“GINA” AND CHILD LABOR VIOLATIONS BIG FINES

GINA – get used to the term because you will be hearing more about it – is the Genetic Information Nondiscrimination Act. Last month’s Tip Sheet included a summary of this new law that was passed in May 2008, but which generally does not become effective until November 21 of this year. The EEOC has recently issued some proposed new rules for enforcing GINA and is in the process of sorting through public comments before issuing final regulatory guidance.

Now, an unfortunate construction site tragedy in Atlanta has demonstrated that parts of GINA are already in place and are making a big difference in enforcement of Child Labor laws.

One little noticed part of GINA – and one that went into effect May 8, 2008, when the Act was signed – substantially increased the fines and civil penalties that the U.S. Department of Labor can impose for violations of the Child Labor provisions of the Fair Labor Standards Act. The maximum penalty for a child labor violation that results in the death or serious injury of a minor is now $50,000, and repeat or willful violations can be assessed at $100,000 each.

Demon Demo Inc. had a contract to demolish parts of the Gwinnett Place Mall in Duluth, Georgia, an Atlanta suburb. A teen worker fell to his death, and the DOL cited Demon Demo for allowing an underage worker to perform a hazardous occupation. DOL has assessed the top fine of $50,000, plus $3,162 for recordkeeping violations. Demon Demo says it plans to contest the penalty.

WORKPLACE “EXORCISM” RESULTS IN LAWFUL DISCHARGE

Two administrative assistants at the University of Texas at Arlington decided that a co-worker was “demonically oppressed” (not “possessed”). When they learned that a third person was also having personal problems with the co-worker, they decided that strange remedial action was necessary.

The three employees, who described themselves as “devout Christians,” gathered at the co-worker’s cubicle after hours. All three engaged in fervent prayers designed to call forth the demons from the co-worker, but two of the three went one step further and anointed the cubicle doorway with olive oil designed to “exorcise” demons from the cubicle.

The University had no problems with the prayers but felt that the anointing was an act of “disregard” for University property. The two anointers were fired and sued the University for violating their free speech rights. They lost their case when the Federal Judge who heard the evidence ruled that their conduct did not concern a matter of public concern and therefore was not protected free speech.

UNION ORGANIZING LATEST STATISTICS UNDERMINE EMPLOYEE FREE CHOICE ACT

Big Labor’s top legislative priority – the Employee Free Choice Act – is thought to be in trouble on Capitol Hill, primarily because even Democrat Senators have reservations about denying employees the right to vote on union representation through secret ballot elections supervised by the NLRB. A recent BNA (Bureau of National Affairs) report shows that this “reform” (abandoning secret ballot votes) appears to be unnecessary because unions are winning representation elections more often than at any time since 1984.

GOOD NEWS – BAD NEWS

EFCA, which has passed the House of Representatives and is pending in the Senate, proposes to change the rules on union organizing in 3 ways: (1) eliminate secret ballot elections and allow unions to organize workers by getting them to sign authorization cards, (2) increase penalties for unfair labor practices to include punitive damages and fines as well as loss of federal contracts, and (3) allowing government “arbitrators” to set the terms of the initial contract between a union and a newly organized company rather than rely on free market forces and across-the-table negotiations. Although items (2) and (3) are potentially more dangerous, it is the ban on secret ballot elections that has gotten the most attention. Unions say they cannot win secret ballot elections because the current rules are stacked against them.

Now, BNA, which has been keeping “win rate” statistics on NLRB elections since 1984, reports that in 2008 unions won two-thirds (66.8%) of all NLRB supervised elections. This “win rate” is the highest annual rate since BNA began tracking this data.

While this is clearly “good news” in that it undermines the need for EFCA, it is “bad news” because union organizing success means trouble for employers.

The top 3 unions for organizing new workers in 2008 were, in order, (1) the Teamsters, (2) the Service Employees, and (3) the United Food & Commercial Workers (helped in part by a video showing President Obama urging workers to vote for UFCW).

While EFCA appears stalled for now – primarily due to concern over eliminating secret ballot elections – some form of labor law reform is likely to pass either in 2009 or 2010. Employers are well advised to pay attention to the other parts of this legislation – especially the provision allowing government arbitrators to decide the terms of initial labor-management contracts.

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