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Employment Matters Blog

Why Getting Handbooks Right Matters: NLRB Judge Holds Verizon’s Restrictions on Employee Communications During Non-Working Time Violate the NLRA

Posted in NLRA, NLRB, Section 7 Rights

Despite previous NLRB rulings telling them to stop, some employers continue to impose broad prohibitions on personal employee communications over company email. As an administrative law judge recently reminded us, failing to carve out email use exceptions for periods during which employees are not actually working will continue to violate the National Labor Relations Act and can result in significant costs for employers in remedying such non-compliance.

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Eleventh Circuit Joins Second Circuit in Holding the Unpaid Intern FLSA Classification Analysis Depends on the “Primary Beneficiary” of the Relationship.

Posted in DOL, employer liability, Exemption Misclassification, FLSA, Second Circuit, Unpaid Interns, Wage and Hour Issues

The Eleventh Circuit recently joined the Second Circuit in adopting the employer-friendly “primary beneficiary” test to determine whether unpaid interns are properly classified as employees under the FLSA.  The Second Circuit’s June decision in Glatt v. Fox Searchlight Pictures, Inc. struck the first blow in this area, and the Eleventh Circuit’s recent decision in Schumann v. Collier Anesthesia, P.A. provides employers with additional momentum in deterring future unpaid intern lawsuits.

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Time Warner-EEOC Settlement Provides a Cautionary Tale to Employers Who Provide Mothers More Parental Leave Than Fathers

Posted in Discrimination & Harassment, EEOC, employer liability, Leaves of absence, Parental Leave, Sex Discrimination

I recently read in the NY Times that the Equal Employment Opportunity Commission settled a charge with Time Warner, Inc., the parent company of CNN and Turner Broadcasting System, Inc. where a former employee alleged that Time Warner’s parental leave policy discriminated against him as a biological father.  I encourage employers to read the article, as it reemphasizes the shifting attitudes in this country on family-friendly leave policies, and from a legal perspective, it serves as yet another reminder that employers should review their parental leave policies to make sure they are up to date and do not discriminate against fathers.

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The Affordable Care Act’s Reporting Requirements for Carriers and Employers (Part 11 of 24): Reporting 2015 Coverage of “MV-Lite” Plans on Form 1095-C

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

In Notice 2014-69,  the Treasury Department and the IRS clarified that a group health plan that fails to provide substantial coverage for in-patient hospitalization and physician services will not be treated as providing minimum value, despite that the plan might otherwise return a value of 60% from the Department of Health and Human Service’s (HHS) online minimum value calculator. These arrangements were sometimes referred to for marketing purposes as “MV-lite” or “MVP-lite” plans. By whatever name, they were particularly attractive to employers with large cohorts of low- and moderate-wage employees who were not previously offered coverage.

Notice 2014-69 provided a transition rule under which a plan that was adopted before November 4, 2014 and that had a plan year beginning no later than March 1, 2015 would not be subject to the new rules until the following plan year. Such a plan was treated for purposes of complying with the Affordable Care Act’s employer shared responsibility rules as providing minimum value. But employees covered under an affordable MV-lite plan were not barred from qualifying for premium subsidies from a public insurance exchange.

The 2015 Final Instructions for Forms 1094-C and 1095-C do not provide a way for employers to claim reliance on the Notice 2014-69 transition relief. Coverage under an MV-lite plan will be reported as not providing minimum value, thereby overstating penalties under Internal Revenue Code § 4980H(b) in many, if not most, instances. This will require sponsors of MV-lite plans to engage with the IRS in the assessment process in order to establish that they qualify for the relief.

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Internal Whistleblowing Protected Against Retaliation Under Dodd-Frank, Says Second Circuit

Posted in employer liability, IRS, OSHA, SEC, Second Circuit, whistleblower

While the Dodd-Frank Act provides various protections to whistleblowers, federal courts have inconsistently interpreted who precisely qualifies as a whistleblower.  In a much-anticipated opinion, the Second Circuit Court of Appeals held, in Berman v. Neo@Ogilvy LLC, that whistleblowers who report wrongdoing internally – but not to the Securities and Exchange Commission – are protected from retaliation under the law.

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The Second Circuit (Sort of) and the Fourth Circuit (Completely) Refuse to Apply “Manager Rule” to Title VII Retaliation Claims

Posted in Discrimination & Harassment, employer liability, FLSA, Fourth Circuit, investigations, retaliation, Second Circuit, Title VII

The so-called “manager rule” addresses a concern that employers may face a “litigation minefield” if a manager whose very job duties required them to report discrimination complaints could later sue for retaliation if they were adversely affected by the making of that report.  Employers argue that the manager is not really “opposing” a discriminatory practice sufficient to invoke Title VII’s anti-retaliation protections, when they are in essence just doing the job the employer assigned them.  Last month, the Second Circuit (in Littlejohn v. City of New York) and Fourth Circuit (in DeMasters v. Carilion Clinic) addressed the “manager rule,” and while both courts rejected its application, the Second Circuit did adopt a somewhat employer-friendly variation.  A brief discussion of these cases and their implications for the manager rule follows below.

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Maine Social Media Employee Privacy Law Goes Into Effect October 15, 2015

Posted in Employee Privacy, Privacy, Social Media

In a sign of the growing trend of states enacting statutes protecting employee privacy, Maine became the latest state to prohibit employers from requiring employees and job applicants to provide passwords to their personal Facebook and other social media accounts.  Since 2012, nearly half of the states have passed such laws.  Indeed, since February alone, when we discussed this issue in our employment privacy webinar, three states enacted social media privacy laws, including Connecticut.  We briefly outline Maine’s new law below.

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The Affordable Care Act’s Reporting Requirements for Carriers and Employers (Part 10 of 24): IRS Issues Final Form 2015 Instructions for Forms 1094-B and 1095-B, 1094-C and 1095-C—Good News for HRAs, Changes to COBRA Reporting, Clarifications for Multiemployer Plans, and More

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

The IRS recently issued final instructions for Forms 1094-B and 1095-B and Forms 1094-C and 1095-C . The 2015 Instructions for Forms 1094-B and 1095-B implement a suggestion we made in a previous post relating to the reporting of Health Reimbursement Arrangements (HRAs) that are integrated with other group health plan coverage. The 2015 Instructions for Forms 1094-C and 1095-C make a substantive change in the manner in which offers of COBRA coverage are reported and clarify the reporting of multiemployer plan coverage. The Treasury Department and IRS also issued Notice 2015-68 , which announces their intent to propose regulations to reflect recent changes in the law (e.g., the Expatriate Health Coverage Clarification Act of 2014) and to clarify existing regulations (e.g., the reporting of coverage under integrated HRAs, as discussed below.

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NJ Appellate Court Offers New Guidance on Employee Arbitration Agreements

Posted in Arbitration, New Jersey

Earlier this month, the New Jersey Appellate Division ruled that employee arbitration agreements, to be enforceable, must contain a “clear and unmistakable” waiver of an employee’s right to a trial in court.  In Milloul v. Knight Capital Group, the court, finding no distinction between an employee arbitration agreement and a consumer arbitration agreement, extended an earlier 2014 New Jersey Supreme Court decision requiring express right-to-sue waivers in consumer arbitration agreements.

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