Do Domestic Workers Have Employee Rights?

Domestic workers perform a variety of household services, including childcare, cooking, housekeeping, gardening, and even healthcare services for the aged and infirm. Rights for domestic workers vary wildly for the estimated 52.6 million domestic workers around the world. According to the International Labour Organization, only ten percent of all domestic workers are protected by legislated employee rights.

Worldwide, 83 per cent of domestic workers are women.

In the United States, some domestic workers are protected under the Federal Labor Standards Act. Congress extended FLSA coverage to domestic service workers in 1974, amending the law to apply to employees performing services of a household nature in or about a private home.

Which Domestic Workers are Covered by the FLSA?

  • Persons employed in domestic service in households are covered by the FLSA.
  • Nurses, certified nurse aides, home health care aides, and other individuals providing home health care services fall within the term “domestic service employment.”
  • Companions to the elderly who spend more than 20 percent of their time performing general household work.
  • Nannies who care for minor children, where the children are not physically or mentally infirm.

U.S. Home Healthcare Workers in the Spotlight

Recent legislation has focused on improving conditions for workers specifically employed in home healthcare. Healthcare workers who provide home health care services may be eligible for minimum wage and/or overtime premium pay depending upon the type of services they provide. For example, employees providing “companionship services” are not eligible for minimum wage or overtime pay.

Different Rights in Different States

New York enacted the Domestic Workers Bill of Rights in November of 2010. That Act contains more protections to domestic workers than the FLSA, including clarifications regarding rest periods and provisions for domestic workers who suffer sexual or racial harassment.

In California, however, Governor Jerry Brown vetoed similar legislation in October 2012. With 200,000 domestic workers in California, workers are considered especially vulnerable to inequitable treatment, because they are a largely immigrant and female work force.

 

Submitted by Chaunce Stanton

NLRB Reverses More Facebook Firings

NLRB-Facebook-firingsHispanics United of Buffalo, Inc. helps the Latino community in western New York. The company fired five employees for allegedly bullying a coworker via Facebook posts.

It all began with some text messages between two employees, Marianna Cole-Rivera and Lydia Cruz-Moore. Cruz-Moore apparently felt that certain employees weren’t doing enough to help their domestic-abuse clients, and this finally rubbed Cole-Rivera the wrong way.

She took it to Facebook, posting:

Lydia Cruz, a coworker feels that we don’t help our clients enough at [Hispanics United]. I about had it! My fellow coworkers how do u feel?

Four employees posted follow-up messages that they disagreed with Cruz-Moore’s assertions.

Cruz-Moore also posted, telling Cole-Rivera to “stop with ur lies about me.”

She then complained to management, and Hispanics United discharged Cole-Rivera and her four coworkers claiming their remarks constituted “bullying and harassment” in violation of a “zero tolerance” policy.

An administrative law judge initially determined the terminations were invalid, and the NLRB upheld the decision, noting:

  • The employees’ activity was “concerted”.
  • The employer knew of the concerted nature of the employee’s activity.
  • The concerted activity was protected by the National Labor Relations Act.
  • The discharges were motivated by the employees’ protected, concerted activity.

Meanwhile, Google+ is gaining ground against Facebook. Maybe the NLRB and the Supreme Court will be dropping terms like “plussing” and “hangouts”.

 

 

Submitted by Chaunce Stanton

President Obama: Federal Minimum Wage Hike Will Improve Economy

In his 2013 State of the Union address, President Obama urged Congress to raise the federal minimum wage rate to $9 per hour – an increase of 24 percent over the current rate of $7.25. The rate hike would boost the income of 15 million minimum-wage earners in the U.S. according to the White House.

“A minimum wage worker who works full time earns $14,500 per year,” the President said. “No one who works full time should have to live in poverty.”

As a result of increasing the minimum wage rate, the President claimed that businesses would benefit from consumers who would have more disposable income, and that taxpayers would benefit because “a whole lot of folks out there probably would need less help from government.”

