Labor & Employment Archives - Page 126 of 146

Women Really CAN Have it All – Ridding the Legal Field of “The Mommy” / “Tiger Lady” Oxymoron

The National Law Review recently published a book review of, Women Really CAN Have it All – Ridding the Legal Field of “The Mommy” / “Tiger Lady” Oxymoron, by Heidi R. Wendland of The National Law Review / The National Law Forum LLC:

The National Law Review a top volume legal news website

Long gone is the notion that a woman’s place is at home. Anne Murphy Brown has had her own success in balancing motherhood with a legal career as a litigator, corporate attorney and currently as an Assistant Professor and Director of Legal Studies at Ursuline College. Anne Murphy Brown finds more than 20 other women who have enjoyed the same successes and profiles them in Legally Mom: Real Women’s Stories of Balancing Motherhood and Law Practice. She does an excellent job in making this book relevant to every woman by carefully selecting a diverse array of women to profile. She finds women practicing at law firms and at governmental agencies. She also profiles women who have started their own law firms, who pursue a legal career from home, and who work as in house counsel at corporations. Each chapter contains a different woman’s personal experience and perspectives in balancing motherhood and her legal career. While all of these women face unique challenges depending on which course of work they pursue in the legal field, a common theme prevails throughout the entire book. The recipe for success of “having it all” is the same: these women have been successful because they have had support, drive, and a realistic grasp on their own personal limitations.

Many of the women within Legally Mom are able to pursue a career and be a mother because they have strong support from their husbands. Their husbands help split the parenting duties allowing the mother to keep up with the demands of her career. Other women profiled are not as lucky, and have to find support outside of the home. Some find support from family members in the form of child care. Others find support from within their workplace through understanding bosses, flexible hours, and policies enacted for mothers within the firm such as paid time off, nursing rooms, and child care offered on the premises. Anne Murphy Brown also provides the reader with a great resource: www.mamalaw.com . This website was created by a group of career moms to serve as a forum for other career moms to lend support to each other.

All the women profiled share a desire to succeed as both a mother and a lawyer. The book demonstrates how women have to fight for their right to pursue a career while being a mother and every woman profiled gives excellent advice as to how to do so. They have to be comfortable in confronting their bosses in order to achieve what they want. In fact, one woman profiled mentions an excellent point that it is to a firm’s detriment to not be flexible for women attorneys. Law firms and companies lose many educated women to motherhood because they do not enact policies that provide for flexibility to pursue both. This interesting perspective gives the reader a great negotiating tool when confronting her employer.

Women who want both a career and to be a mother must still acknowledge that there are limits since there are only 24 hours in a day. The women in the book all prioritize their lives in different ways and give advice as to how to live with the choices they make. In the end, the women do what works best for their own unique situation.

For some women profiled, being a mother and pursuing a legal career was something they always knew they wanted to balance. For other women profiled, being a mother was an afterthought and it was not until they had established themselves within their career did they consider starting their families. Every woman who is considering whether it is possible to be a mother and pursue a legal career should read this book. Every woman who thinks it is impossible to have both should certainly read this book. While woman have a huge task in front of them when deciding to be a mother and a career lady, this book proves it is not impossible. With effective time management, a woman can pursue a successful career and be a good mother. Legally Mom serves to enhance the feeling of female camaraderie in a traditionally male dominated career of law, and will no doubt inspire every reader and continue the movement for change and women empowerment.

Refresher on the “Step-up” Process for Service Personnel

Jason S. Long and Denise M. Spatafore with Dinsmore & Shohl LLP recently had an article, Refresher on the “Step-up” Process for Service Personnel, published in The National Law Review:

A common question our Education Law Practice Group deals with relates to how the “step-up” process works for service personnel.

