PolitiFact.com rates Obama's campaign promise re USERRA
PolitiFact.com has discussed Pres. Obama's campaign promise to put "additional resources into enforcement and investigation in order to crack down on employers who are not following the letter and spirit of the law" in regards to military reservists. Edward Still was one of the sources interviewed for this short article. For the whole story, go to --> PolitiFact | Dedicate more resources to fight employment discrimination against military reservists - Obama promise No. 118:
Two important changes to FMLA
There have been two important amendments to the Family and Medical Leave Act this fall.
First, in late October President Obama signed amendments to the FMLA that expand the rights of families of injured and active-duty servicemembers to take time off from work. The amendments, which were included in the National Defense Authorization Act of 2010 (P.L. 111-084), make the following changes to the FMLA:
* Extend to injured veterans’ families the right to take "servicemember family leave." The FMLA previously made available leave to care for an injured servicemember only to families of current servicemembers.* Override Department of Labor regulations that limit access to leave because of an exigency arising out of a servicemember's active duty to families of members of the reserves and National Guard. The amendments make such "exigency leave" leave available as well to families of soldiers in the regular components of the armed forces who are deployed to a foreign country.
* Make "exigency leave" available not just when a servicemember is deployed in support of a contingency operation, but also when a servicemember is deployed to a foreign country regardless of whether the deployment is in support of a contingency operation. Deployments not in support of a contingency operation did not previously trigger the right to exigency leave.
Second, Congress passed the Airline Flight Crew Technical Corrections Act to allow airline crews to qualify for FMLA. Because of the way flight crewmembers' work is scheduled and paid, full-time flight attendants and pilots generally do not meet the FMLA's minimum eligibility threshold of 1,250 hours worked in a year. This act changes the amount of time a crew member must work to qualify for FMLA leave.
Don't lower the minimum wage!
Charles Lane, of the Washington Post, has written an op-ed suggesting (along with two other ideas) that the federal government should lower -- yes, lower -- the minimum wage.
Fortunately, Nobel Prize winner Paul Krugman 'splains it all (in a mixture of easy- and hard-to-follow sentences). Krugman says:
So let me repeat a point I made a number of times back when the usual suspects were declaring that FDR prolonged the Depression by raising wages: the belief that lower wages would raise overall employment rests on a fallacy of composition. In reality, reducing wages would at best do nothing for employment; more likely it would actually be contractionary.Here’s how the fallacy works: if some subset of the work force accepts lower wages, it can gain jobs. If workers in the widget industry take a pay cut, this will lead to lower prices of widgets relative to other things, so people will buy more widgets, hence more employment.
But if everyone takes a pay cut, that logic no longer applies. The only way a general cut in wages can increase employment is if it leads people to buy more across the board.
The Atlantic Wire links to several other online sources that trash Lane's (and Fox News' and the Wall Street Journal's) proposal. My favorite: "By that logic, a recession demands that the poor earn less but that the CEOs more directly responsible for the downturn deserve bonuses."
Ed Still featured in WBHM story on who succeeds Langford
WBHM ran If He's Found Guilty, Who Succeeds Langford? on 20 October, just after Mayor Langford's trial began. Among those interviewed was Ed Still, commenting on the problems the Council will face with only 8 members while Council President Carole Smitherman is Acting Mayor.
"The Unwise and Unconstitutional Hatch Act"
Jason Miller has written an article on one of the worst "gotchas" in election law -- the Hatch Act's application to state and local government employees. Here is the abstract of his article:
Every year, state and local government employees announce their intent to run for public office only to be told that an obscure Great Depression-era law requires that they choose between their job and their campaign. The Hatch Act prohibits federal employees from running for partisan office and similarly prohibits any state and local employee from running if their position receives any federal funds. This prohibition applies even when there is no apparent conflict of interest or abuse of power. Given the number of federal employees, and the number of federal grants to state and local governments, millions of covered employees are effectively prohibited from running for public office. At the same time, many elections in this country go uncontested and communities suffer from a lack of quality candidates.
The Unwise and Unconstitutional Hatch Act focuses on the federal law’s coverage of state and local employees and examines whether the Act would pass constitutional muster under modern tests, whether the Hatch Act is desirable as a matter of policy, and what alternatives could achieve the policy goals of the Act without an absolute prohibition on candidacy for partisan office.
