Lisa Law View

Texas Minimum Wage Increased

2008-07-24T23:40:00.000-07:00

The Texas minimum wage has increased from $5.85 per hour to $6.55 per hour on July 24, 2008 with reference to the federal minimum wage increase. Under the Fair Minimum Wage Act of 1007, the deferal minimum wage was scheduled to increase the minimum wage by three steps. Each increase is 70 cents.

There are also a number of other states increasing the minimum wage by reference to the deferal minimum wage, including Maryland, South Dakota, Virginia Idaho and Oklahoma.

In Texas, there is no overtime law at the state level. Instead, most employees in Texas are entitled to 1.5 times their usual mniimum wage rate of pay after working 40 hours under the federal law.

The Texas minimum wage specifically excludes any employee covered by the primary federal minimum wage law - Fair Labor Standards Act (FLSA). The FLSA applies to employers who engage in interstate commerce, as well as those with revenue of at least $500,000.

OSHA Sets Two Public Hearings on Proposed Shipyard Rule

2008-07-22T18:14:00.000-07:00

In the June 30 Federal Register OSHA ( the US Depatment of Labor’s Occupational Safety and Health Administration) is scheduling two informal public hearings on the proposed rule on general working conditions in shipyard employment. The dates of the two hearings are as follows:

9:30 am September 9, 2008, in Washington, DC
9:30 am October 21, 2008, in Seattle, WA.

The two hearings aim at providing a platform for interested stakeholders to discuss how to improve existing standards on working conditions for employees in shipyard employment.

Notice of intention to appear at the hearing: Interested persons who intend to present testimony or question witnesses at either the Washington, DC, or Seattle, WA, hearing must submit (transmit, send, postmark, deliver) a notice of their intention to do so by July 18, 2008.

Hearing testimony and documentary evidence: Parties who need over 10 minutes for their presentation and those who will present documentary evidence are supposed to supply the agency with copies of their full testimony and all documentary evidence by August,2008

If you want to submit your notice of intention, you can use the Federal eRulemaking Portal,www.regulations.gov.The following three ways are also acceptable: facsimile( on longer than 10 pages) to OSHA Office at 202-693-1648; regular mail, messenger or courier service to the OSHA Docket Office, Docket No. OSHA-S049-2006-0675, U.S. Department of Labor, Frances Perkins Building, 200 Constitution Ave., N.W., Room N-2625, Washington, DC 20210; telephone 202-693-2350.

It is the employers’ responsibility to provide a safe and healthy workplace for the employees under the Occupational Safety and Health Act of 1970. OSHA’s role is to promote the safety and health of America’s working people by setting and enforcing standards; providing training, outreach, and education; establishing partnerships; and encouraging continual process improvement in workplace safety and health.

The FirstStep Employment Law Advisor

2008-07-22T17:48:00.000-07:00

The U.S. Department of Labor (DOL) recently launched a new tool for posters and recordkeeping compliance - The FirstStep Employment Law Advisor.

The FirstStep Employment Law Advisor is one of the elaws Advisors, which are interactive e-tools that provide easy-to-understand information to help employers and employees understand their rights and responsibilities under certain federal employment laws. Each Advisor simulates the interaction you might have with an employment law expert. It asks questions and provides answers based on responses given, and each Advisor includes links to more detailed information that may be useful, such as links to regulatory text and compliance assistance materials.

The FirstStep Employment Law Advisor is designed to help employers determine which of the major DOL employment laws and regulatory requirements their organization must comply with, what recordkeeping and reporting requirements they must comply with, and which posters they need to post.

The Advisor can help all employers, including non-profit organizations, private sector businesses and government agencies.

If employers already know which federal employment laws apply to them, the Advisor can quickly provide basic information about how to comply with these laws, including the requirements for recordkeeping, reporting, posters and other notices. This information can also be printed off as a reference guide.

This Advisor provides three basic starting points depending on your interests and needs:
l FirstStep - Employment Law Overview Advisor provides a short primer on each law's basic provisions as well as any related recordkeeping, reporting and notice requirements.
l FirstStep - Recordkeeping, Reporting, and Notices Advisor provides detailed explanations of each law's recordkeeping, reporting and notice requirements.
l FirstStep - Poster Advisor provides access to short descriptions of DOL poster requirements and links to printable posters.

It is really a great place for employers to double-check their current posters and document retention policies. However, the FirstStep Employment Law Advisor can only give advice on major DOL laws, and it does not cover all laws administered by DOL. In addition, the advisor will not identify laws administered by other federal agencies that might also apply to your business or organization.