The “step-up” process is found in W. Va. Code 18A-4-15, which in relevant part, states:

Any regular service person employed in the same building or working station and the same classification category of employment as the absent employee shall be given the first opportunity to fill the position of the absent employee on a rotating and seniority basis. In such case the regular service person’s position is filled by a substitute service person. A regular service person assigned to fill the position of an absent employee has the opportunity to hold that position throughout the absence. For the purpose of this section only, all regularly employed school bus operators are considered to be employed within the same building or working station.

Let’s discuss some common scenarios we often see.

Scenario 1: Employee “A” is regular bus operator that is on an approved leave of absence (“LOA”) that was requested in writing and approved by the board of education. The LOA is expected to extend beyond thirty days. When an employee receives a LOA from the board, and the leave will extend for more than thirty days, W. Va. Code 18A-4-15 requires the board to post the assignment and fill it per W. Va. Code 18A-4-8b. The assignment is awarded to the most senior regular employee in the classification that applies, and if no regular employee is interested, bus operators on preferred recall, and if none, substitutes bus operators that might apply. Suppose that in the instant, Employee “B”, the most senior regular bus operator bids and receives the assignment. “B” finds the route more attractive than his or her route because it is closer to home, or is short (or some other reason). Keep in mind this is not a “step-up” for “B”. As for “B’s” regular assignment though, you have to permit “step-up” (not posting it), which is offering “B’s” assignment to the regular bus drivers via seniority based rotation. Let’s say regular Employee “C” wants “B’s” assignment via the “step-up” up process. If “C” “steps-up”, “C” will remain in that assignment until “B” returns. A substitute bus driver via rotation (whoever is next on the list) will substitute for “C”. You do not allow “step-up” to “C’s” regular assignment. “Step-up” happens once.

Scenario 2: Employee “A” is a regular bus operator out from work using sick leave. “A” has not requested in writing an approved LOA from the board. It appears that “A” is going to be absent for an extended period of time (lets’ say five to sixty days). The board does not post it after the twentieth day (that is a common myth). Instead, the board utilizes the “step-up” process of W. Va. Code 18A-4-15 and offer “A’s” assignment to the most senior bus operators via seniority based rotation. If a regular bus operator “steps-up” (let’s say “B”), a substitute next on the bus operator list is called for “B”. “Step-up” does not continue on-and-on-and-on. A substitute is called for “B”. Yes a substitute with little seniority might get lucky if s/he is next in line on the substitute list.

Always keep in mind that if a substitute is initially called for “A’s” assignment (which is often the case because the board might not know the absence could extend for a few days), but after that initial day it appears the regular employee will continue to be absent, the board should offer “step-up” per W. Va. Code 18A-4-15 to regular employees, who then bump the substitute out. The Grievance Board encourages this process (see Decision). And again, if a regular employee “steps-up”, a substitute is then called for the regular employee who took the opportunity to “step-up”.

The “step-up” process is not fun from a personnel standpoint, especially when there is not sufficient time to contact regular employees, in emergency situations, or in situations when it is not known that the regular employee’s absence will be beyond a day or so, etc. But we hope the above sheds some light on the proper use of the “step-up” process compared to the posting process. For additional grievances decision on the “step-up” process, see Garner, Mullins, McMillen, and Prickett.

Employers Can Obtain Refund for Excess FICA Tax Paid as Result of Increased Excludable Limit for Transit Benefits

The National Law Review recently published an article, Employers Can Obtain Refund for Excess FICA Tax Paid as Result of Increased Excludable Limit for Transit Benefits, written by Maureen O’Brien and Ruth Wimer, Esq., CPA with McDermott Will & Emery:

On January 11, 2013, the Internal Revenue Service published Notice 2013-8 providing a special administrative procedure for employers with respect to 2012 transit pass benefits. The American Taxpayer Relief Act retroactively increased the monthly transit benefit exclusion under Section 132(f)(2)(A) of the Internal Revenue Code for commuter highway vehicles or transit passes from $125 per participating employee to $240 per participating employee for the 2012 calendar year (the monthly transit benefit exclusion for parking remains at $240). The notice addresses employers’ questions regarding the retroactive application of the increased exclusion, which can result in both decreased FICA and federal income tax liability. Employers acting promptly, in many cases by January 31, may have less administrative burden in obtaining a benefit for themselves and their employees with respect to the retroactive increase for employer-provided transit benefits.

