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Facebook “Like” Protected Concerted Activity
09/09/2014

On August 22, 2014, the NLRB found that a Connecticut sports bar illegally terminated employees that criticized their employer’s handling of payroll taxes on Facebook. One employee “liked” a comment posted by a former employee that said “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money …. Wtf!!!!” The other added to the post, stating “I owe too. Such an asshole [referring to the owner].” The NLRB rejected the employer’s argument that such behavior was disloyal and disparaging beyond the protection of the act. Rather, the Board found this activity protected under the NLRA.  

The Board also found in a 2-1 decision that the bar’s “Internet/Blogging” policy interfered with employees rights under the NLRA. The policy banned “inappropriate discussions about the company, management, and/or co-workers.” Such an imprecise ban could reasonably be understood by employees to prohibit NLRA-protected activity. 
 
Happy Labor Day!!!
09/02/2014

We hope that each of you enjoyed your Labor Day holiday.  Now that school is back in full swing and the summer has come to an end, it is time to focus on the short period between now and year end.  Most employers have a busy HR schedule as we move towards the end of the year.  Now is a good time to step back and consider any of your employment practices goals before that busy rush to year end begins.  Take this opportunity to look over your HR policies and practices and ensure your handbooks are up to date.  If you haven’t trained your employees on your anti-harassment policies in sometime, now is a good time to get that on the calendar and completed.  If you dig a little deeper, it probably wouldn’t hurt to do some I-9 auditing and employee classification reviews.  As they say, the work of the HR professional is never done.    

 
Similar in Their Ability or Inability to Work
08/26/2014

On August 22, 2014, the NLRB found that a Connecticut sports bar illegally terminated employees that criticized their employer’s handling of payroll taxes on Facebook. One employee “liked” a comment posted by a former employee that said “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money …. Wtf!!!!” The other added to the post, stating “I owe too. Such an asshole [referring to the owner].” The NLRB rejected the employer’s argument that such behavior was disloyal and disparaging beyond the protection of the act. Rather, the Board found this activity protected under the NLRA.  

The Board also found in a 2-1 decision that the bar’s “Internet/Blogging” policy interfered with employees rights under the NLRA. The policy banned “inappropriate discussions about the company, management, and/or co-workers.” Such an imprecise ban could reasonably be understood by employees to prohibit NLRA-protected activity. 

 
How far does the PDA reach?
08/19/2014

It is not an uncommon perception to assume the Pregnancy Discrimination Act (“PDA”) protects women who are pregnant or recently gave birth. The enforcement guidelines, however, clarify that the PDA is not so limited. Rather, the list of individuals protected by the PDA includes, all women who are currently pregnant, were previously pregnant, are intending to become pregnant, may potentially become pregnant, or have experienced medical conditions related to pregnancy or childbirth. Essentially, if a person has the capability of becoming pregnant, regardless of intention, or has ever been pregnant, they are covered by the PDA. 

The EEOC provides specific examples where employers may be found to have violated the PDA. According to the enforcement guidance, an inference of discrimination may be raised where an employee is penalized for taking time off from work to undergo a surgical impregnation procedure. The EEOC also states that an employer may violate the PDA by providing health insurance that excludes coverage of prescription contraceptives. Health insurance plans must cover prescription contraceptives on the same basis as prescription drugs, devices, and services, used to prevent the occurrence of other medical conditions. Employers are not required to offer coverage for elective abortions. But, employers may not terminate an employee for having or contemplating having an abortion. Additionally, employers may not discharge female employees using contraceptives to avoid pregnancy. 
 
Executive Order Protects LGBT Workers
08/12/2014

President Obama signed an executive order extending workplace protections to lesbian, gay, bisexual, and transgender (“LGBT”) workers in the federal contracting workforce. The executive order amends Executive Order 11246, which protects employees working for federal contractors and subcontractors from discrimination on the basis of race, color, religion, sex, and national origin. The Office of Federal Contract Compliance Programs (“OFCCP”) will issue a proposed notice of rulemaking later this year. 

 
EEOC Delivers New Enforcement Guidance
08/05/2014

Earlier this summer the Equal Employment Opportunity Commission (“EEOC”) published Enforcement Guidance for “Pregnancy Discrimination and Related Issues.” The guidance addresses pregnancy discrimination under the Pregnancy Discrimination Act and explains how pregnant employees are not excluded from the protections of the ADA, despite the fact that “pregnancy itself is not a disability.” Stay tuned for more details.    

 
New ACA FAQ Addresses Elimination of Contraceptive Coverage
07/18/2014

A new FAQ (Part XX in the series) addresses the disclosure obligations of an employer that elects to eliminate contraceptive coverage in light of the Supreme Court's Hobby Lobby decision. It describes obligations under ERISA and, specifically, the employer's obligation to update its SPD by adoption of a new SPD or summary of material modifications (SMM).

