As many employers are aware, under the Federal Worker Adjustment and Retraining Notification (“WARN”) Act, employers must provide affected employees with 60 days’ written notice of a plant closing.  In Collins v. Gee West Seattle, the Ninth Circuit Court of Appeals had the opportunity to decide whether employees who left their employment after learning that their company was closing “voluntary departed” under WARN, thereby excusing the employer from sending out WARN notices.

In that case, Gee West, a car dealership that employed approximately 150 employees, experienced severe financial losses in July 2007, and decided to sell the company. Despite its efforts, the business was not sold, and on September 26, Gee West announced that it was closing 11 days later, on October 7. After the announcement, employees stopped going to work, and only 30 employees were present the day the plant closed.
 

The employer argued that it was not required to give WARN notice because at the time of the closing there were only 30 employees who suffered an employment loss -- not 50 as required by WARN. (The statute's 60-day notice requirement applies where the shutdown of a plant results in “an employment loss at the single site of employment during any 30-day period for 50 or more employees”). According to the employer, the other 120 employees had “voluntarily departed” prior to the closing and therefore had not suffered an employment loss.  WARN defines an employment loss as a termination of employment for reasons other than, among other things, a voluntary departure.

The Ninth Circuit rejected the employer's  argument, finding that “[e]mployees’ departure because of a business closing … is generally not voluntary, but a consequence of the shutdown and must be considered a loss of employment when determining whether a plant closure has occurred.” Therefore, Gee West was required to give 60-day notice to all 150 affected employees who the company reasonably expected would lose their jobs as a result of the closing on October 7.

In light of this case, employers should be aware that even if an employee’s departure after the announcement of a plant closing seems “voluntary,” a court may view it differently, and determine whether WARN applies based on the number of employees at the time of the announcement, not the actual closing.
 

On December 22, 2010, the Departments of Labor, Health and Human Services, and Treasury (collectively, the "Departments") issued their fifth set of answers to several frequently asked questions ("FAQs") about the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act ("PPACA"). The FAQs also address the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 ("MHPAEA") and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") nondiscrimination rules for wellness programs. The FAQs are described below.

The Patient Protection and Affordable Care Act

The PPACA encompasses many different approaches to reducing the number of Americans with little or no health insurance coverage. The legislation includes mandates on employers, individuals, and providers, amendments to the Internal Revenue Code, and many other changes.

Cost Control for Preventive Care Benefits

The PPACA generally requires that group health plans cover recommended, in-network preventive services without any employee cost sharing. The Departments issued interim final regulations on July 14, 2010 addressing the requirement, but there have been lingering issues about a plan's ability to control costs. The FAQs confirm that the PPACA allows plans to steer enrollees toward more cost-efficient service providers through value-based insurance designs ("VBID"). The FAQs provide an example of a permissible VBID. The PPACA would allow a group health plan to have no copayment for preventive services performed at an in-network ambulatory surgery center, but have a $250 copayment for the same services performed at an in-network outpatient hospital, because the outpatient hospital is a higher-value setting. The Departments add that further guidance is forthcoming.
 

Automatic Enrollment for New Employees

The PPACA requires employers with more than 200 full-time employees to automatically enroll new full-time employees in the employer's health plan. However, the FAQs clarify that employers are not required to comply with this mandate until the Employee Benefits Security Administration promulgates regulations, which will be sometime before 2014.

Notice of Plan Modifications

The PPACA requires group health plans to provide 60 days notice to enrollees before making material modifications to the plan's terms or coverage if they were not reflected in the most recent summary of benefits and coverage. However, the FAQs explain that employers are not required to comply with this mandate until the Departments issue standards for plans to follow for compiling and providing a summary of benefits and coverage.

Varying Coverage Based on Age

The PPACA provides that group health plans providing dependent coverage for children cannot vary such coverage based on age (except if they are 26 or older). The FAQs point out, however, that the PPACA permits varying coverage based on age that applies to all enrollees, including employees, spouses, and dependent children. An example in the FAQs suggests that a plan could charge a copayment for non-preventive care to all enrollees age 19 and over, but waive it for those under 19. However, it could not charge a copayment to dependent children age 19 and over, but waive it for those under 19.

