Tag: Unions

Cleveland EMS crews win PTSD coverage, $3.7M in back pay

From Cleveland 19 News on July 13, 2020

CLEVELAND, Ohio (WOIO) – A fight for Post Traumatic Stress Disorder coverage years in the making has ended with a win for Cleveland paramedics, EMTs and dispatchers.

A union contract for Cleveland EMS just passed, under an agreement out of court that still needs to be ratified by city council.

The agreement includes about $3.7 million in back pay for employees and mental health language, addressing PTSD.

CARE has been negotiating their contract since March of 2016.

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Supreme Court Overturns 1977 Union Dues Ruling

Yesterday, the United States Supreme Court issued a ruling in a case that many municipal employers and labor unions have been anxiously awaiting because it may change the power of organized labor in this country.  The ruling in Janus v. American Federation of State, County, and Municipal Employees, (AFSCME), overturned a 1977 decision that required governmental employees who chose not to join the union to pay union dues.  The plaintiff in this case was a teacher who argued that the union takes political positions and contributes to political causes that are often contrary to his own personal beliefs and that requiring he financially support those causes violates his right to free speech under the Constitution.  The union argued that it is unfair for non-union employees benefit from the collective bargaining effort of dues paying union members and that this ruling will give those employees a “free ride”.  In the opinion, drafted by Justice Alito, said that the majority “conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”  This decision will likely impact the level of union membership in this country, which is currently at about 10.7% of the American workforce.

Can Public Sector Employees Be Forced to Pay Union Dues?

The United State Supreme Court heard oral arguments on February 26, 2018 in a case that could dramatically change the face of unions and public employment in this country.  Janus v. American Federation of State, County, and Municipal Employees, Council 31 (AFSCME) puts at issue whether public sector employees can be forced to pay union dues as a condition of employment.  Proponents of mandatory union dues payments state that this prevents some employees from reaping the benefits of collective bargaining and union representation without paying their fair share.  Opponents feel that it is inherently unfair to require an employee to pay union dues if they do not agree with union representation or what the union stands for.  An article published today, Justices Appear Slit on Mandatory Union Fees, by the Society for Human Resources Management (SHRM) does a nice job covering the recent case law regarding mandatory union dues and an analysis of how the U.S. Supreme Court might rule on this case.  For those AAA members who are governmental entities, the outcome of this case could have a substantial impact on your agency and its people, employees and management.  We will continue to monitor the developments in this case and will keep members informed.  As always, the AAA is always monitoring the political and legal landscape to watch for issues that may impact our profession, industry, and our organizations.

EMS Employer Year-End Wrap-Up and Preview

2017 was a bit of a wild ride in the employment realm.  The Trump Administration worked to change the trajectory set during the eight years of the Obama Administration.  This past year, we saw the undoing or attempts to undo many of the Obama Administration initiatives, including the Fair Labor Standards Act (FLSA) updates, changes to the Persuader Rule, interpretations of Title VII as it relates to transgender protections.  Not to mention the repeated attempts to chip away at the Affordable Care Act (ACA). In addition, there were several new requirements for employers that went into effect in 2017 and a few upcoming in 2018.  Here is a quick review to ensure that your service is up-to-date and compliant.

The Fair Labor Standards Act Changes

These changes, which would have more than doubled the minimum salary levels for those “White Collar” exemptions, were set to go into effect back in 2016.  A Federal Court in Texas enjoined and put on hold these changes until the question of whether the Department of Labor (DOL) had the authority to unilaterally change the Regulations.  In July, 2016, the DOL published an Request For Information (RFI) with responses due in late September, requesting input from stakeholders about what changes to the FLSA might be appropriate.  We are still awaiting the final action.