Download the entire article at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1444192.
Baltimore Daily Record quotes Still in campaign-finance article
The Baltimore Daily Record reported on a Baltimore County Councilman who reached a plea bargain on campaign-finance charges arising out of a $2,000 loan to the candidate from his campaign and reimbursing himself for $300 in expenses without a receipt showing the money was spent.
Danny Jacobs, the Record's reporter on the story, call Edward Still and several others for comments on the case.
The complete article is attached.
Certiorari petition filed in a USERRA case
Vincent Staub has filed a certiorari petition in the U.S. Supreme Court in a USERRA case. The Question Presented in the petition is, "In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?"
You may view or download the opinion here:staub.pet )
"Restoring the Minimum Wage for America’s Tipped Workers"
The National Employment Law Project has just release a report, Restoring the Minimum Wage for America’s Tipped Workers. Here is the executive summary of the report:
In 2007, Congress finally raised the federal minimum wage for the first time in ten years, giving millions of low-wage workers a modest raise to $7.25 per hour by 2009.1 But for millions more low-income employees like the waitress at your local diner, paychecks have not budged.
Workers who rely on tips are subject to a special tipped worker minimum wage, which has remained frozen since 1991 at a meager $2.13 per hour—just $4,430 per year for a full-time worker. Congress has overlooked this little-understood part of our minimum wage system the last few times that it has increased the minimum wage. The result has been to drag down pay for tipped workers in many of our nation’s fast-growing service industries, such as restaurants, hotels, nail salons, and car washes, where millions today spend their careers.
The overwhelming majority of tipped workers are adult women—many of them supporting families. They are hurt the most by the frozen tipped worker minimum wage, which is an under-appreciated factor in the unequal pay that working women continue to receive across our economy.
Despite their stagnant wages, most tipped workers still earn a couple of dollars more than the full minimum wage once their tips are added in. In fact, if their tips are not enough to bring them up to the full minimum wage, their employers are required to make up the difference. But the tipped worker minimum wage was meant to do more. When it was created by Congress, it provided tipped workers an economic cushion and brought their pay closer to a living wage—something our economy badly needs more of today. That is what the tipped worker minimum wage used to do when it was higher—and what it still does today in the states that have not let it erode.
The low minimum wage for tipped workers, which forces these employees to subsist almost entirely on tips, is a key factor behind falling living standards and growing economic insecurity for workers in tipped industries. Since the tipped worker minimum wage was frozen at $2.13 in 1991, its value has fallen by 36% in real terms.
Workers who are forced to rely mainly on tips see their paychecks fluctuate widely, frequently leaving them unable to pay their bills or provide for their families. This problem is now worse than ever because economically squeezed customers are leaving smaller tips. As a result, waitresses and waiters—the largest group of tipped workers—have three times the poverty rate of the workforce as a whole.
The solution is to guarantee tipped workers a strong minimum wage that is paid directly by their employers. That is what the federal Fair Labor Standards Act (FLSA) did historically and what many state minimum wage laws still do today. Thirty-two states have preserved or adopted stronger protections for tipped workers, and by 2010 over half of those will guarantee tipped workers 60% of the full minimum wage—the level of protection that the federal minimum wage provided tipped workers until 1989. These states have found that a strong tipped worker minimum wage raises living standards for this growing workforce without hurting business growth.
Congress and the rest of the states should follow their lead by restoring protections for the nation’s millions of tipped workers. Specifically, they should:
1. Substantially raise the tipped worker minimum wage. For starters, Congress and the states that currently have weak protections should restore the tipped worker minimum wage to at least its historical level of 60% of the full minimum wage. But over the longer term, the federal and state tipped worker minimum wages should be raised to 100% of the full minimum wage as seven states have done.
2. Make the tipped worker minimum wage increase automatically when the full minimum wage increases by making it a fixed percentage of the full minimum wage or a fixed dollar amount less than the full minimum wage.
3. Strengthen protections against “tip stealing” to ensure that managers or employers do not skim off a portion of workers’ tips.
4. Fight attempts to roll back tipped worker minimum wages in states that already provide strong protection for these workers.