 
60-Day Deadline. SMMs generally must be provided by 210 days after the end of the plan year in which a plan modification occurs. However, a modification that is a material reduction in covered services or benefits under a group health plan must be provided within 60 days after the date the modification is effective. The FAQ indicates that a decision to reduce or eliminate contraceptive coverage would be considered a material reduction in covered services or benefits, thereby requiring notice within 60 days.
 
What About SBCs? Interestingly, the FAQ makes no reference to the summary of benefits and coverage (SBC). In general, if there is a mid-year plan modification that affects the content of a previously provided SBC, notice of the modification must be provided at least 60 days in advance of the effective date of the change.
 
Perhaps the failure to address this obligation reflects a conclusion that elimination of all or a portion of contraceptive coverage would not affect the content of the SBC and, therefore, does not trigger the advance-notice requirement. (A review of the sample SBC on the DOL's website shows no reference to contraception or other preventive care.) But any employer considering      Continue Reading...
 
Out and About - July 2014
07/15/2014

Here's a listing of my scheduled speaking engagements for the next two months. Drop by and say hi, if I'm going to be near you.

  • July 15, 2014 - State and Federal Exchanges: Employer Notice and Other Administrative Impacts (panel) - EBIA Advanced Cafeteria Plans and Benefits Conference - Seattle, Washington
  • July 15, 2014 - Code § 4980H Plan Design and Administration Impacts (panel) - EBIA Advanced Cafeteria Plans and Benefits Conference - Seattle, Washington
  • July 16, 2014 - Information Reporting for Employer Plans Under Code §§ 6055 and 6056 (panel) - EBIA Advanced Cafeteria Plans and Benefits Conference - Seattle, Washington
  • July 17, 2014 - Health Care Reform Impacts for Small Employers - EBIA Advanced Cafeteria Plans and Benefits Conference - Seattle, Washington
  • August 12, 2014 - HIPAA Privacy and Security for Self-Insured Health Plans - Private Client Event - Webinar
 
Considering the Scope and Impact of the Supreme Court's Hobby Lobby Decision
07/10/2014
The Supreme Court's Hobby Lobby decision answered the question whether certain for-profit employers may, on religious grounds, avoid complying with the ACA's contraception mandate. But in doing so, it raised a number of other questions regarding the scope and impact of its decision.
 
Background. The Hobby Lobby case involved three for-profit corporations (Hobby Lobby, Mardel, and Conestoga Wood Specialties) whose owners objected, on religious grounds, to fully complying with the portion of the ACA's preventive-care mandate that requires most health plans to provide coverage (without cost-sharing) for all FDA-approved contraceptive methods for women. Specifically, these owners objected to a subset of contraceptive methods that they believed to be abortive - drugs such as "Plan B" and devices such as IUDs.
 
Ruling in favor of these employers, the court held that a separate federal statute, the Religious Freedom Restoration Act (RFRA), prevented enforcement of the contraception mandate against these employers because doing so would violate a sincerely held religious belief of the employers and because the mandate to provide coverage was not the "least restrictive means" of implementing the government's interest in ensuring access to these contraceptive methods.
 
Which Employers? One question that remains after the court's decision is which employers might be able to obtain a similar reprieve from compliance with the mandate. On its face, the decision applies to closely held for-profit corporations whose owners have sincerely held religious beliefs that are shared by the corporation. But many definitional issues remain.
 
Closely Held. What does it mean for an organization to be closely      Continue Reading...
 
2015 Inflation Adjusted Amounts for HSAs and HDHPs
06/20/2014

The IRS has released the 2015 inflation-adjusted amounts for health savings accounts (HSAs) and high-deductible health plans (HDHPs). 

HDHP Minimums and Maximums. The minimum annual deductible for an HDHP will increase to $1,300 for self-only coverage and $2,600 for family coverage. The maximum annual out-of-pocket for an HDHP will increase to $6,450 for self-only coverage and $12,900 for family coverage.

Relationship to ACA Maximum Out-of-Pocket. The Affordable Care Act also sets out-of-pocket maximums for non-grandfathered plans. For 2014, the ACA maximum and the HDHP maximum are the same. But the amounts are indexed at different rates, and for 2015 they will be different. The ACA maximum will be $6,600 for self-only coverage and $13,200 for family coverage (compared to $6,450 and $12,900 for HDHPs). What does this mean? A plan designed to satisfy the ACA maximums will not necessarily qualify as an HDHP. It will need to satisfy the lower maximum applicable to HDHPs. 

Maximum HSA Contribution. The maximum annual contribution to an HSA for 2015 will increase slightly to $3,350 for an individual with self-only HDHP coverage and $6,650 for an individual with family HDHP coverage. Catch-up contributions for individuals age 55 and older are not inflation-adjusted and remain at $1,000 per year.

