Monthly Archives: November 2010

Does the FLSA Preempt State Wage and Hour Law Regarding Donning and Doffing?

By: Joseph D. Guarino and Jesse G. Pauker

The Supreme Court has once again been asked to address the question of whether time spent by employees donning and doffing has to be compensated. On October 29, 2010, the Court received a petition filed by Kraft Food Global, Inc., asking it to review the Seventh Circuit’s ruling in Spoerle v. Kraft Foods Global, Inc., that Section 203(o) of Fair Labor Standards Act (“FLSA”), allowing unions and employers to agree to forgo pay for donning and doffing, does not preempt state law. 

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Hospitality Immigration Alert

By:  Robert S. Groban, Jr.

Missouri Man Convicted in Scheme to Place Undocumented Workers in Hotels

On October 28, 2010, a Missouri man was convicted by the U.S. District Court in Missouri for his role in a racketeering scheme that involved placing undocumented workers at hotels in 14 states, including several hotels in the Kansas City, Missouri, area. United States v. Dougherty, No. 4:09-CR-00143 (W.D. Mo. Oct. 10, 2010). Beth Phillips, the U.S. Attorney for the Western District of Missouri, indicated that “Mr. Kristin Dougherty was found guilty of racketeering, participating in a Racketeering Influenced and Corrupt Organizations Act (‘RICO’) conspiracy and wire fraud.  He faces a possible sentence of up to 60 years in federal prison without parole, plus a fine up to $75,000.”

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Gendler v. Batiste – Public Records Act and Traffic Accident Reports

In Gendler v. Batiste, the Court of Appeals held that the Washington State Patrol (WSP) was required to disclose historical bicycle accident records of accidents occurring on Seattle’s Montlake Bridge.  The requestor had suffered serious injuries when his bike tire became wedged in the bridge’s grating.  The requestor suspected that the bridge had been unsafe […]

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Immigration Alert: November 2010

ICE Assesses $1 Million Fine Against Abercrombie & Fitch After Form I-9 Audit

DOJ Settles Allegations of Immigration-Related Employment Discrimination Against Hoover Inc.

DOJ Issues Instructions for “No Match” Letters

DOL Discontinues Form I-9 Inspections During OFCCP Reviews

EEOC Commissioner Calls for Close Scrutiny of English-Only Employment Requirements

Missouri Man Convicted in Scheme to Place Undocumented Workers in Hotels

Fourth Circuit Court Approves Probation Term Barring Participant in H-2B Visa Scheme from HR Work

President of Furniture Company Is Indicted for Employing Illegal Workers

E-Verify to Include U.S. Passport Photo-Matching Capability

November 12, 2010, H-1B Cap Count

Record Numbers Apply for 2011 Diversity Lottery

DOS Issues December 2010 Visa Bulletin

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2011 Home Health Prospective Payment System Final Rule: CMS Clarifies Change of Ownership Provisions and Implements New Legislative Requirements

On November 17, 2010, the Centers for Medicare and Medicaid Services (“CMS“) published the 2011 Home Health Prospective Payment System (“2011 HH PPS“) final rule.[1] A number of significant issues are addressed in this rule and are effective January 1, 2011. Specifically, the 2011 HH PPS final rule addresses: (1) the rules regarding a change in ownership within 36 months after the effective date of a home health agency’s (“HHA‘s”) initial enrollment or within 36 months following the HHA’s most recent change in majority ownership; (2) new legislative requirements regarding face-to-face encounters with providers related to home health and hospice care; (3) a 3.79 percent reduction to rates for calendar year (“CY“) 2011; and (4) the national standardized 60-day episode rates, the national per-visit rates, the non-routine medical supply (“NRS“) conversion factors, and the low utilization payment amount add-on payments. This Client Alert will provide an overview of these changes.

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Teamsters Local 763 v. City of Mukilteo – Status Quo

This office was recently successful in overturning a trial court decision finding that the City had committed an unfair labor practice by failing to maintain the status quo after the expiration of a collective bargaining agreement.  When a collective bargaining agreement expires, an employer is required to maintain the terms and conditions of employment that […]

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Hotel Housekeepers File OSHA Complaints Nationwide

By:  Jay P. Krupin and Kara M. Maciel

Last week, on November 9, 2010, housekeepers employed by Hyatt Hotels filed complaints with OSHA alleging injuries sustained on the job. The complaints were filed in eight cities across the country, including Chicago, Los Angeles, San Francisco, Long Beach, San Antonio, Honolulu and Indianapolis.  Similar OSHA actions may occur in Boston, NYC, DC, Atlanta, Las Vegas, Miami, and Orlando with higher concentrations of hotel properties. This is the first time that employees of a single private employer have filed multi-city OSHA complaints, and it appears to be a coordinated effort with organized labor, UNITE HERE.

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On November 17, Davis Malm attorney James E. Gallagher participated in the Alumni Fall Career Forum at Suffolk University Law School. Mr. Gallagher, a 2004 graduate of Suffolk Law School, was joined by other successful Suffolk Law graduates to discuss various career paths available to the students and to provide knowledge and offer tips on how to begin their careers. Mr. Gallagher also spoke to the students about his experiences in his current litigation practice and those from his prior legal experience as a judge advocate in the Marine Corps. The networking event provided an opportunity for students to meet with over 40 Suffolk alumni presently in the New England legal community.

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On November 17, Davis Malm attorneys Laurie Alexander-Krom and David M. Cogliano conducted an employment law seminar, “Fundamentals of Employment Law,” sponsored by Sterling Education Services, Inc. The seminar provided valuable information on current emerging issues, such as hiring and terminating employees in the current economy, as well as critical issues concerning the FLSA and state wage and hour laws, employee privacy in the workplace, and an update on recent changes in developments with the ADA and FMLA.

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Are Courts Reining in Hybrid Class Actions?

by Michael Kun and Aaron Olsen

In recent years, some plaintiffs’ counsel bringing wage-hour claims have have made the strategic decision to bring “hybrid” class actions; that is, actions alleging both federal and state wage-hour claims.  These cases can cause logistical nightmares for the courts, and great benefits for plaintiffs, for two primary reasons: (1) the standard for certification of a class is differerent for federal and state claims, and (2) classes in federal claims are “opt in” classes while those for state claims are “opt out” classes.  Indeed, in bringing “hybrid” claims, plaintiffs may seek to take advantage of the lower threshold for achieving conditional class certification under the federal Fair Labor Standards Act (“FLSA”), only to later seek to take advantage of the Rule 23 requirement that one must affirmatively “opt out” of the class.  

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