Two Alabama papers interview Ed Still about Voting Rights Act
Since the U.S. Supreme Court decision in Northwest Austin Municipal Utility District Number One v. Holder on 22 June, both the Birmingham News and the Mobile Press Register have interviewed Ed Still about the impact of the decision and what should happen next.
In the Birmingham News, Still suggested more bailouts as the way to prove the law works only where there is still a problem.
Edward Still, a Birmingham lawyer with a specialty in voting rights cases, said Monday that communities in Alabama with few black voters and no history of discrimination should apply for the bailout. Doing so, he said, would negate the argument from Riley that the law unfairly punishes the entire South for the mistakes of just a few jurisdictions that have had voting procedures recently rejected by the Justice Department."It would be good for them and it would be good for the Justice Department," Still said.
The Mobile Press Register article centered on the idea that more Southern cities, towns, and counties should seek "bailout" -- a declaratory judgment that the jurisdiction is no longer subject to the preclearance requirements of Section 5 of the Voting Rights Act. Still warned that the Supreme Court decision should be taken as a warning:
If politicians don't address those concerns relatively quickly, some be lieve that the court will take a future opportunity to dump preclearance altogether."They're going to lower their sights and aim for the waterline rather than ahead of the ship," said Edward Still, a Birmingham voting rights attorney. Greater use of the bailout option could help head off such a showdown, he said.
GAO study shows appalling laxness in US Labor Department investigations of wage and hour complaints
The Government Accountability Office released a report on 25 March dealing with its investigation of the Wage and Hour Division of the Labor Department. The following is part of the summary of the report:
GAO found that WHD frequently responded inadequately to complaints, leaving low wage workers vulnerable to wage theft. Posing as fictitious complainants, GAO filed 10 common complaints with WHD district offices across the country. The undercover tests revealed sluggish response times, a poor complaint intake process, and failed conciliation attempts, among other problems. In one case, a WHD investigator lied about investigative work performed and did not investigate GAO’s fictitious complaint. At the end of the undercover tests, GAO was still waiting for WHD to begin investigating three cases—a delay of nearly 5, 4, and 2 months, respectively. ...
GAO identified 20 cases affecting at least 1,160 real employees whose employers were inadequately investigated. For example, GAO found cases where it took over a year for WHD to respond to a complaint, cases closed based on unverified information provided by the employer, and cases dropped when the employer did not return phone calls.
GAO’s overall assessment of the WHD complaint intake, conciliation, and investigation processes found an ineffective system that discourages wage theft complaints. With respect to conciliations, GAO found that WHD does not fully investigate these types of complaints or compel employers to pay. In addition, a WHD policy instructed many offices not to record unsuccessful conciliations in its database, making WHD appear better at resolving conciliations than it actually is. WHD’s investigations were frequently delayed by months or years, but once complaints were recorded in WHD’s database and assigned as a case to an investigator, they were often adequately investigated. --
Wage and Hour Division’s Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft
Edward Still and other voting rights attorneys file amicus brief in U.S. Supreme Court
A group of veteran voting-rights attorneys lead by Julius Chambers, former director-counsel of the NAACP Legal Defense Fund, has filed an amicus brief with the Supreme Court in Northwest Austin Municipal Unitily District v. Holder. The attorneys argue:
In comparison to Appellant’s limited familiarity with elections, attorney amici collectively have more than 200 years of experience litigating voting rights cases in covered and non-covered jurisdictions throughout the country. This experience has led amici to recognize the persistent need for timely enforcement capable of deterring illegal voting schemes before they are implemented—a task for which caseby- case litigation under Section 2 is ill-suited, but for which Section 5 was designed.Were Section 5 unavailable, there would be a significant increase in the number of discriminatory voting changes that voters and jurisdictions would be forced to address through litigation. But Section 2 cannot substitute for the prophylactic function of Section 5. In practice, amici have seen Section 2 and Section 5 operate in the complementary fashion that Congress intended. Where minority voters in covered jurisdictions cannot find a lawyer or afford to pay one, Section 5 provides the means to redress new violations of their rights. And where minority voters are able to get their day in court, Section 5 provides the assurance that their hard-won and expensive battles will not have been fought in vain if a jurisdiction repeats similar violations.