The WHD Criticized By The GAO

2008-07-20T22:18:00.000-07:00

The U.S. Department of Labor’s Wage and Hour Division (WHD) has been criticized by the Government Accountability Office (GAO) for mishandling many overtime and minimum-wage complaints and delaying investigating hundreds of cases for a year or more, according to a GAO report issued on July 15th, 2008.

The GAO, which will release its report at a hearing of the House Education and Labor Committee, said that from fiscal years 1997 to 2007, the number of WHD’s enforcement actions decreased 37 percent, from 46,758 in 1997 to just 29,584 in 2007.

Representative George Miller, Democrat of California and chairman of the Education and Labor Committee, said in his prepared remarks for the hearing, “Although the Department of Labor currently has the necessary tools to fight wage theft, the G.AO investigation suggests that the problem of wage theft is only getting worse because of weaker enforcement.”

The WHD defended its performance, saying that it decided to enforce fewer, but more time-consuming and comprehensive claims. In addition, it said that the decrease also resulted from more careful screening of complaints to eliminate those that may not be violations. WHD also stated that part of the decrease is attributable to a 20% reduction in investigative staff.

The GAO also criticized the WHD for focusing on too narrow a range of industries. “WHD focused on the same industries from 1997 to 2007. The agency primarily targeted four industry groups: agriculture, accommodation and food services, manufacturing, and health care and social services.” The WHD didn’t focus on the low-wage industries where, one report said, it would be most likely to find violations. The GAO concludes, “WHD may not be addressing the needs of workers most vulnerable to FLSA violations.” But the WHD said it had also broadened its efforts to include other low-wage businesses, including day care, restaurants, construction and hotels.

In a fact sheet, the Labor Department noted that the back wages collected by the WHD “more than doubled to $220,613,703 in 2007 from $96,719,108 in 1997.” The DOL said that “341,624 employees received back wages in 2007, up from 189,244 10 years earlier.” It also added “The Wage and Hour Division is delivering pay for workers, not a payday for trial lawyers.”

Michigan Minimum Wage Increased to $7.40 Per Hour July 1, 2008

2008-07-18T17:45:00.000-07:00

The state of Michigan has increased its minimum wage to $7.40 per hour, up from $7.15 an hour, effective July 1, 2008.

Roughly 58,000 workers in the state of Michigan who make the minimum wage will get the increase. Another 209,000 workers who earn more than $7.15 per hour but less than $7.40 per hour will also get the raise, according to the nonpartisan Economic Policy Institute in Washington.

The largest effect of the minimum wage increase will be in the service industry, like hotels and restaurants, as well as nursing homes and businesses that employ teachers’ aids and home health care workers.

"Restaurants are doing everything they can now to survive. It's a mandatory increase in their labor costs at a time they don't have the money," said Andy Deloney, spokesman for the Michigan Restaurant Association.

Michigan's new wage ties Rhode Island for eighth-highest in the United States.

Maryland Increases Its Minimum Wage to $6.55 Per Hour on July 24, 2008

2008-07-17T19:33:00.000-07:00

The state of Maryland has increased its minimum wage from $6.15 per hour to $6.55 per hour, effective July 24, 2008. And for tipped employees, the minimum wage will also increase to $3.28 per hour.

The federal minimum wage will increase to $6.55 per hour on July 24, 2008. The minimum wage in Maryland is automatically replaced with the Federal minimum wage rate because it is higher than the State minimum wage rate.

According to Maryland Department of Labor, with certain exceptions, time and a half the usual hourly rate must be paid for all hours worked in excess of 40 in a workweek. Exemptions include certain agricultural workers, executives, administrative and professional employees.

Because of the mandated minimum wage increases, the summer job market for teenagers will decline. For every 10 percent increase in the minimum wage, employment for high school dropouts and young blach adults and teenagers falls by 8.5 percent, according to econonist David Neumark.

The California DFEH Has Announced A New Plan

2008-07-17T19:13:00.000-07:00

The Department of Fair Employment and Housing (DFEH), California’s civil rights agency (whose mission is to protect Californians from employment, housing and public accommodation discrimination, as well as hate crimes), has announced an ambitious three-year plan to step up enforcement of the state’s anti-discrimination laws.

Phyllis Cheng, the DFEH’s director, who was appointed by Governor Schwarzenegger earlier this year, announced the plan at a presentation given on June 26, 2008 before members of the San Diego County Bar Association’s Employment Law Section.

