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Wrestling Over Equal Pay

After winning an Oscar for her role in Boyhood, Patricia Arquette concluded her acceptance speech with an impassioned demand for equal pay: "To every woman who gave birth to every taxpayer and citizen of this nation, we have fought for everybody else's equal rights. It's our time to have wage equality once and for all, and equal rights for women in the United States of America." The audience responded with wild cheers. Meryl Streep and Jennifer Lopez even got up out of their seats and waved their arms.

Not surprisingly, Hillary Clinton, Labor Secretary Tom Perez, and other Democrats praised Arquette's comments and used them to draw attention to the issue of equal pay. "I think we all cheered at Patricia Arquette's speech at the Oscars -- because she's right," Clinton told an audience of working women the next week.

Arquette's message also received support from an unexpected source: A.J. Lee, a three-time World Wrestling Entertainment (WWE) women's champion and one of the most-popular female wrestlers on the circuit. It started when Stephanie McMahon, one of WWE's owners, tweeted, "Thank You @PattyArquette for having the courage to fight for #WomensRights on such a grand platform." Lee then retweeted it, but added a haymaker directed toward McMahon: "Your female wrestlers have record selling merchandise and have starred in the highest-rated segment of the show several times, and yet they receive a faction of the wages and screen time of the majority of the male roster." Wrestling fans showered Lee with support.

Does Lee have      Continue Reading...

An ACA Anniversary

It should not go without notice that today marks the fifth anniversary of the enactment of the Affordable Care Act. 

Love it or hate it, it is difficult to imagine a single piece of federal legislation in the last 30 years that has dominated the landscape in the way the ACA has. It has been to the Supreme Court three times in its short life, with the outcome of the third visit still in question. It has spawned thousands of pages of complex regulations that affect insurers, employers, and individuals. It has implemented reforms that have already substantially changed both the individual and group markets for health insurance. And we're just getting started. 

What will the next five years bring? A wholesale repeal seems unlikely, but can never be totally ruled out. On many of the elements that have already been implemented, a shift from interpretation to enforcement may start to occur. But there will also be countless further pages of interpretive guidance to digest. And one more big piece of the puzzle likely will be snapped into place with the implementation of the "Cadillac" tax in 2018. 

Whatever may come, the ACA seems certain to provide a continued source of conversation and complexity that will impact all of us. So raise a glass (or a finger) to acknowledge the moment and look forward (or not) to what may lie ahead. It's sure to be interesting. 

What's Going On Under the Green Dome?

Budget issues and school finance reform continue to dominate the 2015 Kansas legislative session. But two interesting employment-related bills have been introduced. The first would limit employers from obtaining and using criminal background information in making hiring and other employment decisions. The second proposed law would amend the Kansas Act Against Discrimination to expand the range of protected classifications to include sexual orientation and gender identity.

The Committee on Veterans, Military, and Homeland Security introduced House Bill 2343, titled "An Act relating to employment; concerning fair consideration for persons with a record of criminal convictions." The bill includes the following provisions:

  • An employer may not conduct background checks on applicants unless it has made a good faith determination that the relevant position is of such sensitivity that a background check is warranted or if a background check is required by any federal or state law.
  • All job announcements and position descriptions must contain the following information if the position requires a background check (unless otherwise required by law): "This position is subject to a background check for any convictions directly related to its duties and responsibilities. Only job-related convictions will be considered and will not automatically disqualify the candidate."
  • Job applications may not inquire into an applicant's conviction history.
  • An employer may not use records of an arrest not followed by a valid conviction, or sealed, dismissed, or expunged convictions.
  • An employer may not inquire into or consider an applicant's conviction history until after the applicant has received a conditional offer. Prior to      Continue Reading...
Federal Legislation Would Clarify Wellness Plan Treatment Under ADA and GINA

Federal legislation has been introduced that would clarify the treatment of employer wellness plans under the ADA and GINA. It is styled as the "Preserving Employee Wellness Programs Act." Under the act, any wellness plan that meets the requirements imposed by regulations issued under HIPAA and the ACA would not be treated as violating the ADA or Title I or Title II of GINA solely because the plan provides a reward. 

