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, […]

IRS Ups Standard Mileage Deductions for Business Use

December 10th, 2011 by JBWK

In its first 2012 Notice, the IRS has upped the standard business use deduction rate to 55.5 cents per mile. The new rates become effective January 1, 2012.

Tax Court Allows Corporate Whistleblower to Remain Anonymous

December 9th, 2011 by JBWK

In a thorough opinion released last week, the U.S. Tax Court ruled that a corporate whistleblower may remain anonymous to protect his professional reputation. The individual, a former corporate executive, alerted the IRS to potential tax fraud at his company. Although he has since left the company and joined another, he argued that disclosure of […]

EEOC Issues Informal Letter on High-School Diploma Requirements

December 6th, 2011 by JBWK

The EEOC released an informal letter dated November 17, 2011 answering a question posed regarding high-school diplomas as they relate to job requirements. The issue: if a job applicant was prevented from receiving a high-school diploma because of a condition that would qualify as a “disability” under the ADA, may an employer automatically exclude the […]

IRS Warns Against “Sham” Retirements

December 3rd, 2011 by JBWK

The IRS, in a recently released private letter ruling, held that pension plan participants would not be considered “retired” under an arrangement in which they would “retire” on one day, only to come back to work in the same position a day or week later. The pension plan in the PLR was undergoing required benefit […]

Be Mindful of Who You Pay Out of Your 401(k)

December 2nd, 2011 by JBWK

One plan sponsor learned the hard way: Orthopedic Associates is on the hook for a participant’s $770,000 in benefits that the plan wrongfully distributed to his ex-wife. The Second Circuit Court of Appeals held that the plan must pay the participant all of his accrued benefits, despite the fact it already paid those same benefits […]

IRS To Correct “Minor Errors” in 409A with 457(f) Regulations

December 1st, 2011 by JBWK

BNA reports that IRS officials have acknowledged they will fix some “minor errors” in section 409A regulations (addressing deferred compensation) through its upcoming section 457(f) regulations. 457(f) governs the taxation of nonqualified deferred compensation plans of government and tax-exempt entities. The IRS has repeatedly announced its intention to issue more onerous regulations on 457(f) plans, […]

Another Healthcare Reform Provision Delayed

November 27th, 2011 by JBWK

This time the DOL has pushed back the implementation deadline for the Summary of Benefits and Coverage (“SBC”) that employer-sponsored plans are required to distribute to employees. The SBC is intended to provide a summary of benefits employees receive under their employer-sponsored plan. The DOL issued proposed regulations over the summer, detailing specific disclosure requirements. […]

EEOC Announces Record-Setting Year

November 26th, 2011 by JBWK

The EEOC had a record-setting FY2011, which ended September 30, topping the number of charges received and money recovered in any previous year. The EEOC received 99,947 charges in FY2011 alone, nearly 275 every single day of the year. It recovered $364.6 million for victims of workplace harassment and discrimination, a pace of about $1 […]

Supreme Court to Decide FLSA Exemption Case

November 25th, 2011 by JBWK

The U.S. Supreme Court announced it will decide whether pharmaceutical sales reps are exempt from the FLSA’s overtime requirements. The case arose from the 9th Circuit, which determined the sales reps were, in fact, exempt. More importantly, however, the Supreme Court will also decide how much (if any) deference it will give to the Secretary […]