Bass, Berry & Sims attorney Tim Garrett commented on the Supreme Court decision, Young vs. UPS, questioning whether an employer must provide equal accommodations regarding limited duty to employees who have pregnancy-related limitations and those whose limitations are not pregnancy-related. The Supreme Court referred the case back to the 4th Circuit for review. In light of this ruling, companies are urged to review policies related to pregnant employees. Tim commented on the status this ruling provides to pregnant employees.

The full article, “Businesses Should Review Practices, Policies for Pregnant Workers after Supreme Court Ruling,” was published by InsideCounsel on March 27 and is available online.

Bass, Berry & Sims attorney Tim Garrett authored an article outlining steps that companies should consider to provide a safe workplace. In the wake of recent incidents of violence at the workplace, Tim asserts, employers should adopt policies and procedures to foresee issues and be prepared when situations arise. The article discusses some factors contributing to employers’ concerns and what practical steps employers should take in response.

The full article, “Subduing Violence at Work: Setting Policies to Help Safeguard the Workplace,” was published by Workforce magazine on March 18 and is available online.

As of March 27, “spouse” under the Family and Medical Leave Act (FMLA) will include same-sex spouses for any legally recognized marriages based on the laws of the state of celebration. On February 25, as expected, the Department of Labor (DOL) published its final rules on the definition of spouse under the FMLA in light of the Supreme Court’s Windsor decision. Based on this final rule, the definition of spouse will be based upon the law of the jurisdiction where the marriage was entered into (place of celebration) rather than based on the law of the state of the employee’s residence (or work) “to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live.” Continue Reading DOL Issues Final Rule Revising the Definition of “Spouse” Under the FMLA

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.

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

Thought Leadership by our Attorneys.