Legislative Updates

Important Legislative Updates from NPA:

California Parking Operators Should Be Aware of Potential for 'Meal and Break Period' Lawsuits

In California, an employer generally may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee, but only in a very limited and specific way. A second meal period of not less than 30 minutes is required if an employee works more than 10 hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. This obviously presents a challenge to many parking operators, due to the nature of the business, staffing at facilities and the desires of employees.

According to the California Department of Industrial Relations, unless the employee is relieved of all duty during his or her 30 minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee's regular rate of pay. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. The Department states that some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.

California Labor Code Section 226.7 generally provides that if an employer fails to provide its non-exempt employees with meal periods or rest breaks, the employee is entitled to "one hour of pay" for each missed break. Over the years, courts have been divided over whether this "one hour of pay" is a "penalty" imposed on the employer (subject to a one year statute of limitations), or whether the pay is a "wage" for time worked (subject to a three-year statute of limitations, and possibly up to four years if the claim is brought under the California Unfair Competition Law). On April 16, 2007, the California Supreme Court decided in Murphy v. Kenneth Cole Productions that the "one hour of pay" is a wage subject to a three year "look back" recovery period, thereby expanding potential liability for employers.

This ruling has had a major impact on California employers on many different levels. First, this additional hour of pay is subject to tax withholding and employer taxes. Second, additional penalties could be imposed if an employer fails to pay terminated employees for all additional hours of pay for missed meal and rest breaks that occurred over the preceding three years. Third, plaintiffs' attorneys are seeking to recover attorneys' fees and costs if they prevail under another California statute. Obviously, California parking operators must continue to ensure that they comply with applicable meal and rest break requirements.

Several NPA members who have operations in California are defending investigations or lawsuits on meal and rest period issues. Some of these operators are attempting to form a coalition to explore possible legislative or administrative solutions to this issue and would appreciate feedback from operators in other parts of the country. If you are or have been involved in litigation over this issue, and/or if you would like to be part of a group that seeks a resolution that appreciates the unique challenges of the parking industry, please contact Marty Stein at mstein@npapark.org.

Thanks

Update on H.R. 800, "The Employee Free Choice Act" [June 27, 2007]

Supporters of Card Check Bill Fall Short Of Votes Needed to Limit Senate Debate

Supporters of the proposed Employee Free Choice Act (H.R. 800/S. 1041) June 26 fell nine votes short of the 60 needed to limit Senate debate and proceed to final consideration of the bill, with Democrats and unions vowing to continue the fight for the legislation and the Bush administration, Republicans, and employer groups applauding the action to block the bill, according to the Bureau of National Affairs' Daily Labor Report.

The 51-48 vote was almost completely along party lines, with 48 Democrats, two Independents (Sens. Joseph Lieberman (Conn.) and Bernard Sanders (Vt.) ), and one Republican (Sen. Arlen Specter (Pa.) ) voting for the cloture motion and 48 Republicans voting against it. Sen. Tim Johnson (D-S.D.), who is recovering from a brain hemorrhage he suffered last year, did not vote. The result - a majority of the votes but not enough to invoke cloture - was anticipated by lobbyists on both sides of the issue. The legislation, which the House passed March 1 by a 241-185 vote, would give workers the option to choose union representation by signing authorization cards, with the National Labor Relations Board performing a card check and determining whether the union has majority support. The bill also would provide for mediation and arbitration if the parties fail to reach a first bargaining contract within certain time limits and would set tougher penalties for unfair labor practices committed during an organizing campaign or during bargaining for a first contract.

Thanks very much to those of you who contacted your senator to oppose this legislation, and for your continuing interest and assistance. We'll keep you informed on any future developments concerning this bill.

~ Marty Stein and Andrew Blair

H.R. 800, "The Employee Free Choice Act" [June 18, 2007]

Dear NPA Member:

In a prior emails we told you about H.R. 800, the "Employee Free Choice Act," which had been introduced by House Labor Committee Chairman George Miller (D-CA).

On March 1, 2007, by a roll call vote, the House passed the bill by a vote of 241 to 185. The bill was supported by 99% of Democrats and opposed by 94% of Republicans. Senator Kennedy (D-MA) introduced the bill in the Senate on March 20, 2007. It has been referred to the Subcommittee on Health, Employment, Labor, and Pensions, and will be voted on in the Senate soon, if not this month, perhaps in July.

