January 27th, 2012 | By Paul Cherner
The NLRB recently issued a decision that should prompt health care institutions to review their policies and practices concerning the wearing of union buttons and the access of off- duty employees to the health care facility.
In Saint John’s Health Center, 357 NLRB No. 170, the NLRB, in a 2 to 1 decision, found that a hospital had violated the National Labor Relations Act by its publication and application of rules with respect to the wearing of insignia in patient care areas and the presence of off duty employees on the hospital’s premises.
The Board stated that in healthcare facilities –
“restrictions on wearing insignia in immediate patient care areas are presumptively valid, while restrictions in other areas of a hospital are presumptively invalid.”
However, as the Board noted, this presumption does not protect a selective ban on only certain union insignia. In this case, the hospital allowed employees to wear hospital endorsed ribbons and buttons, including in immediate patient care areas. Accordingly, the Board found it unlawful when the hospital banned the wearing of a union ribbon with the legend “Saint John’s RNs for Safe Patient Care”, since it was a selective enforcement of the rule.
Saint John’s previously had a rule that prohibited off-duty employees from being on the hospital’s premises with the exception of allowing them to be there to visit a patient. This rule was later revised to allow off-duty employees to also have access to the hospital cafeteria and to the hospital building for hospital sponsored events, such as retirement parties and baby showers. After the new rule was posted, the hospital enforced the rule against off-duty employees who were at the hospital to campaign for a union.
The Board stated that a rule barring off-duty employees from their employer’s premises is valid only if it meets all of the following criteria:
“Limits access solely with respect to the interior of the facility & other working areas;
is clearly disseminated to all employees; and applies to off-duty employees seeking access to the facility for any purpose and not just to those engaged in union activities.”
The Board found that Saint John’s revised rule did not ban access to the premises for any purpose and was therefore invalid.
Suggestion - Hospitals should review, and, if necessary, revise their current rules regarding the wearing of insignia and access to the premises by off-duty employees to ensure that they meet the criteria required by the Board for these rules to be valid. In addition, supervisory employees should be instructed to apply these rules on a uniform, not selective, basis.
December 1st, 2011 | By Paul Cherner
On November 30, 2011, the NLRB voted 2 – 1 to make substantial changes in the way it processes petitions for union elections. The end result of these “streamlining” changes will be to shorten the period of time between the date the union files a petition for an election with the NLRB and the date of the union election. Several changes postpone consideration of certain issues until after an election is held, assuming that the issues may not need to be decided if they would not change the results of the election. Other changes grant the local NLRB office discretion with respect to allowing the filing of briefs and special appeals. While there is no set time for when an election must be held, it is expected to be substantially shorter then the NLRB’s current goal of 42 days after the petition has been filed.
The NLRB deferred deciding some of its most controversial proposals, including that a hearing be held withing seven days after a petition is filed and that unions be given employees’ email addresses and telephone numbers prior to an election. While these controversial proposals are not part of the current changes, the NLRB Chairman has stated that those proposals will remain under consideration for possible future action.
November 17th, 2011 | By Paul Cherner
On a monthly basis, employers are often dealing with employees requesting a leave of absence (“LOA”). What are the employer’s obligations under the law? The answer to this question is not “cut and dry” and involves examining the possible applicability of several federal and state employment laws, as well as a conversation with the employee requesting the leave.
This basic guide should be helpful in identifying some of the federal law issues arising from LOA requests:
1.) What is the reason for the leave request?
The Family and Medical Leave Act (“FMLA”) may apply if the employee is requesting the leave to: give birth to or care for their child; or placement of a child with the employee for adoption or foster care; or to care for an immediate family member who has a serious health condition; or because of a serious health condition that makes the employee unable to do the functions of their job; or because of the need to care for the employee to care for an immediate family member who was injured while on active military duty; or for certain exigencies that arise from an employee’s family member being called to active duty in the uniformed services. If any of these situations is the reason the employee is requesting leave, then an employer must determine whether the FMLA, which provides up to 12 weeks of unpaid leave per 12 month period , applies.
2.) Is the Employee Eligible for FMLA Benefits?
An employee is eligible for FMLA benefits if they have been employed for at least 12 months by the employer they are requesting the leave from and have worked at least 1,250 hours for that employer during the past 12 months. Additionally, employees are only eligible if they are employed at a worksite where the employer employs 50 or more employees or if the employer employs 50 or more employees within 75 miles of that employee’s worksite. If the employee meets these eligibility requirements, then a formal process is undertaken with the exchange of letters that authorizes the employee to take the leave for the time that is supported by the requisite documentation.
3.) What if the Employee is Not Eligible for FMLA Benefits?
If the employee requests a LOA for one of the reasons set forth in the FMLA, but is not entitled to FMLA benefits (because they have not met one or more of the criteria or they work in a worksite that regularly employs less then 50 employees), can the HR Director deny the request? Not necessarily so. First, the HR Director needs to see what the employer’s policy and practice has been with respect to other employees requesting LOAs. An employer must treat all such requests on a uniform basis and if they do not, they must be able to demonstrate that the different treatment is based on a legitimate, nondiscriminatory reason.