Background

Section 132(a)(5) of the Internal Revenue Code provides that any fringe benefit that is a qualified transportation fringe is excluded from gross income for federal income tax purposes, and the FICA rules allow for the same exclusion. The term “qualified transportation fringe” includes (when provided by an employer to an employee) transportation in a commuter highway vehicle between home and work and any transit pass (Transit Benefits), or qualified parking. Prior to the enactment of the American Taxpayer Relief Act (ATRA), the 2012 monthly limit for qualified parking was $240, and the monthly limit for other Transit Benefits was $125. ATRA amended Section 132(f)(2) to increase the maximum monthly excludable amount for Transit Benefits to an amount equal to the maximum monthly excludable amount for qualified parking (i.e., $240), effective retroactively beginning on January 1, 2012.

As a result of ATRA, employers that provided Transit Benefits in excess of the pre-ATRA maximum monthly excludable amount may be able to obtain a refund of FICA amounts paid on such benefits. Generally, corrections of overpayments of FICA tax are made when an error has been ascertained using either the adjustment process or using the refund claim process, and requires a Form 941-X to be filed for each quarter in which excess FICA taxes were reported. (Correction of over-withheld federal income tax can not be made until after the year-end in which the over-withholding occurred.)

IRS Notice 2013-8 provides a special administrative process to obtain a refund for excess FICA tax paid as a result of the retroactive amendment on the monthly excludable limit for Transit Benefits. To benefit from the retroactive increase in the excludable limits for Transit Benefits, the employer must have actually paid amounts for Transit Benefits in excess of the limit either from its own resources or from employee salary deferrals.

Employers that have not yet filed their fourth quarter Form 941 for 2012 must repay or reimburse their employees the over-collected FICA tax on the excess transit benefits for all four quarters of 2012 on or before filing the fourth quarter Form 941. The employer, in reporting amounts on its fourth quarter Form 941, may then reduce the fourth quarter wages, tips and compensation reported on line 2, the taxable social security wages reported on line 5a and Medicare wages and the tips reported on line 5c by the excess transit benefits for all four quarters of 2012. By taking advantage of this special administrative procedure, employers will avoid having to file Forms 941-X, and will also avoid having to file Forms W-2c.

Employers that have already filed the fourth quarter Form 941 must use Form 941-X to make an adjustment or claim a refund for any quarter in 2012 with regard to the overpayment of tax on the excess transit benefits after repaying or reimbursing the employees or, for refund claims, securing consents from its employees. Similarly, employers that, on or before filing the fourth quarter Form 941, have not repaid or reimbursed some or all employees who received excess transit benefits in 2012 must use Form 941-X to make an adjustment or claim for refund with respect to the excess transit benefits provided to those employees, and must follow the normal procedures.

Employers that have not furnished 2012 Forms W-2 to their employees should take into account the increased exclusion for transit benefits in calculating the amount of wages reported in box 1, Wages, tips, other compensation; box 3, Social security wages; and box 5, Medicare wages and tips. Employers that have repaid or reimbursed their employees for the over-collected FICA taxes prior to furnishing Form W-2 should reduce the amounts of withheld tax reported in box 4, Social security tax withheld, and box 6, Medicare tax withheld, by the amounts of the repayments or reimbursements.

In all cases, however, employers must report in box 2, Federal income tax withheld, the amount of income tax actually withheld during 2012. The additional income tax withholding will be applied against the taxes shown on the employee’s individual income tax return (Form 1040, U.S. Individual Income Tax Return). The same procedures are available to filers of other employment tax returns reporting FICA taxes (e.g., the related Spanish-language return or return for U.S. possessions) and to filers of employment tax returns reporting taxes under the Railroad Retirement Tax Act.

