Juz The Fax

Employers ... Be Careful of Mixed-Guard Unions

noreply@blogger.com (RANDY L. BRAUN) — Wed, 22 Jun 2016 14:36:00 +0000

Since the NLRB’s holding in Wells Fargo Corp., 270 NLRB 787 (1984), an employer could, upon the expiration of a contract, refuse to continue to bargain with a “mixed-guard” union representing both its security guards and other employees. No longer. On June 9, 2016, in a case titled Loomis Armored US, Inc., 364 NLRB No. 23 (2016), the NLRB overturned more than thirty (30) years of precedent by holding that an employer cannot refuse to continue bargaining with a “mixed-guard” union where the employer has voluntarily recognized that union previously. The holding does not apply retroactively.

Essentially, the NLRB has held that once a voluntary bargaining relationship is established with a mixed-guard union, an employer may not unilaterally withdraw recognition of the union based on mixed-guard status, and must continue to bargain. This holding turns decades old precedent on its head. Now, employers who have recognized mixed-guard unions must continue that relationship and cannot withdraw recognition until such time as the union loses majority support among the bargaining unit members, if at all. Going forward, employers faced with signing an agreement with a mixed-guard union may wish to think twice or thrice about the implications of doing so in light of the Loomis decision. When faced with such a prospect, employers may wish to consult with labor counsel to discuss the likely serious ramifications of any such action.

New York Minimum Wage Rises to $9.00 Per Hour

noreply@blogger.com (RANDY L. BRAUN) — Mon, 04 Jan 2016 15:30:00 +0000

Just a reminder that effective as of December 31, 2015, New York's minimum wage was increased to $9.00 per hour. Employers should revise their postings to reflect the change in the law. You can download the current New York State Department of Labor poster here (look under "Other Publications" for form LS 207). Happy New Year to all.

Does Facebook Activity Constitute Protected Concerted Activity Under the NLRA?

noreply@blogger.com (RANDY L. BRAUN) — Tue, 10 Nov 2015 15:47:00 +0000

It does, according to the United States Court of Appeals for the Second Circuit. In Triple Play Sports Bar and Grill v. NLRB, the Second Circuit upheld a ruling of the National Labor Relations Board (the "NLRB") that Facebook activity by employees, which was critical of the company, constituted protected concerted activity under Section 7 of the National Labor Relations Act (the "NLRA"). The Summary Order issued by the Second Circuit (which lacks precedential effect) can be found here.

Triple Play is a sports bar located in Connecticut. One of its employees had made a post on Facebook that was critical of the employer. The post concerned claimed mismanagement of payroll tax by the employer; as a result, employees would owe additional taxes which should have been deducted in the first place. The post stated as follows: "Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!." A fellow employee "liked" the post on Facebook and commented "I owe too. Such an asshole." When the employer became aware of this, it fired the two employees.

The Second Circuit upheld the NLRB ruling that the two employees were engaged in a work-related discussion that was protected by the NLRA. It makes for interesting reading, particularly the discussion concerning the issue of whether the Facebook activity was so disloyal or defamatory as to lose the protection of the NLRA; the Second Circuit held that the protection was not lost in this instance.

Inflatable Rats And The First Amendment

noreply@blogger.com (RANDY L. BRAUN) — Thu, 30 Oct 2014 13:52:00 +0000

In a Decision dated October 27, 2014, the United States District Court for the Eastern District of New York (Bianco, J.), refused to ban a Union from using inflatable rats to communicate its objections to the hiring by an Employer of a supervisor who had run a non-union business previously. The Union, Asbestos, Lead, and Hazardous Waste Laborers' Local 78, began displaying the inflatable rats at various worksites of the Employer, Microtech Contracting Corporation. The case is Microtech Contracting Corporation v. Mason Tenders District Council of Greater New York, et al., Case No.: 14-CV-4179.

The Employer brought suit against the Union and sought a preliminary injunction. The Court refused to issue the injunction and held that use of the inflatable rats did not violate the no-strike provision of a collective bargaining agreement (the “CBA”) between a contractor’s association and the Union; the employer was a member of that association and was bound by the terms of the CBA.

