WHAT'S NEW
THE FIRM
ALFRED T. DeMARIA NAMED AS ONE
OF TOP ONE HUNDRED IN AMERICA
Firm partner Alfred
T. DeMaria has recently been named to the list of Top One
Hundred Labor Attorneys in the United States for 2009, as compiled
by Labor Relations Institute, Inc., a leading industry information
source. Inclusion on the list puts Mr. DeMaria in the
top one percent of labor attorneys in the U.S., making Mr. DeMaria
one of the most active attorneys representing companies in National
Labor Relations Board-monitored elections.
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CB&D CLIENT AGAIN SUCCEEDS
IN HAVING UNION WITHDRAW ELECTION PETITION
On July 12, New Jersey Teamsters Local
11 withdrew its petition for an election at a CB&D client
in the wholesale food distribution industry. Firm partner Alfred
T. DeMaria advised the client on avoiding unfair labor practices,
training supervisors to communicate the company’s position
on unions and the use of a hard hitting campaign composed of
videos, employer speeches, letters to the homes and numerous
flyers and other written communications.
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UNION OPTS AGAINST ELECTION AFTER
CAMPAIGN BY CB&D CLIENT
In April 2009, Teamsters Local 813
filed a petition to represent workers at a CB&D client involved
in the waste processing and handling industry. Firm partners
Thomas W. Budd and Scott
M. Wich advised the client on a swift and strong campaign
in response to the Union’s organizing efforts.
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CB&D CONVINCES DISTRICT COURT
THAT DISCRIMINATION SUIT MUST BE DISMISSED BECAUSE OF ENFORCEABLE
ARBITRATION PROVISION
Firm partner, Robert
A. Sparer, recently persuaded the United States District
Court for the Southern District of New York to
dismiss a discrimination suit filed against a New York City-based
residential management company in the case of Borrero
v. Ruppert Housing Co. Inc.
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CB&D SUCCESSFUL IN OVERTURNING
NLRB REINSTATEMENT ORDER
Firm partner, Thomas
W. Budd, successfully argued before the DC Circuit Court
of Appeals that the NLRB improperly decided that Northeast Beverage
Corp. unlawfully terminated five employees who had left work
to attend a meeting where the Company and the Union were discussing
the effects of the closing of the facility where they worked.
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YEAR-END REPORT TO FRIENDS OF
THE FIRM
The year is almost over, and what
a year 2008 has been –we saw the first steel erected for
the World Trade Center Memorial and the symbolic hope it lent
to New York City and nation; the 2008 Summer Olympics and the
amazing display of athleticism and sportsmanship Michael Phelps
and all our athletes displayed; and a presidential election
season that inspired large numbers of previously uninterested
voters to take part in our democratic process no matter their
political views.
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DANIEL W. MORRIS PROMOTED TO COUNSEL
AT CLIFTON BUDD & DeMARIA, LLP ON JANUARY 1, 2009
The Firm is very pleased to announce
that Daniel W. Morris
was promoted to the position of Counsel at the Firm on January
1, 2009.
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CB&D PREPARES MANAGEMENT FOR
THE EFCA AND UNION ORGANIZING IN 2009
Clifton Budd & DeMaria LLP recently
presented a Special Labor and Employment Breakfast Briefing
for its clients and friends of the Firm. The seminar, entitled
"Political & Economic Changes Set to Ignite Union Organizing:
Are You Ready?," was led by Firm partners Thomas
W. Budd and Scott M.
Wich and was attended by many of the Firm's long-standing
managerial, human resources and labor relations clients.
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More
on the EFCA
U.S. SUPREME COURT
SIDES WITH RESIDENTIAL MANAGEMENT COMPANY REPRESENTED BY CB&D
Firm partner Robert A.
Sparer recently secured a long-awaited win for a major New
York City-based residential management company in the case of
Vargas v. 2727 Realty, LLC, with the U.S. Supreme Court
recently denying review of an employee’s suit against
his union and former employer seeking to vacate an arbitration
award.