The Persuader Rule

In 2016, the DOL Office of Labor-Management Standards (OLMS) released its revised interpretation of the rule that seeks to level the playing field between unions and employers.  The new interpretation of the Persuader Rule, which would have taken effect on April 25, 2016, would have required that employers who hire consultants or labor attorneys to counsel them during union organizing campaigns to report if they will undertake “persuader” activities and the cost of those services.  This rule was an attempt to increase transparency for unions with regard to these services. The U.S. District Court for the Northern District of Texas blocked the persuader rule late last year stating it was overly broad, arbitrary and capricious. The DOL published a notice of public rule making in June, 2017 of its intent to rescind the new rule.

Dismantling of the ACA

In a surprising announcement this past October, the Trump Administration, the DOL, the Department of Health and Human Services (HHS) released an interim rule that rolled back the Obama Administration position regarding the requirement of employer sponsored health plans to pay for “preventative services” which included birth control and abortion procedures under religious or moral objections. This would permit employers who object on these grounds to limit or not offer these coverages under their employer sponsored health plan.  There are several lawsuits pending regarding this move, more to come in 2018.

In another October announcement, the Trump Administration stated that the President had signed an Executive Order that directed the Secretary of Labor to consider expanding access to Association Health Plans (AHP) would give employers the right to form groups in multiple states for the purposes of negotiating health care benefits.  This change would require a amenedment to the current interpretation of Employee Retirement Security Act (ERISA). In addition, the Executive Order directed the Departments of the Treasury, Labor, and Health and Human Services to consider changing several ACA restrictions, including low-cost short term limited duration insurance (STDLI) and Health Reimbursement Accounts (HRAs).  The impact of this Executive Order may be an impact to the ACA insurance markets because it may attract the younger and healthier away from current plan groups causing those coverage costs to increase substantially.

Title VII Transgender Protections

In October, Attorney General Jeff Sessions published memo to Federal prosecutors stating that Title VII’s discrimination protections did not include protections on the basis of gender identity or for transgender individuals.  In the memo, Sessions states that this was a conclusion of law, not of policy and that it would be inappropriate for the DOJ to expand the law beyond what Congress provided.  Sessions said that the law provides protections for men and women but not specifically on the basis of gender identity. This goes against current interpretation and is not shared by the Equal Employment Opportunity Commission (EEOC) who enforces Title VII.  Employers need to ensure that they provide a workplace that is inclusive and respectful to all employees.

EEO-1 Pay Reporting

In February 2016, the EEOC published notice that would add pay information to the EEO-1 reporting form in an effort to further identify disparities in pay between different protected groups.  This new reporting requirement was set to go into effect on September 30, 2017. The deadline was pushed back until March 31, 2018.  Under the new pay reporting requirements, employers with 100 or more employees would report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within the 12 proposed pay bands.  In August, the Office of Management and Budget (OMB) announced plans to stay the effective date of the pay-data collection provisions in order to review the appropriateness of the revisions under the Paperwork Reduction Act (PRA).  In the meantime, employers should still observe the March 1, 2018 deadline and prepare the information on the new EEO-1 Form while we await a decision on if this requirement will go into effect.

OSHA Electronic Injury Reporting

OSHA announced in July that it will be launching the new electronic Injury Tracking Application (ITA) on August 1, 2017.  The new rules are an effort to “nudge” employers to improve safety in the workplace by publishing employee injury data, as reported by employers.  OSHA pushed back the electronic reporting deadline until December 15, 2017.  Many ambulance services already report this information electronically to the Bureau of Labor Statistics (BLS), who collects data on behalf of the Department of Labor but the employer specific information is not released publicly.  Under these new rules, employer injury data will be published.

The electronic reporting requirements are based on the size of employer.  For the purposes of determining employer size, employers must count each individual employed at any time during the calendar year as one employee.  This includes full-time, part-time, seasonal, and temporary workers.  All employers with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301.  Employers with 20-249 employees must electronically submit information from OSHA Form 300A only.

If you have not already submitted your data, you need to do so immediately.