In refusing to grant the injunction, the Court held that the Norris-LaGuardia Act of 1932 deprives federal courts of jurisdiction to issue restraining orders or injunctions in cases involving or growing out of labor disputes, except where the strike violates an express or implied promise not to strike, and where the underlying issue is arbitrable. The Court held further that preventing the Union from using the inflatable rat would violate the Union’s First Amendment right to free speech.

The no-strike provision contained in the CBA prohibits “strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site of or otherwise directed at, any employer [emphasis added].” Although the Court stated that First Amendment rights can be surrendered in a CBA or some other contractual agreement, it held that the Union did not waive those rights in this case.

The Court held that use of the inflatable rats did not constitute “disruptive activity” under the no-strike provision because that term was qualified by the words “of a similar nature.” In the Court’s view, that qualification refers to activities similar to strikes, walkouts, picketing, work stoppages, slowdowns, or boycotts, but not to the use of an inflatable rat to publicize or otherwise broadcast objections to an employer’s business practices. It appears that if the words “of a similar nature” were not contained in the clause, then use of the rats may have been prohibited as violative of the CBA. Interestingly, the Court stated that even if use of the rats were prohibited by the no-strike provision, the dispute was not subject to the grievance clauses in the CBA because it did not involve an "interpretation and application" of the agreement. Rather, it involved the Union's objections to the Employer's hiring of a supervisor with a non-union history.

While there is room for disagreement with the Court’s Decision, perhaps, as a practical matter, the Employer should consider use of inflatable “cats” on its jobsites which stand much taller than the Union’s inflatable rats. After all, free speech is free speech.

Obama's "Recess" Appointments To NLRB Held Unconstitutional

noreply@blogger.com (RANDY L. BRAUN) — Fri, 27 Jun 2014 12:27:00 +0000

In a blistering, 9-0 Decision, the United States Supreme Court ruled that President Obama’s recess appointments to the National Labor Relations Board (the “NLRB”) were unconstitutional. The revocation of those appointments, made in 2012, voids hundreds of decisions made by the NLRB.

The President made appointments to the NLRB to fill vacancies when the Senate was in a pro forma session, not in official recess. The President claimed that although a formal “recess” had not been declared, the Senate was in recess as a practical matter because it was not meeting and conducting business. The United States Supreme Court disagreed.

During the period in which the NLRB made decisions involving the now invalid appointees, approximately 600 employers sustained adverse determinations. Each of those determinations is null and void because the NLRB lacked authority to act due to the improper appointments. Most likely, de novo hearing and review of those vacated decisions will be made by a reconstituted NLRB. Those revised decisions, made by persons appointed in accordance with the law (rather than in violation of it), may result in different outcomes. Of course, spending so much time to rehear and redetermine those cases may strain NLRB resources; it could affect adversely the processing of current cases and throw a monkey wrench into the NLRB’s heretofore pro-labor agenda. The former result is troubling, while the latter is encouraging.

To paraphrase an old television commercial ... it’s not nice to fool with the Constitution.

NLRB Rules That College Football Players Are Employees And May Unionize

noreply@blogger.com (RANDY L. BRAUN) — Thu, 27 Mar 2014 15:45:00 +0000

Yesterday, the Chicago district of the National Labor Relations Board (the “NLRB”) ruled that football players at Northwestern University qualify as employees of the university and can unionize. Certainly, one can extrapolate from the ruling that it applies to all student athletes, not just football players at Northwestern.

While the players may be rejoicing over their new-found status, they should approach this development with some trepidation. There are a number of unknown or unintended consequences that could occur as a result of the NLRB ruling. Colleges and universities may elect to no longer issue scholarships for their athletes, and could avoid allegations of anti-union animus if financial considerations come into play. Indeed, if sports scholarships are discontinued, that will likely affect a great number of individuals who might not otherwise be able to afford an education, but for those scholarships. If scholarships continue, student recipients could be taxed on all or portions of those scholarships as employee income. Small schools may decide to cancel their sports programs completely. Student athletes who are hurt in a game or in activities related to their participation in the sport may qualify for workers’ compensation benefits.

Also, unionization raises the prospect of strikes by disgruntled players and lockouts by athletic departments. Strikes and lockouts are particularly likely since the athletes may lack any real leverage at the bargaining table; this could result in the utilization of non-union replacement players.

The NLRB ruling applies solely to athletes at private schools because the NLRB lacks jurisdiction over public universities. I expect that Northwestern will appeal and that the matter will be decided ultimately by the United States Supreme Court. In the interim, due to potential litigation, it is likely that the matter won’t be finalized for years. Stay tuned.

