Reply-To: "Lee Kent Hempfling"
From: "Lee Kent Hempfling"
To:
Subject: sending the info to this address also
Date: Tue, 19 Nov 2002 23:59:58 -0500
Organization: RadioWare
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Here is one e-mail

#1.
The federal consolidated Omnibus Reconciliated Act (COBRA) of 1985 is
applicable to businesses of 20 or more employees.... I received a COBRA form
a week after being ousted from LM Communications Inc... that PROVES they are
20 or more employees... its in the federal law...

Here is the BIGGIE

#2.
Please forward....

1: this link is to an ad showing all stations in lexington as one
http://www.yellowpages-ads.com/01228501

ALSO

2: My health insurance (if I was an employee of the very little
LM COM II of SC ) is under the group insurance plan
of John Alden Employer Group No: 107916 0001 000000012
Employer Group Name: L M Communication of SC.

You will notice how both radio stations were comined to
qualify as ENOUGH EMPLOYEES to get a group rate
on health insurance...

John Alden Contact: 800-328-4316

3: This pdf file is from an expert witness who testified in a LM COMM II
case listed 3/4 down the page.
http://www.mediaservicesgroup.com/CV/80.pdf

4: Industry listing of Martin's most recent station purchase showing how
many
stations HIS company owns..
http://www.radioandrecords.com/Subscribers/Transactions/archive/arch062602.h
tm

5: Rule #5 on 98Rock's website claims to be LM COMM,.,.NOT LM COMM of SC
http://www.98rockfm.com/contests.html

6: Following site http://www.insideradio.com/transactions/main.shtml
contains
LM Communications purchases three stations for $1.5 million.
From Mortenson Broadcasting. The stations are: WMON-AM, Montgomery, WV;
WSCW-AM and WJYP-FM, South Charleston, WV. Mortenson Broadcasting is keeping
WZKM-FM, Montgomery. LM Communications owns WKLC-FM and WCOZ-AM in the
Charleston, WV market. Mortenson Broadcasting will own 13 stations after the
sale. The addition of these stations gives LM Communications 12 total
stations. No word on any format or staff changes.

7: Read the blue side bar about Lynn Martin and his apparent history of
discussing long term employment
http://www.aceweekly.com/acemag/backissues/980916/cb2_980916.html

8: Traffic Patrol service contract is for both stations, one contract
http://www.trafficpatrolbroadcasting.com/affiliates.asp

9: Refer to http://www.harmoncurran.com/navigator/november2001.html#join for
Joined at the Hip: Defining Integrated and Joint Employment Relationships

If your organization shares employees, facilities or administrative
resources with another organization, you should be aware that the two
organizations could be considered integrated or joint employers for the
purposes of various employment laws. A joint or integrated employment
relationship could affect the responsibilities and potential liabilities of
your organization in several ways.

Many employment laws only apply to employers with more than a specific
number of employees. For example, only employers that have 20 or more
employees must provide benefits under the District of Columbia Family and
Medical Leave Act (DC FMLA). Other laws that contain numerical thresholds
include the federal FMLA, the Fair Labor Standards Act, and Title VII
anti-discrimination laws.

While these numerical thresholds may appear simple, their application may be
less than obvious when two or more organizations share employees,
facilities, or management. Such organizations are likely to be considered
joint or integrated employers and may be obligated to comply with these
laws, even though neither would, standing alone, have enough employees to
meet the applicable thresholds. Although tests for determining whether a
joint or integrated employment relationship exists differ somewhat depending
on the law, the following discussion should give you an idea of how these
rules work.

An integrated employer often exists when organizations that are separately
incorporated, but are housed under the same roof, as is often the case with
related nonprofit organizations. Integrated employers are generally defined
as two or more organizations that have common management, a degree of common
ownership or financial control, centralized control of labor relations,
and/or interrelation between operations. When these factors exist, the
separate organizations may be counted as a single employer for the purposes
of labor laws containing numerical thresholds. Thus, employees of integrated
employers would qualify for benefits under the DC FMLA if the total number
of employees of the organizations is 20 or more, even if none of the
organizations has 20 or more employees on its separate payroll.

Two or more organizations that exercise some control over a single
employee's work may be joint employers with respect to that employee. Joint
employment status exists when the employee's work simultaneously benefits
the separate employers, or two organizations have an arrangement to share
employees. In these cases, the organization with the authority to hire and
fire, make payroll, and assign benefits is considered the primary employer.
In a joint relationship, the primary employer must count the shared
employees for the purposes of determining whether it meets relevant
numerical thresholds.

Determining whether a joint employment relationship exists is important for
other reasons as well. For example, under the Fair Labor Standards Act, an
employee's time spent working for each part of a joint employer is
aggregated to determine whether the employee is entitled to overtime pay. In
addition, where two companies or organizations are considered a joint
employer for a single employee, both employers run the risk of being held
liable in employment discrimination or harassment disputes.