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COURT
REJECTS EMPLOYEE'S ATTEMPT TO SET ASIDE ARBITRATION AWARD
Firm partner Robert A. Sparer
persuaded a federal district court judge to dismiss a former
employee's attempt to set aside an arbitration award. In Delgado
v. A. Korenegay Sr. Housing, a former employee's discharge
was upheld after the full union contract grievance process was
followed.
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THE LAW
THE IRS AND THE DEPARTMENT
OF LABOR ARE SET TO CRACK DOWN ON INDEPENDENT CONTRACTOR AGREEMENTS
As the government looks for a means to increase revenue
and speed up the economic recovery, employers who treat workers
as independent contractors face an increased risk that the classification
of these individuals will be contested..
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COBRA PREMIUM SUBSIDY
GIVEN BRIEF EXTENSION
Eligibility under the COBRA Premium Subsidy Law has been
extended for 31 days, through March 31, 2010. This brief extension
includes a new twist, providing that eligible individuals who
had a reduction of hours but did not elect COBRA coverage due
to that qualifying event, and who incurred an involuntary termination
of employment on or after March 2, 2010 may receive premium
assistance under certain conditions.
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UNIONS LOST MORE
THAN 750,000 MEMBERS IN 2009
The U.S. Department of Labor’s Bureau of Labor Statistics
reported last week that the upward trend in union membership
that began four years ago leveled off significantly in 2009.
The report found that unions lost 771,000 members in 2009.
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SUPREME COURT CAMPAIGN
FINANCE DECISION LIKELY TO RENEW INTEREST IN BECK RIGHTS
As being widely reported, yesterday’s U.S. Supreme
Court decision in Citizens United v. Federal Election Commission
will have a significant impact on political campaigns. At its
core, the decision found that corporations and unions cannot
be prohibited from using their funds on campaign ads that expressly
support or oppose candidates for federal office.
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COBRA SUBSIDY ELIGIBILITY
EXTENDED UNTIL FEBRUARY 28, 2010
On December 19, President Obama signed into law the extension
and expansion of the COBRA Premium Subsidy Law that was due
to expire December 31. Not only does the new law extend eligibility
for the subsidy to those who were terminated on or before February
28, 2010, it extends the subsidy period by six months to a total
of 15 months. The law also imposes new notice obligations on
employers.
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RECENT DEVELOPMENTS
IN NEW YORK WAGE AND HOUR LAW
New York employers should be aware of some significant
amendments to the New York Labor Law. Recently, Section 195(1)
of the New York Labor Law was amended as it relates to notice
and record-keeping requirements. Further, pursuant to amendments
effective November 24, 2009, the New York Labor Law has strengthened
remedies against employers who violate wage payment laws or
retaliate against employees who exercise their rights under
the Labor Law.
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EEOC ISSUES SUPPLEMENT
TO ITS REQUIRED EMPLOYER POSTING
The Equal Employment Opportunity Commission (“EEOC”)
recently issued a new supplement to its required worksite postings
for employers. For private employers, state and local governments,
educational institutions, employment agencies and labor organizations,
the supplement includes language reflecting recent changes to
the Americans with Disabilities Act and the Genetic Information
Nondiscrimination Act.
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RETAILERS BEWARE:
Circuit Court Holds That Store Managers and Assistant Managers
in Retailers May Be Entitled to Millions of Dollars in Overtime
Pay
Last year, the United States Court of Appeals for the
11th Circuit confirmed a jury verdict against Family Dollar
Stores, Inc. for more than $35,000,000 in damages. The plaintiffs
established that Family Dollar Stores did not properly categorize
its Store Managers as non-exempt employees and as a result violated
the Fair Labor Standards Act (“FLSA”).
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GENETIC ANTI-DISCRIMINATION
LAW TAKES EFFECT THIS FALL
Originally passed in May of 2008, Title II of the Genetic
Information Nondiscrimination Act (“GINA”) is set
to go into effect on November 21, 2009. This federal law expands
the prohibitions of Title VII, and generally prohibits employers
with fifteen or more employees from using genetic information
in decisions regarding the terms of employment.
