North America

Supreme Court finds no Discrimination in Company’s Drug Use Policy

In a decision that was made remarkable by the dissent of a single judge, the Supreme Court of Canada dismissed an appeal from an employee of a mining company whose employment was terminated on the basis that he had violated his employer’s drug use policy.  See Stewart v. Elk Valley Coal Corp. 2017 SCC 30.

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Illinois: Entertainment Software Association challenges amusement tax

Almost two years ago, the Chicago Department of Revenue issued an Amusement Tax Ruling #5 effective Sept. 1, 2015, that imposed an amusement tax “upon the patrons of every amusement within the city.” The rate of the tax is 9 percent, unless the amusement is held in an auditorium with a maximum capacity of more than 75 people, in which case it is 5 percent. At the time, we noted that Chicago anticipated collecting $12 million in additional revenue, and would use consumers’ addresses when determining whether to levy the tax or not.

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Ohio: Tax Foundation says tax structure is problematic

Earlier this year, we described a major problem that the Tax Foundation think tank has with the Buckeye State’s tax structure – the overly complex municipal income tax system that the Tax Foundation criticized as a “serious headache” that forces businesses to withhold income taxes from every jurisdiction that any employee works in. In some cases, the compliance burden exceeds the tax obligation.

The Tax Foundation continues to criticize Ohio’s ways. In Ohio Illustrated: A Visual Guide to Taxes and the Economy, the group, which puts Ohio at number 45 on its 2017 State Business Tax Climate Index, asserts that the state has “one of the worst business tax climates in the country.”

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Michigan: Explanation of reciprocal tax agreement requirements

Reciprocal tax agreements do not get much attention in the media, but they matter a lot to the people whose income tax liabilities they affect.  For example, New Jersey’s governor, Chris Christie, left citizens in New Jersey and Pennsylvania dangling angrily for months last year as he publicly toyed with the idea of withdrawing from the PA/NJ Reciprocal Income Tax Agreement, a deal that had been in place between those two states for four decades.

Eventually, in September, Gov. Christie announced that he had decided to terminate the agreement, effective Jan. 1, 2017. At the time, he blamed unfunded pension obligations of $80 billion, though the Garden State was also experiencing other budget difficulties that made it difficult to give up the revenue. The announcement drew immediate scorn from various stakeholders, including Pennsylvania’s Gov. Tom Wolf, who castigated Gov. Christie for costing Pennsylvanians an extra $5 million annually.

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Latest Website Accessibility Decision Further Marginalizes the Viability of Due Process and Primary Jurisdiction Defenses

In the latest of an increasing number of recent website accessibility decisions, in Gorecki v. Hobby Lobby Stores, Inc. (Case No.: 2:17-cv-01131-JFW-SK), the U.S. District Court for the Central District of California denied Hobby Lobby’s motion to dismiss a website accessibility lawsuit on due process and primary jurisdiction grounds.  In doing so, the Hobby Lobby decision further calls into question the precedential value of the Central District of California’s recent outlier holding in Robles v. Dominos Pizza LLC (Case No.: 2:16-cv-06599-SJO-FFM) which provided businesses with hope that the tide of recent decisions might turn in their favor.

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HR Tech and People Analytics: An Interview with Howard Gerver, President and Founder HR Best Practices

Howard Gerver is a self-proclaimed human capital data geek.  His “day job” specializes in finding innovative and practical ways to save money by identifying “golden nuggets” mined from Big HR Data sets, such as claims and human capital data.  A lot of this work includes analytics, claim auditing and eligibility auditing.  His “nights and weekend” job focuses on helping clients leverage their HR, Benefits, Leave and Time & Attendance data to help improve compliance with the Affordable Care Act (Obamacare).   Throughout his career, he has focused on improving the financial performance of the Payroll, Human Resources and Benefits functions of his clients through advanced technology, process improvement and auditing. In his spare time, he researches new and exciting ways to use Big HR Data to address broader business issues vis-à-vis predictive analytics.

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Secrets to Protecting Trade Secrets Abroad

Consider the following scenario that was the premise of the book Charlie and the Chocolate Factory (1964), and later adapted into the classic film Willy Wonka & the Chocolate Factory (1971): your company (Willy Wonka Chocolates) is in the candy business and develops an idea for an everlasting gobstopper (a sucking candy that never gets smaller).  Anticipating substantial profits from the product, the company designates the everlasting gobstopper formula as a trade secret.  As in the book and film, a rival chocolate company (Slugworth Chocolates) seeks to steal the trade secret formula in order to develop and market a competing gobstopper.

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NLRB Holds Supervisor’s Text Messages to Employee Were Unlawful Interrogations –Rejects Employer’s Argument for “Safe Harbor”

On June 7, 2017, in RHCG Safety Corp. and Construction & General Building Laborers, Local 79, LIUNA, the National Labor Relations Board (“NLRB” or the “Board”) rejected an employer’s contention that “a text message cannot be found to constitute an unlawful interrogation” and found that a coercive text message, just like a coercive face to face meeting or a coercive phone call, could serve as evidence that the employer had unlawfully threatened or interrogated employees concerning their union support or activity in violation of the National Labor Relations Act (“NLRA” or the “Act”),  and thus could support a finding that the employer committed an unfair labor practice (“ULP”).  The Board noted that the employer had offered “no reason why the Board should provide a safe harbor for coecerive employer messages via text messages.”

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Recent Settlements Reveal Stark Law Implications of Improper wRVU Based Physician Compensation

Many health care providers rely on a worked relative value unit (“wRVU”) based compensation model when structuring financial relationships with physicians. While wRVUs are considered an objective and fair method to compensate physicians, payments made on a wRVU basis do not always offer a blanket protection from liability under the Federal Stark Law.  As recent settlements demonstrate, wRVU based compensation arrangements that are poorly structured or improperly implemented can result in significant liability.

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Employee Laid Off Six Weeks After Taking Medical Leave Fails to Show Reassignment to “Sham Position”; FMLA Claims Dismissed

What obligations does an employer have to an employee returning from leave under the Family and Medical Leave Act (FMLA)?

What must the employer do if it was forced to fill that employee’s position during the employee’s absence?

How long after the employee returns must the employer wait before taking an adverse action against that employee?

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