Grandfathered Health Plans

The PPACA provides that group health plans existing as of March 23, 2010, called "grandfathered plans," are not subject to certain PPACA provisions as long as they do not make specific plan changes outlined in PPACA regulations. A plan that makes such changes would lose its grandfather status. The FAQs address the scenario where a grandfathered plan has a fixed cost-sharing requirement other than a copayment, such as a deductible or out-of-pocket spending limit, which is calculated based on a formula that includes a fixed percentage of an employee's compensation. The FAQs conclude that, if the formula remains the same as it was on March 23, 2010, a compensation increase that causes a cost-sharing increase under the formula would not cause the plan to lose grandfather status, even where the cost-sharing increase exceeds the PPACA regulatory threshold.

Mental Health Parity and Addiction Equity Act of 2008

If plans provide mental health and substance use disorder benefits, the MHPAEA generally requires that financial requirements and treatment limitations for such benefits cannot be more restrictive than for medical and surgical benefits.

Small Employer Exemption

Group health plans subject to ERISA and the Internal Revenue Code are exempt from the MHPAEA as a "small employer" if they have 50 or fewer employees, preempting any State insurance law definition of small employer. The FAQs note, however, that for nonfederal government plans the PPACA applies, and it defines "small employer" as one that has 100 or fewer employees.

Increased Cost Exemption

The Departments explain in detail how the cost exemption works. The MHPAEA provides that if a plan makes changes to comply with the MHPAEA and incurs a 2% or greater cost increase in the first year the MHPAEA applies to it, or a 1% or greater cost increase in any year after the first year, then the plan is exempt from the MHPAEA the following year (that is, the year after the cost increase was incurred). The exemption lasts for one year, and then the plan must comply again. However, the plan could incur another cost increase of 1% or greater due to compliance-related changes and be exempt the following year. When calculating the cost increase percentage, the plan should include increases in the plan's portion of cost sharing as well as non-recurring administrative costs (for example, adjusting computer software), which should be appropriately amortized. Plans must further demonstrate that cost increases are directly attributable to MHPAEA compliance rather than utilization or price trends, random claim experiences, or seasonal variations in claims processing. The FAQs clarify that, until the Departments issue regulatory guidance on how the increased cost exemption will be implemented, plans can follow the procedures outlined in their earlier 1997 regulations to claim the exemption.

HIPAA and Wellness Programs

HIPAA regulations generally prohibit discrimination in eligibility, benefits, or premiums based on employee health. Where wellness programs require employees to meet a certain health standard (such as losing weight) to obtain a reward (such as lower premiums), they must satisfy HIPAA's nondiscrimination requirements. There are five requirements: (1) the total reward cannot exceed 20% of the total cost of coverage; (2) the program must be reasonably designed to promote health or prevent disease; (3) the program must provide employees an opportunity to qualify for the reward at least once per year; (4) the reward must be available to all similarly situated employees, which means there must be a reasonable alternative standard for employees with a health condition that makes it unreasonably difficult for them to satisfy the original standard; and (5) the alternative standard must be published in all plan materials. The PPACA incorporates these nondiscrimination rules, except that it changes the maximum reward from 20% of the total cost of coverage to 30%. The Departments intend to propose regulations before 2014 that implement this percentage change, as well as consider other nondiscrimination rules.

Independent Wellness Programs

The FAQs clarify that the nondiscrimination rules only apply to wellness programs that are part of a group health plan and not those that are operated independently as a separate employment policy. The FAQs list examples of independent programs, which include subsidizing healthier cafeteria food and gym memberships, providing pedometers (to encourage walking and exercise), and banning smoking in the workplace. Note, however, that these independent programs may still be subject to Federal or State nondiscrimination laws.

Meeting Health Standard as Condition of Reward

The FAQs explain that the nondiscrimination rules only apply to wellness programs that require employees to meet a certain health standard to obtain a reward. The FAQs provide two examples of programs that do not contain such a standard and thus are not subject to the nondiscrimination rules. In the first example, a group health plan offers, as part of its wellness program, an annual premium discount of 50% of the cost of coverage to employees that attend a monthly health seminar. The FAQs conclude that, because employees do not have to meet a health standard to obtain the discount, the nondiscrimination rules are inapplicable -- including the rule limiting the reward amount to 20% of the cost of coverage. In the second example, a group health plan offers, as part of its wellness program, to reimburse employees for their monthly gym membership fee. The FAQs conclude that the nondiscrimination rules are inapplicable because the employees are not required to meet a health standard to obtain the reimbursement.
Application of the Nondiscrimination Rules

The FAQs provide an example of how to apply the nondiscrimination rules. The example is a group health plan that offers, as part of its wellness program, a discount of 20% of the cost of coverage to employees that achieve a cholesterol count of 200 or lower. The plan also states that if the employee has a health condition making it unreasonably difficult for them to satisfy the cholesterol count within a 60-day period, then the plan will create a reasonable alternative standard. The FAQs conclude that, although the plan requires employees to meet a health standard and is therefore subject to the nondiscrimination rules, it does not violate them because the total reward does not exceed 20% of the total cost of coverage, and the reward is available to all similarly situated individuals because it includes a reasonable alternative standard.