EEOC Outlines Enforcement Priorities in Approved Plan

The National Law Review recently published an article, EEOC Outlines Enforcement Priorities in Approved Plan, written by Kelly H. Kolb of Fowler White Boggs P.A.:

The U.S. Equal Employment Opportunity Commission (EEOC) recently approved a Strategic Enforcement Plan (SEP) aimed at establishing national enforcement priorities and more effectively integrating enforcement responsibilities across the Commission’s 54 offices.

As part of the plan, the EEOC has identified six national priorities:

Eliminating barriers in recruiting and hiring;
Protecting vulnerable workers (such as immigrant workers);
Addressing emerging and developing employment discrimination issues;
Enforcing equal pay laws;
Preserving access to the legal system; and
Preventing harassment through systemic enforcement and targeted outreach.

The SEP notes that the EEOC will continue its focus on systemic discrimination, using individual discrimination charges as a vehicle to investigate all of the employment practices of employers. The EEOC will also pay particular attention to use of criminal background checks during the hiring process, an issue we have discussed in other newsletters and on radio, to LGBT discrimination, disability discrimination and to pregnancy discrimination claims.

The SEP lays out an aggressive agenda for the EEOC. Employers are well advised to take precautionary steps now to insulate against a possible EEOC “pandemic”.

Sixth Circuit Affirms Dismissal of “Reverse” Racial Discrimination Claim Against Cracker Barrel

The National Law Review recently published an article, Sixth Circuit Affirms Dismissal of “Reverse” Racial Discrimination Claim Against Cracker Barrel, written by Kyle P. Konwinski of Varnum LLP:

In Martinez v. Cracker Barrel Old Country Store Inc., Case No. 11-2189 (6th Cir. Jan. 10, 2013), in a published decision, the Sixth Circuit affirmed the dismissal of a “reverse” racial discrimination claim arising out of Cracker Barrel’s termination of the plaintiff’s position as a retail manager at a Flint, Michigan Cracker Barrel.

The plaintiff was a general manager of a Cracker Barrel store for ten years. Cracker Barrel terminated the plaintiff because she violated company policy when she made remarks during conversations regarding the Haiti earthquake, the plight of those in Haiti, and the use of a “bridge card” as a “ghetto card.” The plaintiff, a Caucasian, contended that similarly situated African Americans were treated more favorably than her—i.e., not fired for making similar remarks.

Interestingly, the Sixth Circuit noted that a claim of “reverse” racial discrimination under federal law requires a showing of “background circumstances supporting the suspicion that the defendant is that unusual employer who discriminates against the majority.” Because the plaintiff also brought a claim alleging race discrimination under Michigan’s law, however, she did not need to satisfy this heightened standard of proof to establish a claim because Michigan does not require a heightened standard of proof for reverse discrimination claims.

The Sixth Circuit dismissed the claims because, first, the plaintiff did not come forward with direct evidence of reverse discrimination because her evidence required an inference that Cracker Barrel terminated her based on race. Second, the plaintiff did not come forward with sufficient evidence that another similarly situated employee was treated more favorably—the plaintiff was differently situated in the management structure of the store and also engaged in more pervasive and severe conduct. Therefore, the Sixth Circuit found that the plaintiff could not establish a prima facie case of discrimination.

NLRB Now Permits Front Pay in Lieu of Reinstatement in Board Settlements

The National Law Review recently published an article by John T.L. Koenig of Barnes & Thornburg LLP regarding A Recent NLRB Ruling:

The National Labor Relations Board “NLRB” has traditionally refused to include the concept of front pay in lieu of reinstatement in formal Board settlements. As such, if an employer was interested in resolving an NLRB case that involved employee terminations, but not interested in bringing those terminated employees back to work, the only avenue was a non-Board settlement. That may change based on a new guidance memo the Acting General Counsel issued Jan. 9, 2013.

