January 30, 2002

OSHA Has Jurisdiction Over "Uninspected Vessels"

Holland & Knight Alert
Howard Sokol


Supreme Court Allows Employees to Ignore Arbitration Agreements

The Supreme Court has ruled that an employee who signed an arbitration agreement can nonetheless file a charge at the EEOC and have the discrimination claim addressed in that forum. In this case the employee ignored his arbitration agreement completely and went straight to the EEOC. The Court ruled that the EEOC was not bound by the private arbitration agreement to which it was not a party. Although the Court allowed the EEOC to prosecute the charge and ignore the agreement, it does suggest that, in a case where an employee did use an alternative procedure, the EEOC might be restricted in the remedies that it can impose if the individual has already obtained some relief. This decision, coupled with more than a decade of litigation over the use of arbitration agreements in employment disputes of statutory claims like discrimination since the Supreme Court sanctioned them, raises serious concerns about their continued use. 


OSHA Has Jurisdiction Over "Uninspected Vessels"

Howard Sokol

The Supreme Court has ruled that OSHA, and not the U.S. Coast Guard, has jurisdiction over safety regulation on "uninspected vessels," such as drilling barges, dredging boats and tugboats (as contrasted to freight, steam, passenger and more than 10 other categories of vessels). In the case, an explosion aboard a barge anchored in the territorial waters of Louisiana killed four crew members and injured several others. When OSHA cited the employer for three violations, including failure to promptly evacuate employees and failure to train employees in emergency response, the employer contested that the Coast Guard had exclusive jurisdiction to regulate working conditions on its rig and that, in any event, the barge did not constitute a "workplace" within the meaning of the OSH Act. Although the Coast Guard had conducted an investigation and found no violations of any Coast Guard regulations, the Supreme Court ruled that the Coast Guard had not exercised its authority to regulate working conditions on "uninspected vessels" and, therefore, OSHA is not preempted from exercising its authority with respect to such vessels. 


RICO Available Against Competitive Bidder Hiring Illegal Aliens

The Second Circuit (NY, VT, CT) refused to dismiss the claim of an employer who sued a competitive bidder for damages resulting from lost jobs on the grounds that the competitive bidder hired illegal aliens in violation of the Immigration and Naturalization Act and was, thereby, able to hire employees below market rates and then underbid its competition for the work. If victorious, treble damages are available. 


Supreme Court Hears Argument in ADA Case Involving Seniority System

The Supreme Court soon will resolve the split among courts over whether an employer must make an exception to its seniority-based job bidding system to provide reasonable accommodation under the ADA. In the case before it, a disabled employee who is in a job he is capable of performing asked his employer to ignore its seniority system to protect him from being displaced by a more senior employee who wants to exercise his bumping rights. The employer refused to deviate from its self-imposed, as contrasted to collectively bargained, seniority system. In this case, the Supreme Court will have the opportunity to give guidance to lower courts on the related troublesome question of whether a disabled employee seeking reassignment may get preference over non-disabled employees.


Supreme Court Hears Argument on FMLA Notice Regulations

The Supreme Court will soon resolve a conflict over whether the FMLA’s 12-week leave entitlement can be extended by the Department of Labor’s regulation that provides that an employee has not used any FMLA leave unless the employer specifically tells the employee that the leave is being charged against the employee’s FMLA entitlement. In the case at issue, an employee who received seven months of medical leave sought an additional twelve weeks under the FMLA because the employer failed to inform the employee that the earlier leave counted toward the employee’s annual FMLA allotment. The safe course in the meantime is to advise employees taking any leave that is covered by the FMLA that the leave they are taking is counting toward their annual FMLA entitlement. 


Professional Treated as Nonexempt Because Not Paid Salary

Qualification for exempt status as a professional, executive, or administrative employee requires both meeting the statutory definitions and being paid a salary regardless of the number of hours worked. A Sixth Circuit (OH, MI, KY, TN) decision cautions employers to pay attention to both aspects of the test. A home health care nurse who was paid for each visit she made ("fee basis") and for the hours she worked was held non-exempt and entitled to overtime because she received extra pay for extra work, rather than being paid solely on a salary or "fee" basis despite the fact that the nurse probably qualified as a "professional" employee. In addition, the court ruled that the employee was entitled to liquidated damages because the employer's treatment of the nurse as exempt was a willful violation of the FLSA. 


DOL Issues Final Rule Implementing SPD Filing Changes

The Taxpayer Relief Act of 1997 amended ERISA to eliminate the requirement that plan administrators of tax-qualified retirement plans and welfare benefit plans subject to ERISA automatically submit copies of summary plan descriptions (SPDs) and summary of material modifications (SMMs) to the Department of Labor (DOL), making them required only upon DOL request. The DOL’s final rule implementing this amendment allows the DOL to make a written request for copies of any documents a plan participant or beneficiary is normally entitled to receive upon request. The types of documents that may be requested include the SPD, the SMM, any summaries of changes not reflected in the SPD or SMM, the plan and trust documents, the collective bargaining agreement, administrative agreements and other documents which establish the plan and/or its related trust. 


Politician Permitted to Campaign for Union in NLRB Election

Fred Braid

The NLRB refused to set aside a union victory in a representation election that was challenged by the employer on the grounds that a local congressman had interfered in the election by campaigning for the union. The congressman wrote a letter to the employees a few days before the election criticizing the employer’s campaign tactics, and he also participated in a televised union rally. Of the nearly 800 votes cast, the union won by only 22. Although a change in only 11 votes would have defeated the union, the NLRB rejected the employer’s argument, among others, that the congressman’s activity on behalf of the union might have given the appearance of government sanction to the union organizing effort among non-English speaking employees unfamiliar with the Government’s structure and role in union representation elections. 

NLRA Does Not Preempt State Invasion of Privacy Case

The Supreme Court declined to review a Ninth Circuit (CA, NV, OR, WA, MT, ID, HI, AK) decision allowing employees to proceed with state tort claims for invasion of privacy and intentional infliction of emotional distress arising out of hidden video and audio surveillance of restrooms at a trucking terminal. The employer’s objective was to catch drivers using drugs, and it argued that a collective bargaining agreement provision giving it the right to conduct video surveillance and another provision prohibiting drug use had to be considered in determining whether there was a reasonable expectation of privacy. In denying the employer’s argument that the tort claims were preempted by federal labor law because of the collective bargaining agreement provisions permitting video surveillance, the Court held that preemption is only available where it is necessary to interpret the collective bargaining agreement in order to determine the state law claim. Here it found that the employees’ claims, based upon a state statute prohibiting surveillance in restrooms, was not dependent upon an interpretation of the collective bargaining agreement provision.

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