 

Miriam Regalado and her fiancée Eric Thompson worked for North American Stainless (NAS). Regalado filed a sex discrimination charge against NAS with the EEOC. Three weeks later, NAS fired Thompson. Those were the facts presented to the United States Supreme Court when it unanimously decided on January 24, that Thompson could bring a Title VII retaliation claim against NAS even though Thompson never engaged in Title VII protected activity. The Supreme Court’s holding in the case, Thompson v. North American Stainless, LP, effectively broadens the scope of Title VII’s anti-retaliation provisions to protect individuals who have a significant association with or relation to employees who have engaged in protected conduct.

Of course, Title VII makes it illegal for an employer to “discriminate” against an employee who files a charge with the EEOC. But Thompson never filed a charge, Regalado did. The Court surmounted this difficulty by finding that Title VII’s anti-retaliation provision should be construed to prohibit a broad range of employer conduct – a range of conduct much broader than actions which affect the terms and conditions of employment of the employee who filed the charge. Quoting from its decision in Burlington N. & S.F.R. Co. v. White, 548 U.S. 53 (2006), the Court reiterated that “discrimination” under the anti-retaliation provision includes any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court then concluded logically that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired.” The Court acknowledged that its decision might create difficulty in determining precisely which types of relationships will be sufficient to conclude that retaliation against the third party would dissuade the individual who engaged in protected activity, but declined to provided a bright line rule. It stated that firing a close family member will “almost always” meet the standard, and retaliating against a “mere acquaintance” will almost never meet it, but declined to provide further guidance.
 

Finding that the firing of Thompson could be illegal retaliation against Regalado, did not, however, end the inquiry. After all, it was Thompson, not Regalado, who sued for retaliation. To answer the question of whether Thompson could bring a claim against NAS, the Court had to determine what the term “person aggrieved” means in the Title VII provision which permits a “person aggrieved” to bring an action in court. In deciding that question, the Court rejected NAS’s argument that it means the employee who was retaliated against. Instead, the Court concluded that the term means anyone with an interest which Title VII arguably seeks to protect. Thompson fell within this zone of interests because Title VII is designed to “protect employees from their employers’ unlawful actions.” Because, assuming NAS’s motive was retaliatory, NAS tried to punish Regalado by harming Thompson, Thompson was within the Title VII zone of interests. So even though it was Regalado, not Thompson, who suffered illegal retaliation when Thompson was fired, Thompson was still a “person aggrieved” who was allowed to sue. It thus appears that the zone of interests test can be satisfied any time the employer’s action against a third party constitutes prohibited retaliation, thereby allowing the third party to bring a claim.

The significance of the Court’s decision is obvious: the holding invites more retaliation claims by persons “associated with” an employee who has engaged in Title VII protected activity. Essentially, the Court has created a new protected classification, the definition of which is unclear. As a result, an employer must now carefully consider the potential for a retaliation claim any time it takes any adverse employment action against someone, particularly family members, “associated with” an employee who has engaged in protected activity.
 

We have previously posted on the early retirement incentive for employees represented by collective bargaining units affiliated with the New York State United Teachers (“NYSUT”) who belong to either the New York State Employee Retirement System or the New York State Teachers Retirement System (“TRS”), are at least 55 years of age, and have attained at least 25 years of creditable service (“55/25 Legislation”). The 55/25 legislation allows eligible employees to retire without the reduction in retirement benefits that would normally apply to retirement system members who are on Tiers 2, 3, or 4 who do not have 30 years of service.  The legislation recently survived another court challenge to its constitutionality.

Two days after the 55/25 Legislation was signed into law, the Empire State Supervisors and Administrators Association (“ESSAA”), a union that represents primarily administrators and supervisors in public school districts, and one of its local unions, challenged the 55/25 Legislation in court. The ESSAA contended that the statute violates its members’ rights to equal protection and freedom of association under the United States and New York State Constitutions, by limiting eligibility only to individuals who are employed in positions represented by collective bargaining units affiliated with NYSUT.
 

