Appeals Court Denies Class Action Recruiter Overtime Case
American Staffing Association (03/16/12) Stephen Dwyer
In an unpublished opinion issued March 15, the U.S. Court of Appeals for the Ninth Circuit denied class certification in a case brought on behalf of Aerotek recruiters who claimed that they were misclassified as exempt administrative employees and thus entitled to overtime pay under California wage and hour law, Delodder, et al, v. Aerotek, Case 10-56755. The court upheld the district court’s ruling that the recruiters were not similarly situated and thus could not comprise a proper class for the class action.
The Court of Appeals affirmed the district court’s finding that the recruiters’ candidate sourcing techniques, interview styles, authority to recommend candidates, and relationship with supervisors all were relevant to whether the recruiters were exempt, and the variation in such activities among recruiters did not allow for class-wide adjudication.
Data Suggest Job-Market Gains Leveling Off
Wall Street Journal (03/16/12) Neil Shah
The number of people filing new applications for unemployment benefits declined last week, but declines in the four-week moving average have slowed, indicating that recent improvements in the job market may be losing momentum. Although employers are slowing the pace of layoffs, and the economy has added 1.2 million jobs in the past six months, some observers believe the job market won’t improve any further without more substantial economic growth.
E-Verify Job-Check System Is Underutilized, Agency Says
Washington Times (03/15/12) Stephen Dinan
Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, says the agency can handle additional requests through its E-Verify system, though it would need time to handle additional capacity if all states mandated use of the system. E-Verify mandates for all businesses have been passed in Arizona, South Carolina, Alabama, and Mississippi, and 13 states require its use by state agencies and government contractors. However, compliance levels vary in states with mandates. Mayorkas says the system ran more than 17 million checks during the 2011 fiscal year, and 102,942 individuals have used the system to check their status as of March 15. Legislation proposed by U.S. Rep. Lamar Smith (R-TX), chairman of the House Judiciary Committee, would require the use of E-Verify for all new hires nationwide, but the bill has stalled.
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U.S.: Unemployed Status—The New Protected Class
Sheppard Mullin Richter & Hampton LLP (03/14/12) James Hays; Rebecca Hirschklau
There appears to be a trend to add “unemployed” to the list of protected classifications under the myriad of federal and state fair employment practices acts. When unemployment rates are high, employers invariably become inundated with candidates for the limited openings that may become open and available, to the point where some employers have taken to disqualifying potential applicants by advertising that “the unemployed” need not apply. In light of this, Congress and several state legislative bodies have started to amend their antidiscrimination laws to add “unemployed status” as a protected class.
There are two bills currently pending in the U.S. Congress: HR 2501, the Fair Employment Opportunity Act of 2011 and S 1471, also known as the Fair Employment Opportunity Act of 2011. Both bills seek to bar private employers with 15 or more employees from discriminating against the unemployed when posting job openings and when considering an applicant for employment, unless current employment status was a bona fide job requirement.
Several states, meanwhile, are currently considering amendments to classify “unemployed status” as a protected class, thereby seeking to prohibit discrimination in hiring on the basis of an applicant’s unemployed status. New Jersey in 2011 became the first state to adopt a law concerning discrimination on the basis of an applicant’s employment status. Specifically, New Jersey now prohibits employers and employment agencies from advertising job vacancies that include “currently employed” as a job qualification; or indicate that applications will be accepted only from currently employed people; or that applications from the unemployed will not be accepted.
Managing an OSHA Inspection: Answers to Five Frequently Asked Questions
OSHA Law Update (03/08/12) Eric Conn
When the U.S. Occupational Safety and Health Administration unexpectedly shows up to begin an inspection and the employer’s representative whom the employer prefers to manage the OSHA inspection is not present at the workplace, the employer can request that the agency’s officer return at a later time or wait a reasonable amount of time until the employer’s chosen inspection representative is available.
OSHA’s Field Operations Manual explains that the agency believes waiting approximately one hour is a reasonable amount of time to delay the start of an inspection to wait for the employer’s selected representative to become available. However, unless the agency’s representative has a warrant or other exigent circumstances exist—such as imminent danger in plain view—the employer can refuse to consent to the inspection until its chosen representative arrives, so OSHA may not proceed with the inspection without obtaining a warrant, which generally takes at least a couple of days.
Additionally, in the absence of a related special emphasis program, a warrant, or a hazard in plain view, OSHA cannot expand the scope of a complaint-based inspection beyond the location and hazard identified in the complaint without the employer’s consent. The employer should insist that the inspection be limited to only that location.
USERRA Protections Expanded Under VOW to Hire Heroes Act
The federal VOW to Hire Heroes Act calls on the U.S. Department of Labor to translate military skills and training to jobs in the civilian sector and simplify the process for veterans to secure necessary licenses and certifications. It also alters the language of the federal Uniformed Services Employment and Reemployment Act to make it illegal for employers to create hostile work environments based on an employee’s status as a service member, using language similar to Title VII of the Civil Rights Act of 1964.
Five Costly Health Care Compliance Slips
CFO (03/12) David McCann
In the past, the U.S. Department of Labor focused more on retirement plan compliance, but the agency is turning its attention to health benefit plans due to federal health care reform. Small companies without a human resources team may not maintain a required plan document that details claims procedures and eligibility provisions under the Employment Retirement Income Security Act. Many assume that insurance contracts satisfy ERISA standards, but DOL audits increasingly focus on both plan documents and insurance contracts, with companies not providing such documents within 30 days of an employee’s request facing fines up to $110 per day. Small firms also may neglect to retain plan-related documents for a sufficient time after the end of the plan year; ERISA mandates that such documents be retained for six years, but some states have longer statutes of limitations on claims against health plans.
Small firms also must comply with the Health Insurance Portability and Accountability Act of 1996, with the DOL undertaking audits of employers, who face penalties up to $2,500 per incident of noncompliance per standard. Under the federal health care reform law, companies with 250 or more employees must report all prior-year costs for health insurance paid by the employer and the employee on the employee’s Form W-2 beginning in 2013, with a $200 fine per form for incorrect information. Moreover, beginning Sept. 23, 2012, employers must provide a Summary of Benefits and Coverages document during open enrollment or face an excise tax of $100 per plan participant per day of noncompliance.
U.S. Factories Help Job Recovery Endure in March
Associated Press (03/15/12) Christopher S. Rugaber
According to surveys by the Federal Reserve Bank of Philadelphia and the Federal Reserve Bank of New York, manufacturing in the two regions is growing at a healthy rate, and factories in the regions have been hiring more employees. An increase in automobile sales and rising demand for heavy equipment are keeping factories busy. However, the surveys show new orders and shipments have slowed, suggesting that future activity may be weaker.