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GRASSLEY, AYOTTE QUESTION ADMINISTRATION’S WARN ACT GUIDANCE PDF Print E-mail
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Written by Grassley Press   
Tuesday, 02 October 2012 13:32

Senators ask White House to explain legal basis for covering lawsuit costs after instructing employers to disregard labor law

 

WASHINGTON – Senators Chuck Grassley (R-Iowa) and Kelly Ayotte (R-NH) are requesting information from the White House about new guidance from the Office of Management and Budget (OMB) that says the government will pay for legal costs related to lawsuits resulting from private-sector employers failing to give employees notice of possible layoffs due to sequestration.  The Department of Labor told federal contractors this summer not to worry about complying with the federal labor law that requires notification.

 

The senators’ inquiry involves the 1988 Worker Adjustment and Retraining Notification Act, known as the WARN Act, which requires large employers to send written notice to employees 60 days in advance of potential layoffs or plant closings.

 

In July, the Department of Labor issued guidance which said federal contractors potentially impacted by the budget sequestration scheduled to take effect on January 2, 2013, need not abide by the WARN Act requirement.  Despite sequestration being the law of the land, the Department of Labor suggests the WARN Act doesn’t apply because of uncertainty about whether sequestration will occur and how it would impact contracts.  To date, the administration has failed to be transparent about the impact of sequestration.

 

Despite the message from the Department of Labor, federal contractors have considered providing notices in order to comply with the law.  According to a news report last month, Lockheed Martin had said it might send notices to all 123,000 employees, for example.  Under the WARN Act, if notice isn’t provided, an employer is liable for paying back pay, benefits and attorneys’ fees.  If sent, notices would reach workers days before the presidential election in November.

 

On Friday, the OMB issued a memo that goes beyond the letter from the Department of Labor by apparently promising government payments for any lawsuits brought against employers who don’t give WARN Act notices per the Department of Labor’s instructions.  After the OMB memo was released, Lockheed Martin said it won’t send notices.  Other contractors have not yet indicated what they will do.

 

“What the administration has done raises serious questions,” Grassley said.  “In our letter of inquiry, we’re asking what authority the administration is using to say it is okay to disregard the law and commit to pay for monetary judgments and other expenses resulting from lawsuits.  If workers aren’t given the notice they’re due, the costs could amount to billions of dollars for taxpayers.  The public deserves answers and accountability without any delay.”

 

“The President has prohibited the Pentagon from planning for defense sequestration and now cites this lack of specifics as the reason employers should ignore the WARN Act requirement.  The Administration’s new guidance tells employers to willfully ignore the law and stay silent about looming layoffs until after the election – and promises them a taxpayer funded bailout for their legal expenses if they do so,” Ayotte said.  “The Administration must explain its legal basis for this interpretation of the WARN Act that leaves taxpayers on the hook, American workers in the dark, and our national security in jeopardy.”

 

Below is the text of the senators’ October 1 letter to Jeffrey Zients, the Acting Director of the White House Office of Management and Budget.  Click here to see the letter.

October 1, 2012

The Honorable Jeffrey Zients

Acting Director

Executive Office of the President

Office of Management and Budget

Washington, DC  20503

 

Dear Mr. Zients:

 

We write regarding the Memorandum for the Chief Financial Officers and Senior Procurement Executives of Executive Departments and Agencies issued by the White House’s Office of Management and Budget (OMB) on September 28, 2012.  The OMB memorandum purports to provide “guidance on allowable contracting costs with the Worker Adjustment and Retraining Notification (WARN) Act.”

 

In general, the WARN Act, 29 U.S.C. § 2101 et seq., requires employers with at least 100 employees to provide written notice to employees 60 days before ordering certain plant closings or mass layoffs.  Failure to provide this notice, subject to very limited exceptions, triggers civil liability for the employer.  Under the WARN Act, each aggrieved employee may sue their employer and may be awarded back pay, benefits and attorneys’ fees.

As the OMB memorandum explains, on July 30, 2012, the Department of Labor (DOL) issued Training and Employment Guidance Letter No. 3-12, which examined the WARN Act's requirements in the context of the sequestration (budget cuts) scheduled to take place on January 2, 2013.  The DOL opined that it was neither necessary nor appropriate for federal contractors to issue WARN Act notices to employees 60 days in advance of the potential sequestration because of uncertainty about whether sequestration will occur and, if it did, what effect it would have on particular contracts.

