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April 16, 2012


Headline News
More American Workers Sue Employers for Overtime Pay
The Rise of the Independent Work Force
Tax Incentives Aid Vet Hiring, Study Finds
Ex-CEO From Leechburg Pleads Guilty to Fraud, Tax Evasion
Green Jobs Creation Slower Than Expected

ASA for You
ASA Staffing Law Conference Starts Tomorrow

Legal Watch
Federal Court Says NLRB Can’t Require Employers to Post Union Notices
Appeals Court: No Criminal Prosecution for Recruiter's Breach of Computer Network
U.S. Department of Labor Extends Comment Period on Proposed FMLA Rules
Business, Labor Groups Gird for Vote on Controversial NLRB Union Election Rule

Trends and Research
Health Care Jobs Activity Surging on Social Media
Insurance Employment Report: Jobs Outlook Improving, Slowly


Headline News


More American Workers Sue Employers for Overtime Pay
USA Today (04/16/12) Paul Davidson

Wage-and-hour lawsuits filed in federal court topped 7,000 last year, up 32% from 2008. Workers are filing suit to recoup overtime pay, alleging that they were required to work off the clock, were misclassified as exempt from overtime requirements, and were expected to handle work-related tasks after hours using smartphones and other technology. Experts say the Fair Labor Standards Act is outdated, as it does not take into consideration the new workplace and new technologies.

Employers are now clearly distinguishing between workers and managers and pulling back on telecommuting and company-issued smartphones, especially as the U.S. Department of Labor cracks down on violators. The amount of back wages recovered by DOL rose 28% from fiscal 2010 to $225 million in fiscal 2011, and it has increased its wage-and-hour investigators by 40% to 1,050.

Check out this "Law and You" Scenario in Staffing Success

The latest issue of the ASA magazine examines the case of a highly skilled engineer and competitive candidate seeking compensation for overtime hours worked while on assignment—something the staffing firm owner says she was never authorized to do. Who's right?

The Rise of the Independent Work Force
New York Times (04/14/12) Alexandra Levit

Around 31% of the U.S. work force is independent or contingent, including temporary workers, contractors, and the self-employed, according to a 2006 government report. Contingent workers were favored by employers during the recent recession because hiring them helped hold down costs, and they are not likely to go away given that employers remain hesitant to hire permanent employees.

Tax Incentives Aid Vet Hiring, Study Finds
Washington Post (04/14/12) Steve Vogel

A new study from the RAND Corp. concludes that federal tax credit programs encouraging employers to hire disabled veterans are proving effective. In 2007, Congress added incentives to the Work Opportunity Tax Credit program, offering employers who hired disabled veterans who were recently discharged or unemployed for more than six months up to $4,800 per hire. The new study finds that the tax credit increased employment among disabled veterans by two percentage points in 2007 and 2008, or approximately 32,000 jobs each year. "These findings suggest that tax credits may be an effective means to reduce unemployment among disabled veterans," says the study's author, Paul Heaton.

Ex-CEO From Leechburg Pleads Guilty to Fraud, Tax Evasion
Pittsburgh Tribune-Review (04/14/12) Brian Bowling

Richard McDonald, the former chief executive of the Wilkins, PA-based medical staffing firm World Health Alternatives Inc., pleaded guilty to one count each of wire fraud, securities fraud, certifying false statements to the U.S. Securities and Exchange Commission, payroll tax evasion, and income tax evasion as part of a deal with the government to avoid prosecution on 15 additional charges. McDonald assumed the top post at the company in 2003 and resigned in 2005, and during his tenure, he transferred company money to his personal account and hid the fact that the company had $2.3 million in unpaid payroll taxes, among other things. The company filed bankruptcy six months after his resignation and was acquired by Alpharetta, GA-based Jackson Healthcare Solutions in 2006.

Green Jobs Creation Slower Than Expected
Reuters (04/13/12) Andy Sullivan

Three years after the Obama administration launched a push to build a job-creating "green" economy, the millions of jobs predicted have been slow to become reality. A $500 million job-training program has so far helped fewer than 20,000 people find work, far short of its goal. The White House said in November 2010 that its clean-energy efforts had generated work for 225,000 people and would ultimately create a total of 827,000 "job years"—implying average annual employment of around 200,000 over the four years of Obama's presidential term. White House officials stand by that estimate and say job creation is only one aspect of the clean-energy push.

Backers of the notion of a "green collar" work force argue that earth-friendly energy is a promising growth sector that could create a bounty of stable, middle-class jobs and fill the gap left by manufacturing work that has moved overseas. However, Darren Divine, vice president for academics at the College of Southern Nevada, says the fields of health care, education, and technology are likely to provide the best employment prospects in the years to come.


ASA for You


ASA Staffing Law Conference Starts Tomorrow

The ASA Staffing Law Conference takes place tomorrow and Wednesday at the Westin Washington, DC, City Center Hotel.

