NLRB Posting Rule Officially Postponed
April 19th, 2012 by JBWK
After one federal court upholding the NLRB posting requirement, and another striking it down, the federal D.C. Circuit Court of Appeals has now issued an emergency injunction postponing the rule’s implementation. The injunction indefinitely delays the posting rule, which was scheduled to take effect April 30. As of now, employers do not have to comply with […]
Maryland First State to Ban Facebook Login Requests
April 14th, 2012 by JBWK
After gathering national attention for the past few weeks, Maryland has become the first state to specifically prohibit the practice of requesting employees’ and applicants’ Facebook login information. The new law, effective October 1, 2012, prohibits employers from requesting or requiring that employees or applicants provide access information to any personal electronic accounts. It also […]
NLRB Posting Rule Delayed Again?
April 13th, 2012 by JBWK
After being proposed and delayed several times, there is now further uncertainty over whether the National Labor Relations Board may require employers to display posters about employees’ organizational rights. After being upheld by one federal court in Washington, D.C. earlier this year, a South Carolina federal court has now ruled that the NLRB exceeded its […]
35 Million Reasons to Monitor 401(k) Plan Fees
April 12th, 2012 by JBWK
Highlighting the seriousness of ERISA’s fiduciary obligations regarding service-provider fees for retirement plans, a federal court has held an employer’s 401(k) plan fiduciaries liable for $35 million. The fiduciaries of manufacturer ABB, Inc.’s 401(k) plans failed to monitor service providers fees, failed to properly deliberate over switching mutual funds, and failed to properly control the […]
On High-School-Education Discrimination
April 8th, 2012 by JBWK
As we’ve noted before, the EEOC has provided guidance on when it is–and isn’t–appropriate for employers to require a high-school diploma for a job. After causing a stir with its informal letter last fall, the EEOC followed up with a Q&A aimed at clarifying its guidance. The questions and answers, which will hopefully clear up […]
On Orange-Shirt Discrimination
April 7th, 2012 by JBWK
In another interesting discrimination scenario, a Florida law firm is facing national scrutiny for firing a group of 14 workers for….wearing orange shirts. The firm thought the employees–who wore the orange shirts to match for their post-work happy hour–were involved in some sort of mass protest. They were all gathered and summarily fired, according to […]
On Obesity Discrimination
April 4th, 2012 by JBWK
CBS MoneyWatch flagged an interesting issue that is beginning to surface quite often: Is it OK to discriminate against obese people? It tells the story of the Victoria Hospital system in Texas, which instituted a new policy of refusing to hire anyone with a Body Mass Index (BMI) exceeding 35. It provides some perspective: the […]
Facebook Access Draws Congressional Heat
April 2nd, 2012 by JBWK
After gaining national attention (which we covered here) two U.S. Senators are requesting that the EEOC and the Justice Department investigate whether employers requesting applicants’ Facebook credentials violates federal law. Senators Blumenthal and Schumer sent letters to the DOJ and EEOC asking them to investigate whether the access requests violate the federal Stored Communications Act or […]
Supreme Court Hears PPACA Mandate Oral Argument
March 27th, 2012 by JBWK
The U.S. Supreme Court today held its second of three days of oral argument regarding the Patient Protection and Affordable Care Act, or PPACA. This morning the Court heard arguments on the most visible issue: the constitutionality of the so-called “individual mandate” requiring most Americans to purchase health insurance. Early reports seem to indicate that several […]
Federal Court Orders Arbitration
March 27th, 2012 by JBWK
In a ruling released this week, a federal trial judge in Richmond has ordered the parties to an ADA lawsuit to binding arbitration and dismissed the suit. When the plaintiff was hired, she signed an employment application agreeing to binding arbitration of any and all claims related to her employment. The application also required the […]
The $3 Million Decimal Point
March 23rd, 2012 by JBWK
Bloomberg reports that J.P. Morgan is defending a lawsuit in London over a misplaced decimal. The offending punctuation mistake: offering a mid-level trader an employment agreement (in the South African currency rand) for about $3,100,000, a number the bank says should have been $310,000. The employee accepted the agreement, but refused to work after realizing […]
Webcast on Fiduciary Responsibilities
March 22nd, 2012 by JBWK
The Department of Labor’s Employee Benefits Security Administration is offering a series of two webcasts on Tuesday, March 27, and Wednesday, March 28, both from 1:00 to 2:30, on the topic of ERISA fiduciary duties. Both are free. Perhaps one of the most sweeping and complicated issues in ERISA, plan sponsors’ fiduciary obligations cover selecting […]
No Facebook Password, No Job?