New York Increases Minimum Wage

noreply@blogger.com (RANDY L. BRAUN) — Wed, 01 Jan 2014 13:41:00 +0000

Effective as of December 31, 2013, New York State has increased its minimum wage to $8.00 per hour. This is the first of three planned increases. The New York minimum wage will again increase on December 31, 2014 to $8.75 per hour, and will further increase to $9.00 per hour on December 31, 2015. Note that the current federal minimum wage is $7.25 per hour, but that New York employers must pay the higher of the two rates. New York employers are required to post notice of the current increase in the State's minimum wage in a conspicuous place. The poster from the NYS Department of Labor can be found here.

Happy New Year!

Delay Of Employer Penalties Under Obamacare

noreply@blogger.com (RANDY L. BRAUN) — Wed, 03 Jul 2013 13:35:00 +0000

The Treasury Department has announced that the imposition of employer penalties under Obamacare will be delayed until 2015. Initially, those penalties were scheduled to become effective as of January 1, 2014. The delay applies only to the employer penalty provisions and certain related reporting requirements. Implementation of the health care exchanges as well as the mandate for individual health care coverage (including penalties for the failure to obtain such coverage) remain unaffected; they are still scheduled to become effective next year.

The delay in implementation came about because of complaints from employers that Obamacare penalty provisions were too complex to enforce by the initial 2014 deadline, and there was a lack of guidance regarding several issues. To somewhat paraphrase Nancy Pelosi ... Now that we know what's in the legislation, it's not all that it's cracked up to be. Rushing to enact legislation without reading it first is a recipe for disaster. This may be the first of many delays in the implementation and enforcement of Obamacare. Stay tuned.

Amendments To Employee Wage Deductions In New York

noreply@blogger.com (RANDY L. BRAUN) — Wed, 12 Sep 2012 19:24:00 +0000

New York's Governor Cuomo has signed legislation amending New York Labor Law §193 which restores to employers the ability to make certain deductions from employee wages in a number of instances; the New York Department of Labor (the “NYSDOL") had determined previously (via opinion letters) that such deductions were impermissible, even with the employee's consent. The legislation becomes effective on November 9, 2012.

The new amendments allow New York employers to make deductions (in addition to those existing currently under the statute) with respect to pay advances; accidental overpayment of wages; purchases made at events sponsored by bona fide charitable organizations; discounted parking passes and mass transit vouchers; gym membership dues; cafeteria, vending machine and pharmacy purchases made at the employer's place of business; tuition, room and board and fees for educational institutions; day care expenses; and payments for housing provided at no more than market rates by nonprofit hospitals.

Before an employer may take any of these additional deductions, the employer must: (i) provide the employee with written notice of the terms and conditions of the payment and its benefits; (ii) provide a written explanation of how the employer will take the deductions; and (iii) obtain the employee’s written, voluntary consent to the deduction. The employee’s consent may be revoked at any time. The employer must retain each authorization for at least six (6) years following the termination of the employee’s employment. Employees may also consent to a deduction through a collective bargaining agreement.

Interestingly, the amendments contain a "sunset provision" that automatically extinguishes the newly identified wage deductions on November 9, 2015. Accordingly, the State Legislature will likely revisit this issue at a later date to determine whether the new law is working; if it is, the "sunset provision" may be revoked.

The NYSDOL is required to issue regulations governing the timing and frequency of deductions and notice requirements, including a procedure that the employee may use to dispute the amount of the deduction. Employers are cautioned that they may wish to wait until after the NYSDOL issues its regulations, and the effective date of the new legislation, before entering into any wage deduction agreements with employees or taking any action with respect to wage deductions not permitted by statute currently.

Retaliation Claim Dismissed As Not Related To Title VII Proceeding

noreply@blogger.com (RANDY L. BRAUN) — Thu, 17 May 2012 14:48:00 +0000

In a case of first impression, the Second Circuit Court of Appeals held that the termination of employment in connection with an internal company investigation was not retaliatory where an EEOC Charge had not been filed. The case is Townsend, et al. v. Benjamin Enterprises, Inc., et al. and can be found here.