The DFEH plans to streamline the claim process. Previously, employees had to schedule an office appointment at a regional DFEH office to initiate a complaint. Under the updated procedure, complainants don’t have to go in to a DFEH office; they can file a complaint on-line by visiting the DFEH website to schedule an appointment, and in-person appointments will soon be unnecessary because telephone in-take interviews will start to be used. Initially, four of the ten DFEH offices will accept telephonic in-takes.

The DFEH will also automate the right to sue system. Usually when employees are represented by counsel, they do not want the DFEH to investigate but request a “right to sue” letter, which is a prerequisite to filing a civil lawsuit in court. In fact, the majority of claims are processed this way. “Of the 16,000 employment claims filed each year, about 9,000 of them are filed by employees represented by counsel who want a right to sue letter,” said Ms. Cheng. Implementing an automated online right- to-sue system will free up DFEH staff to work on more discrimination investigations.

Regulation of Using E-Verify

2008-07-14T18:07:00.000-07:00

On June 6 2008, the Bush administration signed an amendment to Executive Order 12989, mandating that all companies hired to perform work for federal agencies must use the E-Verify system to ensure that their employees are legally eligible to work in the United States. Businesses failing to abide by this directive risk losing federal contracts.

On June 9, the Department of Homeland Security (DHS) designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use.

E-Verify, formerly known as the Basic Pilot/Employment Eligibility Verification Program, was originally established in 1997 by the Department of Homeland Security in partnership with the Social Security Administration. It is a free, internet-based system run by the United States government to allow employers who are enrolled in the E-Verify program to confirm the legal status of new employees.

The current form of the proposed regulation requires that all entities which provide the federal government with over $3,000 worth of goods or services in the United States use E-Verify for all new employees, even those who do not actually work on the federal contract. It also requires such entities to identify all employees who currently work on any federal contract and verify their legal status through E-Verify as well. The only entities excluded from this regulation are those who perform work for the federal government outside of the United States, provide less than $3,000 of goods or services, or provide contracts for commercial, off-the-shelf supplies.

The regulation is now open for public comment until August 12, 2008. Once the public comment period expires, the rule will either be implemented in its current form, or modified based upon the public comments received.

Once the regulation is implemented, the included entities will have 30 days to enroll in the E-Verify program, and then another 30 days to verify all current employees working on federal contracts in addition to all new ones. After that, such entities must verify the legal status of all new employees through E-Verify within three days after their hiring. The mandatory use of E-Verify will be a provision included in all federal contracts.

The E-Verify program will be used in conjunction with the existing I-9 forms. So although the proposed regulation will be implemented after the public comment period expires, federal contractors still have to complete the I-9 form for all new hires.

Standard Mileage Rate Raised to 58.5 Cents

2008-07-08T19:44:00.000-07:00

Effective July 1, 2008, the optional standard mileage rate has increased by 8 cents, from 50.5 cents per mile to 58.5 cents per mile, for all miles driven from July 1 to December 31, 2008.

The increase allows taxpayers to use the higher deduction amount as an alternative to recording actual costs of operating a qualifying vehicle. The new rate is also for determining the reimbursement amount to employees who operate an automobile for business purposes.

The Internal Revenue Service made this special adjustment for the final months of 2008 because of the recent gasoline price increases.

"Rising gas prices are having a major impact on individual Americans. Given the increase in prices, the IRS is adjusting the standard mileage rates to better reflect the real cost of operating an automobile," said IRS Commissioner Doug Shulman. "We want the reimbursement rate to be fair to taxpayers."
The rate for moving and medical mileage also increased 8 cents, to 27 cents; the rate for charity services, however, remained at 14 cents because it is a special case and requires an act or law to change it.

The District of Columbia Increase The Minimum Wage to $7.55 On July 24, 2008

2008-07-08T19:39:00.000-07:00

The District of Columbia will increased its minimum wage from $7.00 per hour to $7.55 per hour effective July 24, 2008; and will increase the minimum wage to $8.25 per hour on July 24, 2009.

The federal minimum wage will increase from $5.85 per hour to $6.55 per hour on July 24, 2008 and to $7.25 per hour on July 24, 2009. If you are working for the federal government, you arer only entitled to the federal minimum wage. If you work for Washington D.C. government, you are entitled to receive a living wage, which is $11.75 per hour in the current time.

If you work over 40 hours in one week, you should get overtime pay. If the regular pay is $7.55 per hour, overtime pay would be $11.325 per hour. However, some kinds of jobs do not get overtime pay, such as salesmen, professionals, and those domestic workers who live with their employers.

