Jennings, Strouss & Salmon attorney John J. Egbert speaks with Elizabeth Erwin of KPHO CBS 5 News about the immigration reform bill and how it would impact Valley businesses and the economy if it passes. John J. Egbert is a Labor & Employment attorney at the firm’s Phoenix office.

The Jennings Strouss attorneys listed in 2013 Southwest Super Lawyers are:

• Gerald W. Alston – Business Litigation
• John R. Christian – Tax
• Frederick M. Cummings – Personal Injury Defense: Medical Malpractice
• Richard K. Delo – Personal Injury Defense: Medical Malpractice
• John J. Egbert – Employment  & Labor
• Lee E. Esch – Real Estate
• Michael J. Farrell – Civil Litigation Defense
• Jay A. Fradkin – Personal Injury Defense: Medical Malpractice
• Carolyn J. Johnsen – Bankruptcy
• Richard Lieberman – Mergers & Acquisitions
• Jay M. Mann – Construction/Surety
• Bruce B. May – Real Estate
• Michael R. Palumbo – Business Litigation
• J. Scott Rhodes – Professional Liability: Defense
• Jack N. Rudel – Tax
• John G. Sestak, Jr. – General Litigation
• Bradley J. Stevens – Bankruptcy

The attorneys listed as 2013 Southwest Rising Stars are:

• Eric D. Gere – Business Litigation
• Kami M. Hoskins – Bankruptcy
• Bradley V. Martorana – Business/Corporate
• Anne McClellan – Civil Litigation Defense

The selections for the top attorneys in Arizona are made by the research team at Super Lawyers, which is a service of the Thomson Reuters Legal Division based in Eagan, MN. Each year, the research team undertakes a rigorous multi-phase selection process that includes a statewide survey of attorneys, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check. State-wide, only five percent of attorneys are named by Super Lawyers, and just 2.5 percent of attorneys under the age of 40 and practicing 10 years or less are included as Rising Stars.

About Jennings, Strouss & Salmon

Jennings Strouss & Salmon is one of the Southwest’s leading law firms, providing legal counsel for over 70 years through its offices in Phoenix and Peoria, Arizona; and Washington, D.C. The firm’s primary areas of practice include bankruptcy, reorganization and creditors’ rights; construction; corporate and securities; employee benefits and pensions; energy; family law and domestic relations; health care; intellectual property; labor and employment; litigation; real estate, land use and zoning; surety and fidelity; tax; and trust and estates. For additional information please visit www.jsslaw.com and follow us on LinkedIn, Facebook and Twitter.

~JSS~

Contact:  Dawn O. Anderson  |  danderson@jsslaw.com  |  602.495.2806

By Keith F. Overholt

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Labor Relations Board (NLRB) exceeded its statutory authority when it promulgated a rule requiring businesses to display a poster informing employees of their right to form or join a union. The rule would have required more than 6 million employers, mostly small businesses, to display an 11” x 17” notice onsite in a prominent location explaining the rights workers have to join a union and bargain collectively to improve wages and working conditions. Failure to post the notice would constitute an unfair labor practice.

Many trade and business organizations filed complaints in the district court, claiming that the NLRB’s rule violated the National Labor Relations Act (NLRA) and First Amendment to the Constitution. The NLRB defended the rule asserting enforcement was necessary because unions represent only a small percentage of the private workforce, immigrants are unlikely to be familiar with their workplace rights, and recent high-school graduates entering the work force are not familiar with labor laws.

D.C. Court of Appeals Judge Karen LeCraft Henderson wrote, “Even assuming these speculative assertions have some factual basis and, as well, that providing such information is ‘necessary to carry out’ the Act’s provisions, there is nothing in the text of the NLRA to suggest the burden of filling the ‘knowledge gap’ should fall on the employer’s shoulders. Unions and the NLRB are at least as qualified to disseminate appropriate information—easily and cheaply in this information technology age—and in fact already do so.”

By John J. Egbert

The U.S. Citizenship and Immigration Services (USCIS) published a revised Form I-9 on March 8, 2013,  Employers must complete a Form I-9 for each employee hired in the United States.  Employer should immediately begin using the revised form.  Earlier versions (dated 02/02/09 and 08/07/09) may also be used, but only until May 7, 2013. After that date, employers must use only the newly-revised form. The revised form may be found on the government’s website at:http://www.uscis.gov/files/form/i-9.pdf

By Keith Overholt

Today, the United States Court of Appeals for the District of Columbia Circuit held that President Obama’s recess appointment of NLRB Members Block, Flynn and Griffin were unconstitutional because the vacancies which they filled did not arise during “the Recess” of the Senate and the appointments were not made during “the Recess”.  The court held that recess appointments must be made in the Recess between Congressional Sessions and not when Congress is merely on a break.  Furthermore, the court held the vacancies which can be filled by a recess appointment between Sessions, must have come to pass or arisen during the recess between Congressional Sessions.  The President’s appointments of Members Block, Flynn and Griffin all fail on both requirements.  As a result, with only two Members, the NLRB does not have a quorum to render decisions.

It is not clear what the effect of this ruling will have on cases that have already been decided by this constitutionally defective NLRB nor whether the Supreme Court will agree to hear an appeal of this case.

Check back to our blog for more coverage of this issue as it develops.

By Janet B. Hutchison

The National Labor Relations Board (NLRB) has dealt another blow to employers who lose a labor dispute under the National Labor Relations Act (NLRA).  In a recent decision, Latino Express, Inc. v. International Brotherhood of Teamsters, Local 777, 359 NLRB No. 44 (2012), the NLRB ruled that employers will be required to compensate employees for any extra taxes the employee would incur resulting from lump-sum backpay awards.  Further, the NLRB held that employers must submit documentation to the Social Security Administration so that when backpay is paid, it will be allocated to the appropriate calendar quarters.

