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The Supreme Court Rules Workers Do Not Have to Be Paid for Waiting in Security Lines

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Tuesday, the United States Supreme Court ruled unanimously that employees’ time spent waiting to undergo and undergoing security screenings is not compensable under the Fair Labor Standards Act (FLSA).

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Teachers Union Boss Loses 40,000 Members, Gets a Raise

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The following article was written by Jason Hart and appeared in Watchdog.org

National Education Association president Dennis Van Roekel received a huge pay raise this year while the teachers union lost more than 40,000 members.

Van Roekel, who retired this summer, was paid $541,632 during NEA’s fiscal year ending Aug. 31 — a $130,000 increase from last year, driven by a gross salary hike from $306,286 to $429,509. NEA membership dropped from 3,003,885 last August to 2,963,121 this August.

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A Christmas Bonus Or A Nightmare Before Christmas

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With the holidays approaching more and more employers are considering whether to give employees end of the year bonuses. Some employers will give out flat rate bonuses to all employees as a thank you for their continued employment with the company. Other employers will base their bonuses on certain criteria such as employee attendance, performance, efficiency, etc.

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Claims Adjusters May Not Be In Good Hands With Allstate

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…A California labor lawsuit has been granted favor by the United States Court of Appeals for the Ninth Circuit after the latter determined a class-action lawsuit against Allstate Insurance Company (Allstate) can move forward. The insurance juggernaut had attempted to quash the suit.

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Handling Employees Under the Influence

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Question:

How should I handle an employee who reported to work obviously under the influence of drugs or alcohol? What can/can't I say?

Answer:

Prior to taking any administrative action against your employee, SLG strongly recommends you consult with legal counsel as each case will be different and require separate analysis. The first thing to do in this situation is to relieve the employee from his duties as the employer has a duty to provide a safe working environment for all employees and the general public. As an employer, you are not required to tolerate an employee attempting to function in such a condition. Also, your "zero tolerance" drug and alcohol policy should prohibit employees from reporting to work under the influence of controlled substances (e.g., alcohol, marijuana, methamphetamine, heroin, cocaine, etc.) as well as prescription drugs, which are also often abused. You do not need to say anything specific at first, other than to tell the employee that he appears to be unable to perform his job functions and is being relieved of duty pending further investigation into his condition. Be sure to look for objective indications that the employee is under the influence as the employer will need to be able to articulate a reasonable suspicion that the employee is under the influence should a drug test be necessary.

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OFF-THE-CLOCK WORK? NOT ON MY WATCH (or timesheet...)

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One of the primary lessons from the recent class action frenzy is the importance of policing off-the-clock work. Nearly every class action lawsuit that we have recently seen has included a claim for off-the-clock work, i.e., early arrival, standing in line, donning and doffing, etc. These claims are very attractive to plaintiffs' attorneys as they are easy to allege and difficult to disprove. In this respect, they can be the ideal glue to certify a class action. Relying on time records is no help, because the work is alleged to have happened before or after the recorded work hours. Thus plaintiffs can easily allege that they worked fifteen to thirty minutes before they signed in for their regular work without any hard evidence.

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U.S. Supreme Court Hears Arguments On Whether Employees Should Be Paid For Waiting In Line

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Source: Spencer Soper, Sophia Pearson and Greg Stohr, www.msn.com

Jesse Busk spent a 12-hour shift rushing inventory through an Amazon.com Inc. ("Amazon") warehouse in Nevada to meet quotas... After clocking out, Busk and hundreds of other workers went through an airport-style screening process, including metal detectors, to make sure they weren't stealing from the Web retailer. Getting through the line often took as long as 25 minutes, uncompensated, he and others employed there say...

Those allegations are now before the U.S. Supreme Court in a case that could help redefine companies' reach over hourly workers. On Wednesday [of last week], the top court will hear arguments related to a suit brought by Busk seeking compensation for his time in the security lines.
Busk's December 2010 lawsuit, against both Amazon and a temp agency that provided staff to Amazon, was among the first to challenge the screening practice. Since then, a dozen similar suits have been filed involving Seattle-based Amazon, and more against other retailers...