4.) An Employee May be Entitled to Leave Under the ADA.
If the employee is requesting leave because of a physical or mental condition that meets the broad definition of “disability” in the amended Americans with Disabilities Act (“ADA”), then the employee may be entitled to leave, even when they do not qualify for FMLA benefits. The ADA requires an employer to offer an employee with a disability “reasonable accommodation” if it would allow the employee to perform the essential functions of a job that they are qualified to perform. An exception to requiring this “reasonable accommodation” is if it would cause the employer an “undue hardship.” While this is a narrow exception, an employer needs to be aware of it for situations where allowing the employee to take such leave would place an undue burden upon the employer and its business operations.
An employer must engage in an interactive dialogue with the employee concerning whether granting the LOA request may be required as a reasonable accommodation. The employer must make their decision on an individual case basis, analyzing factors such as how long the leave will be for and the impact of such leave on the employer’s operations. For example, if the employee is requesting leave for a few days or a few weeks to have medical treatment required by their disability, it is likely that granting the LOA may be found to be a reasonable accommodation that the employer is required to grant. What if the amount of leave is undeterminative or is for 6 months or more then a year? Depending on the individual circumstances involved, granting extensive or undeterminative leave may be deemed reasonable or unreasonable. The EEOC recently held a public hearing on this subject, acknowledging that they needed to provide better guidelines for employers who were faced with such requests. However, it is not known at this time when the EEOC will issue further guidance on this subject.
In summary, leave requests need to be individually reviewed to determine what rights, if any, the employee requesting the leave may have under federal or state laws, in addition to those provided by the employer’s policy and practices.
Caveat: This article is a brief, general outline of a complicated subject and is not being offered as legal advice.. Employers should consult with experienced employment law counsel when faced with specific issue such as those identified in this articles.
October 11th, 2010 | By Paul Cherner
The U.S. Department of Labor has issued Frequently Asked Questions about the Genetic Information Nondiscrimination Act (“GINA”). The FAQs pertain to Title I of GINA, which applies mainly to insurers and not to the employment law aspects of GINA. However, these FAQs are instructive with respect to how the federal government interprets GINA, especially with respect to defining what it considers “genetic information.”
September 14th, 2010 | By Paul Cherner
The U.S. Department of Labor continues to be one of the most activist DOL in recent history. It has now established an Office of Whistleblower Protection (“OWPP”) under its OSHA division. In addition to enforcing the non retaliation provisions of OSHA, this office will handle similar provisions under 18 other laws, from the Sarbanes-Oxley Act to the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act. A listing of all the laws and regulations that the OWPP will be enforcing is listed on its website. It would be prudent for all HR professionals to check this site to see whether your industry is one of those targeted by the OWPP for its stepped up enforcement efforts.
June 17th, 2010 | By Paul Cherner
The U.S. Department of Labor (“DOL”) has issued a final rule implementing President Obama’s Executive Order 13496 requiring all government contracting departments and agencies to include a provision in their solicitations for contracts requiring that contractors must post a notice in conspicuous places informing employees of their rights under the National Labor Relations Act (“NLRA”).
The new notice must be posted for all covered government contracts or subcontracts that result from solicitations issued after June 21, 2010. Go to the DOL’s website for more specific information about the size and placement of the notice and about possible electronic posting. Click here to see a sample of the new notice. Please note that the notice posted must be at least 11″ by 17″. Covered government contracts will mandate that the prime contractor require subcontractors performing services or goods under the covered contract for $10,000 or more to also post this notice.
Prime contracts for less then $100,000 or those for work performed exclusively outside the U.S. do not required the posting of this notice. The notice requirement does not apply to contracts resulting from solicitations issued prior to June 21, 2010.
This notice has an extensive explanation of workers’ rights to organize and take collective action. It also sets forth examples of adverse conduct by an employer (or a union) against an employee that would be unlawful under the NLRA. It informs employees of possible remedies that can be ordered by the NLRB to correct unlawful conduct and tells them how to contact the NLRB to file a charge.
This new Executive Order also revoked an Executive Order by President George W. Bush that federal contractors had to post informing employees of their rights concerning the payment of union dues or fees
April 19th, 2010 | By Paul Cherner
On April 15, 2010, President Obama signed a law extending unemployment compensation benefits. Included in that bill was a provision extending the eligibility date for the COBRA subsidy under the ARRA.
Eligible employees who are involuntarily terminated on or before May 31, 2010 can now apply for the 65% COBRA premium subsidy in the event that they exercise their right to continued health insurance coverage under COBRA (or pursuant to a similar state law that provides for coverage continuation). The US Dept. of Labor has issued a new “Fact Sheet” that should be consulted with respect to any questions that you may have regarding this subject.
A number of questions have arisen concerning what impact, if any, the new Health Care Reform Act may have with respect to COBRA and the COBRA ARRA subsidy law. The US Dept. of Labor has also issued a publication of ”Frequently Asked Questions” about this issue.
