On July 16th of this year, the Indiana Supreme Court published its opinion in Commissioner of Labor on the Relation of Stephen R. Shofstall, Edward C. Posey, and Deborah N. Posey v. International Union of Painters and Allied Trades AFL–CIO, CLC District Council 91. The court held for the first time that unions and other voluntary membership associations in Indiana must comply with Indiana law and the Indiana Wage Payment Statute regarding their employees. But whether those employees are also elected officials makes a crucial difference. (more…)
Posts Tagged ‘Michael J. Cork’
President Obama recently met some resistance with the recess appointments he made to the National Labor Relations Board (NLRB) and to the Consumer Financial Protection Bureau (CFPB). On January 4th, a unanimous three-judge panel of the D.C. Circuit struck the so-called “recess” appointments. (more…)
Welcome Back! In Compliance with USERRA, You Are Reinstated to the Position of “Terminated.” (Wait – What?!)Thursday, February 7th, 2013
In December of last year, the 8th Circuit Court of Appeals held that the reinstatement requirement under the Uniformed Services Employment and Reemployment Rights Act (USERRA) may be satisfied by terminating the employee’s employment—if that is the position the employee would have held if he or she remained continuously employed. (more…)
The responsibility for enforcing the Fair Credit Reporting Act (FCRA) has been transferred from the Federal Trade Commission to the newly created Consumer Financial Protection Bureau (CFPB). The CFPB now has primary rule-making responsibility for the FCRA. Accordingly, the contact information in the FCRA Summary of Rights form should be changed from the FTC to the CFPB. (more…)
Like many employers, you may instruct employees not to discuss ongoing investigations. While that has been standard practice for most employers, it now risks a claim by the National Labor Relations Board (NLRB) that you are violating Section 8(a)(1) of the National Labor Relations Act (NLRA). Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7. Section 7, in turn, states that—in addition to the right to organize and join unions—employees shall have the right to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (more…)
Chrysler received an object lesson in why internal investigations of employee complaints should be prompt and adequate. And “adequate” means that, when an employee complains of an offense—serious harassment in this case—that is confirmed—the employer must “progressively stiffen” its efforts until the harassment stops. (more…)
Statements of “At-Will Employment” Under Siege – NLRB Continues Aggressive Stance on “Protected Concerted Activity”Thursday, September 27th, 2012
Quick! Check your employee handbook and see if it contains an “at-will” statement of employment. If so, see if it also contains the following or substantially similar language in the “at-will” statement or an acknowledgment signed by the employee:
“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” (more…)
After two trips to the Seventh Circuit Court of Appeals, Renae Ekstrand may have finally convinced her employer to provide a classroom with windows. Ekstrand was a kindergarten teacher in the school district of Somerset, WI. For unknown reasons, she was transferred in the Spring of 2005 to a classroom with no exterior windows. Ekstrand requested a change of rooms—verbally—several times. But the principal denied her requests, although he did make some other changes. (more…)
One of Indiana’s newest laws, Ind. Code § 7.1-5-12-1 will become effective on July 1st and will outlaw smoking statewide. “Smoking” is defined as the use of cigarettes, cigars, pipes, or other “lighted tobacco smoking equipment.” Smoking will be prohibited in the following locations:
- Public places;
- Places of employment; and
- Within 8 feet of any public entrance to a public place or place of employment.
A “public place” is defined as “an enclosed area of a structure in which the public is invited or permitted.” A “place of employment” is an “enclosed area of a structure where people are employed.” But it excepts a private vehicle. Most employers are covered. All restaurants and any bars located within the restaurants are covered.
Limited exemptions from coverage are provided for:
- Freestanding bars and taverns;
- Horseracing facilities;
- Off-track betting facilities;
- Certain private and fraternal clubs;
- Businesses located in private residences where all employees also reside;
- Cigar and hookah bars (but cigarettes are prohibited here, as well);
- Retail tobacco stores;
- Cigar manufacturing facilities; and
- Cigar specialty stores.
What Employers Must Do:
- Inform every current and prospective employee that smoking is banned at the place of employment;
- Remove any ashtrays or other smoking “paraphernalia”;
- Post “conspicuous” signs at each public entrance reading: “State Law Prohibits Smoking Within 8 Feet of this Entrance” (or similar language);
If the “Place of Employment” is also a “Public Place,” the Owner, Operator, Manager or the Person in Charge Must:
- Post conspicuous signs that read “Smoking is Prohibited by State Law” or similar verbiage;
- Ask anyone smoking to stop; and
- “Remove or cause to be removed” anyone who refuses to stop smoking. (Exactly how this is to be accomplished is not specified. But we recommend non-violent means.)
- Make certain that any designated smoking areas are outside the radius around any doors to the facility (the state statute says 8 feet, but if your locality has a regulation with a larger exclusion area, you must use the larger area);
- Obtain the required posters and post them at the doors, as well as inside the facility if it is a public place. Approved signs are available from the Indiana Alcohol and tobacco Commission’s website: www.in.gov/atc. The signs at this website, though, mention only the state-mandated 8 feet. If your local ban has a wider area, use the distance in the local ban. The signs may contain additional language indicating where smoking is and is not allowed; and
- Consider adopting a new policy or revising an existing policy in order to comply with the requirement of notifying employees and applicants. There is no specific form of written notice required. Employment applications may be modified to include a “smoke free” notice.
Enforcement and Penalties
- The Indiana Alcohol and Tobacco Commission has primary enforcement authority;
- State and local health departments, health and hospital corporations, the division of fire and building safety, and law enforcement agencies may also enforce the ban;
- Agents from any of the above agencies may enter and inspect the premises to ensure compliance; and
- Violators commit a Class B infraction, meaning a fine of up to $1,000; three or more unrelated violations are considered a Class A infraction, raising the ante to a maximum of $10,000.
Employers may not discharge, refuse to hire, or retaliate in any way against anyone for reporting a violation or exercising any right under the law. The referenced penalties apply to any conduct in violation of the act. But there is no individual right of action.
Indiana Counties, Cities, Towns or Other Governmental Units May Adopt Stricter Policies
The new law will be the minimum standard. It specifically notes that more restrictive laws and ordinances may be adopted. For example, Marion County modified the “Marion County Smoke Free Ordinance” effective June 1, 2012 to extend the ban to freestanding bars and taverns. It also defined “smoking” to include electronic cigarettes.
Also, Vanderburgh County and the City of Evansville adopted smoke free ordinances covering employers and public places in 2007. Parts of those ordinances are more restrictive than the new state law. For example, the ordinances require a distance of at least 10 feet from any smoke free environment for any designated smoking area.
But You May Not Discriminate Against Employees and Applicants For Off-Duty Tobacco Use
An existing law, Ind. Code § 22-5-4-1 to 4, prohibits employers from such discrimination.
Contact Bamberger attorney Michael J. Cork at [email protected] or 317-464-1594 for further information about Indiana’s smoking ban or other employment issues.
Author: Michael Cork (bio)
Email: [email protected]
Susan King was hired in 2001 by Acosta Sales and Marketing, a food broker. King was a business manager, and Acosta also employed men in the same job classification, doing the same work, and under the same conditions. But the men received more than twice King’s pay. In fact, all of the men were paid more than all but one of the women in the business manager position. And it took that woman six years to achieve her $60,000 salary. The male employees exceeded the $60,000 salary faster. (more…)