Although President Bush has vowed to veto the bill, it is unclear at this point whether there would be enough support for the bill to override a veto.

H.R. 800 would change current labor law in three fundamental ways:

1) It would amend the National Labor Relations Act to eliminate the private secret-ballot elections run by the National Labor Relations Board (NLRB). Federally supervised secret ballot elections were originally put in place over 50 years ago to protect workers from intimidation or coercion by employers, unions or co-workers. Under the proposed card check legislation, unions would be able to represent employees as soon as a majority of workers signed a card stating their intention to join the union, a process overseen by union members.

Existing law triggers an NLRB-sanctioned election once 30 percent of workers demonstrate a desire for union representation. Under current law, a card check may be used only with the employer's consent. Unions want this legislation to pass because organizing by card check is easier, cheaper and faster than an NLRB election. Yet, in doing away with the ability to vote privately, Congress will eliminate important safeguards for all workers.

2) It would set a strict 90-day time limit for reaching an initial collective bargaining agreement (or a longer period if agreed to by both parties).Current law sets no time limit on reaching an initial agreement. It simply requires the parties to bargain in good faith to attempt to negotiate a contract.

3) It would direct the Federal Mediation and Conciliation Service to intervene if an agreement cannot be reached. Failing that, disputes then go to binding arbitration and are subject to a decision binding on both parties for two years, unless both parties agree to a different length of time. Currently, unless the parties agree otherwise, federal mediators have no authority to impose contract terms on employers and unions.

Respected columnists like George Will have openly opposed this legislation. In a recent editorial that appeared in the Washington Post on February 27, 2007, he stated as follows:

"Under the card-check system, unions are able to, in effect, select the voters they want. It strips all workers of privacy and exposes them, one at a time, to the face-to-face pressure of union organizers who distribute and collect the cards. The Supreme Court has said that the card-check system is 'admittedly inferior to the election process.'" "Repealing a right -- to secret ballots -- long considered fundamental to democratic culture would be a radical act. But labor is desperate. The card-check shortcut to unionization comes before Congress after last month's announcement that union membership declined, yet again, in 2006, by 326,000." Attached is a link to Mr. Will's article: Article Link

Also attached is a link attached to an alert prepared by NPA Legal Counsel Mike Stevens and his firm, Arent Fox LLP: Alert Link

The parking industry has been targeted by labor unions in several markets. This legislation will make it much easier for unions to organize employees. Now that the fight over this bill now moves on to the Senate, please take the time now to communicate with your Senators by e-mail or fax (a sample letter follows for you to personalize) or phone call and register your opposition to H.R. 800. If you do not know who your Senators are, visit http://www.senate.gov/general/ contact_informati on/senators_cfm.cfm.

Thank you for your continuing interest and assistance in this matter. Please contact us if you have any questions.

Thanks, Marty Stein and Andrew Blair

Draft Sample Letter - for your company letterhead.
Please feel free to personalize:

Dear Senator__________:

As a ________ of the _____________ Company, I encourage you to oppose H.R. 800, the "Employee Free Choice Act." Our company is a member of the National Parking Association (NPA), an organization representing more than 1,200 member companies across the United States and internationally. We and NPA strongly oppose H.R. 800, because it is inconsistent with the fundamental rights of employees to decide whether or they wish to be represented by a union, and with the rights of management and labor to negotiate their own terms to collective bargaining agreements without government intervention.

H.R. 800 would, among other things, amend the National Labor Relations Act to eliminate the secret ballot elections run by the National Labor Relations Board (NLRB). These procedures were originally put in place over 50 years ago to protect workers from intimidation or coercion by employers, unions or co- workers. Having the right to vote in private on such an important issue without undue influence is a fundamental right in our free society. Under the proposed card check legislation, unions would be able to represent employees as soon as a majority of workers signed a card stating their intention to join the union.

By contrast, existing law triggers an NLRB-sanctioned election once 30 percent of workers demonstrate a desire for union representation. Furthermore, under current law, card checks may be used only with the employer's consent. Some groups want this legislation to pass because organizing by card check is easier, cheaper and faster than an NLRB secret- ballot election. Yet, in doing away with the ability to vote privately, Congress will eliminate important safeguards for all workers. In this case, expediency should not prevail over protecting the fundamental rights of workers.