The DOL's speculation about the applicability of the WARN Act notwithstanding, some contractors indicated that they were still considering issuing notices.  Those notices would be received by employees and their families days before the Presidential election in November.   For example, according to a news report, Lockheed Martin initially indicated that it might send notices to all of its 123,000 employees.[1]

On the afternoon of Friday, September 28, the White House’s OMB issued its memorandum.  In relevant part, that memorandum states:

To further minimize the potential for waste and disruption associated with the issuance of unwarranted layoff notices, this memorandum provides guidance regarding the allowability of certain liability and litigation costs associated with WARN Act compliance.  Specifically, if (1) sequestration occurs and an agency terminates or modifies a contract that necessitates that the contractor order a plant closing or mass layoff of a type subject to WARN Act requirements, and (2) that contractor has followed a course of action consistent with DOL guidance; then any resulting employee compensation costs for WARN Act liability as determined by a court, as well as attorneys' fees and other litigation costs (irrespective of litigation outcome), would qualify as allowable costs and be covered by the contracting agency, if otherwise reasonable and allocable.

The OMB memorandum concludes by stating that its representations do “not alter existing rights, responsibilities, obligations, or limitations under individual contract provisions or the governing cost principles set forth in the Federal Acquisition Regulation (FAR) and other applicable law.”  Thus, “agencies may treat as allowable other costs potentially associated with sequestration, including WARN Act-related costs arising under circumstances not specified in th[e memorandum], based on the usual cost principles of allocability, allowability, and reasonableness as set forth in the FAR.”

According to one news report, the OMB memorandum tells contractors that “they would be compensated for legal costs if layoffs occur due to contract cancellations under sequestration – but only if the contractors follow the [DOL’s] guidance [from July].”[2] As noted above, the DOL has advised contractors not to provide their employees with notices under the WARN Act.

In reliance on the promises in the OMB memorandum, Lockheed Martin has now indicated that it will not send out the notices.[3] Other contractors have yet to indicate whether they will send out the WARN Act notices to their employees, in light of the Administration’s promises.

We are seriously concerned about the OMB’s memorandum and the DOL’s letter.  In particular, we are concerned about the authority of the Executive Branch to instruct private employers not to comply with federal law and to promise to pay the monetary judgments and litigation costs that arise out of the lawsuits that may follow.  Although the precise amounts of the judgments and costs are unknown, they could potentially reach tens or hundreds of millions of dollars, if not billions of dollars, all of which would be paid for with taxpayers’ dollars.

Accordingly, respond to the following questions and requests for information:

1.         Identify the legal authority for the DOL to instruct federal contractors that they are not required to provide WARN Act notices to their employees in light of the pending sequestration.

2.         Identify the legal authority for the OMB to instruct federal contractors that they are not required to provide WARN Act notices to their employees in light of the pending sequestration.

3.         Identify the legal authority for the OMB to promise to pay the monetary judgments and litigation costs that arise out of the lawsuits that could follow from employers’ failure to comply with the WARN Act.

4.         Set forth the analysis and supporting legal authority for the representation in the OMB’s memorandum that “any resulting employee compensation costs for WARN Act liability as determined by a court, as well as attorneys' fees and other litigation costs (irrespective of litigation outcome), would qualify as allowable costs and be covered by the contracting agency, if otherwise reasonable and allocable.”

5.         Explain in detail why you maintain that the Obama Administration did not have to first obtain approval from Congress before committing to pay tens or hundreds of millions of dollars (if not billions of dollars) in judgments, settlements and/or attorneys’ fees that may be incurred by private employers.

6.         Identify in detail the costs that the OMB’s memorandum represents the Administration will “cover” for contractors who are sued based on their failure to provide notices under the WARN Act.  For example, do the “costs” include reimbursing the contractors for the attorneys’ fees they incur from defending themselves in WARN Act lawsuits?  What other “costs” will be “covered”?

7.         How many millions or billions of dollars has the OMB’s memorandum obligated the federal government to pay, if WARN Act notices are not provided and layoffs and lawsuits do occur?