Under the remedial policies of the NLRB, when workers receive an award of backpay under the NLRA, the amount is computed on the basis of separate calendar quarters but paid in one lump sum.  Because the backpay is considered “wages,” it is subject to a withholding of Social Security taxes.  The Board reasoned that the victim may continue to suffer the effects of the unlawful actions of the employer unless the backpay is properly allocated to the appropriate time periods for Social Security purposes.

Further, the IRS considers a backpay award to be income earned in the year the award is paid, regardless of when the income should have been received.  According to the Board, this might result in the worker being pushed into a higher tax bracket.  Thus, the Board determined that the employee would not truly be made whole from the unlawful act unless the employer pays any extra taxes resulting from the lump sum payment.

The NLRB ruled that these changes will be applied retroactively and, therefore, will be included in remedial orders in both future and currently-pending cases.

By Janet B. Hutchison

The Arizona law setting the time within which payment of wages must be made to an employee who is discharged from employment has been changed. The law now provides that when an employee is discharged from the service of an employer, the employee must be paid wages due him or her within seven (7) working days (rather than three days previously required) or the end of the regular pay period, whichever is sooner. A.R.S. 23-353(A).

No revision was made to the statute regarding payment to an employee who quits employment. Payment of wages to an employee who quits must be paid in the usual manner no later than the regular payday for the pay period during which the termination occurred.

Wage issues continue to be the focus of much attention from both employees and enforcement agencies. If you need assistance with wage and hour issues, the labor and employment attorneys at Jennings, Strouss & Salmon can help. Visit us at http://www.jsslaw.com/.

CHICAGO — An investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration found that Northern Illinois Flight Center violated the whistleblower protection provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, known as AIR21, by illegally terminating an employee. The whistleblower, a pilot from Illinois, was dismissed after contacting the Federal Aviation Administration to discuss violations of the pilot certification process. As a result, OSHA has ordered the company to immediately reinstate the employee and pay more than $500,000 in back wages, benefits and damages.

“Firing pilots for reporting inaccurate procedures to the FAA endangers other pilots, their passengers and the public at large,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “The Labor Department has a responsibility to protect all employees, including those in the aviation industry, from retaliation for raising safety concerns and exercising these basic worker rights.”

The pilot alleges that he was asked to falsify an FAA Form 61.55 pilot certification for a training flight he performed with another pilot. He maintained that all required elements were not completed during the training flight conducted Feb. 16, 2009, so he could not certify the form. He also alleges that, on March 23, Northern Illinois Flight Center supervisors attempted to coerce him into signing a backdated and incorrect form. During a subsequent conversation, the pilot informed his supervisors that he wanted to contact the FAA directly to get clarification on the issue, and between March 25 and 27, the pilot contacted the FAA Flight Standards District. The pilot was terminated April 7, with no reason stated. The investigation, conducted by OSHA’s Chicago office, upheld the pilot’s allegations and found that he would not have been terminated if he had not requested to meet with the FAA for the purpose of discussing the pilot certification process and forms.

Northern Illinois Flight Center is based in Lake in the Hills and employs pilots to fly aircraft for the transportation of passengers and property.

OSHA conducted the investigation under the whistleblower provisions of AIR21, which protects employees who report alleged violations of any order, regulation, or standard of the FAA or any other provision of federal law relating to air carrier safety under this subtitle or any other law of the United States, or who engage in other protected activities.

OSHA enforces the whistleblower provisions of the AIR21 and 21 other statutes protecting employees who report violations of various railroad, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, maritime and securities laws. Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government.

Any party to this case can file an appeal with the Labor Department’s Office of Administrative Law Judges within 30 days of receipt of the findings.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

“On Monday, America will celebrate the sacrifices of the men and women who’ve served their country in the armed forces. I strongly believe that the best way we can honor our veterans is to employ them.

“We’ve now lowered our unemployment rate for our veterans to 6.3 percent – well below the national average – and brought down the jobless rate for Iraq and Afghanistan veterans by more than two percentage points in the last year alone. We’re making progress, but our work will not be done until everyone who has worn the uniform can find civilian jobs worthy of their heroic sacrifice.

“Through boot camp and pre-deployment training, the U.S. government spends 8-12 weeks preparing our outstanding soldiers, sailors and airmen to serve. Now that we’re winding down a decade of war overseas, it’s critical that we spend some time preparing these heroes for the transition back to civilian life. Over the next five years, the Department of Labor will help more than 1 million transitioning service members find jobs when they come home. We’re helping them with job search strategies and resume writing, and showing them how to market their world-class military training to secure good-paying civilian jobs.

“Every day, the Labor Department is working to help employers recruit veterans to fill open positions and to go out into local communities to make the case for hiring veterans. America’s veterans are dependable, hardworking and loyal. Teamwork and commitment to the mission at hand are hard-wired into their DNA. They’ve received world-class training from one of the most demanding organizations in the world and been tested in pressure-cooker situations that few of us can imagine.

“Those who fight to protect our freedoms abroad should not have to fight for jobs when they come home. They deserve a chance to use their unique skills to help re-grow our economy. So this Veterans Day, I encourage employers to make the commitment to put our veterans to work for them. It’s an act of patriotism that’s good for our country and good for their bottom line.

“We’re also focused on doing more to assist our homeless veterans, including many women who’ve come home with unique combat-related problems. On any given night, tens of thousands of vets go to sleep on our streets and under our bridges. We’ve made huge progress in reducing the number of homeless veterans by focusing on affordable housing first. Once they have shelter, we’re helping them find clothing, transportation, medical referrals and jobs. No service member should ever have to come home to homelessness, and with good civilian careers waiting for them, they won’t.”