Increasing the Federal Minimum Wage in Stages

The President proposed tying the federal minimum wage rate to the cost of living, a process known as “indexing” as it typically corresponds to inflation levels as measured by the Consumer Price Index or other cost-of-living formulas. Ten U.S. states already index their respective state minimum wage rates. In the President’s plan, the federal minimum wage rate would increase in stages before reaching the $9-per-hour level in 2015. Nineteen U.S. states and the District of Columbia have minimum wage rates higher than the current federal rate; however, only the state of Washington’s rate currently exceeds the proposed $9-per-hour federal rate.

Minimum wage requirements are regulated by the Department of Labor under the Fair Labor Standards Act (FLSA). Congress must pass a bill amending the rate in the FLSA, which the President signs into law.

Which Business are Affected By the Federal Minimum Wage?

The federal minimum wage applies to employees of businesses with an annual gross volume of sales of at $500,000 or more or if the businesses are engaged in interstate commerce or use interstate communications. (Download the DOL’s handy FLSA reference guide here.)

 

Do You Need To Post the Revised Federal FMLA?

FMLA posting changes

Changes to the FMLA affect millions of employers in 2013.

The U.S. Department of Labor revised the Family and Medical Leave Act (FMLA) and made important changes to the FMLA posting.

Which U.S. employers are required to display the updated FMLA posting?

Employers subject to the FMLA and who are required to display the poster (called “covered employers” in the Act) include:

  • Private employers with 50 or more employees
  • All public agencies
  • Elementary and secondary schools, public or private

Covered employers were required to have the revised FMLA posting on display by March 8, 2013.

Final Rule for FMLA Extends to Families of Veterans and Additional Airline Flight Crew Members

medical leave requestThe U.S. Department of Labor recently issued a final rule to the Family and Medical Leave Act, implementing two new congressional expansions affecting the rights of families of military members and veterans and the access to FMLA leave for airline flight crews. The revised FMLA became effective March 8, 2013, and entitles eligible employees to take unpaid leave for family or medical reasons.

Family Leave for Armed Forces Members and Veterans

The first expansion enables families of members of the Armed Forces to take leave when a current military member is deployed. Also, the first expansion extends job-protected FMLA leave currently available to families of service members to families of eligible veterans.

This expansion allows for family members of veterans and current servicemembers a greater ability to take leave to address the medical needs of these family members.

Airline Flight Crew Eligibility for FMLA

The second congressional expansion adjusts the rule of required number of hours airline flight crew employees must meet to be eligible for FMLA leave. These changes, implemented by the Airline Flight Crew Technical Corrections Act (AFCTCA) state an airline flight crew member will be eligible for FMLA leave if during the previous 12-month period the employee has done one of the following:

  • Worked or has been paid for at least 60 percent of the applicable total monthly guarantee
  • Worked or has been paid for at least 504 hours, not including time spent commuting, on vacation, or on medical or sick leave.

With this change, the Department of Labor anticipates approximately 6,000 flight crew members to take new FMLA leave.

Employers to Adjust FMLA Policies

As a result of the expansions, companies should familiarize themselves with all FMLA rulings and adjust policies to accommodate these rules for employees.

Get Your FMLA Posting from GovDocs

GovDocs Inc. offers a Federal Poster with updated FMLA postings required for employers with U.S. locations.

E-Verify Requirement for All U.S. Employers? To Be Determined.

640px-CBP_Border_Patrol_agent_reads_the_Miranda_rights_

U.S. Border Patrol agent detains suspected illegal immigrant along the U.S.-Mexican border.

All employers in the U.S. may be required to participate in the E-Verify employment eligibility program if immigration legislation passes.

In the Border Security, Economic Opportunity, and Immigration Modernization Act, senators known as the “gang of eight” are proposing actions for the federal government to bolster its Comprehensive Southern Border Security Strategy overseen by the Department of Homeland Security.

If the Bill were to be enacted, all employers would need to check each job applicant’s employment eligibility through the online E-Verify system.

According to a Wall Street Journal poll, 60% of American small-business owners believe every employer should have to comply with the E-Verify system to verify workers’ legal status.

E-Verify is an online system where employers confirm the legal working status of new hires by linking to federal databases. The program is overseen by the U.S. Citizenship and Immigration Services (USCIS) in conjunction with the Social Security Administration (SSA).