Recall that these annual maximums are prorated on a monthly basis for an individual who is covered under an HDHP for less than the full year. Also, special rules apply when one or both spouses have HDHP coverage, with the general effect of limiting the household to a single family-level      Continue Reading...

 
DOL Proposes Rule to Raise Minimum Wage for Federal Contract Workers
06/12/2014

The Department of Labor issued a proposed rule raising the minimum wage for employess working on federal government service and construction contracts to $10.10 per hour. The proposed rule implements Executive Order 13658, which was announced by President Obama on February 12. The Executive Order applies to new and renewed contracts with the federal government after January 1, 2015. The proposed rule now goes through a public comment period. To read the DOL's press release click here.  Stay tuned for further developments on the proposed rule.   

 
FMLA Master Class for Kansas Employers
06/12/2014

Spend a day with Foulston Siefkin employment lawyers taking a deep dive into FMLA issues such as curbing abuse and fraud, ensuring that  you are in compliance with tricky notice requirements, and how to issue discipline and terminate employees without running afoul of the FMLA.  This day-long course is offered on June 18, 2014, starting at 8:30 a.m., at the Commerce Bank Center, 1551 N. Waterfront Parkway, Wichita, Kansas.  This course has been approved for up to 6.25 hours of PHR/SPHR credit.  If you’d like to sign up, please visit www.HRHero.com/ks-fmla to register.  If you use the “Friends of Foulston” code S1491, you can receive a 20% discount on the registration fee.

 
How About Lunch?
06/04/2014

If you are an HR professional, or know someone who is, we invite you to join us at any one of our 2014 HR Box Lunches this year. This is a chance for you to join us for lunch, brush up on some of the top issues in your field, and earn some CLE. 

Here is the schedule:

The NLRB and the Non-Union Employee: July 16, 2014

FMLA Basic: August 21, 2014

Religion in the Workplace: September 9, 2014

Employee Benefits Update: September 25, 2014

***TO BE DETERMINED: October 7, 2014 (Please send topic suggestions to mknoblauch@foulston.com)

Union Avoidance: November 19, 2014

Wage & Hour Update: December 9, 2014 

You can learn more information and sign up for any of the above lunches here. We hope to see you soon!

 
Drunk employee who fell through roof still gets workers’ comp
06/01/2014

After throwing back a few beers on a Sunday morning, an employee was instructed to repair the roof of a building. While he was on the roof, a swarm of ants attacked him, and he fell through the roof as he tried to brush them off. Although the employee’s blood alcohol level was over .09 percent at the time of the accident and he tested positive for marijuana and cocaine, the Kansas Court of Appeals held that the Workers’ Compensation Board was justified in awarding him workers’ comp benefits. The employer failed to show the employee’s intoxication “contributed to” his injury (a defense to workers comp liability) because a sober person could just as easily have fallen through the roof in the same circumstances. The case is Gideon v. Yost Properties.

 
Out and About - June 2014
06/01/2014

Here's a listing of my scheduled speaking engagements for the next two months. Drop by and say hi, if I'm going to be near you.

  • June 4, 2014 - 2014 Health Care Reform Workshop - Foulston Siefkin LLP - Wichita, Kansas
  • June 5, 2014 - 2014 Health Care Reform Workshop - Foulston Siefkin LLP - Wichita, Kansas
  • June 10, 2014 - Employee Benefits and Insurance Coverage Issues Facing Cancer Patients - ABA Breast Cancer Task Force Webinar
  • June 11, 2014 - Overview of HIPAA Privacy and Security - Friends University Graduate Course in Health Law and Ethics - Wichita, Kansas
  • June 17, 2014 - DOL Audits of Employee Benefit Plans - Private Client Event - Webinar
  • June 19, 2014 - 2014 Health Care Reform Workshop - Foulston Siefkin LLP - Overland Park, Kansas
  • June 23, 2014 - Wellness Plans and ERISA - Private Client Event - Webinar
  • July 15, 2014 - State and Federal Exchanges: Employer Notice and Other Administrative Impacts (panel) - EBIA Advanced Cafeteria Plans and Benefits Conference - Seattle, Washington
  • July 15, 2014 - Code § 4980H Plan Design and Administration Impacts (panel) - EBIA Advanced Cafeteria Plans and Benefits Conference - Seattle, Washington
  • July 16, 2014 - Information Reporting for Employer Plans Under Code §§ 6055 and 6056 (panel) - EBIA Advanced Cafeteria Plans and Benefits Conference - Seattle, Washington
  • July 17, 2014 - Health Care Reform Impacts for Small Employers - EBIA Advanced Cafeteria Plans and Benefits Conference - Seattle, Washington

 

 


Authors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
Additional Sources
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Subscribe to Kansas Legislative Insights Image