Legal Updates

NAAAHR-GNY’s Legal, Labor and Employment Information section provides you with court rulings, new legislation, and news about issues that affect the workplace.

Employment and Labor

Supreme Court Tightens Class Action Rules, Rejecting Class Composed of 1.5 Million Wal-Mart Employees

In Wal-Mart Stores, Inc. v. Dukes, the U.S. Supreme Court rejected the “Trial by Formula” approach, vacating class certification of a gender discrimination lawsuit brought by 1.5 million current and former Wal-Mart employees because the plaintiffs failed to identify a specific, company-wide policy or practice of discrimination. Read this alert to learn more about this landmark decision and how it may affect pending and future cases.  Full Article

NLRB Issues Complaint in New York Facebook Case

In its latest effort to address social media in the workplace, the National Labor Relations Board announced in a May 18 press release that it had filed a complaint against a New York non-profit organization alleging that it unlawfully terminated five employees who complained about working conditions on Facebook.

According to the complaint filed by Buffalo Regional Director Rhonda Ley, Hispanics United of Buffalo’s termination of five employees who criticized workload and staffing conditions on Facebook constituted an unfair labor practice. Full Article

NLRB Acting General Counsel Clarifies Duty to Provide Information in Bargaining

In a May 17 memorandum, NLRB Acting General Counsel Lafe Solomon furnished guidelines to Regional Directors concerning parties’ obligation to provide information in collective bargaining negotiations. Full Article

NLRB General Counsel Allows Discharge for Inappropriate “Tweeting”

Employee use of social media remains at the forefront of issues at the National Labor Relations Board. Coming on the heels of the NLRB General Counsel’s decision to issue a complaint against an employer who fired an employee for her postings on Facebook (the first time such on-line activities were considered “protected, concerted activity” by the Agency), the NLRB’s Division of Advice recently issued an Advice Memorandum stating that an employer did not violate the National Labor Relations Act when it terminated an employee for writing “unprofessional and inappropriate” comments on his personal Twitter account. Full Article

Handbook for Employers – Instructions for Completing Form I-9

The Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) released the revised “Handbook for Employers – Instructions for Completing Form I-9″ on January 11, 2011. Employers are required to complete the Form I-9 (Employment and Eligibility Verification) to verify the employment eligibility and identity of all employees hired to work in the United States. The revised handbook includes visual aids, document examples, and expanded guidance for employers.

The revised “Handbook for Employers – Instructions for Completing Form I-9″ is available here.

National Labor Relations Board

Changes in labor law predicted for many months have now begun in earnest. The National Labor Relations Board has granted review in two important groups of union representation cases, and has invited amicus participation by all interested parties on or before November 1, 2010. Both cases could substantially affect the right of employees to challenge an incumbent union in a secret ballot election. Read about this in Proskauer’s Client Alert:NLRB Grants Review in Card Check and Successor Employer Cases Signaling Beginning of Precedent Reversals: http://proskauernow.com/ve/ZZMLK69jR82B7161X76

NLRB “De-Friends” Employers In Its First Complaint Based On Employee’s Social Network Comments: http://proskauernow.com/ve/ZZx61sjj7170CCiZ890

Benefits

World at Work

Visit the World at Work’s website and its FLSA Exemption Tookkit:  – FLSA Exemption Toolkit to find a variety of tools to help you implement the new U.S. Fair Labor Standards Act (FLSA) regulations. These tools were designed as generic templates to aid you through the implementation process. While the regulatory content has been taken directly from the Federal Register, WorldatWork copyrights the format of these templates and any nonregulatory content. You may download and modify the templates to meet the internal needs of your company. If you want to distribute the material to a wider audience, you may request permission from WorldatWork at 877/951-9191, 480/922-2008 or via e-mail at mfinke@worldatwork.org .

Disclaimer: WorldatWork cautions that there is a wide range of practices related to this subject. We are providing this information with the understanding that WorldatWork is not engaged directly or by implication in rendering legal, accounting or other related professional services. These tools should not be relied upon as an official reference for understanding and implementing the changes to the FLSA regulations. The U.S. Department of Labor (DOL) is the authority on 29 CFR 541. You can access the DOL’s FairPay Web site at www.dol.gov/fairpay.

Health Care Reform Legislation Q&A
May 2010
By Randy Abbott, Mike Langan, and Mark Maselli

With U.S. health care reform legislation now on the books, three consultants in Towers Watson’s Health and Group Benefits practice examine the implications for employers. In particular, the piece explores the strategic implications for employers in designing their benefit plans.

10 Minutes on Health Reform
April 2010
PricewaterhouseCoopers

The PricewaterhouseCoopers publication -10Minutes on Health Reform – provides key information and PwC’s insights on the Health Reform Act. See in particular the easy to read summary chart of the Acts’ provisions and effective dates. 10Minutes: Information and insights on today’s business environment

Health Care Reform Act – IRS Rules on FSA’s and Over-the Counter Purchases

The IRS issued guidance which changes what is reimbursable under flexible spending accounts as a result of the health care reform act. The Patient Protection and Affordable Care Act established a new uniform standard that prohibits the use of flexible spending accounts and health savings accounts (FSAs; HSAs) to pay for over-the-counter medicines and drugs (OTC).

The new rules are effective as of January 1, 2011 for all plans, regardless of whether an employer is on a non-calendar year plan year basis or has adopted the allowable grace period.

The IRS regulations provide:

  • The change does not affect insulin, even if purchased without a prescription, or other health care expenses such as medical devices, eye glasses, contact lenses;
  • Co-pays and deductibles;
  • The new rules also do not apply to non-drug medical purchases, like crutches, supplies such as bandages, and diagnostic devices such as blood sugar test kits;

Prescription Purchases Verification

Employees must provide the prescription, or a copy of it and the customer receipt in order to be reimbursed for prescription purchases under their FSA or HSA. Allowable verification includes:

  • A customer receipt issued by a pharmacy that reflects the date of sale and the amount of the charge, along with a copy of the prescription.
  • A customer receipt that identifies the name of the purchaser (or the name of the person for whom the prescription applies), the date and amount of the purchase and an Rx number.

Grace Period

Some employer’s have a grace period associated with their FSA’s, so if an employee does not spend all of the money in their health FSA by Dec. 31, they can use the amount left in the account to reimburse expenses incurred during the first 2½ months of the following year. However, if employees buy over-the-counter medicines or drugs without a prescription during the 2½-month grace period in 2011, they cannot use the amount left in the account at the end of 2010 to reimburse those expenses, because the new standard applies to all purchases made on or after Jan. 1, 2011 according to the IRS regulations.

FSA Debit and Credit Card Purchases

For plans that provide account-based debit or credit cards, employees will not be able to use the cards to buy over the counter medicines or drugs after Dec. 31, 2010 and employers must “ensure that the card is reprogrammed no later than Jan. 15, 2011, so that the card can no longer be used to purchase over-the-counter medicines or drugs.”

Details on the new rules are provided in IRS Notice 2010-59, IRS Revenue Ruling 2010-23 and related questions and answers, posted on the IRS web site.