Too many discriminatory voting changes would remain unchallenged if Section 5 were invalidated. For individual minority voters, the cost and effort required to pursue Section 2 cases are great barriers to private enforcement, a problem made more acute by the small number of practitioners in covered jurisdictions who are willing and able to take such cases. This creates a perverse incentive—all too often realized—for officials to continue suspect practices because they know most voters cannot challenge them. In contrast, Section 5 serves as a deterrent to such practices.
Amici’s lengthy experience in the voting rights arena shows the importance of Congress’s considered decision to reauthorize Section 5. Without it, minority voters will fail to realize the full promise of the Voting Rights Act.
The amici include the following lawyers:James U. Blacksher, Armand Derfner, Anita Earls, Robert McDuff, Edward Still, and Ellis Turnage. The lawyers are represented by William D. Kissinger, Sujal J. Shah, Erin Shannon-Conroy, Perry M. Grossman, and Sarah L. Bishop of Bibgham McCutchen LLP.
Edward Still to speak at "Current Developments in Employment Law" program
ALI-ABA will be holding its annual program, "Current Developments in Employment Law," 23-25 July 2009 in Santa Fe, New Mexico. I will be on a panel each of the three days. I have attached a copy of the brochure for the program. If you practice employment law, I hope you will attend.
Wage Theft
When people ask me what kind of law I practice, one of the things I say is "wage and hour cases." That's way too nice a description. From now on, I will say, "I prosecute wage theft." If someone knocks you down and takes your purse or wallet, it's "robbery." If they break into your home or car and take something, it's "burglary." If Bernie Madoff takes your life savings, it's "fraud." They are all thefts of your money.
And if your employer does not pay the wages you are due -- and are owed according to the law -- then it is a theft of your wages. As Kim Bobo points out in "Wage Theft: Faces of a Hidden Crime, Part 1 of 3", wage theft is not paying the minimum wage, not paying for overtime, wrongly classifying an employee as a "contractor" so no benefits are paid (and usually no overtime), taking illegal deductions, and not paying employees at all.
While the production values on "Wage Theft" are low, the information is high quality. After you watch Part 1, go on and look at Part 2 (mainly about Interfaith Worker Justice) and Part 3 (in which there is a resolution of the problems presented in Part 1).
An excerpt from Kim Bobo's book, Wage Theft in America, is in In These Times. Ms. Bobo also has a blog called Wage Theft.
Interfaith Worker Justice has a great page of resources on wage theft.
Birmingham News quotes Edward Still on voting-rights controversy
The Birmingham News sought out Edward Still for his reaction to Gov. Bob Riley's recent amicus brief in a U.S. Supreme Court voting rights case. The News sets up the Governor's premise this way:
The section of the Voting Rights Act that requires Alabama to get federal approval for election-related changes is an unnecessary burden on a state that no longer needs supervision from Washington to ensure fair voting, Gov. Bob Riley contends in a brief filed with the U.S. Supreme Court.
Later in the article,
Birmingham lawyer Ed Still, an advocate of the Voting Rights Act, said Riley's submission to the justices doesn't address whether the extension of the law is constitutional."This is just part of a campaign that Riley has had for a while now - he and his attorneys general, trying to cripple the Voting Rights Act any way they could. This is a whine," Still said Tuesday. "I suspect this is the governor's way of providing some war stories to the conservative justices who want to strike down Section 5."
The whole article is here.
Contacting my office
Edward Still
Edward Still Law Firm, LLC
Suite 541
2112 11th Avenue South
Birmingham AL 35205-2844
phone 205-320-2882
fax 205-449-9752
Email to me: Please do not email anything confidential to me until I have agreed to take your case. If you don’t want your employer to know what you are telling me, never use your work email to write me. Email: [my last name]@votelaw.com.
Directions:
From Five Points South -- take the street to the right of the fountain and the Highlands Methodist Church (11th Ave.); at the next intersection, follow 11th Ave. slightly to the left; my office building is the second on the left.
From downtown Birmingham -- take 22nd St. going south; right on Magnolia Avenue (at Brother Bryan Park), left on 21st Place; my office building is at the top of the hill on the right.