In Townsend, the Plaintiff was the director of human resources for the defendant corporation. Plaintiff alleged that she was terminated after commencing an internal investigation of a sexual harassment complaint made by the co-plaintiff against an officer of the corporation. The corporate officer was a shareholder of the company and owned it with his wife.

At the trial level, the District Court granted Defendants’ motion for summary judgment on the grounds that the Plaintiff was not engaged in protected activity under Title VII since an EEOC Charge has not been filed. On appeal, the Second Circuit affirmed and held that participation in an internal employer investigation not connected with a formal EEOC proceeding does not qualify as protected activity.

In reading the Second Circuit's decision, I can't help but believe that it will have a chilling effect on internal investigations concerning discrimination. If the investigator is not protected from retaliation where the investigation gets "too close to home," vigorous internal efforts to discover and remedy unlawful discrimination likely will suffer.

Further Delay In NLRB Posting Requirement

noreply@blogger.com (RANDY L. BRAUN) — Wed, 18 Apr 2012 11:26:00 +0000

The NLRB has announced that it will not yet implement its rule requiring employers covered by the National Labor Relations Act to post a Notice advising employees of their Union rights. The posting requirement was scheduled to take effect on April 30, 2012.

In light of conflicting decisions at the district court level as to whether the NLRB has authority to promulgate the rule in the first instance, the DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule. The NLRB stated that "[i]n view of the DC Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court."

More to come.

A Lack Of Knowledge Can Be A Dangerous Thing

noreply@blogger.com (RANDY L. BRAUN) — Mon, 02 Apr 2012 21:45:00 +0000

There's an old saying that goes "beware of he who knows not that he knows not." Recently, I found myself in a predicament to which that adage is applicable, and thought I'd share the experience as an object lesson.

One of my clients issued a proposed, standard AIA Owner/Contractor agreement for signature. Nothing fancy, just the standard form of agreement. The Owner, who happened to be an attorney, delegated the negotiation of the agreement to her father, also an attorney. Neither father nor daughter were experienced in construction law. During the negotiations, I explained repeatedly a number of basic construction law concepts to the attorney-father such as the definition of substantial completion as well as how mechanic's liens work. It appeared that my verbal construction law primer was successful. Remember ... appearances can be deceiving. As time went on, the negotiations devolved into what seemed to be a pathetic exercise in futility.

To illustrate the absurdity of the negotiations, discussion was had ad nauseum as to whether the Owner's written approval was required in order to move an electrical outlet one inch to the right or to the left, if necessary! Sure, let's delay the Project for that while we try to track down the Owner who may have left her cell phone at home and cannot be contacted immediately. Oh, and then there was the demand that the Contractor provide its own manufacturing warranty for each and every screw, nail, piece of sheetrock and other like material which was purchased from a supply house and manufactured by a third party. Are you kidding me? I mean, really ... ARE YOU KIDDING ME?

Ultimately, it appeared that the terms of a Rider to the AIA contract had been agreed upon by the parties. Imagine my frustration when I was informed that the same issues which were resolved previously (to my mind, anyway) remained a "problem." When I asked why an attorney experienced in construction matters hadn't been retained to negotiate the contract, I was told "because my daughter wants me to do it ... I've never done this before, but the concepts are not too difficult." Oh, really? Then why did it take more hours than necessary to negotiate a basic, AIA construction contract? PUHLEEZE! My client walked away from the Project eventually, but relented when the Owner agreed to every term I proposed in the Rider to the contract.

This situation reminds me of the television commercial from a couple of years ago where a guy is trying to save some money, so he calls his surgeon to ask where he should make the initial incision for his self-performed appendectomy. Sheesh! The moral of this story is to retain experienced professionals to do the job. Just because someone has a professional license doesn't mean they are qualified to practice in a particular area. Getting the right professional from the get-go may expedite resolution of the matter and cost less in the long run. It's simply a matter of not being penny-wise and pound foolish.

NLRB Delays Posting Requirement ... Again!

noreply@blogger.com (RANDY L. BRAUN) — Wed, 11 Jan 2012 13:03:00 +0000

Effective April 30, 2012, employers covered by the National Labor Relations Act (the "NLRA") must post a Notice advising their employees of their Union rights. The Notice must be posted in a conspicuous place where other notifications of workplace rights and employer rules and policies are posted. The Notice may be downloaded here. The posting date has been postponed previously, and the April 30th date is the most recent, extended deadline imposed by the National Labor Relations Board.