New Form I9

Starting this past January 22, 2017, employers were required to begin using the new Form I9.  The old Form I9 expired on August 31, 2017.  The new form can be found on the US Citizenship and Immigration Services (USCIS) website.  To be certain that you are utilizing the correct form, ensure the expiration date of August 31, 2019 is in the top right hand corner of the form. Last year, several ambulance services were audited by the USCIS and fined for technical form violations.  The easiest way to ensure that you are using the correct form and filling it out correctly is to utilize the comprehensive online training resources available on the USCIS website.

Summary of State Law Changes

Ban the Box

Currently 29 states and over 150 local municipalities have enacted criminal background inquiry limitations in an effort to give individuals with criminal histories a fair chance to become employed.  Several of the states that had already enacted these laws have passed additional provisions in 2017 and 2018 that expand the application to smaller employers.

Most of the laws regarding the “ban the box” movement require the removal of criminal history inquiries on the job application.  Others require that no criminal history inquiries can be made until after a conditional job offer is made to the candidate.  If you have not done so already, please remove any criminal history questions from your pre-offer process.  For those ambulance providers that are in states that specifically permit EMS agencies from inquiring prior to a job offer, I strongly recommend that any criminal history inquiries occur after a conditional job offer is made.  State laws permissions do not prevent an employer from being liable for disparate impact discrimination.

Paid Sick Time

Multiple states (AZ, CA, CT, MA, OR, VT, DC) and municipalities already have or have enacted paid sick time laws or ordinances prior to this year.  Joining them in 2017 are Federal Contractors and the states of Arizona, Vermont, and Washington.  Each of these laws share similar provisions.  Employees earn an hour of paid sick leave after having worked a certain number of hours.  Most provide for a 90 day period of employment before an employee can utilize the accrued sick time. For the purposes of calculating working hours, the hours are counted across weeks.  Most of the laws provide for some carry-over of unused time from year to year.

Several other states have enacted or will be expanding existing paid sick time provisions which will take effect in 2018. (CA, RI, WA, VT).  The state of Oregon passed an amendment to the paid sick time law that was enacted in 2016 that permits employers to limit the accrual of sick time to 40 hours per year. In addition, the amendment permit employers to not count certain individuals in the employee count for the purposes of the application of this law.

Parental Leave

California has enacted the New Parent Leave Act which takes effect on January 1, 2018.  The Act requires employers with 20 to 49 workers to offer 12 weeks of job-protected leave to mothers and fathers for the purposes of bonding with newborn or newly adopted children, or foster care placement. The employer also must maintain the employees’ health insurance and reinstate them at the end of their leave period. The law includes a strong anti-retaliation provision for employees who take leave under this law.

Paid Family Medical Leave

Currently three states (CA, NJ, RI) provide for some form of paid Family & Medical Leave.  Starting on January 1, 2018 private employers in New York must provide their employees who regularly work at least 20 hours a week the eligibility to collect paid-family-leave benefits after 26 weeks of employment, and employees who work fewer than 20 hours a week will be eligible after 175 work days. The leave can be used to after the birth, adoption, or placement of a foster child for up to one year.  Additionally, the leave can be used to care for the serious illness of a family member or a qualifying reason an employees’ spouse, domestic partner, child, or parent being on active military duty.

The Act will be phased in over the next few years.  Providing 8 weeks of leave in 2018 paid at 50% os the state’s average weekly was (SAWW).  In 2019, the leave time extends to 10 weeks at 55% of SAWW, 2020 maintains 10 weeks of leave paid at 60% of SAWW, to full implementation in 2021 when an employee can take up to 12 weeks of leave paid at 67% SAWW.

The State of Washington has passed a paid FMLA law that will start collecting premiums from employers in 2019 for enactment in 2020.  Washington DC also enacted paid FMLA that will begin in 2020 as well.

California

Starting in 2018, the State of California will require that employers with 50 or more employees include additional training information fo its employees on gender identity, gender expression and sexual orientation. The training must include practical examples of harassment. The new law also requires employers to post a poster, developed by the California Department of Fair Employment and Housing, on transgender rights.  In addition, the currently mandated two hour supervisor training must also include this new information and provide for annual updates to training programs.

