unions say DOL should drop proposal, Special Report, 1408
– Purchasing agents subject to administrative exemption due to latitude in dealings with vendors, Wage and Hour Op. Letter, 509; text, 520
– Recordkeeping violations

– – Classification of workers as FLSA-exempt was business decision, not ERISA fiduciary breach (E.D. Mich.), 1166
– – Crediting of hours important to benefits calculations as well as pay, ERISA claim linked to FLSA claim proceeds (D. Ariz.), 1378

– Residential care, FLSA, live-in workers who share bedrooms with other workers not exempt (E.D. Cal.), 78
– Retaliation

– – Claim revived where former employer sued for fraud, breach of contract in response to FLSA suit (4th Cir.), 182
– – Temporal proximity lacking, FLSA opt-in plaintiff failed to link protected activity to termination seven months later (11th Cir.), 180
– – TRO bars NYPD internal affairs department from investigation or discipline related to plaintiff officers' FLSA suit (S.D.N.Y.), 431

– Saigon Grill, FLSA, N.Y. wage violations, owners, managers liable for $4.6M award to Chinese immigrant deliverymen (S.D.N.Y.), 1425
– Salvation Army, FLSA ministerial exception applies to ordained ministers supervising rehabilitation centers (7th Cir.), 331
– Service coordinators for medical, social, educational services not exempt learned professionals, Wage and Hour Op. Letter, 1098; text, 1106
– Shift differential, failure to calculate, hospital ordered to pay restitution in class action (Cal. Super. Ct.), 179
– Shift substitutions by public employees excepted from FLSA liability unless additional hours drive hourly rate below minimum wage, Wage and Hour Op. Letter, 509; text, 518
– Social work, truancy protection case manager exempt professional despite lack of advanced degree (E.D. Pa.), 799
– Soil analyst involved in research, marketing is exempt administrative employee, Wage and Hour Op. Letter, 640
– Sun Microsystems, SeeBeyond Tech., technical writer's class certified (Cal. Sup. Ct.), 685
– Sutter Health, dialysis nurses file class action (Cal. Sup. Ct.), 242
– Taxpayer Responsibility, Accountability, and Consistency Act

See LEGISLATION, FEDERAL, HR 5804

– Texas One Petroleum, certification denied on lone claimant's FLSA collective action (S.D. Texas), 1085
– Tyson Foods, donning and doffing, appeal of denial of summary judgment premature, injunction not modified (10th Cir.), 1084
– Wal-Mart Stores, overtime, opt-in collective action, 2 of 573 pharmacists can sue over effects of salary fluctuations (10th Cir.), 1367