Employers in Michigan, Kentucky, Ohio and Tennessee may now have more freedom to alter, reduce or eliminate healthcare benefits provided to retired union workers.  On January 26, 2015, the Supreme Court in M&G Polymers USA, LLC v. Tackett unanimously decided that the Sixth Circuit’s long-standing “Yard-Man” presumption violates traditional principles of contract law. 2015 U.S. LEXIS 759 (2015).  Under Yard-Man, courts should presume that healthcare benefits provided to union employees are vested for the life of the retired employee unless the collective-bargaining agreement clearly states to the contrary. See United Auto Workers v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983).  As Justice Clarence Thomas noted, however, such a presumption distorts any attempt to ascertain the actual intent of the parties.  As a result, it effectively disregards ordinary contract principles and “plac[es] a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements.” M&G Polymers, 2015 U.S. LEXIS, at *18. Continue Reading U.S. Supreme Court Rejects Sixth Circuit’s Long-Standing Presumption Treating Healthcare Benefits as Vested for Life

Bass, Berry & Sims attorney Lisa Rivera provided insight for the article “OIG Steps Up Enforcement Against Providers Hiring Prohibited Employees,” that was published on January 28 by Modern Healthcare. The article analyzes the rise in fines being levied against companies that hire people on government exclusion lists. According to the article, fines totaling $9 million were levied against 75 healthcare companies in 2014, a significant increase from the prior year. To read the full article, visit the Modern Healthcare website.

When the Supreme Court decided United States v. Windsor, 133 S. Ct. 2675 (2013), finding Section 3 of the Defense of Marriage Act (DOMA) unconstitutional for precluding recognition of same-sex marriage under federal law, the Court did not address the extent to which the decision would apply retroactively.  More federal guidance may emerge, however, with Schuett v. FedEx, No. 15-cv-189 (N.D. Cal. 2015), the outcome of which could potentially impact numerous employers who relied on DOMA to deny employee or spousal benefits. Continue Reading California District Court Asked to Determine Retroactive Applicability of United States v. Windsor: Decision Could Impact Employers Who Relied on DOMA to Deny Same-Sex Benefits Claims

Bass, Berry & Sims attorney Bob Horton authored the article, “Affirmative Action Plans – Your Common Questions Answered,” that was published by Contract Management magazine in the January 2015 issue. In the article, Bob answers some of the most common questions that are asked when a company is tasked with preparing an affirmative action plan. The answered questions include:

  • What is affirmative action? What is an AAP?
  • What does affirmative action mean?
  • Who has to prepare an AAP?
  • What about Medicare/Medicaid reimbursement? TRICARE participation?
  • Are all of my facilities covered?
  • What is in the AAP?
  • What happens after you prepare the AAP?

To read the full article and get answers to these questions, click here.

On December 11, 2014, the National Labor Relations Board (the “NLRB” or “Board”) again departed from a long line of past precedent and overruled its 2007 decision in Register Guard, 351 NLRB 1110 (2007).  The Board in Register Guard had held that employees have no statutory right to use their employer’s email accounts for Section 7 purposes.  The Board had explained that an employer’s email system is no different than other property owned by the employer, and employers have long been afforded a basic property right to regulate and restrict employee use of their property (where the employer does not discriminate in restricting such use).  In Purple Communications, 361 NLRB No. 126 (Dec. 11, 2014), however, a new Board reversed course and held that employees may in fact have a statutory right to use their employer’s email accounts for Section 7 purposes.  This decision has significant implications for employers who should immediately review their electronic communications policies and consider revisions to ensure compliance.  Although it is likely that the decision will be appealed and possibly reversed, currently, employers may no longer prohibit employees with access to company email from engaging in communications protected by the National Labor Relations Act (“NLRA”) (absent a narrow exception). Continue Reading NLRB Finds New Section 7 Rights to Use Employer Owned Email Systems: What It Means for Employer Policies

On December 12, the National Labor Relations Board (the “Board”) finalized a new rule amending its representation case procedures.  Employers should be aware of how the new rule will affect union organization in the workplace.  The rule is aimed at “streamlining and modernizing” union election procedures so as to “expeditiously resolv[e] questions of representation.”  The rule was published in the Federal Register on December 15 and will take effect on April 14, 2015.  The new rule:

  •  Provides for electronic filing and transmission of election petitions and other documents;
  • Generally requires the Regional Director to set a pre-election hearing eight days after a hearing notice is served and a post-election hearing 14 days after the filing of objections;
  • Generally requires non-petitioning parties to identify any issues they have with the election petition in a Statement of Position one business day before the pre-election hearing opens and then requires the petitioner to respond to such issues at the beginning of the hearing;
  • Generally requires employers to provide as part of its Statement of Position a list of prospective voters with their job classifications, shifts, and work locations one business day before the pre-election hearing opens;
  • Limits litigation of issues at the pre-election hearing to issues raised and positions taken in the Statement of Position and defers litigation of eligibility and inclusion issues to the post-election stage;
  • Provides for oral argument at the close of the pre-election hearing and limits written briefs to when deemed necessary by the regional director;
  • Eliminates the need to request review of a pre-election decision before the election to preserve the right to challenge the decision;
  • Eliminates automatic stays of elections caused by challenges to the regional director’s pre-election decision;
  • Narrows the issues the Board must review in post-election disputes to those issues raised; and
  • Requires employers to submit a voter list within two, as opposed to seven, business days following the regional director’s approval of an election agreement or decision directing an election, and requires employers to include voters’ personal email addresses and phone numbers (if available) on the voter list.

As a result of the new rule, elections could theoretically be held in as few as 10 to 12 days.

It is unlikely that the new rule will go unchallenged.  The rule has been heavily criticized as sanctioning “union ambush tactics.”  Several employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, have already suggested that they intend to file lawsuits.  However, employers should not bank on courts overturning the new rule.  Employers should instead familiarize themselves with their new obligations and be prepared for expedited elections.

Bass, Berry & Sims attorneys Tim Garrett and Dustin Carlton authored the article “Handling Workplace Issues in a Politically Charged Climate” that was published by InsideCounsel on December 17. Citing heightened public interest in an employer’s response to workplace harassment due to recent high profile NFL scandals, the authors remind employers about best practices related to anti-discrimination policies. In the article, employers are encouraged to ensure policies are properly introduced to employees and that managers and supervisors are adequately trained to implement the policies.

Bass, Berry & Sims attorneys Tim Garrett and Dustin Carlton authored the article “Analyzing Recent NFL Scandals: Is Some Conduct Ever ‘Off Duty’?” that was published by InsideCounsel on December 4. In the article, the authors discuss recent allegations involving off-duty behavior of NFL players and how the league responded to the behavior. The authors relate these examples to recent actions of the EEOC to pursue domestic violence cases and the duties of employers when it impacts the workplace.

Volunteerism is good and should be encouraged by employers.  However, with its use come concerns that the persons engaged in the labor may not actually be considered volunteers by the courts. This is particularly true in the Sixth Circuit, where the court of appeals has rejected the “threshold-remuneration test,” an employer-friendly test that looks primarily and initially at whether there was any compensation or remuneration provided or intended for the work. The Sixth Circuit instead applies a balancing approach in which it considers all the common law of agency factors, raising questions as to how a court might “strike the balance.” In light of this uncertainty, employers should consider the following:

Continue Reading What Makes a Volunteer? Sixth Circuit Clarifies Test for Determining Employment Status of Volunteers

Voters in Massachusetts have approved a statewide law mandating employers with at least 11 employees provide those employees with up to 40 hours of paid sick time per year.  This mandate makes Massachusetts the third state requiring paid sick days, behind Connecticut and California.  Under the new law, effective July 1, 2015, Massachusetts employees can earn up to 5 paid sick days a year, and those who work for employers with less than 10 employees will be eligible for unpaid sick days.  The new law covers both private and public employers and requires the paid sick time to be compensated at the same hourly rate currently paid to the employee.  Additionally, the law will permit employees to roll-over up to 40 hours of unused sick time to the next calendar year and specifically prohibits employers from interfering with or retaliating against an employee for the use of earned sick time.  We are advising our clients with operations in Massachusetts, and in other states and cities with similar laws, to revise their policies and their employee handbooks to properly account for this new requirement.

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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