Noting that most agreements involving waivers of reinstatement in exchange for payment of front pay “are entirely non-Board” settlements, and that Agency policy should favor Board settlements, not discourage them, the AGC “decided to modify existing policy to permit Agency settlements to include front pay.” The Board’s Case Handling Manual will be revised to reflect this change. The updated manual instructs that offers of front pay in lieu of reinstatement be communicated to alleged discriminatees, but without pressuring them to waive reinstatement. The Region is “serving only as a conduit for the proposal” pursuant to the updated language in the Manual.

The memo also requires that waiver of reinstatement be in writing, unless otherwise authorized by Operations-Management in a particular case. The full memo with updated language in the Case Handling Manual can be found here.

Top Ten Employment Law Issues for 2013

The National Law Review recently featured an article, Top Ten Employment Law Issues for 2013, written by the Employment & Labor Practice of Armstrong Teasdale:

With calendar year 2012 as a guide, 2013 is already on its way to being another year of employee friendly mandates, legislation, and court decisions. By keeping this Top 10 list of employment issues in mind, you can minimize legal risks and maximize chances of successfully dealing with employment law challenges in this New Year:

Review your employee handbooks including the “at-will” language. Small changes may go a long way in warding off the National Labor Relations Board’s (“NLRB”) recent aggressive challenges to long-standing at-will language in employee handbooks and personnel policies.
Don’t assume your social media policy is compliant unless it has been updated in the last six months. 2012 was the year of active gutting of even the most sensible of social media policies by the NLRB.
Review and update your criminal background check procedure. The EEOC is aggressively pursuing compliance with its 2012 guidance on when a conviction can disqualify an applicant from employment and when you can consider arrest records.
Keep in mind that you are only as effective as your supervisors. Continue to train your employees on recognizing and avoiding sexual and other harassment and discriminatory behavior. Ensure your supervisors are responding appropriately to observed harassment and complaints of discrimination. Don’t forget that retaliation charges are now the most common claims filed with the EEOC.
Review and update your non-compete, non-solicit and confidentiality agreements. Recent court decisions reconfirm that the enforceability of non-compete agreements against departing employees depends upon the facts and circumstances of each situation and the specific terms of your agreements.
Review your exit interview procedures. There is no better time to learn information that may help you minimize future claims. This is also the best time to remind employees of their confidentiality, non-solicit and non-compete obligations in order to protect your organization before any damage is done. Call or e-mail us for a copy of our handy exit interview checklist.
Conduct an audit of your organization’s compliance with wage and hour laws. Off-the-clock wage and hour lawsuits alleging employees are being misclassified as exempt or as independent contractors are still on top of the administration’s and plaintiff class action lawyers’ agendas.
If you are a potential target for unionization, review your company policies and practices to ensure that you are well-prepared before NLRB’s speedy election and other pro-union rules make it too late.
Review your attendance and leave (including FMLA leave) policies and procedures. The EEOC, DOL and plaintiffs’ lawyers are vigorously pursuing ADA and FMLA failure to accommodate and failure to grant leave lawsuits.
If your organization is a government contractor, get ready for big changes. OFCCP continues its focus on enforcement including trying to find unlawful compensation disparities and is even considering setting quotas for hiring disabled workers.

Our Top 10 Labor Law Events of 2012

The National Law Review recently published an article by Gerald F. Lutkus with Barnes & Thornburg LLP titled, Our Top 10 Labor Law Events of 2012:

The Mayans predicted that the world would end in 2012. They were wrong. However, U.S. employers may well be feeling like life is over as they once knew it after the head-spinning events of 2012 in traditional labor law. And the scary thing is, the NLRB has just gotten started, folks, as it enters 2013 with a three-member majority, all of whom are pro-Union Democratic appointees.

