Wednesday, November 26, 2008

IRS Announces 2009 Standard Mileage Rates

The IRS has announced a new mileage rate effective January 1, 2009. The rate will decrease slightly, to 55 cents per mile.

“The mileage rates for 2009 reflect generally higher transportation costs compared to a year ago,” said the IRS in a press release, “but the rates also factor in the recent reversal of rising gasoline prices. While gasoline is a significant factor in the mileage rate, other fixed and variable costs, such as depreciation, enter the calculation.”

The IRS notes that the business mileage rate was 50.5 cents in the first half of 2008 and 58.5 cents in the second half.

Employers must generally reimburse employees for business-related travel expenses, including mileage. Often the IRS rate is adopted as the standard reimbursement rate, although this is by no means the exclusive method. Last year, for example, the California Supreme Court ruled that it is permissible in some circumstances to reimburse expenses by means of enhanced compensation. (Gattuso v. Harte-Hanks Shopper, Inc.)

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Friday, November 21, 2008

Have You Prepared Your Termination Checklist?

Once a termination decision has been made, your follow through should not be haphazard. Get organized before informing the employee. Below is a list of 24 issues to get you started:

1. Have handbook and all written procedures been followed?
2. Is there a written employment agreement? Collective bargaining agreement?
3. Are any wages due?
4. Has the employee accrued unused vacation or paid time off benefits?
5. Has the employee incurred unreimbursed expenses?
6. Are there any needed deductions from the final paycheck?
7. Is the final paycheck ready to be delivered at the time of termination?
8. Are there any advances, loans, or negative vacation bank?
9. How will the termination affect stock options?
10. Is the employee entitled to a “golden parachute” or other termination payout?
11. Are there COBRA rights?
12. Is the employee an officer or director (and what steps must be taken to remove them)?
13. Are there concerns for any discrimination, whistleblower or disability claims? (Consult with your labor/employment attorney).
14. Has the employee reported all industrial injuries (workers’ compensation)?
15. Should you offer a severance package?
16. Should you seek a release agreement?
17. Will the company offer outplacement?
18. Will the company provide reference letters?
19. What company property must the employee return?
20. Has IT staff made arrangements to block access to the company system?
21. Has the employee complied with your trade secret/proprietary information agreement?
22. Is “damage control” with customers necessary?
23. Any security issues?
24. When, where, how and with whom will you notify the employee?
These are just the basics. Review your company policies and procedures and tailor the list to suit your particular needs.

Please feel free to share your questions or comments.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Friday, November 14, 2008

The Likely Rise Of Unionization In The New Political Environment

The idea of revamping the National Labor Relations Act in favor of unions has been floating around for some time now, but legislation has stalled. No more. At the dawn of a new political regime, employers are bracing for monumental change.

Political analysts believe that Congress is likely to pass legislation titled the Employee Free Choice Act (“EFCA”) sometime in 2009, perhaps as early as the first 100 days of the new administration. The President-elect co-sponsored the legislation, and it is reasonable to expect him to sign it into law.

For those of you who have not been following the legislation, it is time to get up to speed. Generally, the EFCA would change labor law in three ways:

First, if enacted the law would require the National Labor Relations Board to certify a union after union organizers have gathered signed union cards from a simple majority of company workers. Currently, the certification process typically involves secret ballots where workers can vote without the union or employer eyeing their decision.

Second, after the card check certification, the EFCA would give the union and company 120 days to negotiate a new contract. If no agreement is reached, the union and company would be required to enter binding arbitration, where a government arbitrator would set the terms of the contract. Currently, if the union and company cannot agree to terms, the union may call a strike, and the employer may implement its last best offer or lock out workers, until eventually a compromise is reached.

Third, the EFCA would significantly increase penalties for unfair labor practices committed by employers during an organizing drive. Fines would rise to $20,000 per violation, and affected employees would be entitled to treble their back pay if terminated for participating in an organizing campaign.