The legislation would respond to confusion over the EEOC's position on how employer obligations under the ADA and GINA intersect with the HIPAA and ACA rules that allow providing a reward (or penalty) to employees who participate in a "health-contingent" wellness program. Although the EEOC has never taken a formal regulatory position on the issue, it has sued several employers over their wellness programs, including at least one program that appeared to satisfy the requirements under HIPAA and the ACA (see prior articles here, here, and here). 

The EEOC is said to be working on a set of regulations to address this issue that may be near release. Employers will want to keep an eye on both these legislative and regulatory developments, as they could have an important (and hopefully helpful) impact on wellness plan design.

A copy of Senate Bill 620, the Preserving Employee Wellness Programs Act, is here

Employment Law Seminar Dates and Speakers Announced

Two nationally recognized speakers, Dr. Cal LeMon and Dr. Mary Dunn Baker, will be headlining this year’s Foulston Siefkin Employment Law Seminar. Experienced Foulston employment lawyers will also be serving up the latest legal developments and compliance strategies that every business owner, human resources professional, and employee manager needs to know about. This highly rated and always entertaining seminar, which draws over 700 attendees annually, will be held on May 5 in Wichita and on May 12 in Kansas City. Click here to register or for more information.   

Dr. LeMon, designated by SHRM as “one of the ten best public speakers in America today,” has delighted audiences around the world with his sound research, pragmatic recommendations, and relaxed and humorous presentation style. Enjoy a wild ride while he explains how to “grease up” stuck employees. You know, the ones who are stuck in routines, habits, and counterproductive thinking. But you don’t have any of those employees in your workplace, do you?
Dr. Baker, a renowned statistician and expert witness in over 100 legal cases, has spoken to professional groups across the country. She’ll explain why the oft-cited gender pay gap statistics are meaningless; introduce you to the basic concepts of how to properly analyze whether male and female employees are paid at a comparable rate; and highlight common pay practices that tend to give rise to gender-based pay differences—so you can spot, avoid, and correct them. You don’t have to be a math major to understand and apply Dr. Baker’s practical      Continue Reading...
ACA Back in Front of the Supreme Court

The Supreme Court heard oral arguments this week in King v. Burwell, the latest challenge to the Affordable Care Act.

At issue in the case is whether the tax credits that are available to subsidize the cost of health insurance coverage are available in all of the public exchanges or just exchanges that are operated by states. If the credits are only available in state-based exchanges, that would severely limit access to the credits, because most states (37 of them) have some form of an exchange operated by the federal government.

This could have an impact beyond individual access to the tax credits. For example, whether and to what extent large employers may be subject to penalty under the "play-or-pay" rules depends on whether and to what extent employees of those employers are able to qualify for tax credits. If tax credits aren't available to employees because the exchange in their state is a federally operated exchange (as in Kansas), the employer might avoid penalties, even if it is not offering the type of coverage required by the play-or-pay rules. 

It's hard to predict how the case will come out. The court is expected to break along the typical ideological lines, with the result depending on how the "swing" votes go. We should have an answer sometime this summer.

A transcript of the oral arguments is here.

NLRB "Quickie Election Rule" Faces Congressional Attack

The NLRB election rules set to take effect on April 14th face a court challenge by U.S. Chamber of Commerce and now face a potential legislative challenge as well.  The Senate passed a resolution designed to block the NLRB's implementation of the new rules.  A similar measure is expected to be considered in the House in the next week or two.  There is no guarantee that these legislative efforts will have an impact on the NLRB election rules.  With just a month or so to go until implementation employers should stay tuned to see if any of the challenges are able to derail the rule. 

IRS Provides Preliminary Cadillac Tax Guidance

The IRS recently issued Notice 2015-16, which represents the first step in yet another significant ACA guidance project that will unfold over the next two years. This project will flesh out the scope and mechanics of so-called “Cadillac” tax enacted as part of the ACA. Here is an overview of the initial guidance.


Beginning in 2018, a 40% excise tax will be imposed on the value of “applicable employer-sponsored coverage” provided to an employee each year, to the extent that value exceeds a threshold amount. The statutory thresholds are $10,200 for self-only coverage and $27,500 for other-than-self-only coverage. There are some potential upward adjustments to the threshold amounts, including for cost of living, although the thresholds are not anticipated to adjust as quickly as the growth in healthcare costs.