Your friends at BTLaborRelations.com have decided to again ring out the old year with our unscientific ranking of the Top 10 Labor Law events of the past year. After putting our heads together, here’s what we came up with:

10. D.R. Horton and Arbitration Agreements. The Board started the year with an astonishing ruling that an arbitration agreement containing a class action waiver violated the NLRA because it infringed on the right employees have to “engage in concerted action for mutual aid or protection.” The Board has stood by its decision and recently followed it in an advice memo despite the fact that the Supreme Court and the Courts of Appeals are – so far – turning a cold shoulder to it.

You can read our previous coverage of D.R. Horton by clicking on the following links:

9. Ho Ho’s and Hockey. Labor disputes have resulted in the shutdown of one American tradition and has caused a lock-out in another. As previously reported here, after the Bakers Union turned down a concessionary contract, Hostess announced that it was closing its doors and liquidating the Company. While out on the ice, the lights have remained off as the NHL and the NHLPA have continued to struggle to reach an agreement on a new collective bargaining agreement. Today is Day 104 of the lock-out. Here are links to our coverage of the lock-out.

8. Recess Appointments. The President’s recess appointments of NLRB members continue to be the issue that won’t go away. On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three-judge panel of the United States Court of Appeals for the D.C. Circuit. At issue is whether the appointments were legal. If the appointments were not legal, then it calls into question whether under New Process the NLRB had a quorum to act. Our prior posts on this topic can be found here.

7. Off-Duty Access. In Sodexo America, the Board ruled that a hospital policy restricting employees’ off-duty access violated Section 8(a)(1) of the NLRA. USC University Hospital in Los Angeles had an Off-Duty Access Policy which provided that off-duty employees were not allowed to enter or re-enter the interior of the Hospital or any other work areas outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. The Board found that policy to be overbroad and interfered with employee rights under Section 7 of the Act. Our prior post on this topic can be found here.

6. Quickie Elections and NLRB Posting Rules. The NLRB’s actions in promulgating new posting requirements and revising the election rules to create a “quickie” or “ambush” election made our Top 10 of 2011. And they’re back again because both of those initiatives have been held up by Court action and are still in litigation and on appeal. Perhaps 2013 will be the year when we finally know whether the rules are legal and will be applied or were unlawfully promulgated. Stay tuned. You can access all of our prior postings on these issues here and here.

5. Dues Deductions. The NLRB’s relentless march towards dismantling years and years of U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues must be withdrawn from employee checks after the expiration of a collective bargaining agreement. The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 and held that after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union.

4. At-Will and Confidentiality Provisions. The Board continued to press its authority and jurisdiction over non-union workplaces in decisions dealing with routine at-will disclaimer acknowledgments and confidentiality policies for internal employer investigations. The Board has found both to be violative of employee rights under Section 7 of the Act. Board action in both of these areas is forcing employers to closely examine at-will disclaimers and the manner in which they conduct internal investigations. Here are our previous posts on these subjects.

3. The Holiday Blitzkrieg. The Board’s holiday gift to U.S. organized labor didn’t go unnoticed. In an avalanche of game-changing rulings, the Board acted to “gut” Beck rights for dues protestors; required employers to deduct union dues even after contract expiration dates; exerted jurisdiction over teachers in charter schools; required employers to pay taxes and social security costs on backpay awards; required bargaining over discretionary discipline in the time frame between union recognition and enactment of a first contract; overturned “Facebook firings”; and overturned a well-settled rule that protected witness statements from disclosure to the union.

2. Social Media. The Board clearly identified social media as a priority issue in 2012. During the year, Acting GC Lafe Solomon issued three separate guidance memos on social media in which the agency made it clear that it viewed most employer restrictions on off-duty work-related social media chatter to interfere with employee rights to engage in protected concerted activity. We’ve written about this issue repeatedly during 2012. You can find out prior posts here.