March 21st, 2012 by JBWK
In a growing trend, more employers are exceeding typical interview questions and getting into something more telling: Facebook. The USA Today reports on the surge. Instead of the traditional background-check process of asking for references, some employers are asking interviewees for their Facebook login and password on the spot. Others have required applicants to log on their […]
Discriminatory Severance Packages Under Title VII
March 17th, 2012 by JBWK
In a ruling of first impression, the Fourth Circuit held last week that providing discriminatory severance packages can create a cause of action under Title VII. In Gerner v. County of Chesterfield (opinion), the plaintiff, a former female employee, alleged the County offered her a severance package less-favorable than those offered to similarly situated males. The […]
Don’t Forget About the Small Business Health Care Tax Credit
March 15th, 2012 by JBWK
With the considerable news surrounding the implementation of, and challenges to, the Patient Protection and Affordable Care Act (PPACA), the small business tax credit has gotten lost in the shuffle. The IRS has revamped a website aimed at helping small businesses determine whether they’re eligible for the credit and claim it. The credits, which are […]
7th Circuit Allows Class Action Claim Against Merrill Lynch
March 15th, 2012 by JBWK
In a significant employment class-action case following the Supreme Court’s Wal-Mart decision last year, the 7th Circuit has ruled that 700 black brokers at Merrill Lynch may proceed in a class against the bank. The opinion is available here. The plaintiffs claim that two of Merrill Lynch’s policies disparately impacted black brokers. At issue are the […]
The Growing Complexity of Executive Compensation
March 9th, 2012 by JBWK
While admittedly lengthier than most filings, Freddie Mac’s 10-K filed with the SEC records the massive compliance toll executive compensation takes in large organizations. Its conservatorship by the FHFA complicates matters greatly, but Freddie Mac nonetheless took 27 full pages to outline its 2011 compensation (starting at page 330) of its most recent 10-K explaining […]
Small Business Owner Personally Liable for Unpaid Wages
March 9th, 2012 by JBWK
In a striking example of failing to follow the ten rules in the post below, an Alexandria federal judge held the owner of a small flooring contractor personally liable for almost $90,000 in unpaid wages and overtime. In Jin v. Any Floors, Inc., the court held that the sole owner of the now-defunct corporation exercised enough control over […]
Wage and Hour Compliance for Small Businesses
March 8th, 2012 by JBWK
Wage & Hour Insights provides a list of 10 golden rules for wage and hour compliance for small businesses. While the list is simplistic and doesn’t account for all the law’s nuances, following it will prevent the majority of violations small businesses routinely commit: Pay the minimum wage Pay non-exempt employees overtime for more than […]
10th Circuit on Leave as Reasonable Accommodation
March 7th, 2012 by JBWK
The 10th Circuit Court of Appeals has weighed in on the hot-button issue of whether leave is a reasonable accommodation under the ADA. The EEOC has made this a major issue, arguing that additional leave beyond the FMLA-required twelve weeks may be required as a reasonable accommodation under the ADA. The 10th Circuit limited that […]
EEOC Provides Guidance on Employment of Disabled Veterans
March 4th, 2012 by JBWK
With the rapid changes in the ADA and evolving issues facing employers, the EEOC has provided a useful guidance document on the employment and reemployment of disabled veterans. It is available on the EEOC’s website, here. The guidance document discusses recent changes made under the ADA Amendments Act, as well as what is required–and what […]
Federal Court Upholds NLRB Posting Rule
March 3rd, 2012 by JBWK
A federal trial judge in Washington, D.C., has ruled that the NLRB has the authority to require employers to post the proposed poster informing employees of their right to organize under the National Labor Relations Act. The deadline for compliance has been pushed back several times, and is now scheduled to take effect April 30, […]
Largest Workplace Harassment Verdict Ever?
March 2nd, 2012 by JBWK
In what NPR is reporting to be possibly the largest workplace harassment verdict in history for a single plaintiff, a California jury has awarded a former nurse at Mercy General Hospital in Sacramento a whopping $168 million verdict. It consisted of $125 million in punitive damages and $42.7 million in compensatory damages. The case is […]
Agencies Issue Guidance on Group Health Summary Disclosures
February 26th, 2012 by JBWK
The DOL, HHS, and Treasury have issued new final guidance and template documents regarding group health plans’ and health plan issuers’ obligations to provide participants a summary of benefits and coverage, a new requirement under the PPACA. The DOL has provided template disclosure documents, available on its website.