The NLRA covers union and non-union employers engaged in interstate commerce, and applies to most employers in the private sector. There are some exclusions under the NLRA, such as for those employed by federal, state or local governments or who are independent contractors. If you are unsure as to whether you are covered by the NLRA, it is recommended that you contact counsel to determine whether the new Notice requirement is applicable to your situation.

Among other things, the new Notice advises employees of their right to organize, bargain collectively, strike and picket, and to not join or remain a member of a union. The Notice also lists acts that are illegal for an employer to take against an employee, including but not limited to prohibiting talk or solicitation in support of a union during non-work time, questioning an employee about union support, engaging in activities that discourage employees from supporting a union, and threatening to close the workplace if employees choose union representation.

Failure to post the Notice may result in an extension of the six-month limitations period in which an employee may file an Unfair Labor Practice Charge, and may be construed as evidence of an employer’s anti-union animus. The additional extension stems from a legal challenge to the posting requirement, and further extensions may be in the offing. However, it appears (at least to this writer) that the requirement is likely to survive the legal challenge. So, employers ... get ready!

NLRB Postpones Effective Date Of New Rule

noreply@blogger.com (RANDY L. BRAUN) — Mon, 17 Oct 2011 13:52:00 +0000

The National Labor Relations Board announced recently that it is postponing the effective date of its new, final rule requiring that all employers covered by the National Labor Relations Act post a notice informing employees of their right to organize. The new effective date is January 31, 2012. Apparently, implementation of the new rule was postponed in order to provide additional time for employers to prepare properly and to become better informed about its requirements. Stay tuned for more.

NLRB Says Employers Must Notify Workers Of Right To Unionize

noreply@blogger.com (RANDY L. BRAUN) — Wed, 31 Aug 2011 13:41:00 +0000

Last week, the National Labor Relations Board (the "NLRB") issued a final rule requiring that all employers covered by the National Labor Relations Act post a notice informing employees of their right to organize. The new rule also sets forth a list of various types of unlawful employer conduct. It will be an unfair labor practice if an employer fails to post the notice. The requirement to post is effective on November 14, 2011.

Prior to the new rule, employers were required to post notices of workers' rights only if a violation of labor law occurred. Interestingly, labor organizations are not required to issue information about the rights to refrain from joining a union and to opt out of union dues obligations. Not a particularly equal playing field, eh? If the government is going to require employers to post a notice of workers' rights, then the notice should cover all such rights, not just the ones favorable to organized labor.

This is an important development in the field of labor relations as posting of the notice may give rise to an increase in union organizing campaigns, thereby increasing employer costs in a variety of areas. Presumably, a form notice will be available for posting from the NLRB. We shall see.

Fun With The Marshall Tucker Band And Proposed Rulemaking By The NLRB

noreply@blogger.com (RANDY L. BRAUN) — Tue, 23 Aug 2011 13:21:00 +0000

Its been a while since I’ve posted ... life and business sometimes get in the way. You’ve probably missed my pithy commentary, so I apologize for the inconvenience.

Before I get to the legal stuff, I thought I’d share a fabulous experience I had last week with the Marshall Tucker Band (“MTB”). MTB first hit the music scene in 1973 with the release of its self-titled album (yes, it was on vinyl, no CDs or downloads back in the day). From then on the hits just kept on comin’ ... from “Can’t You See,” “This ‘Ol Cowboy,” and “Heard It In A Love Song,” MTB helped blaze the trail for the success and popularity of the Southern Rock genre of music.

Through a good friend, my wife and I were able to hang out backstage with the boys from MTB. It was an absolute blast. Everyone, from musicians, management and road crew were as nice and accommodating to us as could be; certainly, the term “southern gentleman” is applicable to each and every one of the folks in MTB. Doug Gray, the lead singer and an original member of the band, was gracious and generous with his time; hey, he signed my MTB CD (which I now treasure even more), took some photos with us, gave me his business card, hung out, and was simply amazing. For me, it was special since Doug is my favorite Southern Rock singer of all time; so, for him to spend time with us when he had a show to do was simply awesome. I’d particularly like to thank Doug, Dibby, Marcus, Pat, Rick, Chris, Stuart and Darryl for giving us such a great night; and of course, a big shout out to Doctor John, without whom the night would not have been possible. The show was the best I’ve seen in years! The only thing left is for MTB to be voted into the Rock & Roll Hall of Fame (the “Hall”). It’s a travesty that MTB has yet to be voted in, particularly when, IMHO, there are artists there already who pale in comparison to MTB both in quality of performance and songwriting. There’s a Petition circulating to get MTB into the Hall, and you can find it here. Please take a few minutes to help correct a musical injustice that has been ongoing for years and sign the Petition.