By Anne Cornelison

10: Most importantly: from
http://caselaw.lp.findlaw.com/data2/circs/9th/0055583p.pdf lays out the
legal definition of how to count employees... rules in our favor in each of
the four qualifications... full section text below
Childs v. Local 18, Int'l Bhd. of Elec. Workers,
719 F.2d 1379, 1382 (9th Cir. 1983). The four factors are:

"(1) interrelation of operations, located in same building, share employees
for all functions

(2) common management, same general manager, same sales manager, same
operations manager

(3)centralized control of labor relations; general manager control all labor
relations

(4) common ownership or financial control; common ownership is Lynn Martin
and his companies, Lynn Martin calls all financial shots and cyphons off
revenue to his company instead of returning revenue to the separate
companies.

This settles the argument in case history...

From
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

� SOO CHEOL KANG,

Plaintiff-Appellant, No. 00-55583

v. D.C. No. � 99-0659 JM(RBB) U. LIM AMERICA, INC., TAE JIN

YOON, DOES 1-100, OPINION

Defendant-Appellee. �

III Application of Title VII

At the threshold, we must determine whether Title VII

applies to U. Lim America. U. Lim America argued it was not

covered by Title VII because it employed fewer than fifteen

people.4 We hold that Title VII applies because U. Lim America

and U. Lim de Mexico were an integrated enterprise

which employed a combined total of more than fifteen

employees.

4Title VII applies to an employer, "engaged in an industry affecting

commerce who has fifteen or more employees for each working day in

each of twenty or more calendar weeks in the current or preceding calendar

year." 42 U.S.C. � 2000e(b).

[1] This circuit applies a four-part test to determine whether

two entities are an integrated enterprise for purposes of Title

VII coverage. Childs v. Local 18, Int'l Bhd. of Elec. Workers,

719 F.2d 1379, 1382 (9th Cir. 1983). The four factors are:

"(1) interrelation of operations, (2) common management, (3)

centralized control of labor relations; and (4) common ownership

or financial control." Id.5 Considering these factors we

conclude that U. Lim de Mexico and U. Lim America were

an integrated enterprise employing more than the necessary

fifteen employees.

1. Interrelation of Operations

The first factor, interrelation of operations, weighs in favor

of finding the two companies to be an integrated enterprise.

U. Lim America and U. Lim de Mexico shared a facility in

Mexico; neither had a facility in the United States. All of U.

Lim America's employees worked in the Tijuana factory,

commuting across the border each day. U. Lim America kept

U. Lim de Mexico's accounts, issued its paychecks and paid

its bills. See Hukill v. Auto Care, Inc., 192 F.3d 437, 443 (4th

Cir. 1999) (examining such factors as whether the companies

operated at separate locations, filed separate tax returns, held

separate director and shareholder meetings, conducted separate

banking, purchased goods separately, entered into lease

agreements separately, and were separately managed).

2. Common Management

The second factor, common management, also favors finding

the two companies to be integrated for Title VII purposes.

Yoon was the Vice-President of U. Lim America and President

of U. Lim de Mexico. U. Lim de Mexico supervisors

reported directly to U. Lim America's managers. See Cook v.

5Title VII uses these same factors to determine whether a foreign
corporation

is controlled by a U.S. corporation and therefore the foreign corporation

is subject to Title VII. 42 U.S.C. � 2000e-1(c).

Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir.

1995) (finding common management where the two companies

had a "common management structure" and the President

of the subsidiary operated out of the parent's office).

3. Centralized Control of Labor Relations

The third factor, centralized control of labor relations, is the

"most critical." Hukill, 192 F.3d at 442; Cook, 69 F.3d at

1240; see also Childs, 719 F.2d at 1382 (holding that since

the local branch of the union conducted its own labor relations

the two entities were not an integrated enterprise). This factor

too favors finding the two companies to be an integrated

enterprise.

U. Lim America had the authority to hire and fire U. Lim

de Mexico employees. The Mexican supervisors reported to

U. Lim America management. U. Lim America had essentially

complete control over U. Lim de Mexico's labor relations.

4. Common Ownership or Financial Control

The fourth factor also weighs in favor of finding the two

companies to be an integrated enterprise. U. Lim America and

U. Lim de Mexico were owned and controlled by the same

person, Yoon's father Ki Hwa Yoon. Furthermore, U. Lim de

Mexico essentially made no profit and transferred all its funds

to U. Lim America. See Cook, 69 F.3d at 1241(finding the

common ownership requirement met where one company was

a wholly owned subsidiary of the other).

9890 KANG v. U. LIM AMERICA INC.