GovDocs offers the E-Verify posting and the Federal Right to Work posting on a convenient “on one” format in both English and Spanish. Order here.

What’s Next for the E-Verify Legislation?

Debate on the $5.5 billion Bill is scheduled for Friday, April 19, 2013, when the Senate Judiciary Committee will hold its first hearing. The bipartisan “gang of eight” senators anticipate active opposition. One of the gang of eight, Sen. John McCain (R-Ariz.), said the gang pledges to oppose any effort to undermine the legislation.

Other Provisions of the Bill

  • Sets goal of preventing 90 percent of illegal border crossing between the U.S. and Mexico.
  • $1.5 billion allocated for full-border fencing.
  • Full surveillance of the entire U.S.-Mexico border using unmanned drone aircraft and other technology.
  • Moving to merit-based visas based on work history or occupational skill level as opposed to visas granted on familial relationships.
  • Undocumented immigrants able to apply for registered provisional immigrant status.
  • Immigrants would be unable to receive lawful permanent residence for 10 years after obtaining provisional status.
  • Bars anyone who arrived in the U.S. after Dec. 31, 2011, from applying for legal status and ultimately citizenship.
  • Applicants for legal status must document that they were in the country before Dec. 31, 2011, have a clean criminal record, and demonstrate financial stability.


International Workers Day Born in Blood, Terror, and Bombs

Even scarier than an NLRB posting to employers of the nineteenth century.

Even scarier than an NLRB posting to employers of the nineteenth century.

May Day had long been celebrated throughout Europe in worship of spring and of new beginnings. Now, May Day signals a rally cry for international workers. It is a day steeped in blood, terror, and bombs.

How did a so-called “pagan fertility holiday” become linked to one of the most violent and controversial events in U.S. labor history?

It’s all about the Haymarket Massacre.

It began in Chicago, as things often do, when striking workers agitating for an eight-hour workday were confronted by police in May 1886.

A bomb exploded, cruder and smaller than the pressure-cookers used in the recent Boston Marathon bombing, but eerily reminiscent. It killed police officer Mathias Degan instantly and critically injured six other officers ,who later died from their wounds.

Chicago police opened fire from the center of the crowd, killing and wounding four strikers and injuring more than 70 others.

The aftermath of the Haymarket Massacre travels two paths.

On the one path, workers around the world mark the day to remember that workers’ rights have been hard-fought and hard-won.

The other path, however, launched a crackdown on U.S. on workers’ groups and suspected socialist agitators. Homes were searched without warrants. The terror Americans felt came from the anarchists, Germans, and Bohemians. The New York Times ran an article entitled “Anarchy’s Red Hand” in which it described the workers as being “led by two wiry, whiskered foreigners.”

Bearded foreigners. Bombs going off in public places.

This is a big story that we shouldn’t forget. It scarred labor-employer relations for decades.

No bomber was ever brought to trial, and that person’s identity is still a point for discussion for history buffs. More people died, however, just the same. The death of police officers was intolerable, so the newspapers and courts determined more men must pay with their lives.

Four defendants…were taken to the gallows in white robes and hoods. They sang the Marseillaise, then the anthem of the international revolutionary movement. Family members …who attempted to see them for the last time, were arrested and searched for bombs (none were found). According to witnesses, in the moments before the men were hanged, August Spies shouted, “The time will come when our silence will be more powerful than the voices you strangle today!” Witnesses reported that the condemned men did not die immediately when they dropped, but strangled to death slowly, a sight which left the spectators visibly shaken.

After the executions, many members of the international community were angered. They condemned the trials and executions as a reactionary move meant to calm the public – not meant to mete out justice.

The Second International declared May 1 as International Workers Day in 1889 to help continue labor’s quest for an eight-hour work day – eventually realized by American workers in 1937 as part of the Fair Labor Standards Act.

Employment Non-Discrimination Act Gaining Ground for LGBT Employees

English: Rainbow flag flapping in the wind wit...

ENDA would prohibit workplace discrimination of LGBT persons.

Both the U.S. House of Representatives and the Senate are evaluating the merits of the Employment Non-Discrimination Act. The Bill would protect the approximately 9 million Americans who identify as lesbian, gay, bisexual and transgender people from discrimination in hiring and employment.