The card check bill will effectively ban employers from the playing field, not only during organizing drives, but also during the resulting contract negotiations due to the strict time limits within which a collective bargaining agreement must be reached and the binding arbitration that would follow shortly thereafter. Current law requires the parties to bargain in good faith to reach a labor contract. It does not impose artificial time limits on the bargaining process, nor does it give a government mediator the right to impose contract terms on the parties.

The ability of the American worker to vote privately, without peer pressure or fear of reprisal in the workplace, is worth preserving and is a critical aspect of the American democratic tradition. I hope you will carefully consider the ramifications of the legislation and decline to support H.R. 800.

Thank you for your consideration of this very important matter.

Sincerely,

Your Name
Your Title

Contact Information E-mail: mstein@npapark.org
Phone: (202) 296-4336
Web: www.npapark.org

Access Board Releases Draft Revisions to Guidelines for Buses and Vans [April 28, 2007]

The Board is undertaking a review and update of its ADA Accessibility Guidelines for Transportation Vehicles. Published in 1991, these guidelines cover a range of vehicles, including buses and vans, rail cars, trams, and other modes of public transportation. As part of this effort, the Board has released for public comment draft revisions to sections of the guidelines covering access to buses and vans.

The released draft updates provisions that apply generally to buses and vans and includes revisions that cover new or variant forms of service, such as bus rapid transit. It includes changes to specifications for wheelchair and other mobility aid space requirements, onboard accessible routes, vehicle lifts, ramps and bridgeplates, signs, stop announcement systems and lighting. A discussion provided with the draft text describes these changes. In addition, the Board has included questions seeking comment on minimum space requirements for mobility aids, widths of onboard accessible routes, lift design loads, and specifications for seat belts and shoulder harnesses. The deadline for comment is June 11, 2007.

The measure, which is scheduled to take effect Oct. 1, 2007, applies to state service contracts valued at $100,000 or more. The law would require state contractors and subcontractors to pay $11.30 an hour if more than half of the value of the contract is performed within the so-called "Tier 1 area," comprised of five urban/suburban counties - Montgomery, Prince George's, Howard, Ann Arundel and Baltimore - as well as Baltimore City. Contractors and subcontractors performing covered contract work in the remainder of the state would be required to pay most employees $8.50 an hour. The law would not apply to construction contracts subject to prevailing wage requirements, to employees under 17 years of age, or to those working fewer than 13 consecutive weeks.

The revisions are based on the Board's review of the guidelines and input it received at an industry roundtable in January and public meetings held last September and July. These events provided an opportunity for the public, including disability groups, transportation operators, vehicle manufacturers, and other interested stakeholders to identify issues to address and provisions to revisit. Recently, the Board held a forum on the released draft and this update effort at New Jersey's TransAction 2007 Transportation Conference and Expo, in Atlantic City and received input on the draft from attendees.

Instructions for submitting comments are included in a notice published in the Federal Register on April 11. Both the draft and the notice are available on the Board's Website at http://www.access-board.gov/vguidedraft.htm. Drafts covering other sections of the vehicle guidelines will be released as they become available. For further information, contact Dennis Cannon at cannon@access-board.gov, 202.272.l0015 (v), or 202.272,0082 (TTY).

NPA members can direct comments to Mary S. Smith, Senior Vice President, Walker Parking Consultants, Inc., 317.842.6890, or mary.smith@walkerparking.com.

Maryland Legislature Approves Living Wage Mandate for Employees on State Contracts

The Maryland Legislature April 9 passed a measure requiring certain state government service contractors to pay employees a minimum "living wage" of $11.30 per hour in the Baltimore-Washington, D.C., corridor and $8.50 per hour in other areas of the state. Meanwhile, the Legislature also passed an enrolled version of two bills allowing employees with discrimination claims under state law to litigate those claims in state court. The living wage measure (H.B. 430) was approved by the Senate by a vote of 31-16 and by the House of Delegates by a vote of 91-49 on the final day of the state legislative session. The Maryland AFL-CIO, a supporter of the legislation, said that Gov. Martin O'Malley, a Democrat who campaigned in support of a statewide living wage, has promised to sign it into law. "The final vote is another step toward lifting thousands of Maryland workers out of poverty," said Fred Mason, president of the Maryland and D.C. AFL-CIO, in an April 9 statement. The Maryland Chamber of Commerce had lobbied against the legislation, characterizing it as "onerous" to business interests. "It is fiscally irresponsible to inflate state procurement costs by millions of dollars annually when the state is facing a structural budget deficit of $1.5 billion," the organization said in a statement.