Now, for the legal stuff. The National Labor Relations Board (the “NLRB”) has issued proposed rulemaking that would cut the period for union representation elections (after a petition is filed) from an average of 38 days to as little as 10 days. This would severely limit an employer's ability to effectively communicate the impact of unionization to its workers. The NLRB has proposed other time reductions as well with respect to representation elections which also could impact adversely upon an employer’s ability to oppose compulsory unionization. The proposed rules appear to be a variant of what was "offered" in the Employee Free Choice Act which, of course, did not get through Congress. Given the current makeup of the NLRB, it seems that it is attempting to accomplish, through rulemaking, what the Obama administration failed to achieve through Congressional approval. In the poor economy we’ve encountered over the last few years, making it easier to unionize is likely to drive many small business into the garbage heap due to extraordinarily high costs of labor and benefits. Ironically, the very jobs which organized labor seeks to secure will likely be lost, thereby increasing unemployment and further eroding an already precarious economic environment. Once again, an example of your tax dollars hard at work.

Congress Gives Employers A Break

noreply@blogger.com (RANDY L. BRAUN) — Mon, 06 Jun 2011 13:36:00 +0000

Recently, Congress repealed the expanded 1099 information reporting requirements that were imposed by the Patent Protection and Affordable Care Act ... most of you know it as "Obama Care." The requirement mandated that payments totalling at least $600 in a single calendar year to a single entity be reported to the IRS. Reporting on Form 1099 was required when the payor was considered to be engaged in a trade or business and made the payment in connection with that trade or business.

Had this requirement remained, it likely would have wreaked havoc on small businesses. The mountains of paperwork would have been costly to create and process, and could have actually impeded business development and expansion. Indeed, the latter could have resulted in a loss of existing jobs or the inability to create new jobs. Congress did something right for a change in repealing the requirement. Let's hope this is not the end of its progress.

The Landscape Changes For New York Employers

noreply@blogger.com (RANDY L. BRAUN) — Mon, 04 Apr 2011 19:13:00 +0000

On April 9, 2011, the New York Wage Theft Prevention Act (the “WTPA”) takes effect. The new law amends the New York Labor Law in a number of significant respects. Among other things, the WTPA: (a) increases an employer's existing notice and wage statement requirements, including a mandate that an additional notice to employees be issued in accordance with Labor Labor Law Section 195(1) on or before February 1st of each subsequent year of employment; (b) quadruples the amount of liquidated damages an employee or the Commissioner of Labor can recover in an action for unpaid wages; (c) expands the substantive protections and the remedies available to employees under the anti-retaliation provisions of the Labor Law; (d) allows the posting of notices regarding employer violations; (e) imposes new criminal penalties against employers that fail to pay the minimum wage or overtime compensation due; and (f) expands the types of businesses subject to criminal penalties for nonpayment of wages to include partnerships, limited liability companies and the officers and agents of those entities. It is important that New York employers become well-acquainted with the requirements of the WTPA. It is suggested that New York employers contact their attorney for more in-depth information.

The Demise Of Public Sector Collective Bargaining?

noreply@blogger.com (RANDY L. BRAUN) — Wed, 09 Mar 2011 04:08:00 +0000

The major unrest in public sector collective bargaining, initiated in Wisconsin and having spread like wildfire across the nation, is a clarion call to organized labor and public employers. Stop the madness!

Both sides need to alter radically their positions at the negotiating table if the collective bargaining process is to have any meaning in the future. Antiquated notions of exploitation and “line in the sand,” hard bargaining have resulted in fiscal crises which threaten the general public both in terms of service cuts and increased taxes. In the public sector, neither side appears willing to admit that without employers, there are no jobs and without the unions there are no employees. They are necessary evils to each other. Until this basic precept is accepted by both parties, progress is unlikely to be achieved; the mayhem of recent times will probably continue ad infinitum and ad nauseum. In the meantime, the public suffers while obstinance reigns supreme.

