January 2008 Quick Clips

FMLA Will Likely Be Expanded To Cover Military Leave, January 25, 2008

On January16, 2008, the United States House fo Representatives passed legislation that will expand the Family and Medical Leave Act ("FMLA") to provide leave rights to employees who need time off to care for a family member injured while on active duty. The FMLA will also be expanded to provide employees with the right to take leave to assist a family member in the reserves who is called up for active duty. The legislation is expected to be signed by President Bush after it passes both Houses of Congress, perhaps as soon as the end of January.

Once the legislation is signed into law, employees who are currently eligible for leave under the Family and Medical Leave Act (i.e., they have worked for an employer for at least 12 months and have worked 1,250 hours in the 12 months preceding the request for leave) will be entitled to "active duty leave" and "caregiver leave." As is the case with leave taken for a "serious health condition" under the FMLA, employees can use the leave on an intermittent basis.

"Active duty leave" will provide 12 weeks of FMLA leave during a 12 month period to a spouse, son, daughter, or parent of an individual who has received a call up notice or has experienced some other "qualifying exigency" (that term will be defined in regulations eventually). "Caregiver leave" will provide 26 weeks of FMLA leave during a single twelve month period for a spouse, son, daughter, parent, or "nearest blood relative"to provide care to a "recovering service member." A "recovering service member" is defined as a member of the Armed Forces who suffered an injury or illness while on active duty that may render the service person unable to perform the duties of their office, grade, rank, or rating.

Employers covered by the FMLA should prepare to extend coverage to these situations as soon as possible. We expect there will be a host of compliance issues, ranging from deciding if something is a "qualifying exigency" to determining if an employee who says he needs 26 weeks of leave immediately to care for wounded relative really is the service member's "nearest blood relative." While this law is certainly well intentioned, it could be very difficult for employers to accommodate these new rights.

Plaintiffs Run Wild, January 11, 2008

by Meg Gallucci

It is often said that plaintiffs have the power to choose the forum in a dispute. Having said that, they need to make up their collective minds. In Parler v. KFC Corporation, the United States District Court for the District of Minnesota recently held that plaintiffs may waive the right to arbitrate by preemptively proceeding to litigation.

In the case, current and former assistant managers at Kentucky Fried Chicken contended that the company violated the Fair Labor Standards Act by classifying them as salaried employees rather than as hourly workers. Hourly employees are entitled to overtime pay and salaried employees are not. The assistant managers filed suit in federal court as a single national class under the Fair Labor Standards Act.

The plaintiffs then decided they were not happy with the suit and sought to decertify the national class into multiple state-level classes and to transfer multiple class action suits to a federal district court in the appropriate state. Some of the plaintiffs wanted to forego litigation altogether and sought to arbitrate the dispute after the fact.

Kentucky Fried Chicken declared that the now arbitration-inclined group of plaintiffs had waived the right to arbitrate by filing suit. Plaintiffs naturally disagreed. Besides, the issue of waiver was for an arbitrator, not the court, to decide. How is that for an end run around the court system!

The court stated in response that claims of waiver through pursuit of litigation are to be decided by courts, not arbitrators. The court noted that the plaintiffs knew of the right to arbitrate and acted inconsistently with that right. The plaintiff’s inconsistent acts also prejudiced Kentucky Fried Chicken because it assumed the considerable time and expense involved in discovery and motion practice, neither of which is part of an arbitration proceeding. The costs of arbitration had also increased since the action was originally filed. The plaintiffs had therefore waived their rights to arbitration.

The court basically informed the plaintiffs that they needed to get the case together at the outset. Plaintiffs do not have the right to run wild through the system.

Federal Court Encourages Arbitration, January 8, 2008

by Meg Gallucci

In asserting jurisdiction over a labor dispute involving an arbitration award, the U.S. District Court for the District of New Jersey recently encouraged the resolution of labor disputes through arbitration rather than by court action. By asserting jurisdiction, the court may actually discourage future court action in labor arbitration disputes involving transportation workers subject to collective bargaining agreements. How so? Here is how.

John King was a driver for the Philadelphia Coca-Cola Bottling Company. He was fired in 2006, after company doctors found that a work-related injury no longer allowed him to perform his driving duties. The International Brotherhood of Teamsters represented his bargaining unit and filed a grievance on his behalf. The grievance went to arbitration, and the arbitrator ordered King’s reinstatement.

The company refused to comply with the award, arguing that the Federal Arbitration Act excludes transportation workers from coverage as a “class of workers engaged in foreign or interstate commerce.” Hence, the court lacked jurisdiction over the dispute as well. Not so fast, said the court, because the Taft-Hartley Act provides that any labor organization representing employees in an industry affecting commerce may file suit on their behalf. The court found that the Federal Arbitration Act and the Taft-Hartley Act are complementary, and the latter conferred jurisdiction in the case, even if the former denied it. The court added that without court jurisdiction over the dispute, an entire class of workers, in this case transportation workers whose arbitration awards were contested, would be left without a remedy.

The court encourages resolution through arbitration by defining the remedy in a contested arbitration case. Without a remedy in a contested case, there is little reason to abide by an arbitration decision.

The case is Teamsters Local 331 v. Coca-Cola Bottling Company, decided in the District of New Jersey on December 20, 2007.

Avoid the Bus in St Louis, January 7, 2008

by Meg Gallucci

How many of us have memories of a seemingly endless wait at a bus stop? Maybe the memory dates from a time when we had no automobile. Or we wished to support the use of public transportation. Perhaps we are dependant on local bus service and wonder why waiting at a bus stop is like waiting for Godot.

We may be the victims of “short-looping.” In Bi-State Development Agency v. Amalgamated Transit Union, a labor arbitrator had “considerable difficulty” in deciding the fate of a St. Louis bus driver who was discharged after he repeatedly short-looped his route, meaning that he skipped stops to make up time. What is so difficult about that decision? The bus driver, whose job was transporting people from one bus stop to another, decided not to bother stopping at all the stops on his route because it took too much time and made him late. So he skipped some of his stops and proceeded to the end of the line.

The bus driver was a repeated short-looper, and management investigated after a customer complained that the bus never arrived at her stop. A management investigator trailed the bus and caught the short-looper in the act. The bus driver was discharged but later reinstated by the arbitrator. Go figure and take a taxi in St. Louis.

Wage and Hour Collections Reach Record in 2007, January 1, 2008

by Frank L. Kollman

In 2007, the Department of Labor recovered over $220 million in back wages for violations of the Fair Labor Standards Act, the Davis-Bacon Act, and other wage and hour laws administered by the agency. That is a record. The amount of private civil litigation is also up. It might be a good idea to audit your wage and hour practices early in 2008.

National Labor Relations Board Down to Two Members, January 1, 2008

by Frank L. Kollman

The NLRB is down to two members, one Democrat and one Republican. Normally, there are five members. Replacing those three members should be difficult, given that the Congress continues to block many judicial appointments by the Bush Administration, primarily just because it can. The two remaining Board members have delegated authority to the General Counsel to keep the agency operating, while the backlog of cases involving national labor policy continues to rise.

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