From east of Birmingham on I-20 or I-59 -- in downtown Birmingham, take exit to US 280 East and follow the directions in the next paragraph.
From Red Mountain Expressway (US 280) in either direction -- take the University Blvd/8th Ave. South exit; turn right at the bottom of the ramp; left on 22nd St.; right on Magnolia Avenue (at Brother Bryan Park), left on 21st Place; my office building is at the top of the hill on the right.
From Tuscaloosa on I-20/59 -- take the I-65 South exit and follow the directions in the next paragraph.
From I-65 South -- take the 4th Ave. S. exit; right onto 22nd St.; right on Magnolia Avenue (at Brother Bryan Park), left on 21st Place; my office building is at the top of the hill on the right.
From I-65 North -- take the University Blvd. exit; right onto 22nd St.; right on Magnolia Avenue (at Brother Bryan Park), left on 21st Place; my office building is at the top of the hill on the right.
Parking is available on the top level of three levels, accessible from 21st Place or 11th Avenue. If there is no parking available there, go to the open air parking lot just down the hill and across 21st Place.
Bill to patch some problems in USERRA has been introduced
On January 15th, Sens. Robert Casey and Edward Kennedy introduced the Servicemembers Access to Justice Act of 2009 (S. 263) ("SAJA") to clarify and strengthen USERRA. Sen. Barack Obama co-sponsored a substantially identical measure last year. You can track the bill on the govtrack.us website.
Among amendments to USERRA that SAJA would make are the following: (1) a federal-funding hook to trump states’ 11th Amendment immunity; (2) clarification that USERRA prohibits wage discrimination; (3) prohibition of mandatory arbitration; (4) clarification that Section 4302 of the Act applies to both substantive and procedural rights; (5) revamping of the liquidated damages provision by removing the requirement that willfulness be shown and, instead, requiring that liquidated damages be awarded (with a mandatory minimum of $10,000) in all cases in which a violation is found, unless the employer can prove good faith; (6) provision for liquidated damages for federal employees (there is none currently); (7) establishment of a right to a jury trial in cases against private, state, and local government employers (regardless of the type of relief sought); (8) provision for awards of punitive damages in cases where an employer acted with malice or reckless indifference to the plaintiff’s rights; (9) mandatory awards of attorney’s fees to prevailing plaintiffs (currently discretionary); and (10) clarification that a merger or transfer of assets is not necessary to impose successor liability (this would override the 11th Circuit's holding to the contrary in Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1237 (11th Cir. 2005)); and (11) strengthening of the Act's injunction provision by providing that denials of reemployment and discharges "shall constitute irreparable harm." (This summary was written by my co-author Kathryn Piscitelli.)
A good place for reservists and guard members to work
Marketplace, the public radio business/economy program reported today on an employer that not only does not hassle those in the military, but recruits and supports them. If we had more employers like Atkins and Pearce and fewer like the ones "60 Minutes" reported on, we would not have as much need for USERRA as we do. The Marketplace story can be read or listened to at Marketplace: Service members find work in business.
Wolff v. Fluker contest, first two days
The Mobile Press-Register has an article in the 24 Dec. 2008 edition concerning the first two days of hearings in the election contest brought by Pete Wolff III against incumbent Evergreen Mayor Larry Fluker. You may view the article here. I represent Mayor Fluker in this action.
CBS' 60 Minutes reports on "Reservists' Rocky Return to Job Market"
To read or watch the whole story, "Reservists' Rocky Return To Job Market, 60 Minutes Report Also Examines Costs Borne By Employers Of Deployed Citizen Soldiers," just click on the link.
Edward Still and Brenda Wright interviewed about election law
Description: Voter fraud, faulty equipment, voter purges, 3rd party registration problems-These are just some of the issues plaguing elections past and present. Law.com blogger and host, J. Craig Williams welcome experts, Attorney Brenda Wright, Legal Director of Demos, and Attorney Edward Still a Birmingham lawyer who specializes in voting law and founder of the blog, Votelaw.com. They will discuss legal issues surrounding voter’s rights, voter fraud, election litigation and what can and can't be done to recruit voters. -- LegalTalkNetwork, MP3 Link, and WMA Link.