Contracts Over $100,000 Covered

The measure, which is scheduled to take effect Oct. 1, 2007, applies to state service contracts valued at $100,000 or more. The law would require state contractors and subcontractors to pay $11.30 an hour if more than half of the value of the contract is performed within the so-called "Tier 1 area," comprised of five urban/suburban counties - Montgomery, Prince George's, Howard, Ann Arundel and Baltimore - as well as Baltimore City. Contractors and subcontractors performing covered contract work in the remainder of the state would be required to pay most employees $8.50 an hour. The law would not apply to construction contracts subject to prevailing wage requirements, to employees under 17 years of age, or to those working fewer than 13 consecutive weeks.

Discrimination Bill Passed

Meanwhile, the discrimination bill passed April 2 is being hailed as a huge step for those claiming sexual orientation bias because Maryland, but not federal, anti-discrimination law protects against sexual orientation discrimination in employment. With the existing procedure only allowing pursuit of state law claims in administrative tribunals, such claimants had no means of obtaining compensatory damages. The final version of S.B. 678, with minor amendments, passed the Senate April 2 by a 39-8 vote. The House by a 136-3 vote passed its final version of the bill March 31. The Senate passed an earlier version of the legislation March 23 by a 39-8 vote. That bill differed from its cross-filed measure in the House, H.B. 314, by containing a single comma that was added as an act of clarification. The House originally passed H.B. 314 March 21 by a vote of 137-0.

Text of the living wage measure is available here.

Text of the enrolled version of S.B. 678 is available here.

H.R. 800, "The Employee Free Choice Act"

Dear NPA Members:

In a prior email, we told you about H.R. 800, the "Employee Free Choice Act," which had been introduced by House Labor Committee Chairman George Miller (D-CA).

We regret to report that on March 1, 2007, by a roll call vote, the House passed the bill by a vote of 241 to 185. The bill was supported by 99% of Democrats and opposed by 94% of Republicans. Senator Kennedy (D-MA) has vowed to introduce the bill in the Senate very soon. Although President Bush has vowed to veto the bill, it is unclear at this point whether there would be enough support for the bill to override a veto.

H.R. 800 would change current labor law in three fundamental ways:

1) It amends the National Labor Relations Act to eliminate the private secret-ballot elections run by the National Labor Relations Board (NLRB). Federally supervised secret ballot elections were originally put in place over 50 years ago to protect workers from intimidation or coercion by employers, unions or co-workers. Under the proposed card check legislation, unions would be able to represent employees as soon as a majority of workers signed a card stating their intention to join the union, a process overseen by union members.

Existing law triggers an NLRB-sanctioned election once 30 percent of workers demonstrate a desire for union representation. Under current law, a card check may be used only with the employer's consent. Unions want this legislation to pass because organizing by card check is easier, cheaper and faster than an NLRB election. Yet, in doing away with the ability to vote privately, Congress will eliminate important safeguards for all workers.

2) It sets strict 90-day time limits for reaching an initial collective bargaining agreement (or a longer period if agreed to by both parties). Current law sets no time limit on reaching an initial agreement. It simply requires the parties to bargain in good faith to attempt to negotiate a contract.

3) It directs the Federal Mediation and Conciliation Service to intervene if an agreement cannot be reached. Failing that, disputes then go to binding arbitration and are subject to a decision binding on both parties for two years, unless both parties agree to a different length of time. Currently, unless the parties agree otherwise, federal mediators have no authority to impose contract terms on employers and unions.

The parking industry has been targeted by labor unions in several markets. This legislation will make it much easier for unions to organize employees. The fight over this bill now moves on to the Senate. Please take the time now to communicate with your Senators by e-mail or fax (a sample letter follows for you to personalize) or phone call and register your opposition to H.R. 800. If you do not know who your Senators are, visit http://www.senate.gov/general/contact_information/senators_cfm.cfm

Thank you for your continuing interest and assistance in this matter. Please contact us if you have any questions.