8.         What will be the source of the funds used to pay the monetary judgments and litigation costs that arise out of the lawsuits that follow from employers’ failure to comply with the WARN Act?  Does the Administration maintain that these funds have already been appropriated by Congress?

9.         Before the release of OMB’s memorandum, was any analysis done to determine how much the federal government would have to pay to “cover” the costs of these lawsuits, including potential attorneys’ fees?  If so, provide that analysis and provide copies of all documents related to that analysis.

10.     Provide copies of any and all written analyses that were done in connection with the OMB’s memorandum.

11.     According to the DOL’s July 30, 2012 letter, if contractors provide WARN Act notices, it “would be inconsistent with the purpose of the WARN Act.”  By contrast, 29 U.S.C. § 2106 (the WARN Act) provides that “[i]t is the sense of Congress that an employer who is not required to comply with the notice requirements of section 2102 of this title should, to the extent possible, provide notice to its employees about a proposal to close a plant or permanently reduce its workforce.”  How does OMB justify DOL’s statement in light of the plain language of section 2106 of the WARN Act?

12.     According to the OMB’s memorandum, “some [contractors] have inquired about' whether Federal contracting agencies would cover WARN Act-related costs in connection with the potential sequestration.”  Identify each of those contractors and produce all documents related to communications between the White House, DOL or any other federal agency and the contractors regarding this issue.

13.     Does the Administration maintain that the OMB’s memorandum constitutes a binding legal promise to contractors that the federal government will fully indemnify them for any and all liability and legal defense fees that they incur as a result of their not providing WARN Act notices?  If not, explain in detail whether the OMB’s memorandum makes any binding commitments and if it does, describe those commitments in detail.

14.     Were any other federal agencies consulted prior to the issuance of the OMB memorandum?  If so, identify each agency consulted and indicate whether any agency disagreed about whether the legal authority exists for the Administration to promise to pay the costs and legal fees associated with the failure to issue WARN Act notices.

If the OMB or any other office in the White House possesses documents relating to the subject matter of any of the foregoing questions, provide copies of those documents.

 

We ask that you provide written answers and documents by October 8, 2012.

 

Sincerely,

 

Charles E. Grassley                       Kelly Ayotte

Ranking Member                         Member

Senate Judiciary Committee                      Senate Armed Services Committee

 



[1] Jeremy Herb, “Obama administration tells contractors again: Don’t issue layoff notices,” The Hill (Sept. 28, 2012).

[2] Id.  

[3] Jeremy Herb, “After Obama guidance, Lockheed won’t issue layoff notices this year,” The Hill (Oct. 1, 2012).

 
NORTH CENTRAL U.S. PRODUCES 10 OF THE “PRETTIEST PAINTED PLACES” PDF Print E-mail
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Written by D. Zimmer   
Tuesday, 02 October 2012 13:18
The search for the “Prettiest Painted Places in America” is narrowing, with 10 finalists from the North Central U.S. named by the Paint Quality Institute, an informational entity whose mission is to educate the public about quality paints and coatings.

The 10 finalists are:  Aurora, Illinois;  Bay View Association, Michigan;  Evansville, Wisconsin;  Fargo-Moorhead, North Dakota/Minnesota;  Galena, Illinois;  Grinnell, Iowa;  Lowry Hill East, Minnesota;  Richmond, Indiana;  Saugatuck-Douglas, Michigan;  and Stillwater, Minnesota.

After further evaluation, two of the 10 will be named the prettiest painted places in the North Central U.S., alongside winners from five other regions, to make up the 12 prettiest painted places in America.

A “prettiest painted place” is a special town or neighborhood with exceptional community-wide “curb appeal” due to optically pleasing or creative use of exterior paint color, according to Debbie Zimmer, paint and color expert for the Paint Quality Institute.

“One typically thinks of curb appeal defined by beautiful color schemes on homes or buildings, and that’s the case most of the time, but exquisite outdoor murals and creative use of paint color on statues, signage, traffic signals, water towers, and even streets and sidewalks have elevated the appearance of many of today’s prettiest communities,” she said.

The search for America’s prettiest painted places began this spring, when the Paint Quality Institute contacted state departments of tourism, local chambers of commerce, and convention and visitors bureaus in all 50 states.  Eventually, nearly 200 towns, historic districts, neighborhoods and Main Streets were nominated in the competition.