More Certified Payroll Blues

noreply@blogger.com (RANDY L. BRAUN) — Fri, 14 Jan 2011 15:06:00 +0000

OK, just when I thought I had heard it all, the following little gem is offered for your consideration and amusement.

A subcontractor's certified payrolls for a particular project showed approximately $15 more per hour paid to its workers each week than the combined wage and cash supplement amount for the work classification in issue.

When the subcontractor's attorney was asked why his client paid about $15 more per hour than required, he responded: "Because the workers were at other jobs each week and my client listed those payments on the project's certified payroll." What? Are you kidding me? Surely, you jest! When the subcontractor's attorney was informed that such a practice was wholly unacceptable, and that the certified payroll had to be limited to payments made for the single project only, he replied: "you just don't get it, pay my client immediately." When he was informed further that if he backed out the amount paid on the other projects, there would likely be an underpayment to the workers, he said: "That's not the GC's problem." Uh, excuse me? It most certainly is the GC's problem as the general contractor is strictly liable for all underpayments by its subcontractors of prevailing wages and prevailing supplemental benefits. So, now the subcontractor is all bent out of shape because it won't be paid until satisfactory proof is submitted that its workers received all prevailing wages and benefits mandated by statute.

Oy vey! Can someone pass the Pepto, please?

The Certified Payroll Blues

noreply@blogger.com (RANDY L. BRAUN) — Thu, 06 Jan 2011 13:53:00 +0000

As it's the New Year, I thought I'd talk about one of my pet peeves ... certified payrolls. Yes, certified payrolls. Such a fascinating topic. It never ceases to amaze me that contractors routinely fail to complete properly a simple, certified payroll document for a public works project. A certified payroll document is fairly self-explanatory and straightforward, requiring (among other things) information as to work classification, days and dates worked, hourly rate paid, number of hours worked each day, and whether the hours worked were straight time and/or overtime. Simple, right? Apparently not. I have seen certified payrolls which don't even come close to providing the information required. Information is either missing or misplaced on the document; for example: (a) days and dates of work are not listed; (b) straight time hours are listed as overtime hours, and vice versa; and/or (c) a signed certification is missing. What gives? Then, the contractor looks like a deer caught in the headlights when given a hard time by governmental authorities.

It's really simple, folks. If the certified payroll process is not taken seriously by contractors, then they have only themselves to blame for any future problem attributable to those payrolls. Here, an ounce of prevention is worth a pound of good. Happy New Year!

Charter Schools Generally Not Subject To Labor Law Section 220

noreply@blogger.com (RANDY L. BRAUN) — Fri, 26 Nov 2010 14:37:00 +0000

In New York Charter School Ass'n v. Smith (Slip Op. 07375, Decided: October 19, 2010), the New York Court of Appeals ruled that charter schools are not public entities for purposes of Labor Law Section 220. The statute requires the payment of prevailing wages and prevailing supplemental benefits to workers on New York State public works projects.

The litigation arose from a change in the position of the New York State Department of Labor (the "NYSDOL") concerning charter schools. Prior to 2007, the NYSDOL had opined that charter schools were not public entities, and therefore not subject to Labor Law Section 220. However, the NYSDOL later changed its position and determined that the statute applied to all charter school projects.

In a 5-2 decision, the court held that while a charter school is a "hybrid of sorts," it is not a public entity. In so holding, the court stated: "Only four public entities are specifically identified under Labor Law [Section] 220(2): the state, a public benefit corporation, a municipal corporation or a commission appointed pursuant to law. By its terms, the statute does not expressly apply to educational corporations, and that includes charter schools." The court went on to state that a "charter agreement" is merely "an authorizing agreement under which an agency has determined that an applicant school is competent to be licensed as an educational corporation and nothing more ... [I]t is not a contract for public work involving the hiring of laborers, workers, or mechanics within the meaning of [Section] 220."

