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  • October20th

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    Employers who do not employ “union employees” are sometimes caught unaware that their employees are protected under certain provisions of the National Labor Relations Act (the “NLRA”). In particular, Section 7 of the NLRA provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (emphasis added). Section 8(a) of the NLRA makes it an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.

    Based on these provisions of the NLRA, the National Labor Relations Board (the “Board”) recently decided its first case ever regarding an employer basing its employment decisions on the use of social networks by employees. The Board, in Hispanics United of Buffalo vs. Carlos Ortiz, found against a New York non-profit organization for terminating five employees due to the employees’ Facebook discussion about a co-worker. In the case, the employer claimed that a Facebook discussion by and between the five employees regarding another co-worker’s criticism of their job performance amounted to bullying and terminated the employees under the employer’s anti-harassment policy in the employee handbook. The employees brought suit against the employer stating that the Facebook discussion was protected under the NLRA because it was a concerted discussion for the purpose of protection.

    The NLRB Administrative Law Judge ruled the employees’ Facebook postings, discussing issues regarding the workplace and work productivity, was protected speech under Section 8 of the NLRA. The judge ruled that the “employees were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [their colleague] was going to make to management. By discharging the employees, the employer prevented them from taking any further group action vis-a-vis [their colleague’s] criticisms.”
    The judge then analyzed the speech against some of the limited exceptions to NLRA Section 7 protection. The factors for determining whether an exception to Section 7 applies are found in the NLRB’s decision in Atlantic Steel Co. including: (a) the place of the discussion, (b) the subject matter of the discussion, (c) the nature of the employee’s outburst, and (d) if the outburst was provoked by the employer. The judge found that none of the factors applied to this particular case. Even more importantly, the judge stated that it was basically irrelevant that the discussion took place in a public forum, like Facebook, where non-employees were able to see the posts.

    Finally, the judge took into consideration the harassment policies posted by Hispanics United of Buffalo and found that no type of harassment (sex, religion, race, etc.) as stated in the employee handbook applied. Therefore, as the employees did not violate the employer’s harassment policy or engage in activity disqualifying them from protection under the Act, the employees’ Facebook discussion was protected, and the employees were terminated unlawfully. The judge ordered the employer to reinstate each employee to their former position as well as provide them with backpay.

    In light of this ruling, employers should be mindful of making employment decisions based on employees using social media to air their employment related issues and problems. In addition, employers should ensure that their social media policies conform in regards to dealing with situations inside and out of the workplace.

  • July13th

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    In a notice on its website, the U.S. DOL announced the extension of the applicability date of the fiduciary-level fee disclosure regulation issued under ERISA section 408(b)(2) until April 1, 2012. The Department had previously proposed to extend the applicability date only under January 1, 2012.

    In addition, the DOL also announced an amendment to the applicability date of the participant-level fee disclosure regulation. Initial participant-level disclosures must now be made no later than 60 days after the first day of the plan year beginning after 11/1/11, or if later, 60 days after the effective date of the fiduciary-level fee disclosure regulation. Previously, the DOL had proposed a 120-day transition period to provide these disclosures.

    This was reprinted from ASPPA.

  • September20th

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    Health care reform compliance deadlines are closing in on us.  Grandfathered and non-grandfathered plans must be compliant by the first plan year beginning on or after September 23, 2010.  The following are some  required notices that will have to be provided to plan participants.

    • Grandfathered Plan Status Notice. If maintaining grandfathered status, then participants are entitled to a notice of intent to maintain that status.
    • Special Enrollment Notices for Lifetime Limits. Individuals who have reached their lifetime limits under a plan are entitled to a special notice enrollment telling them that they are available for coverage. Since the lifetime limit is going away, these individuals will be able to have claims paid even though they may not be coming back on the plan.
    • Patient Protection Notice for Physician Choice.  This notice lets participants know that they are able to choose primary care physicians and that they can obtain OB/GYN care without previous approval.
    • Notice of Age 26 Coverage Extension.  Since coverage has expanded to individuals up to the age of 26, participants must be notified of this option along with being provided with enrollment instructions and rights.
    • Appeal Rights.  Since there is a possibility of adding outside appeals to non-grandfathered plans, participants must be informed about the new appeals rights. Also, participants should be reminded of the existing appeal rights under the plan.

    Even though the carrier might send these notices out to plan participants, it is solely the accountability of the company to make certain that notices are being sent out correctly.  You should contact your carrier and/or broker to make sure that your company is up to date with these new notice requirements.  In addition, given that these provisions are all are incorporated into ERISA, it is likely permissible that the normal ERISA notice rules apply (vis-a-vis form of notice), including any method the Department of Labor has previously approved for electronic delivery.

  • September20th

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    On July 19, 2010, the U.S. Government issued interim final regulations that require all non-grandfathered health plans to cover preventative services without any cost-sharing for the plan participant when delivered by in-network providers.  The plan does not apply to grandfathered plans.  Cost-sharing refers to any co-pays, deductibles or coinsurance paid by the plan participant when receiving medical services.

    Although the proposed regulations do not specify the exact services that are to be covered at 100%, the regulations do provide for certain classifications that must be covered at 100%.  These include:

    • Evidence-based services that have an A or B rating in the current United States Preventative Services Task Force recommendations;
    • Routine immunizations for children, adolescents and adults as set forth by the Centers for Disease Control and Prevention, as applicable;
    • Screenings and preventive care for infants, children and adolescents; and
    • Screenings and preventive care for women.

    Although subject to change when the final regulations are issued, plan sponsors should know which services they will need to provide without cost sharing.  The rules are effective for all non-grandfathered plans for the first plan year beginning on or after September 23, 2010.  The United States Preventative Services Task Force website has more information on services with A and B ratings, immunizations, and screenings (http://www.healthcare.gov/center/regulations/prevention/recommendations.html).

    Based on most current health plan specifications, changing medical plan coverage to cover these services without cost sharing will not significantly increase the cost of providing health insurance.  For this reason, it is not a particularly compelling reason to maintain grandfathered status for your health plan unless there are other reasons to do so.  You should contact your insurance provider or broker to find out more information.

  • August6th

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    The Employer Information Report EEO-1 is required to be filed with the U.S. Equal Employment Opportunity Commission’s EEO-1 Joint Reporting Committee. The filing deadline for the 2010 EEO-1 Survey is September 30, 2010.  All companies with more than 100 employees and who are subject to Title VII are required to file the Form.  Certain companies with under 100 employees are also required to file the EEO-1.

    All single-establishment employers (i.e., employers doing business at only one establishment in one location) must complete a single Standard Form 100, or use one of the alternate filing methods.  All multi-establishment employers (i.e. employers doing business at more than one establishment) must file either (1) a report covering the principal or headquarters office; (2) a separate report for each establishment employing 50 or more persons; (3) a consolidated report that MUST include ALL employees by race, sex and job category in establishments with 50 or more employees as well as establishments with fewer than 50 employees; and (4)
    a list, showing the name, address, total employment and major activity for each establishment employing fewer than 50 persons, must accompany the consolidated report.

    The total number of employees indicated on the headquarters report, PLUS the establishment reports, PLUS the list of establishments with fewer than 50 employees, MUST equal the total number of employees shown on the consolidated report.  All forms for a multi-establishment company must be collected by the headquarters office for its establishments or by the parent corporation for its subsidiary holdings and submitted in one package.

    The preferred method for completing the EEO-1 reports is the web-based filing system, which can be found here:  http://www.eeoc.gov/employers/eeo1survey/index.cfm