The conference features Charlie Cook, the pre-eminent authority on U.S. elections and political trends; senior-level representatives from the U.S. Department of Labor, U.S. Equal Employment Opportunity Commission, and U.S. Department of Justice; a special session to discuss the effects of federal health care reform; and more.

For more information, visit americanstaffing.net. Registrations will be accepted on site.
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Legal Watch


Federal Court Says NLRB Can’t Require Employers to Post Union Notices
American Staffing Association (04/16/12) Ed Lenz

A federal judge in South Carolina ruled Friday that the National Labor Relations Board does not have authority to require employers subject to the National Labor Relations Act to post a notice advising employees of their rights under the act. In so ruling, U.S. District Judge David C. Norton said that the legislative history of the act showed that Congress “did not intend to impose a universal notice-posting requirement on employers, nor did it authorize the board to do so.” The ruling conflicts with a March 2 ruling by a federal district court in the District of Columbia in which the court held that failure to post the notice could not be treated as an unfair labor practice charge or give employees more time to file charges on other issues, but that the NLRB has the basic authority to require the notice. (See March 5 issue of Staffing Today.)

Officials of the NLRB and the U.S. Chamber of Commerce, the main plaintiff in the South Carolina case, are examining what effect, if any, Judge Norton’s ruling should be given beyond South Carolina. There is speculation that the South Carolina ruling will be appealed in an effort to resolve the conflict between the two lower courts. The NLRB notice requirement is currently scheduled to go into effect on April 30.
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Appeals Court: No Criminal Prosecution for Recruiter's Breach of Computer Network
American Staffing Association (04/16/12) Stephen Dwyer

The U.S. Court of Appeals for the Ninth Circuit, in California, has ruled in U.S. v. Nosal that a former employee of a search and placement firm, who persuaded the firm's current employees to access its computer data for the purpose of helping him set up a competing business, could not be criminally prosecuted under the federal Computer Fraud and Abuse Act.

After ending his tenure with the firm, the former employee allegedly enlisted three current employees to access the company's computer records and help him set up his business. After he was criminally indicted, the former employee moved to dismiss the indictment on the grounds that the CFAA was designed to prosecute computer hackers, not former employees who allegedly misappropriate their former employers' confidential information. The appeals court agreed, ruling that the law was not intended to prohibit persons from misappropriating the information they have a right to access.

Staffing firms should note that in certain jurisdictions outside California, staffing firm internal employees may be criminally prosecuted under the CFAA for violating company computer policies and misappropriating company trade secrets and confidential information. Regardless of the jurisdiction, every staffing firm should have clear policies prohibiting such activity.

U.S. Department of Labor Extends Comment Period on Proposed FMLA Rules
HR.BLR.com (04/13/12)

The U.S. Department of Labor's Wage and Hour Division has extended to April 30 the comment period for its proposed rule regarding new military-related amendments to the Family and Medical Leave Act. The proposed amendments would extend military caregiver leave to veterans' family members for up to five years after the service member leaves the military. Furthermore, the proposal extends qualifying exigency leave to employees whose family members serve in the regular armed forces and not just to family members of National Guard members and reservists. The proposed amendments would also add a special eligibility provision for airline flight crews.

Business, Labor Groups Gird for Vote on Controversial NLRB Union Election Rule
The Hill (04/15/12) Kevin Bogardus

Business groups and unions expect the U.S. Senate to vote in the next week or two on a joint resolution for congressional disapproval that would block the National Labor Relations Board's union election rule. The rule would speed up union elections and is opposed by business groups, which say that it would restrict employers' free speech rights and put a damper on job growth. However, unions support the rule, indicating that it would give workers a fair vote and minimize litigation. The joint resolution has the backing of 45 Republicans, but it needs a simple majority of 51 votes to pass.


Trends and Research


Health Care Jobs Activity Surging on Social Media
HealthLeaders Media (MA) (04/13/12) Margaret Dick Tocknell

A recent survey from AMN Healthcare indicates that people who work in the health care sector have increased their use of social media to look for and apply for new jobs. Until fairly recently, personal networking and informal get-togethers might have been the preferred way to learn about potential job openings. However, social media makes “the cocktail party very large and very private,” AMN president of health care staffing Ralph Henderson told HealthLeaders Media. He notes that social media is an excellent way for the health care industry to reach out to the passive job seeker who is content in his or her job but would change jobs if the right one came along. “The tools and opportunities available through LinkedIn, Facebook, or Twitter are very different now from just a few years ago,” he notes.

Insurance Employment Report: Jobs Outlook Improving, Slowly
Insurance Journal (04/16/12) Young Ha

More insurance companies are hiring employees this year, although others are making do with their current staffing levels. Still, 51% of the 112 insurance companies surveyed by the Jacobson Group say they may hire more employees in 2012, up from 44% a year ago. Meanwhile, the Independent Insurance Agents and Brokers of America has more job postings listed on the its job board this year.