Browning-Ferris Industries joint responsibility ruling still good law: The National Labor Relations Board (3-0, Member Emanuel did not participate) issued an order vacating the Board's decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017). This is in light of the determination by the Board’s designated agency ethics official that Member Emanuel is, and should have been, disqualified from participating in this proceeding in light of the fact Emanuel’s former law firm, Littler Mendelson P.C., represented one of the joint employers involved in the Browning-Ferris decision. Because the Board's Decision and order in Hy-Brand has been vacated, the overruling of the Board's decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015), is of no force or effect. Source: NLRB 2/26/18, Jackson Lewis 2/27/18
Leave as a reasonable ADA accommodation may come under review by U.S. Supreme Court: Additional unpaid leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) is one of the thorny leave questions that employers confront—and one the Supreme Court may soon address. Two cases are pending before the Supreme Court. The first case, Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), concerns a disabled employee who needed two or three months of leave beyond his FMLA leave to recover from back surgery. In the second case, Golden v. Indianapolis Housing Agency, 698 F. App 835 (7th Cir. 2017), the Seventh Circuit applied this rule to deny a disabled employee’s claim for additional leave to recover from cancer surgery after FMLA and four weeks of additional employer-approved leave had expired. In both cases. the Seventh Circuit held that the employer did not have to provide extended leave and held that the employee’s additional leave request removed her from being a “qualified individual with a disability” under both the ADA and the Rehabilitation Act. The Seventh Circuit’s per se rule is at odds with the EEOC’s 2016 guidance on ADA leave, which requires employers to evaluate such requests on a case-by-case basis. Source: Hogan Lovells 2/20/18
New budget law changes hardship withdrawals from 401(k)s: Effective for plan years beginning after December 31, 2018, the Act makes a number of changes to the rules governing hardship withdrawals from defined contribution plans (i.e., 401(k) and 403(b) plans). Notably, the Budget Act directs the Department of Treasury to modify IRS regulations to remove the six-month suspension requirement for employee contributions to all plans maintained by the employer following a hardship withdrawal. It also amends the Internal Revenue Code to (1) expand the plan assets from which a participant may take a hardship withdrawal to include qualified non-elective contributions (QNECs), qualified matching contributions (QMACs), and earnings on QNECs, QMACs and employee contributions (even if these contributions and earnings were credited to the participant’s account after 1988); and (2) provide that a participant may take a hardship withdrawal before requesting a plan loan. It appears that the removal of the six-month suspension requirement applies to hardship withdrawals actually made in plan years beginning after 2018. It also seems that the expansion of sources available for hardship withdrawals and the ability to take a hardship withdrawal before requesting a plan loan may be optional, and not required changes. Source: Seyfarth Shaw 2/22/18
Skinny health care plans proposed rule published: The Departments of Health and Human Services (HHS), Labor, and the Treasury have issued a proposed rule that would amend the definition of short-term, limited-duration insurance to lengthen the maximum period of such insurance. Consumers would be allowed to buy plans providing coverage for any period of less than 12 months, rather than the current maximum period of less than three months. In light of Executive Order 13813, issued on October 12, 2017, which directed the Departments to consider proposing regulations, as well as continued feedback from stakeholders expressing concerns about the October 2016 final rule which limited these plans to three months, the Departments propose to amend the definition of short-term, limited-duration insurance so that it may offer a maximum coverage period of less than 12 months after the original effective date of the contract, consistent with the original definition in the 1997 HIPAA rule. The proposed rule would expand the potential maximum coverage period by nine months. In addition, the proposed rule would revise the required notice that must appear in the contract and any application materials for short-term, limited-duration insurance. Source: CCH 2/22/18
Do you have ICs working for you? If you have independent contractors (IC) working for your organization, it is important to ensure that the relationship is truly one where the IC is not an employee. Therefore, with an IC, organizations should not conduct performance reviews, give a company email address to them, require set work schedules, or require them to wear a company uniform or badge. Source: BakerHostetler 2/22/18
If your employer is a public company, expect higher costs defending whistleblower allegations: The U.S. Supreme Court ruling last week narrowing the scope of anti-retaliation protections for corporate whistleblowers could lead to a significant increase in the number of complaints filed directly with the U.S. Securities and Exchange Commission, a result companies may find costly, legal experts said. The high court’s decision in Digital Realty Trust Inc. v. Paul Somers found that employees who bring securities law complaints against their companies must first take their allegations to the SEC, rather than filing their complaints internally, to be protected by anti-retaliation measures afforded under the Dodd-Frank Act. Most whistleblower complaints historically have first been reported internally, and legal experts say companies frequently benefit from that by getting out in front of the complaint before federal regulators are brought in to investigate. This often results in embarrassing revelations and expensive litigation. The SEC said in a recent report to Congress that 83% of whistleblowers who have received SEC awards under Dodd-Frank since 2012 and worked for the targeted company first reported internally and turned later to the SEC. Source: Law360 2/22/18
Canadian magazine pushing equal pay be having different prices for men and women: In the fight for equal pay, which has spanned from the legal stage to the center stage, one Canadian company has decided to address the pay gap, at least temporarily, through dueling magazine cover prices. Maclean’s, a popular monthly Canadian news magazine that reports on current political affairs and pop culture, is asking men to pay 26% more for its February 2018 issue than women. According to MacLean’s, the difference in prices reflects the 26% gender pay gap that exists in Canada. The content for both magazines is exactly the same – but one cover charges men $8.81, while women are charged $6.99. Readers can choose to pay whichever price they want. The extra $1.82 per issue from those who choose to pay more will be donated to “those for whom the pay gap is most extreme.” Maclean’s Editor in Chief does not expect this to spur radical change overnight. The objective is to stir conversations about wage disparities between full-time male and female employees in Canada. Source: Jackson Lewis 2/20/18