Last week, a panel of judges with expertise in color selection, exterior painting, and home improvement reviewed the entries and narrowed the field to 60 finalists, 10 from each of six geographic regions.  The 12 national winners will be named later this month.

This is the third time the Paint Quality Institute has conducted a search for the prettiest painted places in America.  It held the first competition in the 1990s, and another in year 2000.

According to Zimmer, the purpose of the competition is to give recognition to places that use paint to express pride in their communities, and highlight how an attractive exterior paint treatment can enhance the curb appeal of virtually any home, building or exterior structure.

To see a complete list of the 60 finalists involved in the search for the “Prettiest Painted Places in America”, visit blog.paintquality.com.

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About the Paint Quality Institute (SM)

Since 1989, The Paint Quality Institute (SM) has been educating people on the advantages of using quality interior and exterior paints and coatings. The Paint Quality Institute's goal is to help educate consumers, contractors and designers by providing information on the virtues of quality paint as well as color trends and decorating with paint through a variety of instructional platforms and conferences, and traditional and new media vehicles. More information can be found at www.paintquality.com.

 
Overcoming a Parent’s Worst Nightmare PDF Print E-mail
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Written by Ginny Grimsley   
Monday, 01 October 2012 15:00
Bereaved Mother Offers Tips on Her  Most Important Life Lesson

Perhaps the worst thing that can happen to a parent is experiencing the loss of a child. However, as one mother shares, it’s possible to turn one’s devastation into spiritual enlightenment and to weave the tragedy into the fabric of your life and your family.

“I don’t think any parent ever gets over the loss of a child,” says Caroline Flohr, whose memoir “Heaven’s Child,” (www.heavenschild.com), recounts the transformative death of her 16-year-old twin daughter, Sarah.

“Through the web of pain, I have been amazed by the power of family, love and faith in healing. I have learned that death defines not the end of the journey, but a beginning.”

Flohr reviews some of the milestones in her journey to inner peace:

• Deeper meaning: Through the death of someone so important, you will be changed. The question is how you will be changed. Will you grow, or become diminished? Flohr grew with the realization that death – so often viewed as an end – is just the beginning of another phase of existence. “One of my favorite quotes is from poet Rabindranath Tagore: “Death is not extinguishing the light. It is putting out the lamp because dawn has come.”

• Celebrate life: When the bereaved are able to look at the life of a person who has passed and see more beauty than pain, they should rejoice. The reality of a person’s absence will always have an element of sadness, but the joy of  wonderful memories is even more powerful. When loved ones leave this Earth, graces are given to those relationships left behind. These are gifts. When we can acknowledge them, our lives can expand in the present.

• Ready for anything: Once you’ve experienced the worst and pulled through, you know you will be able to weather just about any adversity. Maya Angelou wrote, ‘“You may encounter many defeats, but you must not be defeated. In fact, it may be necessary to encounter the defeats, so you can know who you are, what you can rise from, how you can still come out of it.” Have faith in that inner strength we all harbor, Flohr says.

• Appreciate what you have: Life as we know it will come to an end. This includes everyone we know, love and care about; it’s a fact that we often forget, and it’s as startling to remember as it is true. Come good or bad, we do not know what the future will bring, which means we should take every opportunity to fully embrace the present, and our loved ones.

About Caroline Flohr

Caroline Flohr was a busy wife and mother to five children when her 16-year-old twin daughter, Sarah, was killed in an accident. She was forced to dig into the deeper meaning of existence and came away with profound edification. Flohr lives with her husband and children on Bainbridge Island, a suburb of Seattle.

 
Iowa Supreme Court to Hear Oral Arguments in Waterloo PDF Print E-mail
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Written by Iowa Judicial Branch   
Monday, 01 October 2012 14:58

Des Moines, October 1, 2012—On Thursday, October 11, the Iowa Supreme Court will hear oral arguments in Waterloo, Iowa. The proceeding will take place in Waterloo West High School Kersenbrock Auditorium, 425 East Ridgeway Avenue. The session will begin at 7 p.m.

 

The court will hear lawyers argue in two cases:

 

Sallee v. Stewart

Case context: Under Iowa's Recreational Use Statute and the facts of this case, can private land owners be held liable for injuries to an adult chaperone suffered during an organized kindergarten class field trip to the landowners' working dairy farm?

