Bass, Berry & Sims attorney Dustin Carlton discussed the tension that exists between state and federal laws regarding medical marijuana use in the workplace. While marijuana remains a controlled substance under federal law and currently illegal to use, many states have legalized the drug for medical and even recreational use. Many employers are faced with remaining compliant with these opposing laws. Dustin recommends employers review any current zero-tolerance policies in light of new state laws, “If you are a multi-state employer, you need to assume you need to make some modifications to tailor to each individual state, or make concessions in terms of past practices.”
I outlined the key considerations, important steps and issues of concern when buying a company that is employee-owned, or at least partially employee-owned, by an Employee Stock Ownership Plan (ESOP), including:
- The nature of an ESOP: In an ESOP, employees have retirement accounts invested primarily in their employer’s stock, rather than having accounts invested in an array of securities and mutual funds. The trustee of the ESOP – who represents ESOP participants as the beneficial owners of the company stock – is entitled to participate in the sale or transaction like other shareholders would. Most importantly, anytime an ESOP is involved in the acquisition or sale of company stock, the transaction must be for “adequate consideration,” and the trustee’s decision to buy or sell must be in the financial best interest of the ESOP participants.
Continue Reading Key Considerations When Buying a Company with an ESOP
Tim Garrett provided insight on background check best practices as employers seek ways to balance the need to validate applicants’ background and experience with compliance and privacy issues, particularly amid a surge of legislation, litigation and public scrutiny.
- Harassment Law Refresher: A high-level review of harassment law.
- Conducting Effective Internal Investigations: A discussion of best practices for conducting internal investigations into harassment claims.
- The “Company Culture” Issue – How to Reduce Harassment in the Workplace: Strategies for reducing harassment in the workplace and developing a safe culture.
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.
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.