1. Right to Work. After years and years of no progress on Right to Work legislation, amazingly and somewhat surprisingly, Indiana and Michigan during 2012 became the 23rd and 24th states in the U.S. to pass Right to Work laws. Both are also the first Rust Belt states to pass the legislation. The actions of both states underscore the disconnect that is occurring in labor policy in the U.S. As federal labor policies continue to accelerate to the left, states such as Indiana, Michigan, Ohio, Wisconsin and Arizona try to hold the line. Looking forward to 2013, the dramatically differing directions of state and federal labor policy may prove to be one of the most interesting stories of the coming year.

New Year, New Laws for California Employers – Added Whistle-blower Protections, With Whom Will the EDD Share Employer Reports and Contracts with Commission Employees

The National Law Review recently published an article by Mark E. Terman of Drinker Biddle & Reath LLP regarding New Laws for California Employers:

Continuing with our series “New Year, New Laws for California Employers,” we take a look at newly added whistle-blower protections, with whom the EDD will share employer reports and contracts with commission employees. Prepared by Mark Terman, partner in the Los Angeles office, this series looks at some of the significant new regulations becoming law in 2013 affecting private employers doing business in California.

Added Whistle-blower Protections

The California False Claims Act prohibits submission to the government of a false claim for money, property or services, and authorizes actions for treble damages and penalties. An example could be charging a government entity for goods or services that were not provided.

Employees, as “relators,” can inform the government or law enforcement, participate in these actions after satisfying certain requirements and share in the recovery. Employers cannot prevent employees from disclosing information to the government or law enforcement agency, or from acting in furtherance of a false claims action. There are similar statutes under federal law.

AB 2492 provides that contractors and agents can also be whistle-blowers under Cal-FCA. The new law also makes clear that retaliation for trying to prevent a false claim is prohibited, and that relief in a whistleblower or “Qui Tam” action can include reinstatement, double back-pay, interest on the back pay, special damages, punitive damages and attorneys’ fees.

With Whom Will the EDD Share Employer Reports?

Existing law requires employers to provide employee wage information, new employee information and new independent contractor information to the Employment Development Department for use in the administration of tax and unemployment insurance.

We are entering an era of enhanced information sharing designed to make government agencies more effective in enforcing tax and other laws, including billions of dollars that state agencies believe are lost in tax revenue due to improper classification of independent contractors. AB 1794 now permits the EDD to share employer and employee information with the Joint Enforcement Strike Force on the Underground Economy for the purposes of auditing, investigating and prosecuting violations of tax and cash-pay reporting laws and other agencies.

The strike force includes the EDD; Department of Industrial Relations, Division of Labor Standards Enforcement and Division of Occupational Safety and Health; Contractors’ State License Board; Department of Insurance, State Compensation Insurance Fund; and Department of Justice (see www.edd.ca.gov/payroll_taxes). Information sharing is also permitted with the California Department of Health Care Services, the California Health Benefit Exchange, the Managed Risk Medical Insurance Board, county departments and agencies, the Agricultural Labor Relations Board, the Franchise Tax Board and the State Board of Equalization.

Contracts with Commission Employees

Enacted in 2011, Labor Code Sec. 2751 becomes effective Jan. 1, 2013. It requires an employer, when entering into a contract of employment calling for commissions as a method of payment, to create a contract that must be in writing and that describes the method of computation and payment of commissions. The employer must give a signed copy of the contract to the employee and obtain a signed receipt for the contract from the employee. If the contract expires and the parties nevertheless continue to work under the terms of the expired contract, the contract terms are presumed to remain in full force and effect until the contract is superseded or employment is terminated by either party.

“Commissions” generally mean the same as in Labor Code Sec. 204.1: “Compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.”

Commissions do not include: short-term productivity bonuses (such as are paid to retail clerks) and bonus and profit-sharing plans— unless there has been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed. AB 2675 adds that temporary, variable incentive payments that increase commissions but do not decrease payment are not covered.