Colorado Updated Anti-Discrimination By Adding Sexual Orientation

2008-07-03T20:42:00.000-07:00

Colorado has signed a new law - Senate Bill 200 – which prevents certain types of discrimination by adding Sexual Orientation as a new protective category, effective May 29, 2008.

Colorado Governor Bill Ritter has signed a controversial bill into law that broadens the ban on Sexual Orientation Discrimination created by the 2007 amendments to Colorado’s civil rights law; these banned sexual orientation and religious discrimination in employment. The new bill defines sexual orientation as “a person’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another person’s perception thereof.”

In the new law, public accommodation is broadly defined as “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.”

On the basis of the 2007 amendments to the Colorado Anti-Discrimination Act, many Colorado employers have already considered modifying their business policies regarding transgender employees. With the passing of the new law, Colorado employers should revisit those policies and consider whether the same protections should be extended to customers and guests.

Besides sexual orientation, Senate Bill 200 also adds creed, marital status, disability, national origin and ancestry to the protected statuses upon which an individual cannot be denied membership in a union or labor organization. The Colorado law now also broadens the bans prohibiting discrimination in employment decisions on account of sexual orientation in schools.

Similar legislation already exists in the following states: California, Connecticut, the District of Columbia, Massachusetts, Minnesota, New Hampshire, New Jersey, Rhode Island, Vermont and Wisconsin.

Florida’s Guns At Work Law

2008-07-01T19:48:00.000-07:00

On July 1, 2008, Florida's Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 (the "Guns At Work Law") has taken effect. The bill was signed into law by Florida Governor Charlie Crist on April 15, 2008.

The new law prohibits all public and private employers from discriminating against any customer, employee, or invitee who possesses a legally-owned firearm that is kept inside a locked, privately-owned motor vehicle in a parking lot, in most cases, even on an employer’s private property. The law doesn’t apply to schools, prisons, nuclear power plants, military facilities and buildings that store explosives.

Supporters of the law say people have a constitutional right to carry firearms in their cars for protection, while business owners have argued that they have a constitutional right to set the rules on their own property.

However, in order to comply with the new law, employers must do the following:
l Review and update policies prohibiting firearms on the employer's property; lift any ban against keeping legally-owned firearms locked in personal vehicles in parking areas by persons with valid concealed-weapons permits;
l Review and update safety and security measures to deal with the increased risk of violence associated with the presence of guns on company property;
l Provide training on Florida's Guns At Work Law to Human Resources personnel;
l Provide training on Florida's Guns At Work Law to all security personnel.

Illinois Minimum Wage to Increase to $7.75 July 1, 2008

2008-06-29T23:11:00.000-07:00

The state of Illinois will increase its minimum wage from $7.50 per hour to $7.75 per hour effective July 1, 2008, with additional increases to $8.00 per hour on July 1, 2009, and to $8.25 on July 1, 2010.

Increasing the minimum wage to $7.75 per hour will add an additional $520 in annual wages for a full-time minimum wage worker. When the minimum wage of $8.25 per hour takes effect in 2010, state Gov. Blagojevich will have helped boost the pay for minimum wage workers in Illinois by $3.10 per hour in seven years.

Gov. Blagojevich signed legislation in December 2006 increasing the Illinois minimum wage. The governor estimates that nearly 700,000 people will benefit from the increase. "We're facing hits on food, hits on deliveries to us and now labor increases," said Todd Rawls, a local businessman "That all affects insurance, my rent’s gone up, you name it, it has all gone up."

Idaho Minimum Wage to Increase on July 24, 2008

2008-06-26T20:20:00.000-07:00

The state of Idaho will increase its minimum wage from $5.85 to $6.55 per hour on July 24, 2008, in coordination with the federal minimum wage increase. Section 44-1502 of the Idaho Code guarantees that the majority of Idaho employees are paid the state minimum wage.

Pursuant to the bill passed in 2006, the federal minimum wage will increase in a three step process. The Idaho minimum wage is tied to the federal minimum wage. So when the federal minimum wage increases on July 24, 2008 (the second of the three increase steps), the Idaho minimum wage will increase accordingly.

The minimum wage for tipped employees in Idaho will remain unchanged at $3.35 per hour. Idaho state law also provides a special wage for workers under the age of 20: companies may pay such workers an “opportunity wage” of $4.25 per hour during the first 90 days of employment.

California Hands-Free Law Goes into Effect July 1, 2008

2008-06-25T19:15:00.000-07:00

SB 1613, a new California hands-free cellular telephone law signed by Gov. Arnold Schwarzenegger, goes into effect July 1,2008. The law prohibits the use of a cell phone in a moving vehicle unless the driver is using a hands-free device.

