In what is more than likely to be one of the most momentous legal controversies of 2014, the U.S. Supreme Court is poised to render a decision that reaches the very foundations of the Republic – and could potentially invalidate hundreds of official actions of the National Labor Relations Board and an even greater number of rules and quasi-judicial determinations by a host of other presidential appointees. On January 13, 2014, the U.S. Supreme Court heard oral arguments in National Labor Relations Board v. Noel Canning. The case involves an employer’s challenge to a determination of the National Labor Relations …
No Decision on Union Election Agreements
Although it is not the normal response by management, there are some circumstances when employers are not opposed to the unionization of their workers. This has certainly not been our experience, but some executives feel the union apparatus could decrease their burdens in handling personnel matters. Others may survey the situation and, seeing union certification as inevitable, opt to try forming a working relationship with the union as early as possible rather than fighting an uphill campaign against it. This leads some employers to actually enter into agreements with unions to facilitate the election and certification process. However, employers who …
NLRB Reignites Efforts on “Ambush Elections Rule”
Union elections are a disruptive time for any company. While employers do have an opportunity to campaign against union certification prior to the union certification votes, many managers and human resources professionals would argue that the entire process is skewed in favor of unions. This is why it was particularly troubling in February 2014 when the National Labor Relations Board (NLRB) signaled its intent to once again consider the expedited elections procedures it previously attempted to enact in 2011. On February 5, 2014, the NLRB announced its intent to issue a Notice of Proposed Rulemaking setting forth an amended version …
Updating Your Employee Handbook in 2014
Has it been more than a year or two since you reviewed and revised your company’s employee handbook? If so, now may be a good time to do so. The following are a few policies on which you may want to concentrate in light of recent employment law developments: Healthcare and benefit policies. Given the U.S. Supreme Court’s recent decision in U.S. v. Windsor and subsequent guidance from the IRS and the U.S. Department of Labor (“DOL”), employers need to update their retirement and healthcare plans even if the employers are located in a state whose laws do not permit …
Fleischauer testifies before Ohio House Judiciary Committee
Employment attorney Marc Fleischauer testified before the Ohio House Judiciary Committee on January 22, 2014, regarding the impact and legal history of HB 376, the proposed Ohio Religious Freedom Restoration Act. The bill purports to set uniform standards by which Ohio courts would evaluate governmental actions that burden individual religious freedoms. Several states are adopting such standards, in accordance with the United States Supreme Court’s ruling in City of Boerne v. Flores, 521 U.S. 507 (1997). The Flores case held that similar standards under a similar federal statute could not be imposed on the states, absent state legislative action. Mr. …
Supreme Court’s GPS Constitutional Privacy Ruling Could Impact Private Employers
In U.S. v. Jones, the U.S. Supreme Court ruled that the Fourth Amendment (protecting a person’s reasonable expectation of privacy and against unreasonable search and seizure) was violated when law enforcement inserted a Global Positioning System (or GPS) device in a vehicle, without a valid warrant, and tracked the vehicle’s every move on public streets for a month. Although Jones is a criminal case involving the U.S. Constitution which prohibits unreasonable searches by government actors, the decision may have a ripple effect on private employers who use GPS and other tracking devices to monitor employees’ whereabouts. Currently, only two states, …
IRS Announces 2014 Pension Plan Limitations
On October 31, 2013, the IRS announced cost-of-living adjustments for 2014 retirement plan contributions. For 2014, the amounts that individuals will be able to contribute to retirement plans will remain the same as 2013. Highlights of the IRS announcement include: Continuing the annual salary deferral limit for 401(k), 403(b), and most 457 plans at $17,500. Leaving unchanged the additional catch-up contribution for employees age 50 and older at $5,500. Increasing the limit on total contributions to defined contribution plans from $51,000 to $52,000. Leaving unchanged the definition of highly compensated employee as an employee making $115,000 per year. Increasing the …
IRS Modifies the Health Flexible Spending Account “Use It or Lose It” Rule to Allow a Limited Carry Over of Unused FSA Funds
On Halloween, the IRS treated employers and health flexible spending account participants to a change in the longstanding “use it or lose it” rule. Beginning immediately, employers may amend their cafeteria plans to allow participants to carry over up to $500 of unused FSA funds at the end of the plan year so that the carryover can be used to reimburse qualified medical expenses incurred in the following plan year. In addition, the amount carried over will not count against the permitted $2,500 salary reduction limit applicable to the next plan year. According to the guidance, however, a plan cannot …
A True “Black Swan”: How unpaid internships were good, but are now bad
I love when a movie comes out that makes me smarter, even without watching it. A good example is The Black Swan. I had never heard of such a thing and had no idea what it symbolized before Fox bombed the airwaves with commercials featuring dark, elegant-looking shots of Natalie Portman in ominous poses. Intrigued, I looked up the metaphorical use of a black swan in literature and film. I learned that a black swan represents an event that surprises the observer, has a major effect on the observer and others, which is usually negative, but is often inappropriately rationalized …
Record Payout for Racial Discrimination by Merrill Lynch
A recent case demonstrates how dangerous it is when an employer does not monitor the workplace to ensure equal opportunity. In what could be a record payment to settle an American class action suit for racial discrimination, Merrill Lynch agreed in August to pay $160 million to black brokers and trainees who worked at the firm since 2001. The lead plaintiff in the case, 68-year-old George McReynolds, has worked at the firm since 1983 and remained at the firm during the pendency of the suit. An estimated 1,200 people may have a claim in the settlement. Allegations made during the …