 

The lawyer for Sallee is D. Raymond Walton, Waterloo. The lawyer for Stewart is Karla J. Shea, Waterloo.

 

State of Iowa v. Tyler

Case context: Defendant's conviction for OWI second resulted from a traffic stop based on alleged visually obstructed license plates. Under the facts of this case, did the police officer have reasonable suspicion or probable cause justifying the traffic stop?

 

The lawyer for the State of Iowa is Bridget A. Chambers, Assistant Attorney General. The lawyer for Tyler is Gary Dickey, Des Moines.

 

Note to Editors: News media are invited to attend the oral arguments. Court rules apply regarding still camera, video camera and audio recording device use during the oral arguments. You can find information on expanded media coverage on the Judicial Branch Website at http://www.iowacourts.gov/News_Service/Expanded_Media_Coverage/.

 

The Iowa Court Rules regarding expanded media coverage on the Iowa Legislature website at http://www.legis.state.ia.us/DOCS/ACO/CR/LINC/08-15-2012.chapter.25.pdf

 

 

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Donate old cell phone today PDF Print E-mail
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Written by Kara Beach   
Monday, 01 October 2012 13:16

Donated cell phones to be wiped clean; proceeds support domestic violence victims

SPRINGFIELD – October 1, 2012. Marking the beginning of Domestic Violence Awareness Month, Lt. Governor Sheila Simon launched her annual cell phone drive today. For each phone donated during the drive, Verizon Wireless will contribute $10 to the Illinois Coalition Against Domestic Violence (ICADV), up to $10,000.

In many instances a survivor may arrive at a shelter with no access to a phone to contact other loved ones, or will not use their current phone as it might be kept under the abuser’s name.

Collected phones will be donated to Verizon’s HopeLine program. Phones will be refurbished and sold, with the proceeds going to support local domestic violence shelters and programs. The program also provides domestic violence agencies with wireless phones and airtime for use by domestic violence victims. If a phone can’t be refurbished, it will be recycled in an environmentally sound way.

“We have a chance to partner with private and non-profit groups to directly impact the lives of our neighbors,” said Simon, a former Jackson county prosecutor and founder of a domestic violence legal clinic at Southern Illinois University School of Law. “These phones could be a lifeline for domestic violence survivors, and the matching funds will help support response and prevention statewide.”

Thanks to the generous support of individuals, private entities and state agencies, Simon received more than 1,000 cell phones during her donation drive last year. Through matching funds from Verizon, the Chicago Metropolitan Battered Women’s Network and ICADV each received a $5,000 donation.

The $10 matching donation this year will fund further growth and expansion of ICADV’s Virtual Legal Clinic consultation program launched by Simon and her staff. The Virtual Legal Clinics connect domestic violence survivors in underserved areas with an attorney concentrating in family law for a free legal consultation.

“On behalf of ICADV, I am very grateful to Lt. Governor Simon for her emphasis on this very important project,” said Vickie Smith, ICADV Executive Director. “Not only does it bring in funds for expanding the Virtual Legal Clinic, each phone will in turn help another domestic violence victim reach life-saving assistance when needed.”

Since its recycling program was launched in 2001, HopeLine has collected more than 9 million wireless phones and has awarded more than $14.2 million in cash grants to domestic violence organizations throughout the country. More than 123,000 HopeLine phones with the equivalent of more than 406 million minutes of airtime have been provided to victims, survivors and domestic violence organizations since the program’s inception.

“Verizon Wireless is committed to supporting those affected by domestic violence,” said T.J. Fox, Verizon Wireless region president. “We recognize the role we can play in helping organizations right here in Illinois work to put an end to this destructive force and to provide assistance to victims of domestic abuse.”

Cell phones can be donated through October 12 at the following locations. Donations are also accepted year-round at Verizon Wireless stores:

 

·         Lt. Governor’s Chicago office – James R. Thompson Center 15th floor

·         Lt. Governor’s Springfield office – 214 State Capitol

·         Lt. Governor’s Carbondale office – IDOT Facility, 2801 W. Murphysboro Rd.

·         Chicago Bar Association bookstore – 321 S. Plymouth Ct., Chicago

·         Illinois State Bar Association – 424 S. Second St., Springfield

 
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