The new law prohibits anyone under the age of 18 from using any type of cell phone while driving. Anyone over 18 can drive and talk on the phone while using a hands-free device.

Specifically, SB 1613 will:
l Prohibit the use of cell phones by drivers unless the driver is using a hands-free device starting July 1, 2008.
l Allow drivers of commercial vehicles to use push-to-talk phones until July 1, 2011.
l Allow drivers to make emergency phone calls without using a hands-free device.
l Allow drivers of emergency response vehicles to use cell phone without a hands-free device.

For violators, the first offense will cost $20, and it will be a $50 penalty for each additional offense.

California Highway Patrol data show that more than 1,000 crashes, injuring 447 people, were blamed on drivers using a hand-held cellular phone in 2007,

“The simple fact is it’s dangerous to talk on your cell phone while driving. CHP data show that cell phones are the number one cause of distracted-driving accidents,” said Gov. Schwarzenegger. “So getting people’s hands off their phones and onto their steering wheels is going to make a big difference in road safety. The ‘Hands-Free’ cell phone bill will save lives by making our roads safer. I want to thank Senator Simitian for authoring this bill and for his commitment to the safety of his fellow Californians.”

What does the new law mean for employers? If employees have to use a cell phone while driving to perform their work, the employer must provide them with a hands-free device so they can comply with the law. The device can be bought by employer and given to employees, or the employer can agree to pay employees back for reasonable costs. However, if employees don’t have to use cell phones while driving but choose to do so only for their own convenience, then the employer is not required to provide or pay for a device.

DOL Clarified Compensable Work Time Under FLSA

2008-06-24T22:24:00.000-07:00

The U.S. Department of Labor recently has clarified compensable work time under the Fair Labor Standards Act regarding meal breaks, straight time, and overtime. In an opinion letter dated May 15, 2008, the Department issued the following conclusions:

l If an employee fails to take a 30-minute unpaid meal break and the failure to take a meal break does not cause the employee to work more than 40 hours in the workweek, no additional compensation is due to the employee if the employee's total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.
l If an employee fails to take a 30-minute unpaid meal break and the employee does work more than 40 hours in the workweek, the 30-minute unpaid meal break must be counted for purposes of determining overtime compensation. An employee must be paid all straight-time wages due for all hours worked before an employee can be said to be paid statutory overtime compensation due.
l If an employee who is regularly scheduled to work 35 hours per week works before the employee's scheduled start time or after the employee's scheduled end time and the employee's total hours are less than 40 hours per workweek, the employee is not due additional straight time compensation if the employee's total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.
l If an employee receives certain types of premium pay that are not otherwise legally required, that pay need not be included in the employee's regular rate of pay for purposes of computing overtime compensation. Also, certain types of premium pay may be credited toward the employee's overtime compensation requirements.
l Rounding of time is allowed so long as the employer does not arbitrarily fail to count an employee's fixed or regular working time. Rounding to the nearest five minutes, one-tenth or one-quarter of an hour is acceptable if, in the aggregate, the employer compensates the employees properly for all the time they have worked.

However, this opinion letter only provides guidable interpretation about “work time” under the Fair Labor Standards Act. So when applied to state laws, it may result in a different analysis.

OSHA Gives Advice for Workers in Summer Heat

2008-06-23T20:14:00.000-07:00

Every summer, employees who work outdoors experience hot weather and the potential for heat-related illnesses. Now that summer has begun, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is giving all employers and employees nationwide advice about its safety and health resources to help prevent heat stress and heat stroke.

"Every outdoor jobsite faces hazards posed by the sun and heat," said OSHA's Assistant Secretary of Labor Edwin G. Foulke Jr. "We are encouraging employers and employees to take advantage of our published resources that offer sound advice to recognize and prevent heat stress and other heat-related illnesses."

Heat exhaustion and heat stroke are the two most serious forms of heat related illnesses. The symptoms include weakness, headaches and dizziness. Employers are responsible for providing a safe and healthy workplace for employees in accordance with the Occupational Safety and Health Act, and all employers and employees need to take appropriate actions to prevent heat stress and heat stroke during this time of the year.

Nevada’s Minimum Wage Increases to $6.85 in July, 2008

2008-06-23T20:12:00.000-07:00

The state of Nevada will increase its minimum wage for common employees from $6.33 per hour to $6.85 per hour. And for employees with qualifying health benefits, such as group health insurance, the minimum wage will increase from $5.30 per hour to $5.85 per hour; both rates will be effective July 1, 2008.