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NEW YORK CITY COUNCIL
PROPOSES PAID SICK TIME ACT
Recently, the New York City Council introduced legislation
which would mandate that large employers (ten or more employees)
allow workers to earn at least nine paid sick days (72 hours)
per year. Similarly, small employers (less than ten employees)
must allow their employees to earn at least five sick (40 hours)
days per year.
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GOVERNOR PATTERSON
SIGNS RECENT HEALTH CARE REFORM BILLS
At the close of the recent New York legislative session,
Governor Paterson signed two health care bills that will impact
employers who provide health insurance in New York State.
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NEW YORK LABOR LAW AMENDED TO REQUIRE WRITTEN NOTICE TO EMPLOYEES
ON HOURLY AND OVERTIME RATES OF PAY
Governor Paterson recently signed into law an amendment
to New York’s Labor Law adding the requirement that employers
must provide written notice to employees of their regular pay
day, rate of pay and overtime rate of pay. This new law takes
effect on October 26, 2009.
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WAGE & HOUR ALERT: MINIMUM WAGE INCREASES
Effective July 24, 2009, the Federal Minimum Wage will
increase to $7.25 per hour. Also effective July 24, 2009, the
minimum wage in New York and New Jersey will increase to $7.25
per hour. The minimum wage in Connecticut remains $8.00 per
hour until January 1, 2010, when it is expected to be increased
to $8.25 per hour.
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BEFORE YOU HIT DEALBOOK,
CAPITALIZE ON LABOR OPPORTUNITIES
In good economic times and bad, opportunities always
exist to acquire other businesses. Among the legal issues arising
from such transactions are those relating to federal labor law
and, particularly, the bargaining obligation taken on by a purchaser
of a unionized company. Given the immediacy of other legal and
operational matters in such transactions, labor issues are oftentimes
not given due attention. However, effective negotiation and
proper management of labor issues can have a significant impact
on the value of the entity being acquired.
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NEW IMMIGRATION INITIATIVE
HITS EMPLOYERS
This past spring, the U.S. Department of Homeland Security
issued new guidelines to Immigration and Customs Enforcement
(ICE), changing ICE’s focus with respect to illegal immigration.
As opposed to solely raiding and arresting undocumented workers
at businesses, ICE is to expend more effort investigating employers
who hire illegal immigrants and hold these businesses accountable.
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NEW LEGISLATION ADDS
CIVIL PENALTIES TO THE NEW YORK HUMAN RIGHTS LAW
On July 6, 2009, the New York State Human Rights Law
(“NYSHRL”) was amended to include civil fines and
penalties for employers and individuals found to have committed
unlawful discriminatory acts.
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NEW YORK’S MANDATORY
OVERTIME LAW
On July 1, 2009, New York’s Mandatory Overtime Law
went into effect, amending New York Labor Law to prohibit covered
health care employers from mandating nurses to work beyond their
regular schedule in most circumstances.
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NEW ADMINISTRATION
UPDATE
With the election of President Obama and the expansion
of the Democratic majorities in both houses of Congress, there
is cause for celebration among labor groups. The new political
landscape will unquestionably provide significant changesin
the areas of labor and employment law.
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HARASSMENT LAW GREATLY
EXPANDED FOR NEW YORK CITY EMPLOYERS
In Williams v. NYCHA, a New York appeals courts
ruled that the most recent (2005) amendments to the New York
City human rights ordinance more broadly protects employees
than the state and federal laws and along the way criticized
other decisions that did not see the same distinctions. In Williams,
“severe and pervasive” is relegated to a damages issue
and liability can be established under the City law by a much
lower showing -- only “petty slights and trivial inconveniences”
are insufficient to establish a harassment claim under Williams.
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NEW JERSEY SUPREME
COURT RULES STRIKING NURSES ENTITLED TO UNEMPLOYMENT
The Supreme Court of the State of New Jersey recently
ruled that striking employees were entitled to unemployment
insurance benefits. In Lourdes Medical Center of Burlington
County v. Board of Review, the Court held that the nurses
of a non-profit hospital who went on strike were entitled to
receive unemployment benefits because their strike did not result
in a “stoppage of work” under New Jersey law.
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