April 8th, 2010 | By Paul Cherner
On March 18, 2010, President Obama signed into law the Hiring Incentives to Restore Employment (“HIRE”) Act. This Act contains two new tax benefits that are available to employers who hire certain previously unemployed workers (“qualified employees”). The IRS has issued some preliminary guidance on the application of this new law. We expect further guidance from the IRS on the interpretation of this law as issues and questions arise in the future.
The following summary is based on our review of the relevant provisions of the HIRE Act and the IRS’s preliminary guidance:
1. Employers -
Taxable and tax-exempt employers are eligible for these tax benefits if they hire “qualified employees ” and meet the other requirements of the HIRE Act. Public employers, with the exception of public colleges and universities, are not eligible for these tax benefits.
2. ”Qualified Employees” -
a.) In order to qualify for the tax benefits under the Hire Act, an employer must hire an employee (after February 3, 2010 and before January 1, 2011) who has been unemployed or employed for less then 40 hours during the 60 day period ending on the date that the new employment begins.
b.) Family members and certain employees related to the employer do not qualify.
c.) A qualified employee must sign a sworn affidavit stating that they meet the qualification with respect to the 60 day period. The IRS has prepared an affidavit form [form W-11] to be used for this purpose. This form is to be retained by the employer and not filed with the IRS.
d.) The payroll tax exemption benefit does not apply to an employee hired to replace an existing worker, unless the existing worker terminated employment voluntarily or was terminated for cause. [Note: special rules may apply to employees hired to replace laid off employees].
3. Payroll Tax Exemption –
a.) An employer who hires a “qualified employee” during the relevant time period will be entitled to a Payroll Tax Exemption (“PTE”) on all wages paid to that “qualified employee.” The PTE is an exemption from the employer’s 6.2% share of social security taxes on all wages paid to the “qualified employee(s)” from March 19, 2010 through December 31, 2010,
b.) The PTE does not apply to Medicare tax or any other tax withholdings. It also will not impact on the amount of social security benefit that the “qualified employee” may eventually be entitled to receive.
c.) The IRS is developing forms and guidance with respect to how to handle the PTE for the first calendar quarter of 2010, which will allow appropriate credit to be taken when the employer pays taxes due for the second calendar quarter of 2010.
4. Business Retention Tax Credit Benefit –
a.) There is also a general business tax credit for qualified employers to retain new hires. An employer may claim this credit for each “qualified employee” it hires for purposes of the PTE and who remains an employee for 52 consecutive weeks (a “retained worker”). The “retained worker’s” pay may not significantly decrease during the second half of the 52 week period.
b.) The Business Retention Tax Credit (“BRTC”) is the lesser of $1,000 or 6.2% of the wages paid to the retained worker during the 52 week period.
c.) Caveat: Employers who are eligible for the more generous Work Opportunity Tax Credit (“WOTC”) must opt out of HIRE if they want to continue receiving the WOTC credit.
Note: The preceding summary highlights the key portions of this new law. However, specific situations and questions should be referred to legal counsel and tax advisors, rather then relying on this general summary. Additionally, the IRS will be issuing further guidance and forms which need to be taken into account with respect to the application of the provisions of this new law.
IRS Tax Advice Compliance Disclosure: To ensure compliance with the regulations governing the issuance of advice on Federal tax issues, we advise you that any tax advice in this communication (and any attachments) is not written with the intent that it be used, and cannot be used, to avoid penalties that may be imposed under the Internal Revenue Code
March 29th, 2010 | By Paul Cherner
On March 27, 2010, President Obama announced the following recess appointments to the NLRB and the EEOC.
Craig Becker and Mark Pearce have been appointed to be Board Members of the National Labor Relations Board. While both had been approved by the Senate Labor Commitee, a vote on their confirmation has been delayed in the Senate. There is still one vacancy on the five member NLRB Board. No action was taken on the third nominee to the NLRB, Bryan Hayes, that President Obama had previously sent to the Senate.
Chai R. Feldblum, Victoria A. Lipnic and Jacqueline A. Berrien (Chair) were appointed Commissioners of the Equal Employment Opportunity Commission. P. David Lopez was appointed General Counsel of the EEOC.
The recess appointments will expire in December, 2011 when the Senate next has a recess. In the interim, all of these nominations for a full term will be awaiting a Senate vote.
February 5th, 2010 | By Paul Cherner
The U.S. Dept. of Labor has been updating its website on a weekly basis offering additional information re the COBRA Subsidy (65% of COBRA premium) under the ARRA and should be referred to if you have any questions about administering this benefit.
Legislation is pending in the House and will be introduced in the Senate to extend the current deadline that employees must be involuntarily separated on or before Feb. 28, 2010 in order to be eligible for this subsidy. The current House version extends the date to June 30, 2010, while President Obama’s recent federal budget submission suggested extending the date to December 31, 2010. Given continued high unemployment rate reports, it is likely that an extension will be enacted this month.