Worker safety standards are enforced by the Nevada Division of Industrial Relations under the Nevada Occupational Safety and Health Act. Under the act, each employee receives a 10 minute unpaid rest for each 4 hours worked, and a 30-minute unpaid meal break for each 8 hour shift.

The federal minimum wage will increase from $5.85 per hour to $6.55 per hour on July 24, 2008. This means that Nevada employers who offer health insurance but do business across state lines will pay workers at least $6.55 per hour. Nevada employers who offer insurance and do not do business out of the state will be able to pay employees $5.85 per hour.

House Panel Approves Minimum Wage Increase in Delaware

2008-06-15T22:45:00.000-07:00

Delaware's minimum wage could be pushed to the highest in the nation by 2010. The House Labor Committee approved a new minimum wage bill on June 11, 2008. The measure now moves to the House floor.

The bill’s sponsor, Democratic state Senator Bobby Marshall, says Senate Bill 204 would increase Delaware’s minimum wage from $7.15 per hour to $7.75 per hour effective March 1, 2009, and to $8.25 one year later.

The federal minimum wage will be increased in July from $5.85 to $6.55 per hour and again in July 2009 to $7.25 per hour. If the DE bill passes, it would continue Delaware's tradition of requiring a higher wage than the federal minimum. The bill’s opponents contend that the minimum wage increase in the state of Delaware would put a burden on small business owners and could discourage entry-level hiring.

U.S. DOL auditing all Fragomen permanent labor certifications

2008-06-15T18:27:00.000-07:00

On June 2, 2008, the U.S. Department of Labor announced that it has begun to audit all permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP.

The DOL says that it is doing so because it has information indicating that in at least some cases the Fragomen firm may have improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring qualified U.S. workers.
Specifically, several recruitment forms drafted by Fragomen attorneys instructed their clients that “After interview, should any of the applicants appear to be qualified for the position, please contact a Fragomen attorney immediately to further discuss the candidate’s background as it relates to the requirements stated for said position.”

The DOL said they are going to audit all of Fragomen's permanent labor certification applications to see if anything illegal or improper was done.

The permanent labor certification process, established by the Immigration and Nationality Act, allows an employer to hire a foreign worker to work permanently in the United States, but only where it been established through a strict, detailed recruitment process that there is no qualified, willing and available U.S. worker to fill the position. According to the Department's regulations, the employer’s attorney is not supposed to be involved in the recruitment process (unless he or she is typically involved in the employer’s hiring). Audits of applications are one of the major tools the Department uses to ensure program integrity, and they are used to thoroughly examine applications to ensure that all program requirements have been properly followed. They are routine and regularly undertaken to ensure the program’s integrity.

“The department’s decision to further investigate these applications will help ensure the integrity of the permanent labor certification process and ultimately protect job opportunities for American workers,” said Gregory F. Jacob, solicitor of labor. “The department takes seriously its responsibility to ensure that American workers have access to jobs they are qualified and willing to do and that their wages and working conditions are not adversely affected by the hiring of foreign workers.”

The American Immigration Lawyers Association (AILA) is now investigating the matter.

Assembly Approves Paid Sick Leave

2008-06-12T18:11:00.000-07:00

On May 28, the California Assembly passed legislation that would make the state the first in the nation to ensure at least a week of paid sick leave for all workers.

Paid sick days could be used for a personal illness, to care for a sick family member, or to recover from domestic violence or sexual assault.

Nearly six million working Californians, or about 40% of the workforce, currently receive no paid sick days through their employers. Assembly woman Fiona Ma, D-San Francisco, said her Assembly Bill 2716 would protect those who are forced to choose between working while sick or losing pay.

"(It's) a win-win for workers and employers alike and is an important part of maintaining a healthy economy here in California," Ma said, "When employers offer paid sick days, employee morale is better, turnover is less, and health care costs decrease." Dr. Vicky Lovell of the Institute for Women’s Policy Research Institute concluded that AB 2716 will save California nearly $1 billion annually, primarily due to reduced turnover and reduced spread of illness in the workplace.

The Assembly approved the bill with no support from Republican, who said AB 2716 would impose a one-size-fits-all mandate that many small businesses simply could not afford. Gov. Arnold Schwarzenegger has taken no position on the legislation, which now moves to the Senate, where Ma has indicated it will be heard in June.