In making its determination, the court referenced its prior holding in Erie County Industrial Development Agency v. Roberts, 63 N.Y.2d 810 (1984), wherein a two pronged test was articulated for application of Labor Law Section 220; specifically: (1) the public agency must be a party to a contract involving the employment of laborers, workers or mechanics; and (2) the contract must concern a public works project. That test was not satisfied in the New York Charter School Ass'n case. Also, the court noted that charter schools are not governed by government appointees, are exempt from all state and local laws governing public schools under the Education Law, and that the Charter Schools Act expressly exempts a local school district and the state from liability for the debts or financial obligations of a charter school or its operators. All of these factors militated against a finding of public entity status.

Interestingly, at the end of its opinion, the court stated that Labor Law Section 220 could apply in a situation where a charter school acts in the place and stead of a public entity that is required to pay prevailing wages and prevailing supplemental benefits. Plainly, there's an exception to every rule.

A Reminder About CIFPA

noreply@blogger.com (RANDY L. BRAUN) — Tue, 19 Oct 2010 15:06:00 +0000

Just a reminder that New York's Construction Industry Fair Play Act ("CIFPA") becomes effective on October 26, 2010. CIFPA will change the landscape dramatically with respect to independent contractors in the construction industry. See my post here for further discussion of CIFPA. Next on the horizon ... expanding the restrictions of CIFPA to other industries. Stay tuned.

A Death Knell For Independent Contractor Status?

noreply@blogger.com (RANDY L. BRAUN) — Tue, 21 Sep 2010 11:39:00 +0000

On October 26, 2010, New York’s Construction Industry Fair Play Act (“CIFPA”) goes into effect. This new legislation was enacted due to the prevalence of worker misclassification in the construction industry, and represents a major change in how New York employers will classify independent contractors.

The statute creates a presumption of employee status in the construction industry, unless the person is a “separate business entity" (which requires satisfying all 12 criteria enumerated in the statute for that definition) or if three (3) other prescribed criteria are all met. Those criteria, as well as the text of the statute, can be found here. In short, well-recognized elements of employee status must be absent in order to be classified as a true independent contractor; this will require meeting all criteria set forth in one of CIFPA’s tests. It is irrelevant whether workers are bona fide independent contractors under the traditional common law test. Further, construction industry contractors will have to post a notice at each jobsite (which will be available from the New York State Department of Labor) containing information about employee rights under CIFPA (including anti-retaliation protections) and rights to workers' compensation coverage, unemployment insurance, minimum wage, overtime and the like.

CIFPA carries civil and criminal penalties both for the employer and for individual officers and shareholders who knowingly permit a willful violation of the statute. For those contractors performing public work, debarment and ineligibility to bid on public works contracts will be imposed upon a criminal conviction.

The bar for independent contractor status has been raised significantly, and it will likely be difficult to justify independent contractor status for most individual workers after CIFPA becomes effective.

Professional Ethics and Unemployment Insurance

noreply@blogger.com (RANDY L. BRAUN) — Mon, 06 Sep 2010 15:42:00 +0000

In Matter of Emery v. Memorial Sloan Kettering Cancer Center, the Appellate Division, Third Department recently affirmed a grant of unemployment insurance benefits for a nurse (who was also an attorney) who left her employment because she believed she could face professional disciplinary charges for falsely claiming to have witnessed patients signing informed consent documents. After an administrative Hearing, the employee was granted unemployment insurance benefits. That grant was upheld by the Unemployment Insurance Appeals Board and affirmed by the Appellate Division, which found that the employee had good cause to leave her employment.

Generally, unemployment insurance benefits are not provided to employees who leave their jobs voluntarily. One exception to this general rule is where an employee has good cause to leave the employment due to an employer policy or directive which could cause the employee to violate certain rules of professional ethics.

In the Emery case, the employer hospital enacted a policy requiring nurses to acknowledge that they had witnessed patients executing informed consent documents. The acknowledgement was necessary even if the nurse was not present when the documents were signed, but confirmed the signature later. When the employee objected to the policy on grounds that it could require nurses to engage in professional misconduct by acknowledging signatures which they did not witness, the employer advised that its policy would not change. After the employee was deemed to have resigned, the employer changed its informed consent policy to address the concerns raised by the employee initially; the consent forms were revised to include language where the nurse could acknowledge that he/she had not seen the patient sign the documents, but that the signature was confirmed with the patient later. Interestingly, the employer’s policy as first issued may have required the employee to violate attorney professional ethical standards as well; a sort of “one-two punch” given her dual role as a nurse and attorney.

I think the Court got it right in this instance.