Labor in Illinois

Week of July 2, 2007

NLRB Amends Rules on “Salts” Protections

The National Labor Relations Board ruled that it will no longer assume that workers who were fired because of union activity necessarily have a right to backpay until the time the employer makes a valid hiring offer. Now, the general counsel must demonstrate that the organizer “would have worked for the employer for the backpay period claimed.” Colloquially, firing workers for their union organizing activity is called “salting.” – Construction Labor Report (13 June 2007): 530

L.E. Myers’ Appeal of Criminal Conviction Denied in Federal District of Illinois

Contractor L.E. Myers was convicted of criminal violations by the Occupational Safety and Health Act in the death by electrocution of employee Blake Lane. The 20-year old was killed at a transmission tower in Mt. Prospect, Illinois when he touched what his employers thought was a grounded lightning rod (known to the industry as “static wire”). Wade Cumpston was also killed by electrocution through his work with the company a few months earlier in Plainfield, Illinois. However, the jury acquitted the company of charges relating to his death, holding the difference in the amount of precautions the supervisor took in checking to see which lines were energized. Myers’ appeal of his $7 million fine and conviction in the death of Blake has been denied. He argued that the jury did not have correct instructions in making their decision, but the U.S. District court for the Northern District of Illinois has ruled that the errors were insignificant to the determination of the case. – Occupational Safety and Health (21 June 2007): 562.

Anticipated Amendments to Immigration Legislation

One amendment that is likely to come to a vote on the comprehensive immigration bill now pending in Congress (S. 1348) will increase the cap on H-1B visas for skilled workers—from 65,000 to 225,000, possibly up to 290,000. The amendment is designed to address concerns that universities and businesses lose their competitive edge when they are not allowed to include foreign applicants in their job searches. People with advanced degrees in math and science are exempted from the annual cap. Illinois Senator Richard Durbin has insisted that these highly skilled foreign workers be paid the “prevailing wage,” not substandard wages which provide a disincentive to hiring American workers. Meanwhile, Senator Bernie Sanders (D-VT) oppose the legislation in its entirety, for they suggest that the guest worker system would only drive down wages and benefits for the American working class further. In a report released on June 20, the White House Council of Economic concluded that immigrants comprise 15 percent of the US workforce. A full 40 percent of all the “American” scientists who hold Ph.Ds have been born abroad. – Daily Labor Report (21 June 2007): A-6.

Dana and Unions Reach Agreement; Private Equity Firm Agrees to Funding

In its bankruptcy negotiations, the Dana Corporation has agreed with the United Auto Workers and United Steelworkers to replace its commitment to providing health care for retirees and long term disability coverage for other employees with the union-run Voluntary Employees’ Beneficiary Association trusts. Dana would contribute about $700 million in cash and $80 in common stock to the VEBA. In order to finance this, Centerbridge Capital Partners, a private equity company in New York, will invest up to $500 million in the company and facilitate additional investments of $250 million by other investors. The agreements would allow for extensions of current union contracts until June of 2011, providing cuts in workers’ pensions and disability benefits. – Daily Labor Report (9 July 2007): AA-1.

Engineer Not Exempt from Combination Exemption of Fair Labor Standards Act

The “combination” exemption of the Fair Labor Standards Act provides an exemption for employees whose work spans multiple exemptions from employee status. Baback Habibi, one of the founders of IntraComm, Inc., a software integration system, failed in his attempts to find protection under the Fair Labor Standards Act for his intellectual property. He designed a software integration system that, after a few financial agreements with other companies, is now valued at $1.5 million. He claims that he took a $7/hour software engineering job with the expectation that he would receive compensation for his idea. However, the U.S. Court of Appeals ruled that the Fair Labor Standards Act does not require BAE Systems Information Technology to purchase his software integration system from him.—Daily Labor Report (9 July 2007): A-9.

Court Upholds EEOC exemption of Health Benefit Discrimination for Seniors

The U.S. Court of appeals has upheld the Equal Employment Opportunity Commission (EEOC) regulation that exempts employers’ refusal to grant health benefits for seniors from violation of the Age Discrimination in Employment Act (ADEA). They found that the EEOC regulation was “reasonable” and “necessary and proper for the public interest.” The court said that many employers lowered retiree health benefit coverage rather than maintaining retiree benefits at pre-Medicare eligibility levels for all retirees simply in order to avoid being called “discriminatory” by the ADEA. – http://pub.bna.com/054594a.pdf Bulletin to Management (12 June 2007)

U.S. Supreme Court Holds that Home Health Workers Not Owed Overtime

All nine justices sided with Long Island Care at Home in their decision that in-home health care providers, even if employed by third parties, were exempted from overtime pay under the Fair Labor Standards Act. Evelyn Coke, home attendant, described her suit as a test-case of the regulations set by the health care agency. Justice Stephen Breyer ruled that the court has no power to contradict the rules set by agencies. He explained, “Where an agency rule sets forth important individual rights and duties, where the agency focuses fully and directly upon the issue, where the agency uses full notice-and-comment procedures to promulgate a rule, where the resulting rule itself is reasonable, then a court ordinarily assumes that Congress intended to defer it to an agency’s discrimination.” The Department of Labor, as any other federal agency, they ruled, usually has discretion as long as its regulations fall within its own interpretation of its boundaries. – Daily Labor Report (12 June 2007): AA-1.

MINER Act Introduced to House and Senate

Federal legislation has been introduced to bolster the Mine Safety and Health Administration’s ability “to enforce safety and health regulations, improve mine emergency response plans, and bolster rescue, recovery and accident investigations.” United Mine Workers of America International President Cecil E. Roberts has praised the legislation. The legislation would put pressure on the MSHA within the Department of Labor to investigate mines deemed hazardous by the National Institute for Occupational Safety and Health within 30 days of their notice. Among other provisions, it would also “update the 40-year old exposure limits for hundreds of toxic substances and set improved requirements to protect miners from asbestos exposure.” – Occupational Safety and Health Report (21 June 2007): 553.

Railroad Safety Legislation Pending in Congress

A Railroad Safety and Improvement bill (H.R. 2095) proposes new regulations to provide for rail workers, passengers, and their surrounding tracks and yards. According to publication of the International Association of Machinists, the bill proposes to “increase the number of qualified inspectors; establish stringent fatigue management programs; strengthen whistle blower protections; establish training standards for all rail workers; and provide new regulations to end intimidation of rail workers who report personal injuries.” – International Association of Machinists Journal (Summer 2007): 26.