Under AB 2716, businesses of 10 employees or more would be required to provide up to nine days of sick leave per year while those with fewer than 10 employees would provide up to five days. Full-time and part-time workers would earn one hour of sick leave for every 30 hours worked. The benefit could be used after 90 days of employment.

AB 2716 is co-sponsored by the California Labor Federation and California Association of Community Organizations for Reform Now, and is supported by a statewide coalition of over 50 organizations including local governments, health professionals and civil rights organizations.

"Simply put, workers should not live in fear of being fired when they take a day off when they or their children are sick," said Ma.

According to the Assembly Appropriations Committee, the requirement would be overseen by the Department of Industrial Relations, whose costs would be about $600,000 annually if the bill were signed into law. The measure also could be enforced through civil lawsuits.

Florida woman gets 7 years in slavery case

2008-06-05T18:38:00.000-07:00

A Fort Lauderdale federal jury recently sentenced a South Florida woman to seven years and three months in prison for keeping a teenage girl from Haiti in servitude for six years.

Maude Paulin, a 52-year old former school teacher from Miami-Dade County, was convicted in March along with her mother, Evelyn Theodore, of conspiring to enslave the girl, forcing her to work, and harboring an illegal immigrant.

Simone Celestin, who was living at a Haitian orphanage, was brought to the U.S. in 1999 at age 14 and escaped from the Paulin home in 2005.

During the trial, Simone Celestin, 22, testified she was brought to the United States from Haiti when she was 14 to be a maid in the Paulins' home in southwest Miami. Then she was forced to work 15 hours per day, seven days per week and sleep on the floor. When she failed to finish her long list of chores, Maude Paulin and Theodore would beat her with "anything handy," including shoes and kitchenware. In 2005, Celestin escaped from the home and alerted authorities.

Testimony showed that Celestin got virtually no schooling, was frequently threatened, and beaten. Celestin testified that she thought about killing herself frequently during the ordeal.

Maude Paulin admitted she had made mistakes in bringing Simone Celestin to the U.S. and apologized for what happened, but insisted she wanted only good things for the girl.

"I love Simone with all my heart," Paulin told Senior U.S. District Judge Jose A. Gonzalez Jr. at a sentencing hearing. "Unfortunately, I can't change what is already done… I regret it. I blame myself."

Paulin’s daughter Erica Paulin said "My mother is an inspiration to her friends and her family, to so many people. She is not a monster."

But Prosecutor Edward Chung of the U.S. Justice Department’s civil rights division sees it differently, saying the defendant simply won’t admit that she did something wrong. "Maude Paulin does not to this day acknowledge that she committed this crime, " Chung said, "This was a middle school teacher placed in charge of this community's children. She was the one who committed this crime and she's the one who still to this day believes she's done nothing wrong." Chung also said Paulin had shown no remorse for "an extremely serious crime."
Paulin’s ex-husband, Saintfort Paulin, was found guilty of harbouring an illegal immigrant and was sentenced to 18 months' probation, including six months of house arrest, and ordered to pay a fine of $500. He told Gonzalez that he left the home in 2001 and that Celestin's treatment was his ex-wife's idea. "I ended up going along willingly. I'm sorry for what transpired," said Saintfort Paulin, who now lives in New Jersey.

A sentencing hearing for Theodore was postponed because she suffered a stroke after her conviction,

The sentence received by Maude Paulin was at the lower end of federal guidelines, but is still higher than prison terms in many similar cases.

Prosecutors said Celestin is one of thousands of Haitian children, known by the Creole term "restaveks," who are forced into involuntary servitude both in Haiti and in the U.S. UNICEF has estimated that up to 17,500 such people are brought to the U.S. each year to become slaves.

Gonzalez said Maude Paulin and her mother are liable for more than $162,000 in restitution to Celestin. They were convicted of conspiring to violate Celestin's 13th Amendment rights to be free from slavery, of illegally forcing her to work for them, and of harboring an alien for financial gain.

U.S. DOL announces $20 million competition for demonstration projects to assist dislocated workers

2008-06-01T19:34:00.000-07:00

On May 16, the Employment and Training Administration of the U.S. Department of Labor announced a competition for nearly $20 million in funding to build the skills and employment options for workers who have been dislocated or at risk of dislocation. State workforce agencies that want to get the grant have to compete to design demonstration projects targeting these workers.