That’s a Wrap

For many employers 2017 proved to be an unusual and challenging year. Aside from the changes details above, it is uncertain what lies on the horizon for EMS employers in 2018. As always, the American Ambulance Association will keep you posted on the important employment and human resources developments that may impact you.

Overtime for PTO Bill Passes the House

Yesterday a bill that would possible amend the overtime provisions of the Fair Labor Standards Act passed the House. H.R. 1180, titled the Working Families Flexibility Act of 2017 was introduced by Alabama Representative Martha Roby this past February.

The proposed change would permit private employers who currently pay employees overtime for hours worked over 40 during a given week to substitute that overtime pay for compensatory paid time off in the amount of 1.5 hours for each hour of overtime worked. In order to do so, the employee would have to agree in writing with the substitution of PTO for overtime pay prior to working the overtime hours. The agreement must provide that the employee knowingly and voluntarily agrees to the substitution of PTO for overtime pay. In the case of unionized companies, the substitution can only be made if provided under the collective bargaining agreement.
To be eligible to substitute PTO for overtime pay, the employee must have worked for the employer for at least 1000 hours during the preceding uninterrupted 12 month period before the agreement is made or the receipt of the compensatory PTO. The Bill provides for limitations to the number of hours that can be accrued and the length of time it can be carried.

An employee may accrue not more than 160 hours of compensatory time. Any unused compensatory time accrued under this provision by the end of a calendar year would have to be paid to the employee no later than January 31st of the following year. An employer may designate and communicate to the employees a 12-month period other than the calendar year. However, any unused compensatory time must be paid not later than 31 days after the end of such 12-month period.

When employers are paying the unused compensatory PTO, the pay shall be paid at a rate of not less than the regular rate earned by such employee when the compensatory time was accrued or the regular rate earned by such employee at the time such employee received payment of such compensation, whichever is higher. This could mean that the employee is receiving pay at a rate higher than it would have been had the employer simply paid the overtime at the time it was incurred.

The Bill provides for some flexibility with when it pays the compensatory PTO. An employer may pay monetary compensation to the employee for accrued hours in excess of 80 hours provided it gives the employee 30 day notice. In this case, the wages would need to be paid consistent with the manner described above. However, if an employee voluntarily or involuntarily terminates employment, the employer must pay all accrued compensatory PTO to the employee.

Under the Bill, an employer who has adopted the policy of paying compensatory time instead of paying overtime wages may discontinue the practice upon 30 days written notice to the employees. Conversely, an employee may rescind their agreement to be paid compensatory PTO at any time. In such instances, the employer must pay all unused PTO accrued under the agreement within 30 days.

The Bill language contains significant provisions to protect the employee from employer threats or coercion to agree or not agree to the adoptions of compensatory PTO or to the use or failure to use such compensatory time. The Bill requires that the employee enter the agreement voluntarily and that they can essentially use the compensatory PTO or the corresponding pay in any manner that they choose. If passed, the Department of Labor will have to issue regulations that more specifically guide this practice.

While this Bill still may not get the votes it needs in the Senate (S. 801), employers should consider how adopting such a policy may impact their organizations. From a cash flow perspective, this could provide some flexibility during the year. However, the monies must be paid to the employee at the end of the 12 month period. Often employers who already have a practice of paying out unused PTO or vacation time at the end of a year struggle with the significant expense coming due. This is particularly difficult if it occurs at the end or beginning of the calendar year as there are usually additional expenses during the holidays and reductions in cash receipts during January and February for many ambulance providers.

For employees, this Bill could be a mechanism for accruing time in excess of any existing vacation, sick, or paid time of benefits that could be used for unexpected absences or for significant illnesses. Often, our employee are not financially prepared for the wages lost when they are sick or injured and do not have enough sick time to cover the absences. However, many have come to rely on the weekly payment of regularly worked overtime to cover their life expenses. Either way, it may give our employees something that they always love, the ability to choose.
We will continue to monitor the progress of this bill over the next few months and will keep members up to date. If our members have questions about this or any other Human Resource or Operational practices or issues, utilize the resources available to you as part of your AAA membership.

