Tag Archives: employer legal advocate

February 1, 2012

Court provides FMLA guidance in termination case

By Miriam L. Rosen of McDonald Hopkins

Not surprisingly, the Family and Medical Leave Act (“FMLA”) often creates frustrating situations for employers.  Perhaps one of the most frustrating is when an employer discovers an employee’s misconduct just before or while the employee is on a FMLA leave.  These situations leave employers perplexed about how to proceed—will taking appropriate disciplinary action appear to be interference with or retaliation for the employee’s FMLA leave?

The Sixth Circuit Court of Appeals recently provided some legal–and practical—guidance for employers in Donald v. Sybra, Inc., Case No. 10-2153 (6th Cir. January 17, 2012).

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January 25, 2012

Beware potential liabilities of multiemployer pension plans

By John M. Wirtshafter of McDonald Hopkins

It’s no secret that defined-benefit pension plans have struggled with funding issues over the past several years.  Lower-than-anticipated investment returns and extremely low interest rates, combined with demographic shifts resulting from retirees living longer and workers holding off on retirement, have left many defined-benefit pension plans with fewer assets than are needed to meet their accrued obligations.  Perhaps no group of benefit plans has suffered more from these issues than multiemployer pension plans.

Multiemployer pension plans (sometimes referred to as Taft-Hartley plans) cover collectively-bargained employees and are defined-benefit retirement plans jointly sponsored by representatives of the union and participating employers.  Under federal rules passed in 2006, multiemployer pension plans experiencing funding issues or problems with liquidity must notify participants and companies of this status.  If a multiemployer pension plan is in critical status under these rules, it may be forced to reduce benefits and discontinue lump-sum distributions (to the extent permitted under the plan).  Plans in critical and endangered status must also adopt programs, which may include requiring employers to increase contributions, to restore financial health.

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January 23, 2012

The EEOC probably prefers Coke: Pepsi agrees to pay $3M to settle charges relating to discriminatory background checks

By Brendan Fitzgerald of McDonald Hopkins

For further evidence that the EEOC is ramping up enforcement efforts related to job applicant background checks, one need look no further than Pepsi.  Pepsi recently agreed to pay more than $3 million to settle EEOC charges alleging that Pepsi’s use of criminal background checks adversely affected more than 300 African American job applicants.  Click here to read the EEOC’s press release on this subject.

According to the EEOC, Pepsi’s background check policy led to Pepsi’s rejection of job applicants who had been convicted of minor offenses even when those convictions were unrelated to the jobs applied for.  Even more troubling, Pepsi relied on its background check policy to reject job applicants who had merely been arrested – but not convicted – of crimes.

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January 23, 2012

NLRB forces employers to review arbitration agreements

By Brendan Fitzgerald of McDonald Hopkins

Continuing its recent high-profile, pro-union agenda, the NLRB has now turned its attention to employer-employee arbitration agreements.  Employers – even those whose employees are not represented by unions – must now review those agreements or risk an unfair labor practice charge.

In D.R. Horton, 37 NLRB No. 184, the Board held that an arbitration agreement that eliminates an employee’s ability to engage in a class or collective action is a per se violation of the National Labor Relations Act.  D.R. Horton required that its employees sign arbitration agreements as a condition of employment.  Among other things, these agreements required that all employment-related claims be arbitrated and also prohibited an arbitrator from joining the claims of one employee with the claims of another no matter how closely related they may be.  The combination of these two provisions eliminated any chance that employees could participate in employment-related collective or class action lawsuits or arbitrations.  This outcome, the NLRB concluded, was directly contrary to the NLRA’s staunch protection of employees’ rights to act in concert with one another to impact their terms and conditions of employment.

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January 16, 2012

More social media worries for employers

By Brendan Fitzgerald of McDonald Hopkins

Whether through Facebook or Twitter, LinkedIn or GooglePlus, social networking is changing the way the world communicates and how business is conducted.  Employers should already be aware of the benefits and pitfalls of employee social media use. For more information on social-media-related issues for employers, our previous social media blog posts are listed below:
NLRB GC outlines federal protections for employee social media activity
NLRB posts two complaints in May regarding employee activity on Facebook
Is Social Media On Your Mind? The top 5 questions you should be asking

A recent decision highlights yet another wrinkle.

