January 2009

This case concerns the lawfulness of defendant Costco Wholesale Corporation’s formula for computing overtime compensation on semi-annual bonuses paid to hourly employees. The trial court determined that defendants’ bonus overtime formula for the class of employees who qualify for the maximum base bonus (plaintiffs) violates California law, and ordered use of a different formula. The court concluded that defendant’s formula violated neither California nor federal law, and reversed the judgment with directions to enter judgment for defendant.

a. The Base Bonus.

Costco pays a formula-based bonus, based on paid hours, to long-term hourly employees. To be eligible for the bonus, paid in April and October, these employees must: (1) have been paid a specified number of hours for continuous service — 8,000 hours (approximately four years) for those hired before March 15, 2004, and 9,200 hours (approximately 4.6 years) for those hired after that date; (2) generally be at the top of their pay scale; and (3) have been employed by defendant on April 1 for the April bonus and October 1 for the October bonus. The maximum semi-annual base bonus amount is $2,000 for those with less than 10 years of service, $2,500 for those with 10 to 14 years of service, $3,000 for those with 15 to 19 years of service, and $3,500 for those with 20 or more years of service.Continue Reading The Proper Calculation of Overtime Pay on Bonus Compensation: Marin, et al. v. Costco Wholesale Corporation

According to Union proponents, the biggest obstacle to a modern organizing campaign is management delay tactics. In a traditional organizing campaign, union representatives meet with bargaining unit employees (i.e. all the mechanics at a car dealership) and talk with them about union representation. The union then attempts to secure signed authorization cards from the employees. If the union can show that a majority of the employees in the bargaining unit favor union recognition, the employer may voluntarily forego an election and recognize the union. If, however, the employer refuses or the card-check process generates at least 30%, but not majority, employee support, the union may petition the NLRB for a secret ballot election administered by the NLRB. Unions plead for majority card-check rules because they claim that employees suffer at the hands of underhanded management tactics during traditional Board elections. “These delays make it too easy for employers to intimidate and coerce workers, including by dismissing them for organizing. And this in turn diminishes employee interest in unions and thus undercuts the right to collective bargaining they are supposed to enjoy.” However, unions still have the same success rate in traditional elections (approximately 60%) as they did in 1965.

Organized Labor’s pleas were answered when the Employee Free Choice Act (EFCA), which was co-sponsored by then Senator Barack Obama, was introduced. Under the EFCA, unions would no longer have to go through the NLRB traditional election process to gain recognition. Instead, a union must obtain signed authorization cards from a majority of employees in the bargaining unit. Additionally, the EFCA would invoke binding interest arbitration if labor and management cannot agree upon the first contract within nine months. Once in arbitration, a government appointed arbitrator would decide the parties’ obligations in the first contract. Because of the results of the November 2008 national elections, we are likely to see some sort of change in 2009. Barack Obama promised to sign EFCA. Should the EFCA pass, unions estimate that they will be able to organize millions of new workers. Below are some of the more notable features of the EFCA in detail:Continue Reading The Employee Free Choice Act

Traditional labor law in this country has essentially been a non-issue over the past decade. Today unions represent 12% of all American workers (7.4% in the private sector), down from a high of 35% in 1955. However, thanks to the recent dramatic shifts in Washington, this trend may soon be changing. Labor law in the

On September 25, 2008, the ADA Amendments Act of 2008 was signed into law by President Bush. It becomes effective January 1, 2009. This new law is designed to undo several Supreme Court decisions and thereby broaden the number of individuals who can seek protection under the Americans with Disabilities Act (ADA). The amendments include

In January 2008, President Bush signed into law the expansive amendments to the FMLA which provide greater benefits to employees who have family members in the armed services. The new law became effective immediately.
On November 17, 2008, the DOL issued final regulations addressing the new military family leave as well as updating existing FMLA regulations.Continue Reading New FMLA Regulations for Military Family Leave and Other Updated FMLA Regulation