Employer Federal Posting Update

ENDA includes a posting component in Section 13. If passed, the Bill would require employers to display an updated version of the Equal Employment Opportunity Commission’s Equal Opportunity is the THE LAW posting six months after enactment.

EEOC Steps Up – But Not a Sure Thing

In the current version of Title VII of the Civil Rights Act, the following employee categories are protected from workplace discrimination:

  • Race
  • Color
  • Religion
  • Sex (including pregnancy)
  • National origin
  • Disability
  • Genetics
  • Veterans

In a 2012 case (Macy v. Holder) the EEOC interpreted existing laws that prohibit discrimination on the basis of sex to also prohibit discrimination on the basis of gender identity. The case involved Mia Macy, a transgender woman, who was not hired for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives based on her gender identity and transition.

Without language clearly identifying protections specifically for LGBT employees, the Supreme Court could overturn the EEOC ruling in Macy or similar cases.

Employers and U.S. States Fill the Gap

Even without enactment of ENDA, many U.S. employers have implemented anti-discrimination policies that include protections for their LGBT employees. A Williams Institute analysis found that 98 percent of Fortune 50 companies and 90% of the top 50 federal contractors protect gay workers. Protections for transgender people lag in those same companies, however, with only 67 percent of federal contractors and 88 percent of Fortune 50 companies offer protections based on gender identity.

Twenty-one states and the District of Columbia prohibit employment discrimination based on sexual orientation, whereas only 16 states and D.C. offer similar protections for gender identity.

Which Employers Would Be Required to Comply with the Act?

The revised Act would apply to public and private employers with 15 or more employees. However, volunteers, members of the military, and employees of religious institutions and private membership clubs would not be protected under the Act.

For example, ENDA’s protections would not cover Carla Hale, a teacher at a Catholic high school in Ohio who was fired for her sexual orientation. Her employer, Bishop Watterson High School, would be exempt from the Act because of its protected status as a religious institution.

http://www.youtube.com/watch?v=iYyvPi06B6U

Court to NLRB: ‘No’ to the Posting Requirement. Again.

English: Color logo of the National Labor Rela...

The NLRB posting requirement struck down on appeal. (Photo credit: Wikipedia)

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Labor Relations Board (NLRB) cannot require nearly six million U.S. employers to post its controversial Employee Rights Notice.

The NLRB argued it had both authority and the need for the posting requirement, arguing that the rule was necessary because employees were not aware of their rights under the Act, and employers subject to NLRB jurisdiction would be guilty of an unfair labor practice if they did not display the posting.

In addition to finding that the NLRB ignored congressional intent by issuing the rule, the Court found two of the rule’s three enforcement mechanisms violated employers’ free speech.

‘Like the freedom of speech guaranteed in the First Amendment, § 8(c) [of the Act] necessarily protects…the right of employers (and unions) not to speak… The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.

Plaintiffs here, like those in other compelled-speech cases, object to the message the government has ordered them to publish on their premises. They see the poster as one-sided, as favoring unionization, because it ‘fails to notify employees…of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in excess of the amounts required for representational purposes.’

The three-judge panel noted that their ruling would not affect the NLRB’s rule requiring employers to post an election notice before a representation election.

Five Employers Face Court for Refusing Benefits to Pregnant Daughters

PregnantWomanThe National Women’s Law Center (NWLC) filed administrative complaints with the Office for Civil Rights in the U.S. Department of Health and Human Services, challenging five employers’ health benefit plans that exclude pregnancy coverage for their employees’ dependent daughters.

Their complaints called out:

The NWLC is a nonprofit organization advocates for women’s equality. They point to a provision of the Patient Protection and Affordable Care Act (PPAC) that prohibits sex discrimination in healthcare plans. The PPAC creates a nationwide insurance system and requires employer healthcare plans to offer coverage to dependent children up to the age of 26. The PPAC is the first federal law to ban sex discrimination in healthcare programs that receive federal funds.

The NWLC estimates 2.4 million women younger than age 25 experience pregnancy each year. If they are covered by their parents’ plans, the NWLC contends, their pregnancy costs would be included under the terms of the PPAC.