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Don't Let Your Office Halloween Party Unmask Racial Insensitivity

Ogletree Deakins • October 31, 2014
Employers may view Halloween celebrations at work as a no-brainer: Annual October office parties are often great boosts to employee morale, encouraging community, healthy competition, and team-building as participants eat, drink, carve pumpkins, or vote on outfits in costume contests. But beware—any costume party puts employers at risk . . . and not just because of the occasional appearance of risqué costumes.

New IRS Guidance May Require Amendments to Section 125 ("Cafeteria") Plans

Ogletree Deakins • October 31, 2014
Many employers permit employees to pay for employer-sponsored health coverage, on a pre-tax basis, under Internal Revenue Code section 125 (“cafeteria”) plans. These plans generally require employees to make an irrevocable election to participate before the beginning of the health coverage period. Internal Revenue Service (IRS) rules typically do not allow mid-year changes to cafeteria plan elections, unless the employer adopts special change in status rules and incorporates those rules in a written cafeteria plan document. Change in status rules apply in fairly limited circumstances and generally permit prospective mid-year election changes only when an employee experiences certain personal status changes (e.g., family, residence, employment) or when there are significant cost or coverage changes under the employer’s health plan. Moreover, the cafeteria plan consistency rule requires any proposed election change to be consistent with the employee’s status change.

NLRB Finally Finds Facebook Activity That It Doesn’t "Like"

Ogletree Deakins • October 31, 2014
The National Labor Relations Board (NLRB) finally found a Facebook conversation it couldn’t bring itself to “Like.” In Richmond District Neighborhood Center, Case 20-CA-091748 (October 28, 2014), the NLRB held that a Facebook conversation between two employees was so egregious that it was not entitled to the protection of concerted activity afforded under the National Labor Relations Act (NLRA).

Supposed Fluctuating-Workweek "Legal Prerequisites" Come From Where, Exactly?

Fisher & Phillips LLP • October 31, 2014
"Fluctuating workweek" pay plans are provoking much litigation under the federal Fair Labor Standards Act. These arrangements call for a non-exempt employee to be paid a salary as straight-time compensation for all hours worked in a workweek, including those over 40. The salary represents the "one" of "one and one-half, so for overtime hours the employee is due an additional one-half of the hourly rate figured by dividing all of the workweek's worktime into the salary (that rate can never be less than the minimum wage, of course).

Racial talk at work? Beware of reverse discrimination

Constangy, Brooks & Smith, LLP • October 31, 2014
When I do harassment training, I ask my audiences whether they think employers should ban the N-word even when it’s used by African-Americans among themselves. In my experience, the African-Americans in the audience have been the most vocal advocates for treating everyone equally in this regard. In other words, they argue, the word should be banned for everybody — not banned for some and allowed for others.

Wal-mart, EEOC reach accord in drug test accommodation lawsuit

Constangy, Brooks & Smith, LLP • October 31, 2014
Laura Jones was offered a sales job at the Wal-Mart store in Cockeysville, Maryland, and was told that she would have to take a drug test.

What Does the End of Daylight Saving Time Mean to Employers?

Goldberg Segalla LLP • October 31, 2014
At 2 a.m. on Sunday, November 2, 2014, people all across the United States turn their clocks back one hour to end Daylight Saving Time (DST). For many, the change simply means an extra hour of sleep. However, for employers, the time change has unique and important implications. While most employers have developed protocols for dealing with the technological requirements of the time shift — such as adjusting the time in their computer systems, voice-mail, and time clocks — many employers may not be prepared for the other impacts of the time change caused by the end of DST.

Upcoming Supreme Court Decision Could Change the EEOC Litigation Landscape for Employers

Goldberg Segalla LLP • October 31, 2014
A decision by the U.S. Supreme Court on whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s (EEOC) mandatory duty to conciliate discrimination claims before filing suit could significantly change the landscape of EEOC litigation for employers. The court will hear the case during its 2014–2015 term, and its decision has the potential to prevent federal courts from reviewing pre-suit conciliation efforts. This would, in effect, allow the EEOC to proceed unchecked with respect to conciliation. It could also result in less productive conciliation and increased litigation for employers. More importantly, such an outcome would deprive employers of any meaningful recourse in the event that the EEOC’s conciliation efforts are not made in good faith.

Employees Should Not Have Unfettered Recording Rights

Fisher & Phillips LLP • October 31, 2014
The National Labor Relations Board has held that employees have a broad right under federal labor law to discuss their “wages, hours and working conditions” on social media. But the NLRB has yet to deal with the convergence of next-generation recording technology and social media. Will the NLRB expand its social media doctrine to protect workplace recording so long as the employee intends to use the recording to discuss working conditions on social media?

Latest Employer Wellness Plan to Draw EEOC Fire includes Biometric Screening Requirement

Jackson Lewis P.C. • October 31, 2014
The Equal Employment Opportunity Commission appears to be implementing an assault on corporate wellness programs based on the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. After staying on the sidelines while the popularity of workplace wellness programs skyrocketed, the EEOC has brought its third lawsuit in about two months alleging that an employer’s wellness program, in violation of the ADA and GINA, was not “voluntary” due to the “large” and “substantial” penalties to those who chose not to participate. EEOC v. Honeywell International, Inc. (D. Minn., filed Oct. 27, 2014). This attack raises complex challenges for employers since the agency has not issued guidance on wellness programs even as other federal statutory schemes permit, and even promote, wellness programs.

NLRB Doubles Down: Again Holds Waivers of Class Actions in Arbitration Agreements Illegal

Shaw Valenza LLP • October 31, 2014
It's election time. So here's a short political rant: The National Labor Relations Board is one of the administrative agencies that prove the cliche: elections have consequences. (The President nominates the Board's members, each of whom is confirmed by the Senate to a five-year term.)

Does the Private E-mail Exist?

Goldberg Segalla LLP • October 31, 2014
Innovations in technology have blurred the lines between work and private life. Many professionals regularly utilize personal devices, such as smart phones and tablets, while in the office, and can likewise access company files electronically through work-issued computers while at home. Given the lack of a bright-line distinction between that which is work and that which is private, employees may be tempted to engage in conduct on personal accounts or devices that would otherwise be clearly prohibited in the office.

Tower Talks: DOL, FCC, Telecommunications Industry Join Forces to Prevent Tower Worker Fatalities

Goldberg Segalla LLP • October 31, 2014
In the words of U.S. Secretary of Labor Thomas E. Perez, “[t]he cell phones in our pockets can’t come at the cost of a worker’s life.” On October 14, 2014, the Department of Labor, Federal Communications Commission, and telecommunications industry leaders joined forces to discuss solutions to the surging trend of tragic deaths among cellular phone tower workers.

California's Voting Leave Law: Employers' Obligations as Election Day Approaches

Ogletree Deakins • October 31, 2014
As Election Day quickly approaches, California employers are reminded that the state voting leave law allows employees to take time off to vote in a statewide election.

California Legislation 2014

Ogletree Deakins • October 31, 2014
California Governor Jerry Brown has signed into law a number of bills that will impact the employer community. A brief summary of these new laws, along with links to the bills, can be found below.

California Employers - Remember Voting Time Obligations and Poster

Shaw Valenza LLP • October 31, 2014
I'm a bit late with this reminder. At least 10 days before the November 4 election, employers in California must post this notice.
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