Back Wages

If the Supreme Court sides with Busk, his case will be allowed to move forward in a federal trial court. Ultimately, Amazon and various staffing agencies it uses could be required to pay as many as 400,000 workers back wages amounting to $100 million or more, according to plaintiffs' attorneys involved in the case.

...If Amazon prevails, employers could feel emboldened to squeeze more time out of workers without pay, pushing the boundaries of a 67-year-old law that defines what constitutes compensable work.

Amazon doesn't comment on pending litigation, said spokeswoman Kelly Cheeseman. "Data shows that employees walk through post-shift security screening with little or no wait," Cheeseman said...

In court filings, Amazon, Integrity and other temporary staffing firms have argued that security-line waits are no different than time spent walking to and from a work area, which courts have determined isn't compensable.

The Supreme Court case is likely to have an impact on several pending lawsuits. Apple Inc., CVS Health Corp., J.C. Penney Co., TJX Cos. and Ross Stores Inc. are all battling court claims involving searches at break times or the end of shifts at distribution centers or stores.

"It's a much bigger deal than just about searches," said Eric Schnapper, a law professor at the University of Washington. "If the court adopts the company's view, it would allow employers to require employees do a variety of tasks once their shift ends."

Seattle-based Amazon, the world's No. 2 online retailer by market capitalization, has built a reputation for selling goods at low prices and delivering them quickly and inexpensively, with tiny margins. That success rides on the company's network of massive warehouses -- more than 40 so-called fulfillment centers in the U.S. alone, according to the company, staffed by 40,000 workers, swelling to 110,000 during the holiday season.

...

Security Checks

Security checks don't meet that "integral and indispensable" test, the Obama administration has argued to the court. Integrity has taken the same view. Both liken screenings to the process of checking in or checking out, something Labor Department regulations say isn't compensable.

"Waiting in line for a security screening is indistinguishable from many other tasks that have been found non-compensable," Integrity's lawyer, Paul Clement, who was U.S. Solicitor General under George W. Bush, argued in court papers.

The company also points to a 2005 Supreme Court ruling that workers at a meat-processing plant didn't get compensation for time spent waiting to put on their protective gear in a changing room. A separate part of that decision said workers were entitled to pay for time spent walking between the changing room and their workstations.

The Amazon workers contend that compensation is due for any required activity done for the employer's benefit. Attorneys for the workers maintain one of their challenges is to get the court to distinguish between security screenings for weapons, which are done for the overall safety of a community, and anti-theft checks, which are done solely for the employer's benefit.

...

Legal Recourse

...When designing a security system, companies have to balance their security needs with their employees' time and convenience, said Barry Brandman, president of Danbee Investigations, a security consulting firm in Fair Lawn, New Jersey. Big companies can speed the process by adding check points, maintaining metal detectors and training security personnel to be efficient, he said.

"You don't want to punish 98 percent of the workforce in order to control the 1 or 2 percent who are problems," said Brandman, who said he wasn't familiar with Amazon's warehouse security procedures. "If you're not concerned about employee morale, you're more likely to have security problems."

Counsel to Management: Employers should be aware that waiting time and walking time have been targeted by class action attorneys. It is important that employers either minimize or account for the time that employees spend performing these tasks. For help or questions concerning your company's practices, please contact The Saqui Law Group.

California Senator Investigates Millions in Obamacare Exchange Contracts

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Source: The following article was written by Tori Richards and appeared in Watchdog.org

California's beleaguered Obamacare exchange is once again in the crosshairs of a state senator who is demanding answers following reports that millions in contracts never went out to bid and instead were awarded to friends of the agency's director.

Sen. Ted Gaines, who is also the GOP candidate for state insurance commissioner on the November ballot, fired off a letter to Covered California Director Peter Lee, asking how the agency "fulfills the public trust when it comes to spending taxpayer dollars."

This latest calamity of nearly $4.4 million in non-bid contracts comes on the heels of a $1.37 million infomercial showing exercise guru Richard Simmons writhing on the floor to promote signups for Covered California in January. Gaines asked for justification of the spending, but when he received what he called a "lackluster" response, he sued for access to records two months later.