Items Included in Applicable Coverage

Notice 2015-16 begins to clarify the coverage that will (and will not) be included in “applicable employer-sponsored coverage” for purposes of the Cadillac tax, in addition to major medical coverage.

  • Executive Physicals and HRAs. Executive physical programs and HRAs will be included.
  • HSAs. Employer contributions to HSAs and employee salary-reduction contributions to HSAs will be included. Employee after-tax contributions (i.e., employee contributions made outside a cafeteria plan) will not be included.
  • On-Site Clinics. Coverage through on-site clinics generally will be included, but the IRS is considering an exception for on-site clinics that offer only “de minimis” medical care to employees. De minimis on-site medical care generally would be limited to      Continue Reading...
Top Ten Most Frequently Cited OSHA Standards for FY2014

Here is a little top ten list fun on this pre-Valentine's Day Thursday.  I spent way too much time earlier this week helping my 4th grade daughter put together her Valentine's Day box for school and I'm sure several of these standards were violated in my kitchen.

Without further ado here is the list . . .  

10. Electrical systems design (good news here for our project -- it was super low tech so no chance of a violation here)

9.  Machine guarding (the scissors I used to cut the shoe box should have been guarded or at least my fingers believe that to be true)

8.  Electrical wiring methods

7.  Ladders (I'm sure my small two step ladder/stool I used to get to the top shelves in the pantry for construction paper violate something here)

6.  Lockout/tagout

5.  Powered industrial trucks (thankfully we didn't need a lift to get the box out the door for delivery to school)

4.  Respiratory protection (the smell of glue sticks and markers in the air surely required some form of protection)

3.  Scaffolding

2.  Hazard communication (anytime I work on an artistic related project somebody should be warning the rest of the house)

and the number one most cited standard . . .

1.  Fall protection (thankfully the table top isn't high enough to qualify as a fall hazard although I did drop quite a few things if that counts)

For all of you that have some safety responsibilities, this list is a good starting point for thinking about the types of issues you might have present in your workplace. 

Deferred Action Program Expansion Kicks Off

The first of the expanded immigration benefits granted by President Obama's executive action is slated to begin processing applications next week.  The Deferred Action for Childhood Arrivals (DACA) program in its new expanded form will provide benefits to a wider range of potential applicants.  This expansion is likely to lead to a new wave of individuals seeking deferred action related benefits which includes a work authorization document to allow these individuals to work legally in the U.S.  This is likely to lead to another wave of your employees receiving new work authorization documents later this year. 

As a reminder, DACA is for those individuals that entered the U.S. prior to reaching age 16.  The DACA program has been modified to allow individuals of any age to apply so long as they meet the requirement of having entered the U.S. prior to age 16 and have lived in the U.S. continuously since January 1, 2010 (the prior version of the program required continuous residence since June 15, 2007).

Governor Rescinds Anti-Discrimination Protection for LGBT State Employees

On February 10, 2015, Kansas Governor Sam Brownback rescinded an executive order that provided persons employed by the State of Kansas protection from discrimination on the basis of sexual orientation and sexual identity. The executive order was originally signed in 2007 by then-Governor Kathleen Sebelius. Brownback stated that any action to create additional protected classifications should be done by the legislature rather than by executive order. The rescinded executive order was replaced with one that Brownback says “reaffirms the commitment of the State of Kansas to employment practices which do not discriminate based on race, color, gender, religion, national origin, ancestry or age.”


No More Inference of Contractual Right to Lifetime Retiree Health Benefits

The Supreme Court recently answered an important question that has lingered over retiree health benefits for years. If a contract gives retirees a right to health benefits but doesn't specify whether those benefits may be amended or terminated, can they ever be modified or taken away? The Court didn't exactly say they could be changed, but it opened the door a little wider to that possibility.

The Yard-Man Inference. A prior case from a federal appeals court (the Yard-Man case) said that, if retiree health benefits were collectively bargained but the collective-bargaining agreement (CBA) didn't specify whether they could be modified, there was a "presumption" or "inference" that the parties intended for those benefits to last for life, without modification. It didn't matter if the CBA itself expired at some point. The right to unmodified benefits was deemed to continue.