Being Rude to Everyone Is Not Discrimination
February 25th, 2012 by JBWK
A Richmond federal judge has granted an employer summary judgment in a sexual harassment case involving a public school principal in Colonial Heights. The general basis of the claim was that the new principal–who was hired to impose greater discipline and structure–was demanding, intimidating, and difficult to work with. There were two allegations of the […]
$1.1 Million in Attorneys’ Fee for Former Employees
February 24th, 2012 by JBWK
In a move that hopefully will inspire employers to be careful when lodging complaints against former employees, the Fourth Circuit upheld a $1.1 million award of attorneys’ fees and costs to four former employees. Wachovia Securities (now part of Wells Fargo Advisors) filed arbitration proceedings against four former brokers who left for a competing firm, […]
Congress Extends Payroll Tax Cut
February 19th, 2012 by JBWK
In the face of its upcoming expiration, Congress passed a bill extending the payroll tax cut until the end of 2012. The bill extends the 2% cut in the Social Security payroll tax withholding on employees, meaning that employees will only have to pay 4.2% instead of the normal 6.2%.
4th Circuit on Inability to Work Overtime Under ADA
February 18th, 2012 by JBWK
The 4th Circuit, in a published opinion last week, held that a former employee’s inability to work overtime did not “substantially limit” a major life activity as to give him protection under the ADA. The court held that the employee, who was released to work forty hours per week, but who could not work overtime, […]
Constitution Doesn’t Protect Town Employee’s Internal Complaints
February 18th, 2012 by JBWK
Following a broad ruling by the U.S. Supreme Court in 2006, a federal judge held last week that a Virginia town employee’s internal complaints to his supervisors were not constitutionally protected. The employee was the head of the town’s water and waste utilities department until he was fired. Over the course of several years, he […]
FMLA Doesn’t Apply to Overseas Worksites
February 9th, 2012 by JBWK
In a ruling of first impression, a federal trial judge in Alexandria this week held that the Family and Medical Leave Act does not apply to a U.S. citizen employed by a U.S. company performing services at the U.S. embassy in Baghdad, Iraq. The plaintiff, an employee of a State Department contractor, worked inside the […]
Two Racial Slurs Not Enough for Hostile Work Environment
February 9th, 2012 by JBWK
In a decision granting summary judgment to Fairfax County Public Schools, a federal judge in Alexandria ruled that two alleged instances of a coworker using racial slurs was insufficient to create a hostile work environment. The plaintiff claimed a coworker twice used racial epithets toward her, creating a hostile work environment based on her race. […]
Expanded Definition of “Disabled” Under ADA
February 9th, 2012 by JBWK
A federal court decision in the Western District of Texas highlights the impact of the expanded definition of “disability” after the ADA Amendments Act. The ADAAA statutorily expanded the definition of who is “disabled” after it became difficult for plaintiffs to show they were disabled, cutting their cases off before trial. Congress instead wanted the […]
Treasury Department Encourages Lifetime Income Options
February 3rd, 2012 by JBWK
In a push to make sure Americans don’t outlive their retirement savings, the Treasury Department has released several new guidance documents encouraging plan sponsors to offer so-called “lifetime income” options. Under the new guidance, it will be easier for employers to offer employees an option to use part of their 401(k) savings to purchase a […]
DOL Releases Final Rules on Retirement Plan Fee Disclosure
February 3rd, 2012 by JBWK
The Department of Labor has released its final rules on service provider fee disclosure to retirement plan fiduciaries. The new rules require service providers to detail compensation they receive from the plan. The rules aim to help ensure plan sponsors and fiduciaries are paying only “reasonable” fees allowed under ERISA. The service-provider level disclosures coincide […]
American Airlines Proposing to Terminate Pension Plan
February 3rd, 2012 by JBWK
Underscoring just how expensive defined benefit pension plans have become–and explaining the shift to 401(k)-type defined contribution plans–American Airlines’ parent company, AMR, disclosed last week its proposal to terminate its lower-level employee pension plan. Under the proposal, the Pension Benefit Guaranty Corporation would assume all the plan’s liabilities and would pay benefits. AMR claims the termination […]
NLRB Issues New Summary of Social Media Cases
January 30th, 2012 by JBWK
In a follow up to its early memo summarizing social media cases, the NLRB Office of General Counsel has issued an updated report discussing its social media cases from the past year. It does not forge much new ground. The two big takeaways are still: (1) the need for narrowly tailored policies that don’t restrict […]
Internal Complaints Enough for Retaliation Suit Under FLSA
January 29th, 2012 by JBWK
In a case of first impression, the Fourth Circuit Court of Appeals held that an internal complaint about an employer’s failure to pay overtime could form the basis of a FLSA retaliation claim. In Minor v. Bostwick Laboratories, an employee complained to her company’s chief operating officer that employees were not being paid for overtime […]
Don’t Forget About Plan Damages
January 29th, 2012 by JBWK