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January 16, 2012

Gaga about the FLSA

By Miriam L. Rosen of McDonald Hopkins

Lady_Gaga_on_Fame_Ball_Courtesy of Wikipedia.org.jpgEmployment lawyers don’t often get a chance to write about pop superstars, but as it turns out the Fair Labor Standards Act is providing just such an opportunity.

In December 2011, Lady Gaga’s personal assistant, Jennifer O’Neill, filed a lawsuit against Lady Gaga’s touring company claiming that she is owed more that $350,000 in unpaid overtime under the Fair Labor Standards Act and New York State Labor Law.

What’s the crux of the dispute?  

Well, really it’s not much different than those faced by many “more traditional” employers.  The former personal assistant claims that she was misclassified as an “exempt” employee when she was actually non-exempt.  As a result, she alleges that she is owed over 7,000 hours of overtime compensation for time that she spent attending to Lady Gaga at “stadiums, private jets, fine hotel suites, yachts, ferries, trains, and tour buses.”  

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January 10, 2012

Some communications between insurance companies and counsel for insureds are now privileged in Ohio

By Brendan Fitzgerald of McDonald Hopkins

Many employers today rely on employment practices liability insurance to cover potential employment claims and risks. As a result, insurance policies and companies that provide them hold an important place in many employment-related lawsuits, and rightfully so.

Historically, insurance companies, insureds and counsel have communicated carefully about potential claims, litigation strategies, and other confidential subjects because it was not clear whether the attorney-client privilege protected communication with the insurance companies.  Instead, the privilege arguably applied only to communications between the attorney and the insured/client.

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January 6, 2012

NLRB again delays union rights posting requirement

By Miriam L. Rosen of McDonald Hopkins

The National Labor Relations Board has, once again, delayed the posting date for its new notice advising employees of their rights under the National Labor Relations Act, as discussed in our blog post on August 31, 2011. The new posting date is now April 30, 2012.

With its broad requirement that almost every private-sector employer—union and non-union—post the notice, the NLRB’s rule was almost immediately challenged by business groups as beyond the NLRB’s authority. Originally scheduled for posting in November 2011, the NLRB first delayed the notice until January 31, 2012 to give private-sector employers more time to understand and comply with the requirement. According to the NLRB’s recent announcement, this second delay came at the request of the federal court in Washington, DC, which is hearing a legal challenge regarding the posting requirement.

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January 6, 2012

NLRB again delays union rights posting requirement

By Miriam L. Rosen of McDonald Hopkins

The National Labor Relations Board has, once again, delayed the posting date for its new notice advising employees of their rights under the National Labor Relations Act, as discussed in our blog post on August 31, 2011. The new posting date is now April 30, 2012.

With its broad requirement that almost every private-sector employer—union and non-union—post the notice, the NLRB’s rule was almost immediately challenged by business groups as beyond the NLRB’s authority. Originally scheduled for posting in November 2011, the NLRB first delayed the notice until January 31, 2012 to give private-sector employers more time to understand and comply with the requirement. According to the NLRB’s recent announcement, this second delay came at the request of the federal court in Washington, DC, which is hearing a legal challenge regarding the posting requirement.

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December 29, 2011

Are defined benefit plans going the way of the dinosaurs or simply evolving?

By John M. Wirtshafter of McDonald Hopkins

Over the past 30 years, the number of employees participating in defined-benefit pension plans sponsored by their employers has fallen by approximately 50 percent.  During that same period, participation in defined-contribution plans (such as 401(k) plans) has dramatically risen.  There are a number of potential explanations for this phenomenon including, (i) the fact that many employers have grown tired of dealing with the risk and volatility associated with defined-benefit plans, (ii) employees seem to better understand and favor defined-contribution plans with their individual accounts that can be easily tracked, and (iii) many manufacturing companies, the traditional sponsors of defined-benefit plans, have consolidated, closed their doors or moved their operations overseas.

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