News and Information

New Kansas “No-Smoking” Law Takes Effect July 1, 2010

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Smoking will be prohibited in most indoor locations in Kansas – including places of employment and within 10 feet of any doorway, open window or air intake where smoking is prohibited – under a new Kansas state law that takes effect July 1, 2010. In addition, Kansas employers must adopt a written no-smoking policy, timely communicate such policy to employees and new hires, and post a new no-smoking sign in the workplace. The following summarizes key provisions of the new Kansas law applicable to private sector employers.

Must Provide a Smoke-Free Workplace – Kansas employers that have a place of employment that is "an enclosed area" must provide a smoke-free workplace for all employees.

Smoking Prohibited in the Workplace – No person may smoke in an enclosed area, including but not limited to:

Any place of employment – including (but not limited to) work areas, auditoriums, elevators, private offices, employee lounges and restrooms, conference and meeting rooms, classrooms, employee cafeterias, stairwells and hallways that is used by employees during the course of employment;

Lobbies, hallways and other common areas in private buildings; and

Access points of all buildings and facilities – meaning the area within a 10 foot radius outside of any doorway, open window or air intake leading into a building or facility.

The "enclosed area" where smoking is prohibited includes both private enclosed offices and indoor cubicles. In fact, the new law defines "enclosed area" to mean "all space between a floor and ceiling which is enclosed on all sides by solid walls, windows or doorways which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid or similar structures." Moreover, smoking is prohibited at all times in such areas – including when it is not open to the public (including after hours, on weekends or on holidays).

Where Smoking is Permitted – The new Kansas law does not prohibit smoking in the outdoor areas of any building or facility beyond the access points of such building or facility – i.e., beyond the 10 foot radius outside of any doorway, open window or air intake leading into such building or facility.

Employer Must Have Written No-Smoking Policy – Kansas employers must adopt and maintain a written smoking policy which must prohibit smoking without exception in all areas of the place of employment. Such policy must be communicated:

To all current employees within one week of its adoption; and

To all new employees upon hiring.

Each employer also must provide a written copy of the smoking policy upon request to any current or prospective employee.

Employer Must Post No-Smoking Sign – Kansas employers must post in conspicuous place signs displaying the international no smoking symbol and clearly stating that smoking is prohibited by state law. No-smoking signs (in English and Spanish) may be downloaded from the Kansas Department of Health and Environment website.

Unlawful to Fail to Comply with New Law – It is unlawful for any person who owns, manages, operates or otherwise controls the use of any area where smoking is prohibited to fail to comply with all or any of the provisions of the new Kansas no-smoking law – including the failure to adopt, maintain and communicate the no-smoking policy or post the no-smoking sign.

Unlawful to Allow Smoking Where Prohibited – It is unlawful for any person who owns, manages, operates or otherwise controls the use of any area where smoking is prohibited to allow smoking to occur where prohibited by law. Any such person will be deemed to allow smoking to occur if they (1) have knowledge that smoking is occurring, and (2) acquiesces to the smoking under the totality of the circumstances.

Unlawful to Smoke Where Prohibited – It is also unlawful for a person to smoke in area where smoking is prohibited.

Penalties for Violations – Any person who violates the new Kansas law is guilty of a cigarette or tobacco infraction punishable by a fine:

Not exceeding $100 for the first violation;

Not exceeding $200 for a second violation within a one-year period after the first violation; or

Not exceeding $500 for a third or subsequent violation within a one-year period after the first violation.

The number of violations within a year is measured by the date the smoking violations occur. Each individual allowed to smoke where smoking is prohibited will be considered a separate violation for purposes of determining the number of violations. Local law enforcement (police or sheriff) have the authority to enforce the new Kansas law.

No Retaliation – No employer may discharge, refuse to hire or in any manner retaliate against an employee, applicant for employment or customer because the employee, applicant or customer reports or attempts to prosecute a violation of the new Kansas law.

Covered Employers – Employers covered by the new Kansas law includes any person, partnership, corporation, association or organization (including municipal or nonprofit entities) which employs one or more individual persons.

Effective Date – The new Kansas law takes effect on July 1, 2010.

Local Laws – Where local clean indoor air laws have provisions stricter than the Kansas state law, those local provisions will prevail. However, where local laws have provisions less strict than the state law, state law provisions will prevail effective July 1, 2010.

Other Areas Where Smoking is Prohibited – In addition to places of employment, the new Kansas law also prohibits smoking in most of the following indoor locations in Kansas:

Public places.
Restaurants.
Bars.
Within 10 feet of any doorway, open window or air intake where smoking is prohibited.
Taxicabs and limousines.

Exempt from New Law – The following locations are exempt from the new Kansas law:

Tobacco shops that derive not less than 65% of gross receipts from the sale of tobacco.
Gaming floors of lottery gaming facilities or racetrack gaming facilities.
Up to 20% of hotel/motel sleeping rooms.
Designated indoor areas of private outdoor recreational clubs (i.e. golf clubs, hunting clubs) where minors are prohibited.
Private homes or residences not used as a day care home.
Designated smoking areas of adult care homes and long-term care facilities.
Class A and B private clubs licensed before July 1, 2009, that notify the Secretary of the Kansas Department of Health and Environment by September 28, 2010 of their intent to allow smoking.

More Information – The Kansas Department of Health and Environment website includes the text of the new law, frequently asked questions, a fact sheet and no-smoking signs.

Richard L. Connors is an attorney with Stinson Morrison Hecker LLP, one of the country's largest law firms with more than 300 attorneys in more than 45-industry-focused areas. Mr. Connors represents management exclusively in employment and labor law.

Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.

Few Private Sector Jobs Created in May

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Fueled largely by the hiring of 411,000 temporary employees to work on Census 2010, the unemployment rate edged down to 9.7% in May, according to a June 4, 2010 report by the Bureau of Labor Statistics. Private-sector employment, however, changed little – with only 41,000 jobs created.

Industry Sectors

Manufacturing employment increased by 29,000 in May, and has risen by 126,000 over the past 5 months.

Temporary Help services added 31,000 jobs in May, and have increased by 362,000 since September 2009.

Health care employment was little changed last month (+8,000). "Over the prior 12 months, health care employment had increased by an average of 20,000 per month."

"In May, employment in construction declined by 35,000, largely offsetting gains in the industry in the prior 2 months. May’s job loss was spread throughout the sector."

"Employment in other private-sector industries, including wholesale trade, retail trade, transportation and warehousing, information, financial activities, and leisure and hospitality showed little change in May."

"Government employment rose by 390,000 in May. The Federal government hired 411,000 temporary workers for Census 2010, bringing total temporary census staffing during the payroll survey reference period to 564,000. Employment in state government excluding education decreased by 13,000."

Part-Time Workers – "The number of persons employed part-time for economic reasons (sometimes referred to as involuntary part-time workers) declined by 343,000 in May to 8.8 million. These individuals were working part-time because their hours had been cut back or because they were unable to find a full-time job."

Average Workweek – In May, the average workweek for production and nonsupervisory employees increased slightly to 33.5 hours.

Unemployment

15 Million are Unemployed – The number of unemployed person was 15.0 million in May.

Blacks, Hispanics and Teens have Higher Unemployment – The unemployment rate is higher for adult men (9.8%) that for adult women (8.1%) and teens (26.4%) have an unemployment rate that is nearly three times higher than adults. The unemployment rate is also higher for blacks (15.5%) and Hispanics (12.4%) than for whites (8.8%) and Asians (7.5%).

Long-Term Unemployed – "In May, the number of long-term unemployed (those jobless for 27 weeks and over) was about unchanged at 6.8 million. These individuals made up 46.0% of unemployed persons, about the same as in April."

Marginally Attached to Labor Force – "About 2.2 million persons were marginally attached to the labor force in May, unchanged from a year earlier. These individuals were not in the labor force, wanted and were available for work, and had looked for a job sometime in the prior 12 months."

Nearly 11 Million People are in the United States Illegally

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

"It is unknown, at any point in time, how many unauthorized aliens are in the United States," but "according to recent estimates by the Department of Homeland Security (DHS), approximately 10.8 million aliens were living in the United States" last year, according to an April 27, 2010 report by the Congressional Research Service – the research arm of the U.S. Congress.

How Unauthorized Aliens Enter U.S. – "Unauthorized aliens enter the United States in three main ways: (1) some are admitted to the United States on valid nonimmigrant (temporary) visas (e.g., as visitors or students) or on border crossing cards and either remain in the country beyond their authorized period of stay or otherwise violate the terms of their admission; (2) some are admitted based on fraudulent documents (e.g., fake passports) that go undetected by U.S. officials; and (3) some enter the country illegally without inspection (e.g., by crossing over the Southwest or northern U.S. border)."

Region of Birth – "Mexico has historically been the greatest source country for unauthorized migration to the United States. According to DHS, there were an estimated 6.7 million unauthorized aliens from Mexico residing in the United States in early 2009, representing 62% of the total unauthorized resident population at the time."

States of Residence – According to the report, California is home to more unauthorized aliens (2,700,000) than any other state, followed by Texas (1,450,000), Florida (1,050,000), New York (925,000), New Jersey (550,000), Arizona (500,000), Georgia (475,000), Illinois (450,000), North Carolina (350,000) and Virginia (300,000). There was an estimated 70,000 unauthorized aliens in Kansas in 2008, and an estimated 45,000 unauthorized aliens in Missouri.

Labor Force Participation – "The Pew Hispanic Center estimates that there were 8.3 million unauthorized aliens in the labor force in 2008, representing four of every five unauthorized adults in the United States that year. These unauthorized workers accounted for 5% of the civilian labor force." According to the report, "94% of unauthorized men between the ages of 18 and 64 were in the labor force in 2008, compared to 58% of unauthorized women in the same age group."

Impact of Economic Downturn – According to the DHS report, "the number of unauthorized residents declined by 1.0 million between 2007 and 2009, coincident with the U.S. economic downturn."

Contractors Must Inform Workers of Their Right to Join a Union

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Many federal contractors and subcontractors will soon be required to post a new workplace poster that notifies their employees of their rights under federal labor law – including the right to "organize a union," to discuss terms and conditions of employment or union organizing with co-workers or a union, and to "take action" by raising work-related complaints and "seeking help from a union" – under a final rule issued by the U.S. Department of Labor (DOL) on May 20, 2010.

President Obama’s Executive Order – The new requirement is the result of an Executive Order signed by President Obama on January 30, 2009. The Executive Order requires nonexempt federal departments and agencies to include within their government contracts specific provisions requiring contractors and subcontractors to post notices informing their employees of their rights under federal labor laws.

Covered Contracts – Generally, the new rule applies to non-exempt federal contracts of $100,000 or more issued after June 21, 2010 and applies to both the government contractor and its subcontractors at any tier (except subcontracts that do not exceed $10,000). However, contracts and subcontracts for work performed exclusively outside the territorial United States are not covered by the new rule.

Content of Poster – The required 11"×17" poster lists employees’ rights under the National Labor Relations Act "to form, join, and support a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board with questions or to file complaints."

Where to Obtain the New Poster – A poster with the required employee notice is available at the DOL Office of Labor-Management Standards’ website.

Translated Posters: "Where a significant portion of a contractor’s or subcontractor’s workforce is not proficient in English, they must provide the employee notice in languages spoken by employees. The DOL will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements."

May Reproduce Posters: "Contractors may reproduce and use exact duplicate copies of the DOL’s official poster."

Where to Physically Post the New Poster – "A contractor or subcontractor that posts notices to employees physically must also post the required notice physically." The employee notice must be placed:

"In conspicuous places in and about the contractor’s plants and offices so that the notice is prominent and readily seen by employees. Such conspicuous placement includes, but is not limited to, areas in which the contractor posts notices to employees about the employees’ terms and conditions of employment;" and

"Where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract. An employee will be considered to be so engaged if the duties of the employee’s position include work that fulfills a contractual obligation, or work that is necessary to, or that facilitates, performance of the contract or a provision of the contract."

Electronic Posting – A contractor or subcontractor that customarily posts notices to employees electronically must also post the required notice electronically.

Website: "Such contractors or subcontractors satisfy the electronic posting requirements by displaying prominently on any web site that is maintained by the contractor or subcontractor, whether external or internal, and customarily used for notices to employees about terms and conditions of employment, a link to the DOL’s website that contains the full text of the poster."

Link: The link to the DOL website must read, "Important Notice About Employee Rights to Organize and Bargain Collectively with Their Employers." The link can be no less prominent than other employee notices. Electronic posting cannot be used as a substitute for physical posting.

Complaints – "Employees may file complaints with the DOL about contractors and subcontractors who do not comply with the DOL posting requirements or do not include the notice provisions in contacts or subcontracts."

Investigations and Sanctions for Noncompliance – The DOL’s Office of Federal Contracts Compliance Programs "may conduct evaluations to determine compliance. Contractors who violate the regulations may be subject to sanctions for non-compliance, including suspension or cancellation of an existing contact; debarment from future Federal contracts and subcontracts; and inclusion on a list published and distributed by the Director of OLMS to all executive agencies listing the names of contractors and subcontractors declared ineligible for future contracts as a result of non-compliance with these requirements. A contractor will have an opportunity for a hearing and an appeal before the imposition of any sanctions."

Additional Resources – A helpful Fact Sheet and the new poster may be downloaded from the DOL Office of Labor-Management Standards website.

Arbitration Cases are Fewer and More Expensive

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Companies and unions requested over 14,000 arbitration panels from the Federal Mediation and Conciliation Service (FMCS) in fiscal year 2009, however only 6,496 arbitrators were actually appointed and, more significantly, only 2,100 arbitration cases were eventually heard and decided, according to the FMCS’s 2009 Annual Report. Moreover, the average fees and expenses charged by an arbitrator rose 7% last year, to $4,470

HIRE Act: New Tax Incentives to Hire the Unemployed

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Two new tax benefits designed to encourage businesses to hire and retain unemployed workers are part of a $15 billion jobs bill – the Hiring Incentives to Restore Employment (HIRE) Act – that was passed by Congress and signed into law on March 18, 2010.

Payroll Tax Incentive – Under the HIRE Act, companies who hire certain unemployed workers this year may qualify for a 6.2% payroll tax incentive, in effect exempting them from the employer’s share of Social Security tax on wages paid to these workers after March 18, 2010. However, in order for the business to "qualify" for the tax incentive, the new hire:

1. Must begin employment after Feb. 3, 2010 and before January 1, 2011;

2. Must have been unemployed for 60 consecutive days before beginning work or, alternatively, must have worked fewer than a total of 40 hours for someone else during the 60-day period before beginning work;

3. Must sign an Employee Affidavit (IRS Form W-11, which is to be retained by the employer), certifying under penalties of perjury that the employee was unemployed (for the period described above);

4. Must not be related to the employer; and

5. Must not be employed to replace another employee – unless such other employee separated from employment voluntarily or for cause. However, an employer may apply the payroll tax exemption to wages paid to a rehired worker who is otherwise a qualified employee. An employer may also apply the payroll tax incentive to wages paid to a recent graduate who has been in school for some or all of the 60-days preceding the start of employment, provided the employee otherwise meets the requirements of a qualified employee.

Businesses may claim the special payroll tax exemption for wages paid to qualifying employees from March 19, 2010 through December 31, 2010. The exemption can be claimed on IRS Form 941, Employer’s Quarterly Federal Tax Return, beginning with the 2nd quarter of 2010.

New Hire Retention Credit – In addition, for each "qualified employee" retained for at least 52 consecutive weeks, businesses will also be eligible for a new hire retention credit, of 6.2% of wages paid to the qualified employee over the 52 week period, up to a maximum of $1,000. The wages for such employment during the last 26 weeks of such period must equal at least 80% of such wages for the first 26 weeks of such period. The new hire retention credit can be claimed on the employer’s 2011 income tax return.

More Information - The Internal Revenue Service (IRS)has posted answers to frequently asked questions about these tax incentives on the IRS website.

COBRA Subsidy Extended Through May 31, 2010

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Congress in April extended the federal COBRA subsidy through May 31, 2010. As a result, workers who are involuntarily terminated from employment between September 1, 2008 and May 31, 2010 may be eligible for a 65% subsidy of their COBRA premiums for a period of up to 15 months. Employers must provide COBRA coverage to eligible individuals who pay 35% of the COBRA premium. Employers are reimbursed for the other 65% by claiming a credit for the subsidy on their payroll tax returns, and must maintain supporting documentation for the claimed credit

"Reasonable Break Time" Required for Nursing Mothers

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Employers must provide "reasonable break time" for a non-exempt employee to express breast milk for her nursing child for one year after the child’s birth – each time such employee has need to express the milk – according to a provision (Section 4207) in the newly enacted health care reform law.

Place Other than Bathroom Must be Provided – In addition, employers must provide a place – other than a bathroom – that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

The Breaks Need Not be Paid – An employer is not required to compensate an employee receiving reasonable break time to express breast milk under the new law for any work time spent for such purpose.

Exception for Small Employers – An employer that employs less than 50 employees is not subject to the new law if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

Only Applies to Non-Exempt Employees – The new law was added at the end of Section 7 of the Fair Labor Standards Act, and thus only applies to non-exempt and hourly paid employees. Employees who are exempt from the overtime pay provisions under Section 13 of the FLSA are not covered by the new federal law requiring reasonable break time for nursing mothers. However, employees may be covered by state law

Does Not Preempt State Law – These new requirements do not preempt a state law that provides greater protections to employees than the protections provided under the new federal law. According to the National Conference of State Legislatures, 24 states, the District of Columbia and Puerto Rico have laws related to breastfeeding in the workplace (Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming).