As a labor and employment attorney, I spend a significant amount of time counseling employers as they prepare to terminate an employee. Often enough, the situation goes something like this:
Articles on U.S. Labor, Employment, Benefits & Immigration Law
Executive Summary: On November 14, 2012, the Criminal Division of the United States Department of Justice (“DOJ”) and the Enforcement Division of the United States Security and Exchange Commission (“SEC”) issued “A Resource Guide to the U.S. Foreign Corrupt Practices Act” (the “Guide”). Although not binding on the DOJ or SEC, the Guide is very useful in detailing the agencies’ enforcement approaches, interpretations and priorities.
Executive Summary: The University of Toledo terminated an Associate Vice President for Human Resources after she wrote an op-ed column arguing that homosexuals could choose their sexual orientation and thus were not entitled to the same protections as persons of color. This view ran contrary to the University’s diversity and equal opportunity policies. The Sixth Circuit upheld the employee’s termination. The court held that the employee’s speech was not protected by the First Amendment because she held a policymaking position and was speaking to a policy issue.
On December 13, 2012, the Committee on Oversight and Government Reform of the U.S. House of Representatives issued a 33-page report accusing the National Labor Relations Board (NLRB or Board) of express pro-union bias, pursuing a program of aggressive tactics designed to promote union agendas, making substantive decisions without legal authority, violating its own ethical and procedural rules, and hostility to Congressional oversight. The report, titled “President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate,” can be accessed here. For employers that have been involved in cases brought before NLRB this year, the implications of this report could raise questions about those decisions or even cast them into doubt.
Executive Summary: The U.S. Supreme Court has agreed to hear two cases involving the issue of same-sex marriage; the Second Circuit’s decision finding the federal Defense of Marriage Act (DOMA) unconstitutional and a Ninth Circuit Decision striking down California’s ban on same-sex marriage.
The United States Supreme Court recently heard oral argument in the matter of Vance v. Ball State University (Docket No. 11-556) on November 26, 2012, a case which is poised to resolve an important split among federal circuits and could reshape the scope of supervisor liability in sexual harassment and discrimination cases.
Thanks to those who attended my webinar last week with Matt Morris and Tamika Lynch on “FMLA Made Easy: Effectively Managing Difficult FMLA Issues.” If you missed the program, you can access the webinar and materials here. As the survey feedback indicated, this webinar was a great opportunity to discuss common issues that arise in the administration of FMLA leave and how employers can best address them.
As 2012 comes to a close, we inevitably receive questions related to year-end bonuses. Last year, I posted about whether employers were required to pay a pro-rata bonus to those employees who left their employment before the bonus was paid out. This year, I thought it might be helpful to remind employers of certain rules relating to bonus payments made to non-exempt employees.
This past Friday, the United States Supreme Court announced that it would consider whether the Defense of Marriage Act (DOMA) unlawfully denies benefits to gay and lesbian couples who are married in states that allow such unions. A Supreme Court decision nullifying DOMA could have wide ranging impacts, including how the Family and Medical Leave Act covers “caring for a spouse.”
Executive Summary: Citing the Communications Decency Act, a National Labor Relations Board (NLRB) administrative law judge held that a union that maintained a Facebook page did not have a duty to disavow threatening comments posted by union members.
Executive Summary: With the re-election of President Obama and the Supreme Court’s recent decision upholding portions of the Affordable Care Act (the “ACA”), health care reform is here to stay for the foreseeable future. Though limited challenges to the law are still pending, employers must prepare to comply with the many ACA requirements of 2013 and beyond.
In case any employer that is sponsoring a holiday party for its employees needs a reminder of the potential liability that may arise from such an event, earlier this month, a decision from the U.S. District Court for the Western District of New York provided a sobering reminder of just some of the employment litigation risks attendant with such an event.
The FMLA just got a whole lot broader. In what might be one of the key FMLA decisions of the year, a federal judge has upheld an employee’s right to take FMLA leave to care for her mother during a recreational trip to Las Vegas. Yep . . . you read it correctly. Employee + her mother + their trip together to Vegas = FMLA leave
Executive Summary: In addition to the other various employee benefit plan relief provided as a result of Hurricane Sandy, on November 16 the Internal Revenue Service announced, in Announcement 2012-44, that certain individual account plans, including Section 401(k) plans, Section 403(b) tax-sheltered annuities, and governmental Section 457(b) deferred compensation plans can provide plan loans and hardship withdrawals (including “unforeseeable emergency” distributions under 457(b) plans) to those participants who were (or who have certain family members who were) adversely affected by Hurricane Sandy. In addition, IRA owners may also qualify to receive distributions with reduced administrative procedures.
Employers and fellow FMLA nerds, consider this an early holiday present: courts are increasingly dismissing FMLA claims when they find that the employer has an honest belief that the employee has engaged in FMLA fraud.