A federal court in California, while rejecting an employee’s claim for damages, provided a good reminder of what all is at stake in wage discrimination litigation. Obviously, employees can recover back wages, compensatory damages, and, on occasion, things like punitive damages in employment discrimination cases. But employers also face another potentially large issue: retirement plan contributions. […]
Fee Disclosure Rules Result in More Affordable 401(k)s
January 21st, 2012 by JBWK
The USA Today reports that in anticipation of new fee-disclosure rules by 401(k) providers, several plan providers are rolling out new, more cost-effective plans for smaller employers. Smaller employers typically find their fees for 401(k) providers are up to twice as much as large plans. The Department of Labor has introduced new fee-disclosure rules that […]
EEOC Releases Draft Strategic Plan for Comment
January 20th, 2012 by JBWK
The EEOC has released a draft of its 2012-2016 Strategic Plan for public comment. The Plan, which sets out EEOC’s goals and initiatives for the next four years, is now open for comment. It focuses largely on systemic discrimination and a reduction of backlogged charges. Its focus is unsurprising, especially given the EEOC’s recent attention […]
Proof of Competition Not Required Under Trade Secrets Act
January 19th, 2012 by JBWK
The Virginia Supreme Court last week rejected the argument that an employer must prove that a former employee who took trade secrets to his current employer was actually in competition with the prior employer. The trial court dismissed the GSI’s (the former employer) claim against the employee, now employed by Boeing. GSI argued the employee […]
U.S. Supreme Court Upholds “Ministerial Exception” to Employment Discrimination Laws
January 13th, 2012 by JBWK
The U.S. Supreme Court has settled the so-called “ministerial exception” issue exempting religious organizations from federal antidiscrimination laws based on their hiring and firing of “ministers.” The Court held that a religious-school teacher, who was also a “minister” in the same denomination, could not maintain her lawsuit alleging she was fired in violation of the […]
No Word on Blue Pencil Decision
January 13th, 2012 by JBWK
Although, according to its normal schedule, the Virginia Supreme Court should have issued its long-awaited “blue pencil” decision last week, it didn’t. Employers have been waiting to see, first, if the Court will address the blue pencil issue, and, second, what its view will be. Blue pencil provisions allow a court to limit an employer/employee […]
Pepsi to Pay $3.13 Million for Improper Use of Criminal Records
January 13th, 2012 by JBWK
Pepsi will pay $3.13 million to settle charges of nationwide hiring discrimination based on its improper use of criminal background checks. It has also changed its employment and hiring policies. As readers know, the EEOC has recently indicated its interest in employers using criminal background checks to screen applicants. As we mentioned several months ago, […]
Federal Law Now Allows Hostile Work Environment Claim Under USERRA
January 7th, 2012 by JBWK
The Uniformed Services Employment and Reemployment Act of 1994 (USERRA) has long prohibited firing employees based on their military or reserve service. Although USERRA’s protection of servicemembers went above and beyond many federal employment laws, one thing was missing. Until the end of last year, employees had no cause of action for a hostile work […]
NLRB Delays Posting Rule…Again
January 7th, 2012 by JBWK
For the second time since its release last fall, the NLRB has delayed implementing the rule requiring employers to display posters informing employees of their organizing rights. Initially, the rule was to take effect November 14, 2011. It was delayed until January 31, 2012. Now, in the face of two lawsuits challenging its validity, the […]
IRS Issues New Guidance on W-2 Reporting for Health Insurance Costs
January 6th, 2012 by JBWK
As part of the comprehensive healthcare reform package passed in 2010, starting in 2012, employers are required to include on employees’ W-2s the cost of employer-provided healthcare coverage. The reporting was optional for 2011. The IRS has issued extensive guidance on the reporting requirements, including certain items that don’t have to be reported, such as […]
Employment and Healthcare Named Two of 2012’s “Hottest” Areas of Law
December 18th, 2011 by JBWK
In a nod to what many employers already know, employment law and healthcare law have been named by Virginia Lawyer’s Weekly as two of the “hottest” areas of law for 2012. It cited healthcare’s growing regulatory complexity–and overlap with employee benefits and insurance–in addition to the uncertainty over the 2010 healthcare reform law’s future. Labor […]
Employees Cannot Be Fired for Refusing to Waive Future EEOC Claims
December 18th, 2011 by JBWK
A federal judge in Illinois has all but ruled in the EEOC’s favor in an ongoing dispute with a German-based chemical company that forced employees to give up their right to file future EEOC charges. The company, Cognis, required certain employees to sign “last chance agreements” as a condition of their continued employment. One provision […]
Payroll Tax Reduction Still Up In the Air
December 17th, 2011 by JBWK
After the Senate passed an extension of the 2% employee payroll tax reduction for the first two months of 2012, the House apparently is set to reject it. The employee share of Social Security tax withholding has been at a reduced 4.2% for 2011, which is down from the typical 6.2%. Under the Senate-passed measure, […]