“The programs that state workforce agencies devise will let workers vulnerable to joblessness take greater ownership of their careers,” said acting Assistant Secretary for Employment and Training Brent R. Orrell.Proposals may fall into four categories: “Entrepreneurship Opportunities for Dislocated Workers” programs will help individuals launch small businesses. “Getting Ahead of the Curve: Raising Educational/Skill Levels of Workers in Declining Industries” projects will develop strategies to upgrade the career skills of workers who are likely to face unemployment. “Innovative Adult Learning Models for Dislocated Workers” projects will identify new and innovative ways to train unemployed workers. Efforts aimed at “Preventing Dislocations of TANF Recipients Moving Into Entry Level Jobs Subject to Economic Churn” will help former TANF recipients maintain employment and enter or advance within high-growth industries. (“TANF” stands for “Temporary Assistance for Needy Families.”)
“The four categories outlined in this announcement offer state workforce agencies an opportunity to tailor programs that address their particular workforce needs,” said Orrell.
Each state workforce agency can only submit a single application under one of the four categories. To deliver services with sufficient depth, each application must detail partnerships that include employers, education and training providers, faith-based, community, and philanthropic organizations.This competition will close on June 13, 2008.

$6.55 Per Hour: The Second Step of the Federal Minimum Wage Increase

2008-05-29T18:26:00.000-07:00

The federal minimum wage will take the first of its two additional scheduled increases effective July 24, 2008, when the federal minimum wage moves from $5.85 per hour to $6.55 per hour.

On May 25, 2007, President Bush signed a bill that amended the Fair Labor Standards Act (FLSA) to provide for a three-step increase in the federal minimum wage: to $5.85 per hour effective July 24, 2007; to $6.55 per hour effective July 24, 2008; and to $7.25 per hour effective July 24, 2009. The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.

If an employee is covered by both a state minimum and the federal minimum, the worker is entitled to the higher of the two.

As of February 2008, Washington has the highest minimum wage of all 50 states, and California, Massachusetts and Oregon follow. Kansas has the lowest minimum wage. Texas is one of a number of states that pegs its state minimum wage to the federal minimum wage; the current federal minimum wage applies for most jobs in these states.

Same-sex marriage in California

2008-05-22T19:27:00.000-07:00

California has been one of the most active battlegrounds in the same-sex marriage debate. The fight began in earnest in 2000 when the state's voters passed Proposition 22, which defined marriage as the union between a man and a woman.

Four years later, the supreme court of the state of Massachusetts reached a conclusion that defining marriage as “between a man and a woman” and excluding same-sex couples is a violation of constitutional rights of privacy and equal protection under a proposed (but not enacted) Massachusetts law. The issue is also currently pending before the Connecticut Supreme Court.

In September 2005, the California Assembly became the first state legislature in the nation to proactively approve same-sex marriages. Governor Arnold Schwarzenegger ultimately vetoed the bill on the basis of Proposition 22. Then the California Supreme Court began to consider whether Proposition 22 violates the state constitution's guarantee of equal protection under the law.

On May 15, 2008, the ban on same-sex marriage was overturned, making California the second state, behind Massachusetts, to allow full marriage rights for same-sex partners. Marriage licenses will be issued to same-sex couples starting on June 14, 2008.

For several years, California had already been providing legal protections, similar to those for which married couples are eligible, to same-sex domestic partnerships, granting "same-sex couples all state-level rights and obligations of marriage — in areas such as inheritance, income tax, insurance and hospital visitation"

In the most recent review, California laws limiting marriage to opposite-sex couples were deemed to violate same-sex couples' rights under the California Constitution. The Court explained that, "in view of the substance and significance of the fundamental right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples."

Because the Court found the exclusion is not justified, the decision will enable same-sex couples to be married in the eyes of the State of California. However, the Court's decision does not alter federal law or the marriage laws of other states.

The Court also evaluated the challenged marriage statutes under the Equal Protection clause of the California Constitution, concluding that the laws excluding same-sex couples from the definition of marriage do not discriminate on the basis of sex but discriminate on the basis of sexual orientation.

California businesses and employers must be alert. As same-sex couples begin to exercise their new right to marry under California law, discrimination against these individuals may subject employers and businesses to legal liability. Complaints of discrimination based on the exercise of the right to marriage by same-sex couples also should be taken seriously.

In addition, before this decision was issued, employment discrimination on the basis of marital status and registered domestic partner status were both already prohibited to the same extent in California, and the protections available to same-sex couples under these laws will remain the same. What is new is that same-sex couples can now claim the same protection via marriage as opposite-sex couples.

Finally, same-sex couples who were married in other jurisdictions that recognize same-sex marriage before this decision and then relocated to California will not presently be considered "married" and are not currently entitled to the protections or benefits available to married persons.