Monthly Archives: September 2012

NLRB Says Employer Can’t Fire Employee for Vulgar and Threatening Statements

Seemingly ignoring the requirements for employers to keep a harassment free workplace and disregarding their right to keep a respectful and orderly environment, last week in Fresenius USA Manufacturing, Inc. the NLRB found that the company committed an unfair labor practice by terminating an employee who admitted to using vulgar and threatening language.

Overturning an administrative law judge’s decision, the NLRB ordered Fresenius to reinstate the pro-union employee who referred to the employees leading a union decertification effort as “Pussies” and threatened that those employees should “RIP”.

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ILN-terviews: Ken Kelly, Epstein Becker & Green

Welcome to ILN-terviews, a series of profiles of ILN member firm attorneys, designed to give a unique insight into the lawyers who make up our Network. For our latest interview, we chose ILN member, Ken Kelly of our member firm, Epstein Becker & Green in New York.

In one sentence, how would you describe your practice?
Litigation of business and employment-related disputes, particularly in the financial services and healthcare industries. 

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ILN Today Post

Landmark Child Care Case (26.9.2012)

Ms. Justice O’Malley recently delivered a decision in the case KA v Health Service Executive in respect of an application by the latter for an extension of an Interim Care Order. The High Court in particular addressed the issue of the evidence required in an application for an extension of an interim care order. The case concerned the mother of two children, aged 10 and 12, who had been in the care of the Health Service Executive under …

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Stress levels on the rise

UK professionals are getting more stressed, according to the latest research commissioned by Regus, the flexible workplace provider.

The research found that two-fifths (43%) say their stress levels have risen over the past year, and workers pinpointed the top stress triggers as their job (55%), personal finances (48%), customers (32%) and management (26%). Continuing instability in the economy, concerns over jobs and the rising cost of living are thought to have fuelled this growing pressure.

Back in April, research conducted for Regus showed that 65% of professionals had taken on additional duties during the economic slowdown which have not subsequently been picked up by new staff, as employers strive to do more with less.

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Important New Guidance for Hospitality Employers under the Affordable Care Act on the Employer Shared Responsibility Penalties and the 90-Day Waiting Period Limitation

By Gretchen Harders

On August 31, 2012, the Internal Revenue Service (IRS), along with the Department of the Treasury, Department of Labor (DOL) and Department of Health and Human Services (HHS), issued guidance under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) on the application of the employer responsibility standards to large employers (the employer “play or pay” mandate), IRS Notice 2012-58 , and the 90-day limit on waiting periods for group health coverage, IRS Notice 2012-59, DOL Technical Release 2012-02, HHS Bulletin. This guidance provides important safe harbors for hospitality employers in determining whether the employer is a “large employer” subject to the “play or pay” mandate and, if so, how to calculate the amount of the tax penalties that could be assessed. These rules overlap with the requirement that group health plans may not impose a waiting period of more than 90 days.

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NLRB issues first social media decision

Arnstein & Lehr attorney Jesse R. Dill

Jesse R. Dill

For those following social media and labor law, this month was noteworthy as the National Labor Relations Board issued its first decision taking on an employer’s social media policy in Costco Wholesale Corp., 358 NLRB No. 106 (2012). You may recall that over the last year the NLRB Acting General Counsel issued a series of memoranda that provided insight into its interpretation of how the NLRA applies to social media policies and it would prosecute such cases. You can read more about the memos here and here.

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OSHA FAQ Series (FAQ #1: Inspection Triggers)

Back in March we answered five frequently asked questions related to OSHA inspections.  We received a lot of positive feedback about that post and several requests to address additional questions.  Following up on that feedback, we will be adding additional FAQ posts as a regular feature of the OSHA Law Update Blog.  In addition to the text responses to the FAQs, we will also provide a webinar link with audio and slides to provide more in depth responses to each question.  Click on the image of the slide below to watch and listen to the first webinar response.

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When Does a Health Technology Company Have to Comply with HIPAA?

With a new era of active enforcement of the HIPAA privacy and security laws upon us, companies need to figure out early-on whether they are regulated under HIPAA, either as covered entities or business associates.  However, determining whether a company is subject to the HIPAA privacy and security requirements is not always straightforward, especially for companies in the health technology space.  There are two ways in which a company can become subject to HIPAA: (1) it functions as a health plan, health care provider or health care clearinghouse which could potentially make it a HIPAA “covered entity”, or (2) on behalf of a covered entity it assists in the performance of a function involving the use or disclosure of medical information, which could potentially make it a HIPAA “business associate.  There are circumstances where telemedicine, remote medicine and other provider-driven technology companies could qualify as health care providers and hence “covered entities,” but most health tech companies that become subject to HIPAA’s privacy and security requirements do so because they engage in activities that make them “business associates”. 

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Social Media Alert: The National Labor Relations Board strikes down overbroad social media policy


The decision

The National Labor Relations Board (NLRB) recently struck down a social media policy promulgated by Costco Wholesale Corporation (Costco) as violative of Section 8(a)(1) of the National Labor Relations Act (the Act), which makes it an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act (see 29 U.S.C. §157, §158). Generally, “protected concerted activity” under Section 7 of the Act entails two or more employees acting together in support of matters of mutual interest, such as compensation, benefits or workplace conditions. Id.

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Welcome to Madison Ave Insights

To anyone in the industry, Madison Avenue is more than just a street on the bustling grid that is Manhattan:  it’s a global industry that exists in every state of the union and every country of the world. It stands for passion, creativity, change, challenge, innovation, and opportunity. The birthplace of ideas and work that have made us laugh, cry and think, while we have been entertained and informed. The industry that has helped to shape the world we live in today. 

Madison Avenue has long been synonymous with the world of advertising, marketing, and communications. It’s our Hollywood, our Silicon Valley, and our Capitol Hill. Advertising and marketing – the industry – is not just agencies, it’s marketers, clients, media, content providers, and technologists who today are all part of Madison Ave. Madison Ave is not a geographic location – it is the moniker, the advertising industry’s Tiffany blue – our brand, our logo.

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