The U.S. Chamber of Commerce has issued numerous statements in opposition to the legislation. “[U]nions are now emphasizing the card check process in their organizing drives, not because they do not win secret ballot election—they win over 50—but because it eliminates any chances of losing. As an open-ended process, they can keep their campaign going as long as necessary rather than resolve the issue on a specific date as with an election. Not only are employees often targeted for intimidation, but the card check process also often leads to other coercive tactics, known as “corporate campaigns.” These campaigns are designed to pressure employers through demonstrations, false and misleading stories in news media, and other public expressions to recognize unions as the exclusive bargaining representative of their employees without having to go through an election. These tactics are how organized labor’s leadership intends to restore its declining membership base in the private sector.”

The Chamber adds: “In addition to its card check provisions, EFCA also contains a provision to impose mandatory interest arbitration of first contracts. Interest arbitration would set all the terms of the initial contract between an employer and a union, including wages and benefits, but also other provisions typically in collective bargaining agreements, such as outsourcing and union security clauses. While sometimes used in the public sector, binding interest arbitration is completely unprecedented in the private sector. The idea of government arbitrators determining contract terms and what business decisions must be taken to meet those commitments is simply beyond the pale.”
“Finally,” observes the Chamber, “EFCA includes provisions to increase penalties on employers for certain violations of the NLRA. The fact that these provisions apply only to employer violations and not to union violations illustrates the bias inherent in EFCA. Union coercion is no less contemptible than employer coercion.”

The US Chamber’s comments can be found here.

Organized labor, of course, has a completely different view. According to the AFL-CIO “Today, CEOs get contracts that protect their wages and benefits. But some deny their employees the same opportunity. Although U.S. and international laws are supposed to protect workers’ freedom to belong to unions, employers routinely harass, intimidate, coerce and even fire workers struggling to gain a union so they can bargain for better lives. And U.S. labor law is powerless to stop them. Employees are on an uneven playing field from the first moment they begin exploring whether they want to form a union, and the will of the majority often is crushed by brutal management tactics.”

“The current system is not like any democratic election held anywhere else in our society. Employers have turned the NLRB election process into management-controlled election process—the employer has all the power, controls the information workers can receive and routinely poisons the process by intimidating, harassing, coercing and even firing people who try to organize unions. On top of that, the law’s penalties are so insignificant that many companies treat them as just another cost of doing business. By the time employees vote in an NLRB election, if they can get to that point, a free and fair choice isn’t an option. Even in the voting location, workers do not have a free choice after being browbeaten by supervisors.”

The AFL-CIO’s comments can be found here and here.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Monday, November 03, 2008

California Employee Time Off For Voting

In the nick of time for Election Day, below is a FAQ relating to the right of California employees to take time off for voting.

Q: Which employers are covered by this law?

A: All California employers.

Q: When is the leave available?

A: Employees are eligible for paid time off for the purpose of voting in any statewide election only if they do not have sufficient time outside of working hours to vote. The intent of the law is to provide an opportunity to vote to workers who would not be able to do so because of their jobs. The polls are open from 7am to 8pm. Most employees work shifts that would permit them to vote either before or after work, without taking any time off.

Q: How much time off must be given?

A: An employee is entitled to take off enough working time on the day of the election so that, when added to the voting time available outside of working hours, the employee will be able to vote.

Q: Is the leave paid?

A: Yes, but only a maximum of two hours is paid.

Q: Must the employee give advance notice?

A: Yes, usually. If an employee on the third working day prior to election day knows that he or she will need time off to vote on election day, the employee must give the employer at least two working days’ notice of the need for time off.

Q: Can employees take time off to vote in the middle of a shift?

A: No. Employers may require time off to be taken only at the beginning or end of the employee’s shift

Q: Must the employer post notice of the voting leave rights?

A: Yes. At least 10 days before any statewide election, every employer must conspicuously post a notice at the workplace (or, if impracticable, elsewhere where employees can see it as they come or go to the work site), setting forth the provisions of Election Code § 14000. Most employers simply leave the notice posted all year round. Some “all-in-one” posters include the proper notice among the multitude of other required postings.

Q: Where can I get the required posting?

A: The Secretary of State offers the official posting. Click here for the poster.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC