Chapter 18 - LEGISLATIVE PROCESS
Art. 18-13
NLRB: NEW REGULATION - PRIVATE EMPLOYERS (INCLUDING FIRE & EMS COMPANIES) MUST POST NOTICE BY NOV. 14, 2011 - INFORMING EMPLOYEES OF THEIR FEDERAL RIGHTS TO ORGANIZE UNION – PRESIDENT OBAMA EXECUTIVE ORDER
On Aug. 30, 2011, the National Labor Relations Board published a Final Rule (29 CFR Part 104) requiring private employers nationwide to post notices, by Nov. 14, 2011, informing employees of their rights to organize a union under the National Labor Relations Act. Public sector employee, including public Fire & EMS, are excluded from FLRA.
https://www.nlrb.gov/news-media/fact-sheets/final-rule-notification-employee-rights.
NLRB – implementing President Obama’s Executive Order.
“Further support for [the rule] is President Obama’s recent Executive Order 13496, issued on January 30, 2009, which stressed the need for employees to be informed of their NLRA rights.”
When NLRB asked for public comments, they received many in opposition to this rule.
“In all, 7,034 comments were received from employers, employees, unions, employer organizations, worker assistance organizations, and other concerned organizations and individuals, including two members of Congress. The majority of comments, as well as Board Member Hayes' dissent, oppose the rule or aspects of it…”
NLRB Board Member Brian E Hayes wrote following opposition.
“Today, my colleagues conjure up a new unfair labor practice based on a new statutory obligation. They impose on as many as six million private employers the obligation to post a notice of employee rights and selected illustrative unfair labor practices. The obligation to post is deemed enforceable through Section 8(a)(1)'s proscription of interference with employees' Section 7 rights, and the failure to post is further penalized by equitable tolling of Section 10(b)'s limitations period and the possible inference of discriminatory motivation for adverse employment actions taken in the absence of posting. While the need for a more informed constituency might be a desirable goal, it is attainable only with Congressional imprimatur. The Board's rulemaking authority, broad as it is, does not encompass the authority to promulgate a rule of this kind. Even if it did, the action taken here is arbitrary and capricious, and therefore invalid, because it is not based on substantial evidence and it lacks a reasoned analysis.”
http://www.federalregister.gov/articles/2011/08/30/2011-21724/notification-of-employee-rights-under-the-national-labor-relations-act#p-501 – page 54037.
Despite the opposition, NLRB has decided to proceed.
“After due consideration, the Board has decided to require that employees of all employers subject to the NLRA be informed of their NLRA rights. Informing employees of their statutory rights is central to advancing the NLRA's promise of ‘full freedom of association, self-organization, and designation of representatives of their own choosing.’ NLRA Section 1, 29 U.S.C. 151. It is fundamental to employees' exercise of their rights that the employees know both their basic rights and where they can go to seek help in understanding those rights. Notice of the right of self-organization, to form, join, or assist labor organizations, to bargain collectively, to engage in other concerted activities, and to refrain from such activities, and of the Board's role in protecting those statutory rights is necessary to effectuate the provisions of the NLRA.”
http://www.federalregister.gov/articles/2011/08/30/2011-21724/notification-of-employee-rights-under-the-national-labor-relations-act#p-24
Enforcement - Unfair Labor Practice charge.
“How will the Board enforce the rule?
Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own.
What will be the consequences for failing to post the notice?
The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.”
https://www.nlrb.gov/news-media/fact-sheets/final-rule-notification-employee-rights
The NLRB will provide posters.
“The Board will provide copies of the notice on request at no cost to the employer beginning on or before November 1, 2011. These can be obtained by contacting the NLRB at its headquarters or its regional, sub-regional, or resident offices. Employers can also download the notice from the Board’s website and print it out in color or black- and-white on one 11-by-17-inch paper or two 8-by-11-inch papers taped together. Finally, employers can satisfy the rule by purchasing and posting a set of workplace posters from a commercial supplier.”
Legal Lesson Learned: Private fire & EMS departments will need to comply, unless lawsuits challenging this rule result in Court orders enjoining the NLRB.
Art. 18-12
VIDEO – OHIO QUICK CLEAR LAW (APRIL 2010)
Video filmed by Ohio State Bar Association and posted on YouTube. Also, now posted on UC Fire Science web page: www.aero.ceas.uc.edu/firescience - VIDEO SEMINARS NOW ONLINE.
Article 18-11
LEGISLATION: PA SUPREME COURT AGREES TO HEAR CASE – STATUTORY PRESUMPTION THAT HEPATITIS C WAS CONTRACTED BY FIREFIGHTER ON THE JOB
On September 9, 2010, in City of Philadelphia v. Workers Compensation Appeal Board (Kreibel); Petition of: Patricia Kriebel, the Supreme Court of Pennsylvania, in a short, unpublished order, 2010 Pa. LEXIS 2083, wrote:
The petition for Allowance of Appeal is GRANTED, LIMITED TO the following issue:
“Whether the Commonwealth Court's decision to reverse the decision of the Workers' Compensation Appeal Board and reinstate the decision of the Workers' Compensation Judge is supported by substantial competent evidence, given (1) the rebuttable statutory presumption, under Section 301 (e) of the Workers' Compensation Act, that Decendent's occupational disease, i.e., hepatitis C, arose out of and in the course of his employment as a firefighter; and (2) the absence of any evidence establishing that Decent was an intravenous drug user, shared needles, and/or came in contact with contaminated needles.”
Legal Lesson Learned: Hopefully the PA Supreme Court will find that this FF is covered by workers compensation for her illness. The various statutory presumption statutes in each state are very important. For current list of those statutes, and what illnesses are covered, see IAFF’s reference: http://www.iaff.org/hs/phi/phiStates.asp. See also the chart posted on page 24 of the following National Fire Academy funded study by IAFF, “Study Of Respiratory Diseases and the Fire Service,” 9/15/2010: http://www.usfa.dhs.gov/fireservice/research/safety/respiratory_study.shtm, or http://www.iaff.org/hs/Respiratory/RespiratoryDiseases_andtheFireService.pdf.
Article 18-10
FLORIDA – LIGHT-FRAME TRUSSES – FF WARNING EMBLEMS MUST BE POSTED ON BUILDINGS AS OF DEC. 13, 2009 – NUMEROUS SIGN COMPANIES NOW ADVERTISING
On Dec. 13, 2009, the Aldridge-Bengle Firefighter Safety Act became effective; it was passed in 2008, and named in memory of two Orange County FF who were killed in 1989 in the the collapse of a gift shop.
Numerous companies are now advertising signs (conduct GOOGLE search using name of the statute to see more). For example:
http://www.existingstructures.com/lightweight_truss_design_inspection.html
The law can be read at http://laws.flrules.org/files/Ch_2008-192.pdf.
Be It Enacted by the Legislature of the State of Florida: Section 1. This act may be cited as the “Aldridge/Benge Firefighter Safety Act.”
***
Section 5. Section 633.027, Florida Statutes, is created to read:
633.027 Buildings with light-frame truss-type construction; notice requirements; enforcement.—
(1) The owner of any commercial or industrial structure, or any multiunit residential structure of three units or more, that uses light-frame truss-type construction shall mark the structure with a sign or symbol approved by the State Fire Marshal in a manner sufficient to warn persons conducting fire control and other emergency operations of the existence of light-frame trusstype construction in the structure.
(2) The State Fire Marshal shall adopt rules necessary to implement the provisions of this section, including, but not limited to:
(a) The dimensions and color of such sign or symbol.
(b) The time within which commercial, industrial, and multiunit residential structures that use light-frame truss-type construction shall be marked as required by this section.
(c) The location on each commercial, industrial, and multiunit residential structure that uses light-frame truss-type construction where such sign or symbol must be posted.
(3) The State Fire Marshal, and local fire officials in accordance with s. 633.121, shall enforce the provisions of this section. Any owner who fails to comply with the requirements of this section is subject to penalties as provided in s. 633.161.
Legal Lessons Learned: FDs should urge similar laws be enacted in their state; don’t wait for a LODD to seek such a law.
Larry's Legal Lessons: Supreme Court Agrees to Hear New Haven Reverse Discrimination Case (02-09-2009)
The Supreme Court has the chance to make a landmark decision regarding the promotion of fire officers, based on race. www.firehouse.com (search “Bennett”)
OH: NEW “QUICK CLEAR” LEGISLATION - FIREFIGHTERS NOT LIABLE FOR DAMAGE TO VEHICLES, IF VEHICLE MOVED AT POLICE DIRECTION
Article 18-9
On Dec. 30, 2008, Amended Substitute Senate Bill Number 129 was sent to the Governor, and has now been signed into law. 127th General Assembly; http://www/legislature.state.oh.us.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 18-8
OHIO – FIRE-SAFE CIGARETTES – OHIO GENERAL ASSEMBLY APPROVES BEW LAW
On Dec. 17, 2008, the Ohio General Assembly passed a new “fire-safe cigarette” law (House Bill 500), that has been sent to the Governor for signature. The bill establishes reduced ignition propensity standards, authorizes the State Fire Marshal to monitor and enforce these standards, and establishes penalties for violations.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 18-7
OHIO – BOOSTER SEATS - REQUIRED FOR CHILDREN UNDER AGE 8 AND SHORTER THAN 4 FEET, 9 INCHES
On Dec. 17, 2008, the Ohio General Assembly approved a new booster seat law (HB 320), that has been sent to the Governor for signature. Under the old law, booster seats were required for children younger than 4, who weigh less than 40 pounds. Under the new law, booster seats are required for children under 8, who are shorter than 4 feet, 9 inches.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 18-6
CALIFORNIA – BRAIN CANCER – PUBLIC SAFETY OFFICER PRESUMPTION OF COMPENSABILITY - DID NOT APPLY HERE SINCE POLICE OFFICER NOT EXPOSED TO CHEMICALS
On Nov. 13, 2008, in Dianna Fain v. Workers’ Compensation Appeals Board and City of Fresno Police Department, Court of Appeal of California, 5th Appellate District, 2008 Cal. App. Lexis 2147, the court confirmed that the family of Brian Fain, who died of brain cancer after working as a police officer and detective for the Fresno Police Department from 1972 until Aug. 17, 2006, was not entitled in compensation.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 18-5
Volunteers - Congress Passes “Volunteer Responder Incentive Protection Act” - No Federal Taxes On $360 Of Benefits
On Dec. 18, 2007, the U.S. Congress passed the “Volunteer Responder Incentive Protection Act” (H.R. 3648) that exempts from the IRS taxes the first $360 per year of benefits provided to volunteer firefighters and EMS by state and local governments. The law is effective for taxable year 2008 and later, and specifies the exemption includes “ any payment (whether reimbursement or otherwise) provided by a State or political division thereof on account of the performance of services as a member of a qualified volunteer emergency response organization.”
This was on of the top legislative priorities of the National Volunteer Fire Council; see the positive comments of NVFC Chairman Philip C. Stittleburg at http://nvfc.org.
HR 3648 can be read at http://thomas.loc.gov. Section 139B, BENEFITS PROVIDED TO VOLUNTEER FIREFIGHTERS AND EMERGENCY MEDICAL RESPONDERS, provides in part:
1) QUALIFIED STATE AND LOCAL TAX BENEFIT- The term `qualified state and local tax benefit' means any reduction or rebate of a tax described in paragraph (1), (2), or (3) of section 164(a) provided by a State or political division thereof on account of services performed as a member of a qualified volunteer emergency response organization.
(2) QUALIFIED PAYMENT-
(A) IN GENERAL- The term `qualified payment' means any payment (whether reimbursement or otherwise) provided by a State or political division thereof on account of the performance of services as a member of a qualified volunteer emergency response organization.
(B) APPLICABLE DOLLAR LIMITATION- The amount determined under subparagraph (A) for any taxable year shall not exceed $30 multiplied by the number of months during such year that the taxpayer performs such services.
(3) QUALIFIED VOLUNTEER EMERGENCY RESPONSE ORGANIZATION- The term `qualified volunteer emergency response organization' means any volunteer organization--
(A) which is organized and operated to provide firefighting or emergency medical services for persons in the State or political subdivision, as the case may be, and
(B) which is required (by written agreement) by the State or political subdivision to furnish firefighting or emergency medical services in such State or political subdivision.
(C) Effective Date- The amendments made by this section shall apply to taxable years beginning after December 31, 2007.
Legal Lessons Learned: This is great news for volunteer fire and EMS; if you use a tax preparer, make sure your preparer is aware of this new law for tax returns for 2008 and later.
Article 18-4
Volunteers - Congress Passes “Volunteer Responder Incentive Protection Act” - No Federal Taxes On $360 Of Benefits
On Dec. 18, 2007, the U.S. Congress passed the “Volunteer Responder Incentive Protection Act” (H.R. 3648) that exempts from the IRS taxes the first $360 per year of benefits provided to volunteer firefighters and EMS by state and local governments. The law is effective for taxable year 2008 and later, and specifies the exemption includes “ any payment (whether reimbursement or otherwise) provided by a State or political division thereof on account of the performance of services as a member of a qualified volunteer emergency response organization.”
This was on of the top legislative priorities of the National Volunteer Fire Council; see the positive comments of NVFC Chairman Philip C. Stittleburg at http://nvfc.org.
HR 3648 can be read at http://thomas.loc.gov. Section 139B, BENEFITS PROVIDED TO VOLUNTEER FIREFIGHTERS AND EMERGENCY MEDICAL RESPONDERS, provides in part:
1) QUALIFIED STATE AND LOCAL TAX BENEFIT- The term `qualified state and local tax benefit' means any reduction or rebate of a tax described in paragraph (1), (2), or (3) of section 164(a) provided by a State or political division thereof on account of services performed as a member of a qualified volunteer emergency response organization.
(2) QUALIFIED PAYMENT-
(A) IN GENERAL- The term `qualified payment' means any payment (whether reimbursement or otherwise) provided by a State or political division thereof on account of the performance of services as a member of a qualified volunteer emergency response organization.
(B) APPLICABLE DOLLAR LIMITATION- The amount determined under subparagraph (A) for any taxable year shall not exceed $30 multiplied by the number of months during such year that the taxpayer performs such services.
(3) QUALIFIED VOLUNTEER EMERGENCY RESPONSE ORGANIZATION- The term `qualified volunteer emergency response organization' means any volunteer organization--
(A) which is organized and operated to provide firefighting or emergency medical services for persons in the State or political subdivision, as the case may be, and
(B) which is required (by written agreement) by the State or political subdivision to furnish firefighting or emergency medical services in such State or political subdivision.
(c) Effective Date- The amendments made by this section shall apply to taxable years beginning after December 31, 2007.
Legal Lessons Learned: This is great news for volunteer fire and EMS; if you use a tax preparer, make sure your preparer is aware of this new law for tax returns for 2008 and later.
Article 18-3
“Larry’s Legal Lessons: Hiring Firefighters Who are in the National Guard,” concerning the federal Uniformed Services Reemployment Rights Act (USERRA), 38 U.S.C. 4311. Article published 9-25-07 in www.firehouse.com; to read article go to this web site and Search, “Bennett.”
Article 18 – 2
OHIO - NEW LAW REQUIRING FIREFIGHTER CONTINUING EDUCATION
On November 28, 2006, the Ohio General Assembly passed and sent to the Governor a new law requiring firefighters to taking continuing education courses, and be issued certificates to practice by the Ohio Board of Medical Services (see Sub. H. B. No. 401, www.legislature.state.oh.us). The law does not change the old requirement of 36-hours of training for a volunteer firefighter.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.aero.ceas.uc.edu/firescience.]
Article 18-1
OHIO – NEW LAW BROADENS INVESTIGATIVE POWERS TO OHIO BOARD OF EMERGENCY MEDICAL SERVICES
Governor Bob Taft has signed into law, and effective January 18, 2007, House Bill 375 which provides the Board with new subpoena and other investigative authority. This bill was sponsored by State Rep. Larry L. Flowers, former fire chief; www.legislature.state.oh.us.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.aero.ceas.uc.edu/firescience.]
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