Labor & Employment News Digest - November 2008
11/25/2008

Employee Free Choice Act Tops List of Anticipated L&E Legislation

Wondering what the Obama administration and Democratic control of Congress mean for labor and employment law? Here's a list of the top legislation to watch (or watch out for):

	•	The Employee Free Choice Act (EFCA). The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election.
	•	The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT). No, it's not an Aretha Franklin song. The RESPECT Act would reverse the NLRB's recent rulings that clarified the requirements to be a "supervisor" under federal labor law, dramatically increasing the number of employees who could unionize. Sock it to me!
	•	The Paycheck Fairness Act and the Equal Remedies Act. These statutes—competing versions to address the same issue—would reverse the U.S. Supreme Court's recent Ledbetter ruling addressing the statutes of limitations under Title VII. Both would enable plaintiffs to press discrimination claims going back much further in time.
	•	The Civil Rights Act of 2008. The proposed amendments to the civil rights laws would make numerous changes including removal of damages caps on sex, religion, and disability discrimination, as well as retaliation lawsuits.
	•	The Employment Non-Discrimination Act (ENDA). ENDA would amend Title VII to add sexual orientation as a protected class.
	•	The FOREWARN Act. This amendment to WARN would increase the notice period for plant closings or mass layoffs from 60 to 90 days.
	•	Minimum wage. President-elect Obama has expressed his support for raising the minimum wage to $9.50 per hour by 2010.
	•	Family and Medical Leave Act (FMLA). President-elect Obama has indicated his support for expanding FMLA to cover companies with 25 or more employees (currently 50).

The World of Work Blog will be watching this legislation closely and will bring you updates as they occur. For more information now, check out this update from Stoel Rives on pending legislation.

DOL Issues Final FMLA Regulations

Earlier this month, the Department of Labor published its Final Regulations Implementing the Family and Medical Leave Act. The regulations go into effect on January 16, 2009 (60 days after publication). Click here to download the final FMLA regulations, or click here to read the World of Work Blog's short synopsis.

Cosmetology Teachers, Not Day Care Teachers, Overtime Exempt

Cosmetology teachers, but not day care teachers, are exempt from the Fair Labor Standards Act's (FLSA's) overtime and minimum wage rules, according to two recent opinion letters from the Department of Labor. Why the difference? Cosmetology teachers work in an accredited secondary school and their primary duty is "teaching and instructing students in cosmetology theory." Yes, cosmetology theory. It's real—look it up. Day care teachers, on the other hand, do not qualify for the exemption because they do not teach in a qualifying elementary or secondary educational institution. Click here to read the DOL's opinion letter on cosmetologists, here to read the DOL's opinion letter on day care teachers, or here to read the World of Work Blog's coverage.

DOT Issues Final Rule on Commercial Drivers' Hours

On November 19, the Department of Transportation's Federal Motor Carrier Safety Administration published a final rule on commercial drivers' hours. Under the final rule, commercial motor vehicle drivers may continue to drive up to 11 hours within a single workday, and drivers may now reset their weekly limits after they have been off duty for at least 34 consecutive hours. The final rule will take effect January 19, 2009. Click here to download the Final DOT Rule, or here to read the FMCSA's press release on the new rule.

Utah: Employee Commuting May Be Within "Course and Scope" of Employment

This month the Utah Supreme Court ruled that under certain circumstances, an employee's commute may be within the course and scope of employment such that the employer may be held liable for the employee's negligence during the commute. Click here to read the court's opinion in Newman v. White Water Whirlpool. Click here to read the World of Work Blog's description of the case and its possible implications for your workplace.

"Blonde Jokes" Support Workplace Emotional Distress Claim

Can blonde jokes cause emotional distress? Yes, according to Strong v. Wright, a recent opinion from the Washington Court of Appeals. That court held that an employee could sue her employer for negligent infliction of emotional distress because her former supervisor told blonde jokes. The plaintiff alleged the jokes "caused her to vomit and to have anxiety attacks, depression, and heart palpitations." (Really. We're not making this up. Blonde jokes = heart palpitations.)

What's the lesson here for employers? Even though none of the supervisor's conduct appear to have violated federal or state law, employers still need to discourage boorish and demeaning workplace behavior. Courts appear willing to find a way—or or even create a way—to continue policing the workforce.

California Overtime Laws Cover Nonresidents Who Work in California

Do California wage and hour laws—including daily and weekly overtime provisions—apply to nonresidents who occasionally perform work in California? Yes, according to a decision from the Ninth Circuit Court of Appeals this month. Click here to read the court's decision in Sullivan v. Oracle Corp. For more information, click here to read the World of Work Blog's summary.

Salvation Army Settles "English Only" Lawsuit with EEOC

A Massachusetts federal court this month approved a consent decree settlement of an Equal Employment Opportunity Commission (EEOC) lawsuit against the Salvation Army over the firing of two Spanish-speaking employees who failed to adhere to the employer's "English only" policy. This case is a reminder to employers that English-only policies may only be used and enforced if English is a "business necessity." To read the consent decree in that case, click here. For more information on this case and on English-only policies, read the World of Work Blog's coverage.

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Contact your Stoel Rives Labor and Employment attorney if you have questions about this or other workplace issues. For a list of attorneys in the Labor and Employment group, click here.

Stoel Rives is a business law firm providing counseling and litigation services to a wide range of clients throughout the United States. The firm has nearly 400 attorneys operating out of 12 offices in eight states. For more information, visit www.stoel.com.