Legal Issues

HR News & Trends, Legal Issues

OSHA Criticizes Safety-Incentive Programs, Encourages Whistleblowers

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By Howard A. Mavity

For several years, we have encouraged employers to move away from safety-management programs which primarily track the program’s effectiveness based upon recordable injuries, and which utilize monetary-incentive programs based on the number of recordable workplace injuries.

Our principal reason for discouraging such programs is that recordable incidents focus on “lagging” indicators, may not identify causes, and may be affected by the capriciousness of timing and “bad luck.”

But employers now have another reason to increasingly shift away from programs primarily driven by recordables. Even before the current Administration took office, its leaders questioned the accuracy of employer record keeping and asserted that employees under report workplace injuries in order to participate in safety incentive programs, or as a result of pressure imposed upon them by employers. Read more…

Legal Issues

No FMLA Claim For Employee Who Mistakenly Thought He Was Fired

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By Eric B. Meyer

Stop me if you’ve heard this one before:

  • Employee gets bad performance review.
  • Employee laments to HR about the pressures of work.
  • Employee emails a company vice president requesting that he stop propagating company “propaganda.”
  • Employee accuses another employee of “dismantling the Spanish Department.”
  • Employee attempts to mass email the company.

Oh, it gets better..after the jump. Read more…

Legal Issues

IRS Puts COBRA Under Scrutiny: Consider a Self Audit or Pay the Price

Jeremy Sharp is a partner with the law firm Walter & Haverfield in Cleveland.

By Jeremy J. Sharp

Employers beware: The Internal Revenue Service recently issued new revised audit guidelines for IRS auditors who review group health plans for COBRA compliance in the aftermath of a 10-year task force study. And, this review could end up being costly for your company if an IRS auditor should come knocking on your door.

Industry commentators feel these revised guidelines likely will trigger an increased audit emphasis by the IRS in respect to COBRA compliance. Chances are, if audited, most employers will have some sort of COBRA failure, inadvertent or otherwise. And, even if a compliance failure is unintentional, you still risk incurring stiff penalties.

For example, Section 4980B of the Internal Revenue Code imposes an excise tax for failure to comply with COBRA continuation coverage obligations and requirements. The $100 excise tax is assessed for each qualified beneficiary for whom the failure occurs, with a maximum of $200 per family. Read more…

HR News & Trends, Legal Issues

New NLRB Quickie Union Election Rules May Get Derailed

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By Eric B. Meyer

Two quick updates for you today — one labor, one employment.

Word has trickled in that the U.S. District Court for the District of Columbia held a conference call with lawyers from the National Labor Relations Board, the U.S. Chamber of Commerce, and the Coalition for a Democratic Workplace, and informed them that the Court would rule by May 15 on a pending challenge to the NLRB “quickie” election rule changes. You can view those rule changes in this post I did last week.

And in case you missed yesterday’s post on new federal legislation that would bar employer demands for online passwords, be sure to check it out. Late in the day, I scored a copy of the bill, known as Social Networking Online Protection Act (SNOPA), and added a link. Read more…

HR News & Trends, Legal Issues

NLRB Quickie Election Rule Now In Effect; Here’s What It Means

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By Steven Bernstein

On April 28, 2012, a federal judge with the U.S. District Court for the District of Columbia cleared the way for the National Labor Relations Board‘s expedited-election rule. It went into effect Monday, April 30.

The judge’s order is not a substantive ruling on the new regulations, which remain the subject of litigation. Rather, the order comes as a ruling on the request of the U.S. Chamber of Commerce to temporarily enjoin the new rules until after a final ruling. The judge denied that request, refused to issue a temporary injunction, and the rules now go into effect.

That said, the court expects to issue a formal ruling on the merits by May 15, before any election under the new rule would likely take place. In the meantime, we encourage employers to take advantage of this rapidly closing window of opportunity by moving forward with plans to: Read more…

HR News & Trends, Legal Issues

New Federal Law Would Bar Employers From Demanding Online Passwords

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By Eric B. Meyer

A few weeks ago, as reported here, Maryland became the first state to pass legislation that would ban employers from demanding that employees or job candidates turn over their social media passwords.

Could a federal law be soon to follow?

Rep. Eliot Engel, D-N.Y.,has introduced legislation in the U.S. House of Representatives that would outlaw this practice nationally. The bill, known as Social Networking Online Protection Act (SNOPA), is broader than the Maryland bill. According to this press release from Congressman Engel, SNOPA not only covers employers, but also schools and universities. Read more…

HR News & Trends, Legal Issues

The NLRB’s New Blueprint For “Quickie” Union Elections

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By Eric B. Meyer

On Tuesday, the National Labor Relations Board‘s “quickie” election rules survived a challenge in the U.S. Senate. Next week — April 30 to be exact — they go into effect.

Hey! Isn’t that when the poster rules were supposed to go into effect, too?

In anticipation of April 30, employers will want to familiarize themselves with this memo from NLRB Acting General Counsel Lafe Solomon — we are presenting at the same event today — discussing the new representation case procedures. The guidance covers the entire representation case process from beginning to end, incorporating to the extent necessary the new rules and the procedures that remain unchanged. Read more…

HR News & Trends, Legal Issues

5 Takeaways from EEOC’s Guidance on Use of Criminal Background Checks

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By Eric B. Meyer

Yesterday, the U.S. Equal Employment Opportunity Commission issued updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. (Title VII is the federal statute that prohibits discrimination in the workplace based on race, color, religion, sex and national origin).

You can read a full press release on the updated Enforcement Guidance here.

The press release includes a link to questions and answers about the EEOC’s Enforcement Guidance. However, I will summarize the most important points for employers after the jump… Read more…

HR News & Trends, Legal Issues

NLRB “Quickie” Union Election Rule Survives U.S. Senate Challenge

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By Eric B. Meyer

Last week was not so good for the National Labor Relations Board. The U.S. Court of Appeals for the D.C. Circuit iced a Board rule that would have required most private-sector employers to post a notice in the workplace informing employees of their right to form a union.

Yesterday, however, the pendulum swung the other way and employers may soon be feeling the heat as we are now that much closer to expedited union elections.

Click through for details on how faster union elections may soon be coming to your workplace, and possibly another unwelcome surprise (hint: four letters, sounds like EFCA). Read more…

HR Basics, Legal Issues

8 Steps For Handling Employee Religious Accommodation Requests

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By Eric B. Meyer

Do you know what to do if an employees comes into your office asking for a shift change or some other workplace accommodation because of a sincerely-held religious belief?

In Jackson v. Longistics Transportation, Inc., a husband and wife who worked for Longistics, a trucking company, were members of Christian church that adhered to the Jewish Torah. Accordingly, they requested a religious accommodation and asked out of assigned runs from Friday at sundown to Saturday at sundown. Twice, however, the plaintiffs were assigned runs that spanned the Jewish Sabbath and claimed that they were subsequently reprimanded for failing to work. They subsequently sued. Read more…