The Art of Persuasion

The United State Department of Labor (USDOL) Office of Labor-Management Standards (OLMS) has released its revised interpretation of the rule that seeks to level the playing field between unions and employers. The new interpretation of the rule, which will take effect on April 25, 2016, will require that employers who hire consultants or labor attorneys to counsel them during union organizing campaigns report if they will undertake “persuader” activities and the cost of those services. These “persuader” activities are defined as “actions, conduct, or communications that are undertaken with an object, explicitly or implicitly, directly or indirectly, to affect an employee’s decisions regarding his or her representation or collective bargaining rights.”

The intent is to make sure that employees can know the source of some of the information provided directly or indirectly to them during the organizing campaign. Read a summary of the impact of this rule.

Spotlight: Jerry Glass, Labor Relations Expert

Jerry Glass
President
F&H Solutions Group
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Tell us a little about yourself.

I was born and raised in New York City. I went to college at Boston University and then moved to Washington, D.C., to attend George Washington University, where I received my master’s degree. It is also where I met my wife, Karen. We have been married for 36 years, but with all the travel I do, I tell people we have only been together for about 15 years! We have two adult children and one son-in-law.

My number one passion is basketball. I live and breathe the sport. I have been playing in a basketball league and enjoying pickup games with a group of guys for more than 30 years. And if you invite me to see a high school, college, or professional basketball game, count me in. Karen and I also love cycling and spinning. We take a cycling trip each summer and have seen some great sites on our bikes.

How did you get into labor relations? Can you give us some background on your professional life?

When I graduated from GWU, my first job was with the Veterans Administration as an analyst. The job required a lot of travel and was really gut wrenching, working with our veterans who had done so much for our country. From there, I worked as a costing/financial analyst for the American Association of University Professors (AAUP) which is a trade association and a union. Then, I moved to the Airline Industrial Relations Conference, which served as the labor policy organization for the U.S. scheduled airlines. I started out as the Director of Labor Relations Research and was promoted to Executive Director and Vice President. After 9 years in that job, I went out on my own as a labor and employee relations consultant. The rest was history as I built my consultancy into a national labor relations and HR consulting firm, F&H Solutions Group.

In addition to running my firm, I also served as the Executive Vice President and Chief HR Officer at US Airways during the airline’s two bankruptcies. Wow, did I learn a lot about restructurings! Thankfully, the airline not only survived, but eventually became part of the largest airline in the world.

I have been fortunate to have an amazing team working with me. Together, we provide labor relations advice and negotiations expertise to many of the most important industries in the country, including transportation, construction, property management, media and more.

How have you seen labor relations issues impact business?

[quote_right]”People involved in labor relations must be great communicators and even better listeners.”[/quote_right]Employees are a huge part of an organization’s success. When unions represent employees, it adds a level of complexity to how you manage employees. People involved in labor relations must be great communicators and even better listeners. Labor relations has an impact on a company’s bottom line and it is crucial for employers to tread carefully, work cooperatively, and be proactive when dealing with unions.

How can FHSG help AAA members with their labor relations issues?

We would like to help members understand the dynamics involved in labor-management relations. Whether it’s learning how to communicate effectively with unionized employees, providing research on CBAs in the industry, or understanding the different aspects of a union campaign, we can help you devise a labor strategy. We will offer a free initial consultation to all AAA members. In addition, we will provide insightful blogs and webinars on topics related to labor relations, proactive employee relations and leadership/managerial skills.

Any parting thoughts or last words?

While it is not uncommon for management at newly unionized companies to feel intimidated, it is crucial that management continue to do their jobs and effectively manage employees. Over time, you will learn to work with the union and how to maintain a positive, inclusive and safe workplace culture for your employees. Management cannot allow union activity to disrupt the ability to manage and ensure the integrity of the day to day operation.