Thanks,
Marty Stein and Andrew Blair

Draft Sample Letter - for your company letterhead.
Please feel free to personalize:

Dear Senator __________:

As a ________ of the _____________ Company, I encourage you to oppose H.R. 800, the "Employee Free Choice Act." Our company is a member of the National Parking Association (NPA), an organization representing more than 1,200 member companies across the United States and internationally. We and NPA strongly oppose H.R. 800, because it is inconsistent with the fundamental rights of employees to decide whether or not they wish to be represented by a union, and with the rights of management and labor to negotiate their own terms to collective bargaining agreements without government intervention.

H.R. 800 would, among other things, amend the National Labor Relations Act to eliminate the secret ballot elections run by the National Labor Relations Board (NLRB). These procedures were originally put in place over 50 years ago to protect workers from intimidation or coercion by employers, unions or co-workers. Having the right to vote in private on such an important issue without undue influence is a fundamental right in our free society. Under the proposed card check legislation, unions would be able to represent employees as soon as a majority of workers signed a card stating their intention to join the union.

By contrast, existing law triggers an NLRB-sanctioned election once 30 percent of workers demonstrate a desire for union representation. Furthermore, under current law, card checks may be used only with the employer's consent. Some groups want this legislation to pass because organizing by card check is easier, cheaper and faster than an NLRB secret- ballot election. Yet, in doing away with the ability to vote privately, Congress will eliminate important safeguards for all workers. In this case, expediency should not prevail over protecting the fundamental rights of workers.

The card check bill will effectively ban employers from the playing field, not only during organizing drives, but also during the resulting contract negotiations due to the strict time limits within which a collective bargaining agreement must be reached and the binding arbitration that would follow shortly thereafter. Current law requires the parties to bargain in good faith to reach a labor contract. It does not impose artificial time limits on the bargaining process, nor does it give a government mediator the right to impose contract terms on the parties.

The ability of the American worker to vote privately, without peer pressure or fear of reprisal in the workplace, is worth preserving and is a critical aspect of the American democratic tradition. I hope you will carefully consider the ramifications of the legislation and decline to support H.R. 800.

Thank you for your consideration of this very important matter.

Sincerely,

Your Name
Your Title

Minimum Wage Update

House Democrats Attach Wage Measure To War Spending Bill In Bid for Swift Action

Legislation to increase the minimum wage by $2.10 per hour over two years will be attached the week of March 12 to a fiscal year 2007 emergency war supplemental spending bill in an effort to move the wage measure rapidly through Congress. The bill, a priority of congressional Democrats, would raise the minimum wage to $7.25 per hour from $5.15 per hour. The wage increase already passed both houses of Congress as separate legislation (H.R. 2). However, the Senate included in its version of H.R. 2 an $8.3 billion package of small business tax breaks while the House separately passed a $1.3 billion package (H.R. 976) of small business tax breaks to move along with the wage increase bill.

The legislation became stuck in the Senate where Republicans sought a formal conference. According to news sources, the legislation being attached to the spending bill will be the same as what already has passed the House.

Miller Hopes Maneuver Speeds Passage

House Education and Labor Committee Chairman George Miller (D-Calif.) told reporters March 9 the maneuver to attach the bill could help move it through Congress. "We want to get it done," he said. "This helps."

Miller added that the wage hike legislation received a "huge bipartisan vote" in both the House and Senate. When asked if Democrats were on board with the move, House Appropriations Committee's Defense Appropriations Subcommittee Chairman John Murtha (D-Pa.) said , "We're going to get it through committee, that's one thing for sure."

"You take it a step at a time," Murtha said. The spending bill is scheduled to be marked up March 15 in the House Appropriations Committee, Murtha said.

Republican Questions Relevance

Meanwhile, House Education and Labor Committee Ranking Member Howard "Buck" McKeon (R-Calif.), who voted against the minimum wage legislation, said that Democrats are simply attaching additional items to the emergency spending bill in an effort to get it passed.

"I don't see how it's relevant to funding the troops," he said about the addition of the minimum wage bill to the spending bill. The minimum wage legislation should move on its own through the conference committee process, he said.