This created a problem for employers who had agreed to provide retiree health benefits at a time when the cost of those benefits wasn't a big concern, only to find out later that, notwithstanding rising health-care costs, they couldn't pass on any greater share of those costs to the retirees, much less take away the benefits altogether.

Placing a Thumb on the Scale. The Supreme Court rejected this so-called Yard-Man presumption, saying, in effect, that it went too far in making up contract terms that weren't really part of the deal. "Yard-Man violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements.      Continue Reading...

OFCCP Proposes Overhaul of Sex-Discrimination Regulations

The Department of Labor’s Office of Federal Contract Compliance Program (OFCCP), which regulates companies that contract or sub-contract to do business with the federal government, issued proposed rules last week that would replace the existing sex-discrimination guidelines for contractors. The proposed rules purport to account for changes in sex-discrimination laws that have occurred since the rules were first adopted in 1970 and to address current workplace issues.

Among other changes, the proposed regulations: 

·         Shift emphasis from overt discriminatory practices that no longer exist (such as gender-segregated job advertisements or “male-only” hiring policies) to more subtle forms of sex-based discrimination, including sexual harassment, sex-based job segregation and classification, and discrimination based on gender-based stereotypes related to family caretaking responsibilities or gender norms.
·         Expand protections to pregnant applicants and employees, consistent with the 1978 Pregnancy Discrimination Act, by, among other things, prohibiting employers from forcing pregnant employees to take leave or limiting their job duties and by obligating employers to provide pregnant employees reasonable accommodations and, in some situations, health or disability insurance.
·         Clarify that harassment or discrimination based on gender identity constitutes unlawful sex-discrimination.
·         Broadly define and explicitly prohibit sex-discrimination in compensation and fringe benefits.
Interested parties have until March 31, 2015 to comment on      Continue Reading...
"Like a Girl" Superbowl Commercial

During last night's Superbowl, the P&G commercial "Like a Girl" caught my attention.  It was an interesting play on how the phrase "Like a Girl" somehow represents doing a task poorly or as the commercial shows us in a not so athletic way.  From an employment law standpoint, the idea that "Like a Girl" represents a weak or poorly performed action is just the type of approach that will get employers into hot water.  So on this post-Superbowl Monday morning, give a thought to what "Like a Girl" might mean to you.  If you buy into the stereotypes portrayed in the commercial, you are likely to be exposing your company to liability at some point down the road.  As an HR professional, if you have managers/executives at your company that buy into the "Like a Girl" stereotype, its only a matter of time until those same managers/executives find themselves on the wrong side of a gender based discrimination claim or concern.  Now might be a good time to remind your management team of the perils of discrimination and your company's policies against the same. 


IRS Provides Limited Penalty Relief for Tax Credit Overpayments

Individuals who obtained premium tax credits to offset the cost of purchasing insurance through a public exchange during 2014 must reconcile those credits when they file their 2014 tax returns. If it turns out they received more credits than they were entitled to receive, they must pay back some or all of the excess.

Tax Problems. This repayment obligation could trigger a couple of tax problems for the individual. First, they may end up with a tax liability on their return when they were otherwise expecting a refund (or at least not expecting to pay anything). Second, they could owe a penalty for underpaying estimated taxes (not paying their tax liability soon enough).

Limited Penalty Relief. The IRS has provided penalty relief for 2015 (relating to the 2014 tax year) to address these two problems. However, the relief is limited to certain penalties associated with reconciliation of the premium tax credit. There is no relief for penalties associated with underpayments due to responsibility for the individual mandate penalty.

Late Payment Relief. The tax code imposes a delinquency penalty for late payment of taxes that are due. This penalty will be abated for 2014 for taxpayers who (1) are otherwise current with filing and payment obligations, (2) have a balance due for 2014 due to excess premium tax credits, and (3) report the excess tax credits on a timely filed (including extensions) 2014 tax return.

Estimated Tax Penalty Relief. The tax code also imposes a penalty for underpayment of estimated taxes. This penalty will be      Continue Reading...


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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