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PW: bnaweb22 ----- Forwarded by Sylvia Hu/Corp/Enron on 11/27/2000 08:29 AM ----- "BNA Highlights" <bhighlig@bna.com< 11/26/2000 11:11 PM To: "BNA Highlights" <bhighlig@bna.com< cc: Subject: Nov. 27 -- BNA, Inc. Daily Labor Report ______________________________ DAILY LABOR REPORT Highlights & Table of Contents November 27, 2000 ______________________________ ISSN 1522-5968 Registered Web subscribers can access the full text of these articles by using the URL link supplied. Information about becoming a subscriber or signing up for a FREE Web trial is available at http://web.bna.com or call BNA Customer Relations at 1-800-372-1033, Mon. - Fri. 8:30 am - 7:00 pm (ET). __________ HIGHLIGHTS __________ D.C. CIRCUIT RULES AIRLINE ILLEGALLY OUSTED ALPA WORKERS FROM PROFIT-SHARING Cargo airline Atlas Air Inc. violated the Railway Labor Act by excluding pilots and flight engineers from participation in a profit-sharing plan "for the sole reason" that they voted for union representation, the District of Columbia Circuit rules ("Atlas Air Inc. v. Air Line Pilots Ass'n, "D.C. Cir., No. 99-7223, 11/21/00). Reversing a district court's grant of summary judgment to Atlas Air, the appeals court acknowledges that employers covered by the act may change working conditions when no bargaining contract exists between the parties. However, Judge Sentelle decides "where the challenged modification to the status quo is far from merely formal, and is in fact the equivalent of a substantial decrease in compensation having a real and material impact on the conditions of employment, and is justified on no other grounds than union certification, we may presume that the carrier's actions were motivated by anti-union animus and are in violation of RLA Section 2, Third and Fourth." Atlas Air sued for a declaratory judgment that its exclusion of some 550 newly unionized pilots and flight engineers from the profit-sharing plan was legal and that it could make more changes in employment conditions before collective bargaining began. The Air Line Pilots Association counterclaimed, alleging the airline interfered with workers' right to organize. . . . Page AA-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8k2j4_ PROBE OF HARASSMENT CHARGE AGAINST UNION ADVOCATES BARRED BY NLRB A North Carolina diesel engine firm violated the rights of two employees by investigating and then documenting a harassment complaint waged against them for distributing a union organizing newsletter, the National Labor Relations Board rules in a 2-1 decision ("Consolidated Diesel Co.,"332 N.L.R.B. No. 94, 10/31/00 [released Nov. 7]). Although neither of the two employees was disciplined, the board says that the process still had the potential of interfering with their rights to engage in protected activity under Section 7 of the National Labor Relations Act. "Clearly [Consolidated Diesel Co.'s] requiring employees who engage in protected concerted activity to submit to a process with the potential for interrogation about protected activity, discipline, discharge, and permanent documentation, simply because some person at one time claimed to be harassed by that activity, has a reasonable tendency to restrain the exercise of Section 7 rights," Chairman Truesdale and Member Fox write. Dissenting Member Hurtgen finds no violation and "nothing coercive" in the actions. . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r6y9d0_ VIGILANCE REQUIRED TO CLASSIFY COMPUTER PROFESSIONALS' WORK UNDER FLSA With computer professionals becoming more integral to the work of high-tech, and even not-so-high-tech, companies, it has become more important for employers to understand and apply correctly the Section 13 (a) exemption under the Fair Labor Standards Act overtime law for computer professionals, according to attorneys interviewed by BNA. Employers seeking to apply the overtime exemption must be certain that the work performed by the "computer professional" at issue falls within the parameters of the statute. In addition to considering the statute, employers determining whether employees are overtime-exempt must "walk through" the implementing regulations issued by the Department of Labor in 1992 and "make sure" that their computer workers fall within the guidelines, according to management attorneys. . . . Page C-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r5h2n1_ FLSA APPLIES TO HOME FOR MENTALLY RETARDED A nonprofit organization that provides community living residences for mentally retarded adults must comply with the Fair Labor Standards Act when it calculates overtime payment rates for its employees, the Third Circuit affirms ("Madison v. Resources for Human Dev., "3d Cir., No. 99-1821, 11/15/00). Staff members of Resources for Human Development Inc. cannot be considered FLSA-exempt "domestic service employees" because RHD residences are not private homes, the court decides. Clients do not have full control over access to their residences and do not have "unfettered freedom in their day-to-day conduct." However, the appeals court remands the case to a lower court to decided whether cash payments from RHD's cafeteria benefits plan should be taken into account when calculating employees' overtime payments. The district court improperly relied on an informal interpretive guidance when it granted summary judgment to the plaintiffs, the court finds. . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8g1c6_ NUMBER OF EMPLOYER-PAID HOLIDAYS ABOUT THE SAME AS LAST YEAR'S Employees can look forward to about as much paid time off this Christmas and New Year's season as last, according to BNA's latest annual survey of year-end holiday plans. Almost half of the responding employers (49 percent) will grant three or more paid days off for the holiday season this year, little changed from 50 percent in 1999-2000, when the national holidays fell on Saturdays, and slightly more than the 47 percent of employers in 1995-96, when Christmas and New Year's last landed on Mondays. Employers' holiday scheduling continues to be slightly more conservative than a decade ago, when, in 1989-90, a year when the national holidays also fell on Monday, six out of 10 firms gave workers at least three paid days. . . . Page B-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r5t4n8_ STUDY SHOWS 15 PERCENT OF JOB SEEKERS USE INTERNET A new study of Internet use by job seekers shows that in 1998 about 15 percent of all unemployed people actively looking for new jobs turned to various World Wide Web sites in conducting their search. About 7 percent of employed persons had used the Internet to look for a new job in 1998, a higher proportion than shown in earlier studies of traditional job-search methods, according to economists Peter Kuhn and Mikal Skuterud in an article published by the Bureau of Labor Statistics. The economists find little impact so far of increasing use of the Internet on public employment agencies.. . . Page A-3 , Text-E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7z1r9_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8j6g7_ ________________ ALSO IN THE NEWS ________________ SEXUAL ORIENTATION: An employee who was born a genetic male and reassigned as a female established a prima facie case of sexual orientation discrimination under the Minnesota Human Rights Act by showing that her employer denied her the use of the women's restroom, a state appeals court rules. . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8f5g9_ INTERNATIONAL LABOR: Legislation to overhaul Ontario's employment standards would extend parental leave benefits to 50 weeks and provide greater flexibility in scheduling working hours and vacation time.. . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8d3y1_ PENSIONS: DOL is reserving for further consideration the question of extending its recently adopted claims procedure reforms for group health plans to pension plans and welfare plans. . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7e2w1_ PUBLIC EMPLOYEES: Some 9,300 Oregon state managerial and professional employees received claims forms the week before Thanksgiving because of a successful class action lawsuit on overtime pay. . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7u4h1_ ____ TEXT ____ EMPLOYMENT: Article on job search methods reprinted from October 2000 issue of BLS's" Monthly Labor Review". . . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8j6g7_ _________________ TABLE OF CONTENTS _________________ LEADING THE NEWS RAILWAY LABOR ACT D.C. Circuit rules cargo airline Atlas Air Inc. violated Railway Labor Act by excluding pilots and flight engineers from participation in profit-sharing plan because they voted for union representation . . . Page AA-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8k2j4_ ____ NEWS ____ DISABILITIES California appellate court rules county sheriff's department is not liable for refusing to hire deputy sheriff applicant disqualified by color-blindness . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r5r9h8_ EMPLOYMENT New study shows that in 1998 about 15 percent of all unemployed people actively looking for new jobs turned to various World Wide Web sites as part of their search . . . Page A-3, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7z1r9_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8j6g7_ FLSA Third Circuit rules nonprofit organization providing community living residences for mentally retarded adults must comply with FLSA in calculating overtime payment rates . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8g1c6_ INTERNATIONAL LABOR Legislation to overhaul Ontario's employment standards would extend parental leave benefits for province's workers to 50 weeks, provide workers and employers with greater flexibility in scheduling working hours and vacation time . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8d3y1_ LABOR LAW NLRB rules North Carolina diesel engine firm violated rights of two employees by investigating and then documenting harassment complaint waged against them for distributing union organizing newsletter . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r6y9d0_ PENSIONS Labor Department reserves for further consideration the question of extending recently adopted claims procedure reforms for group health plans to pension plans and welfare plans . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7e2w1_ PUBLIC EMPLOYEES Some 9,300 Oregon state managerial and professional employees receive forms to file claims for overtime pay . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7u4h1_ SAFETY & HEALTH Appeals court in Louisiana rules widow of oil rig worker killed on the job failed to establish company was aware of dangerous condition and intentionally failed to remedy it . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7n3v7_ OSHA reports number of construction deaths in Florida rose to 59 in fiscal year ended Sept. 30, compared with 54 construction fatalities in FY 1999 . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8b4z4_ SEXUAL ORIENTATION Minnesota appeals court rules employer's refusal to allow use of women's restroom by employee born a genetic male and reassigned as a female is prima facie evidence of sexual orientation discrimination under state Human Rights Act . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8f5g9_ TRADE SECRETS Intel Corp. and Broadcom Corp. announce settlement of all claims and counterclaims in litigation between high-speed networking competitors . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7e7b1_ ______ TRENDS ______ EMPLOYEE BENEFITS BNA's annual survey of year-end holiday plans finds employees can look forward to about as much paid time off this Christmas and New Year's season as last . . . Page B-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r5t4n8_ __________________________ ANALYSIS & PERSPECTIVE __________________________ FLSA As computer professionals become more integral in the workplace, employers' must understand and apply correctly exemption under federal overtime law . . . Page C-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r5h2n1_ ____ TEXT ____ EMPLOYMENT Reprint of article on job search methods as published in the October 2000 issue of BLS's "Monthly Labor Review" . . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8j6g7_ ______________ TABLE OF CASES ______________ Atlas Air Inc. v. Air Line Pilots Ass'n (D.C. Cir.) . . . Page AA-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8k2j4_ Beard v. Grey Wolf Drilling Co. (La. Ct. App.) . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7n3v7_ Consolidated Diesel Co. (N.L.R.B.) . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r6y9d0_ Diffey v. Riverside County Sheriff's Dep't (Cal. Ct. App.) . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r5r9h8_ Goins v. West Group (Minn. Ct. App.) . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8f5g9_ Intel Corp. v. Broadcom Corp. (Cal. Super. Ct.) . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7e7b1_ Madison v. Resources for Human Dev. (3d Cir.) . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r8g1c6_ Young v. State of Or. (Or. Cir. Ct.) . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a3r7u4h1_ __________ Daily Labor Report (ISSN 1522-5968) Highlights are published daily by The Bureau of National Affairs, Inc., 1231 25th St., NW, Washington, DC 20037. For account information and changes, contact 1-800-372-1033 (M-F, 8:30 am-7:00 pm ET) To request retransmission or to order a copy of the summarized article, contact 1-800-452-7773 or e-mail bnaplus@bna.com. For copyright guidelines, go to http://www.bna.com/corp/copyright. Copyright © 2000 by The Bureau of National Affairs, Inc. Washington, D.C. 20037. Use of this service is subject to the terms and conditions of the license agreement with BNA. Unauthorized access or distribution is prohibited.
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