In January 2018, the U.S. Department of Labor (DOL) announced that final regulations affecting how some ERISA plans process claims and appeals will apply beginning April 1, 2018. As explained below, the final regulations require that plans, plan fiduciaries, and insurance providers comply with additional procedural requirements when deciding claims involving disability determinations, which can impact a variety of different types of plans, including pension and non-qualified plans. The final regulations were initially released in December 2016, but had been delayed several times. Continue Reading Action Needed by Certain ERISA Plans – New Disability Claims Procedures Apply Beginning April 2018
With the end of the year rapidly approaching, employers should ensure compliance with the Occupational Safety and Health Administration’s (OSHA) new electronic reporting requirements for injury and illness data. The deadline for compliance was December 15, 2017, but OSHA’s website states that they will be accepting submissions of Form 300A through December 31, 2017.
What is the purpose of the new OSHA reporting rule?
According to OSHA, “making injury information publicly available will ‘nudge’ employers to focus on safety.” OSHA will post the establishment-specific injury and illness data it collects under this recordkeeping rule on its public website (after removing personally identifiable information).
The final rule also prohibits retaliation against any employees for reporting injuries or illnesses and requires that employers notify employees of their right to report work-related injuries and illnesses free from retaliation.
Bass, Berry & Sims attorney Tim Garrett discussed the implications of the ruling holding responsible the University of Connecticut Health Center for the sexual harassment of an employee by a fellow co-worker. In the ruling, the court found that the University of Connecticut Health Center did not take proper steps to alert supervisors of the co-workers prior harassment history which, therefore, prevented the supervisors from properly monitoring his behavior and allowed the misbehavior to occur. According to Tim, “While employers likely can’t monitor their staff at all times and eliminate all workplace harassment, they likely need to have a ‘heightened sense of awareness’ when an employee has been disciplined in the past, and companies will have a greater responsibility to monitor and investigate any allegations in those situations.”
On November 29, 2017, a California Superior Court judge ruled that employers that require employees to set aside time for a shift and have them call in to determine if they will indeed be working are required to pay employees “reporting time pay,” even if the employee never actually steps foot inside the business for a shift. This ruling serves as a cautionary reminder to employers that California disfavors “on-call shifts,” and employers should expect to pay employees a premium to utilize such shifts.
Several new minimum wage rates are slated to take effect on January 1, 2018 in various cities throughout California, as well as the state as a whole. California employers should begin preparing now to adjust employee wages to ensure compliance with the new rates.
A summary of the new minimum wage rates for nonexempt employees is provided below:
Although the Trump administration rescinded its guidance on worker misclassification earlier this year and appears to have otherwise taken a “softer approach” to misclassification enforcement, California employers should remain diligent in properly classifying their workers and should not allow lax federal enforcement to lead to similarly lax corporate policies. California employers remain subject to strict laws governing worker misclassification. California law presumes that all workers who render services for another are non-exempt employees unless employers prove that they are independent contractors or exempt employees. Cal. Lab. Code § 3357. Employers who willfully misclassify their workers can be subject to steep penalties.
I provided an update on the August 2017 decision by the Eighth Circuit Court of Appeals ruling that a picketing worker from Cooper Tire should not have been fired for yelling racist insults at a busload of African-American replacement workers. The Eighth Circuit’s decision affirmed the National Labor Relations Board’s (NLRB) decision that the company violated the law when it refused to reinstate the worker and ordered the company to reinstate the picketing worker with full back pay. In the article, I outline the case background and the various appeals, ending with analysis of the most recent decision.
The full article, “NLRA Protects Striker’s Racists Insults,” was published in the November 2017 issue of HR Professionals and is available online.
Labor & employment attorneys Lymari Cromwell and Mary Leigh Pirtle will discuss the following topics:
- FMLA/ADA: A practical, scenario-based discussion regarding extended leaves of absence and how they are regulated by application of the FMLA and the ADA, including a detailed discussion of the EEOC’s position with respect to extended leave as a reasonable accommodation.
- Reasonable Accommodation/Interactive Process: A discussion regarding common pitfalls in the interactive process under the ADA.
- State Law Considerations: A high-level discussion regarding state laws pertaining to paid leave and marijuana legalization.
This complimentary program will be held from 8:00 a.m.–10:30 a.m. on Thursday, November 16 at the Marriott Memphis East. Registration and breakfast will begin at 7:30 a.m.
To register for this event, click here.
Bass, Berry & Sims attorney Doug Dahl provides an update regarding the Department of Labor’s (DOL) fiduciary rule, which sets forth when an individual becomes a fiduciary by providing investment advice to employer retirement plans. While the final rule was released in April 2016, numerous delays have postponed entire implementation until July 2019. Until then, Doug recommends employers consider the following:
In an article for the October 2017 issue of The Corporate Counselor, Bass, Berry & Sims attorney Tim Garrett examined the latest ruling related to the Department of Labor’s (DOL) overtime rule following Texas Federal Judge Amos Mazzant’s final rule striking down the Obama-era rule. If implemented, the rule would more than double the minimum salary that employers would have to pay “white-collar” workers to meet overtime pay exemptions. Judge Mazzant’s final ruling cited that the DOL rule had made the salary level too high and that the exemption would inadvertently become based on pay and not duties of the position. Following the ruling, the DOL withdrew its appeal of the preliminary injunction and the Fifth Circuit granted the request.