Read the rest of the series:

New Year, New Laws for California Employers – Employer Access to Social Media

New Year, New Laws for California Employers – Religious Dress and Grooming Protected and Breastfeeding Further Protected

2013 Notice to Employees Concerning the American Health Benefit Exchanges

Fowler White Boggs P.A.‘s Lawrence M. Ploucha, Barbara L. Sanchez-Salazar, and Kathy J. Tayon recently had an article, 2013 Notice to Employees Concerning the American Health Benefit Exchanges, featured in The National Law Review:

Under the Patient Protection and Affordable Care Act of 2010 (“PPACA”) each state is required to establish an American Health Benefit Exchange (“Exchange”) that:

facilitates the purchase of qualified health plans;
provides for the establishment of a small business health program that is designed to assist qualified small employers in the state with facilitating the enrollment of their employees into qualified health plans offered in the small group market in their state; and
meets certain organizational and operational requirements.

Although the Exchanges are not set to come on line until January 1, 2014, employers have an obligation in 2013 to inform current employees and new hires of the availability of the Exchange, of the employees ability to shop for coverage and if eligible to obtain coverage from the Exchange.

The employers notice must be in writing and must be issued by the following deadlines:

Information to new hires: March 1st and
Information to current employees: March 13th

The notice should explain:

General information concerning the employers health plan,
The employee’s right to purchase health insurance coverage through a state Exchange;
The services provided by the Exchange;
How to contact the Exchange;
The employee’s possible eligibility for government subsidies under the Exchange if the employer’s share of the aggregate cost of benefits is less than 60%; and
The employee’s possible loss of an employer subsidy, if any, (in the form of a tax-free contribution to the employer-provided health coverage) if the employee purchases health insurance coverage through the Exchange.

PPACA guidance on the “aggregate cost of benefits” defines it as the aggregate cost of applicable employer-sponsored coverage. Thus the aggregate cost for an individual employee is the total cost of coverage under all applicable employer-sponsored health coverage provided to the individual employee. The amount reported may differ among a company’s employees depending on each employee’s specific election of coverage (i.e. PPO, HMO, single, family, etc.). The cost of coverage under a particular group health plan is referred to as the “reportable cost,” and the aggregate cost of applicable employer-sponsored coverage is referred to as the “aggregate reportable cost.” The aggregate reportable cost generally includes both the portion of the cost paid by the employer and the portion of the cost paid by the employee, regardless of whether the employee paid for that cost through pretax or after-tax contributions. In addition, the aggregate reportable cost also includes any portion of an employer-sponsored group health plan’s cost of coverage that is includable in the employee’s gross income.

For the purposes of the notice requirement, “applicable employer-sponsored coverage” means coverage under any group health plan (including onsite primary-care medical clinics) made available to the employee by an employer that is excludable from the employee’s gross income under Section 106 or would be excludable if it were employer-provided coverage. (Thus, employee-pay-all group health coverage is included.) However, when calculating the applicable employer-sponsored coverage do not include the following coverage:

Long-term care
Accident or disability income insurance, or any combination of the two
Supplement to liability insurance
Liability insurance, including general liability insurance and automobile liability insurance
Workers compensation or similar insurance
Automobile medical payment insurance
Credit-only insurance
Other similar insurance coverage, specified in regulations, under which benefits for medical care are secondary or incidental to other insurance benefits
Any coverage under a separate policy, certificate or contract of insurance that provides benefits substantially for treatment of the mouth (including any organ or structure within the mouth) or for treatment of the eye
Coverage only for a specified disease or illness
Hospital indemnity or other fixed indemnity insurance

Category: Labor & Employment

Women Really CAN Have it All – Ridding the Legal Field of “The Mommy” / “Tiger Lady” Oxymoron

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Refresher on the “Step-up” Process for Service Personnel

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