The Associated Press released the findings of its investigation over the weekend, reporting that nearly $2 out of every $10 spent went without bids, according to released data covering the time period 2010 through July.

A total of $4.2 million went to a consulting firm, the Tori Group, whose director Leesa Tori worked under Lee at Pacific Health Advantage, a now-defunct insurance exchange business. Nine former Pacific Health Advantage employees, including Tori, work for Covered California. Other no-bid contracts include consultant Yolanda Richardson at $176,500 and $525,000 for a subsidiary of Lee's former job, Pacific Business Group on Health Negotiating Alliance, the AP reported.

In his letter to Lee, Gaines called this news "part of a pattern of irresponsible spending" and "are at the very least unseemly and reek of the kind of cronyism that all public servants should be interested in eliminating. Even the appearance of well-connected consultants and personal friends of decision makers getting bid-free contracts should not be tolerated."

Gaines also included a series of questions aimed at determining how the contracts were awarded. He finished with, "In light of Covered California's highly questionable spending history and shaky financial footing, it's imperative that the public get a full understanding of the Exchange's contracting practices and awards."

The Bureau of State Audits has labeled Covered California a high-risk entity as it faces a deficit of $78 million in the next fiscal year because federal grants will be eliminated. An agency spokesperson has said in the past that Covered California is a new state agency and as such, is on track to becoming self-sufficient. Spokesperson Lizelda Lopez could not be reached for comment for this article.

Gaines is challenging a first-term Democratic opponent for insurance commissioner. It's an uphill battle, but if Gaines wins the state Legislature's most vocal Obamacare opponent will likely make Lee's life a hellish existence by shining a greater spotlight on the inner workings of Covered California.

Federal Court Rules PAGA Representative Actions (Class Actions) Can Be Waived In Employee Arbitration Agreements

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Background

The Private Attorney General Act ("PAGA") is a provision of the California Labor Code that allows plaintiffs to bring representative claims for civil penalties on behalf of other aggrieved employees for an employer's violation of the California Labor Code. PAGA essentially deputizes aggrieved employees and permits them to seek penalties for labor code violations that could otherwise only be assessed by the state.

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California Governor Okays Bills to Regulate Groundwater Amid Drought

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The following article was written by Aaron Mendelson and
appeared in Yahoo News

California Governor Jerry Brown signed a package of bills on Tuesday to regulate California's stressed groundwater supplies amid a drought that is expected to cost the state $2.2 billion in lost crops, jobs and other damages, with no end in sight.

The bills will allow the state to take over management of underground aquifers and water accessed via wells, and aim to tighten oversight of water at a time when groundwater levels are shrinking in the third year of a catastrophic drought.

"We have to learn to manage wisely water, energy, land and our investments," Brown said as he signed the bills despite opposition from some farm and agricultural industry groups. "That's why this is important."

Farmers in California's agricultural heartland rely on water from wells to irrigate their crops when the state cuts back on supplies from streams and the fragile San Joaquin-Sacramento River Delta.

About a million Californians rely on private wells for drinking water, many of which have gone dry as groundwater levels have receded. But while California uses more groundwater than many other states, it lacks the oversight common elsewhere.

Recent studies have shown groundwater levels receding throughout the Southwest, prompting concern among environmentalists and others that usage needs to be better regulated.

The bills Brown signed will require that hard-hit groundwater basins adopt sustainability plans by January 2020, although high and medium priority basins not considered subject to critical overdraft will have an additional two years.

All groundwater plans must achieve sustainability within 20 years of adoption, and local agencies managing them must report to the state Department of Water Resources every five years.

The bills also outline enforcement mechanisms, and the regulations are expected to cost the state roughly $5.5 million in annual costs by the 2017-2018 fiscal year. Some costs would be offset by fees.

Some agricultural companies and farm groups had argued against the bills, which they called hastily written, saying they would impose rigid guidelines on farmers while failing to address needs of agricultural water users in the Central Valley.

"While there is legitimate concern about the over-drafting of some groundwater basins, this massive expansion of state authority will not solve the problem," said Connie Conway, the Republican Minority Leader in the state Assembly.

In November, California voters will vote on Proposition 1, the $7.6 billion "water bond" intended to improve water supplies in the state.

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