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Employment Matters Blog

A Pick Off Play Strikes Out at the First Circuit, But There Are More Innings to be Played; the Debate Over Rule 68 Offers of Judgment Continues

Posted in class action, Litigation, Massachusetts, Second Circuit

Sorry, we couldn’t resist mixing our baseball metaphors.  In Bais Yaakov of Spring Valley v. ACT, Inc., the First Circuit affirmed a district court decision refusing to dismiss a putative class action as moot based on an unaccepted offer under FRCP 68 that defendant claimed would provide complete relief to the plaintiff.  In so holding, the First Circuit became the latest Circuit Court of Appeals to weigh in on Rule 68 offers in advance of the Supreme Court’s Campbell-Ewald v. Gomez case, which legal commentators hope will settle the issue once and for all.

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LGBT Advocates Shift Focus to Anti-Bias Law (The San Diego Daily Transcript)

Posted in discrimination

My colleague Jennifer Rubin was quoted in The San Diego Daily Transcript article entitled, “LGBT Advocates Shift Focus to Anti-Bias Law” that discussed LGBT supporters’ aim to pass a law offering greater non-discrimination protections. The article outlines the importance of legislative solutions to protecting against discrimination on the basis of sexual orientation and gender identity given the variance in protections (or lack of protection) from state to state.

The Affordable Care Act’s Reporting Requirements for Carriers and Employers (Part 6 of 24): Reporting Group Health Plan Opt-Out Arrangements under Code § 6055

Posted in ACA’s Reporting Requirements for Carriers and Employers Series, Affordable Care Act, Healthcare, IRS

Under a common strategy for controlling group health care plan costs, employers sometimes adopt arrangements under which an employee is offered cash as an incentive to waive coverage. These arrangements are colloquially referred to as “opt-out plans” or “opt-out arrangements.” Amounts offered under opt-out arrangements—we will call them “opt-out credits”—are in some instances paid as unrestricted, taxable cash. Other opt-out arrangements might impose a requirement that, to qualify for the opt-out credit, the employee must have other group health plan coverage. And still others might offer only a choice between group health plan participation and an opt-out credit that consists of a contribution to the employee’s health flexible spending account. This post examines how opt-out credits affect an applicable large employer’s determination of affordability for purposes of complying with the Affordable Care Act’s (ACA) employer shared responsibility rules, and it explains how opt-out credits are reported. Continue Reading

It’s 2015: Do You Know Where Your Workplace Is? [VIDEO]

Posted in Employee Privacy, Privacy, Social Media

Where, when, and how we work has changed profoundly since I started practicing law but employment and privacy laws have not evolved to keep up with technological change and the reality of the “everywhere” workplace.

I would like to think that employment lawyers can provide some practical solutions to addressing policies that help draw the line between personal and business and yet protect valuable business assets.  Continue Reading

Union Ruling Underlines NCAA’s Evolution (New York Times)

Posted in NLRB, union organizing

My colleague Tyrone Thomas was quoted in a New York Times article entitled, “Union Ruling Underlines NCAA’s Evolution” addressing The National Labor Relations Board’s ruling that Northwestern football players could not unionize. The article outlined the rationale for the NLRB’s decision and the positive reforms passed by the NCAA since Northwestern’s players filed the petition to unionize.

No Golden Parachute (Inside Higher Ed)

Posted in Employee Mobility, employer liability

My colleague Ray Cotton was quoted in an Inside Higher Ed article entitled, “No Golden Parachute,” which described the University of Illinois controversial decision to reject paying the $400,000 bonus to the departing chancellor Phyllis Wise. Ray commented on the possible implications of the decision, including the university’s ability to attract candidates, litigation and risks to its reputation.

The Affordable Care Act’s Reporting Requirements for Carriers and Employers (Part 5 of 24): Reporting of Health Reimbursement Arrangements under Code § 6055 (Spoiler Alert: You Are Not Going to Like This One)

Posted in ACA Compliance Series, ACA’s Reporting Requirements for Carriers and Employers Series, Affordable Care Act, Healthcare, IRS

As we reported last week, the IRS recently issued draft 2015 Instructions for Forms 1094-C and 1095-C. These instructions are of interest to applicable large employers who must report their compliance with the Affordable Care Act’s (ACA) rules governing employer shared responsibility. At the same time, the IRS also issued draft 2015 Instructions for Forms 1094-B and 1095-B (“Draft 2015 Instructions”). Forms 1094-B and 1095-B are used to report certain information to the IRS and to taxpayers about individuals who are covered by minimum essential coverage and therefore are not liable for the individual shared responsibility payment. The Draft 2015 Instructions contain an unpleasant clarification on the subject of Health Reimbursement Arrangements, saying essentially that an employer that maintains an insured group plan and a self-funded Health Reimbursement Arrangement (HRA) must separately report the HRA coverage.

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Third Circuit Joins Sister Courts in Finding Suspension with Pay is not an “Adverse Employment Action” Within Meaning of Discrimination Laws

Posted in discrimination, harassment, retaliation, sexual harassment, Title VII

In Precia Jones v. SEPTA, the Third Circuit Court of Appeals last week joined six sister courts in finding that a suspension with pay typically does not constitute an “adverse employment action” within the meaning of Title VII and analogous Pennsylvania law.

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NLRB Calls Out the Punt Team and Declines Jurisdiction Over Northwestern University Football Players

Posted in collective bargaining, NCAA, NLRB, Traditional Labor

In a mild surprise given the current constitution of the Board (read – majority appointed by President Obama), the NLRB declined to assert jurisdiction in ruling on the petition of Northwestern University’s scholarship football players to unionize.  However, in a display of special teams not seen on a football field in Evanston, Illinois since the days of John Kidd, the NLRB reached its decision without determining if scholarship players were “employees” under the National Labor Relations Act.  Even with this limitation, it is clear competitive balance considerations for NCAA Division I sports has received great deference as a policy matter in a legal dispute.

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7th Circuit Latest Court to Weigh in on Rule 68 Offers of Judgment; Holds That They Don’t Moot a Case; But With Supreme Court Decision Looming Next Term, Precedent May Prove Short-Lived

Posted in class action, Supreme Court, Wage and Hour

A Seventh Circuit panel recently overruled its own precedent to hold that a defendant’s offer of full compensation in an offer of judgment under Federal Rule of Civil Procedure 68 does not moot the litigation.  While the decision benefits individuals pursuing wage and hour collective and class actions, its import may be short-lived as the Supreme Court is set to take up this issue in its next term and could reach the opposite conclusion.

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