The trial court found the legislation constitutional, and the ESSAA appealed to the Appellate Division, Third Department. On January 20, 2011, the Appellate Division unanimously affirmed the trial court’s decision. The Appellate Division held that a rational basis exists for distinguishing between employees in NYSUT-affiliated bargaining units and employees not in NYSUT-affiliated bargaining units. Specifically, the Appellate Division accepted the argument, advanced by NYSUT and the State, that replacing administrators and supervisors (the vast majority of the employees in ESSAA bargaining units) is not as financially advantageous as replacing older classroom teachers. Supervisors and administrators are usually replaced by individuals closer in seniority (and salary) to the incumbents, while older classroom teachers are usually replaced by newer teachers who can be paid significantly less than the incumbents.

For those teachers who retired under the 55/25 Legislation, TRS has indicated that payment of the unreduced retirement benefit is subject to the final outcome of any appellate process. Accordingly, those teachers who retired under the 55/25 Legislation must wait and see whether the Appellate Division’s decision is appealed, and if so, whether the Court of Appeals accepts the appeal and affirms the Appellate Division. The ESSAA has 30 days from the date of the Appellate Division’s decision to decide if it will apply for permission to appeal to the New York Court of Appeals.
 

The New York State Department of Labor’s Hospitality Industry Wage Order, which is intended to combine and replace the Wage Orders formerly applicable to the Restaurant Industry and Hotel Industry, became effective on January 1, 2011. The Department of Labor has issued a notice to employers that it will exercise discretion with regard to enforcement until February 28, 2011, in order to allow employers sufficient time to come into compliance, but expects that employees covered by the Wage Order will be paid any additional wages owed to them by March 1, 2011 or the next regularly scheduled pay day after March 1, 2011. The additional wages must be computed retroactively to January 1, 2011. Employers covered by the Wage Order are required to post a notice to employees regarding the implementation period and their right to retroactive payment of wages.

The Wage Order makes several changes to the rules governing the payment of wages to employees in restaurants and hotels. Some of the significant changes are described below.
 

Tip Credit

Under the former Restaurant Industry Wage Order, employers were required to pay food service workers at least $4.65 per hour, as long as the tips received by those workers added to their hourly wages equaled or exceeded the minimum wage of $7.25 per hour. Under the new Hospitality Industry Wage Order, food service workers must receive an hourly wage of at least $5.00 per hour, as long as the amount of their tips added to their hourly wages is sufficient to equal or exceed the minimum wage. Service employees who do not work in resort hotels must be paid at least $5.65 per hour (up from a minimum of $4.90), as long as the amount of their tips added to their hourly wages is sufficient to equal or exceed the minimum wage. In resort hotels, service employees may be paid a minimum of $4.90 per hour (up from $4.35) as long as the weekly average of their tips is at least $4.10 per hour.

In order to pay the reduced minimum wage to a tipped employee, employers must notify the employee of any tip credit that will be taken as part of its new hire notice. If any changes are made to the employee’s hourly wage, a new notice must be provided containing the same information.

If a tipped employee works in a non-tipped occupation for two hours or more in a day, or for more than 20% of his or her shift during a day, the employer is not entitled to take any tip credit for any hours worked during the day, and must pay at least the full minimum wage of $7.25 per hour for all hours worked.

Tip Pooling and Tip Sharing

Employers covered by the Wage Order may require directly tipped food service workers to share their tips with other food service workers who participated in providing the service to customers and may set the percentage to be given to each occupation. Employers may also require food service workers to participate in a tip pooling arrangement. Only certain types of employees are eligible to receive shared tips or distributions from a tip pool. Those occupations include: (1) wait staff; (2) counter personnel who serve food and beverages; (3) bus persons; (4) bartenders; (5) service bartenders; (6) barbacks; (7) food runners; (8) captains who provide direct food service to customers; and (9) hosts who greet and seat guests. Employers are required to keep detailed records relating to tip sharing or tip pooling arrangements for at least six years.

Call-In Pay

The Wage Order provides that an employee who reports for duty by request or permission of the employer must be paid at his or her “applicable wage rate” for at least three hours if called in for one shift, six hours if called in for two shifts, or eight hours if called in for three shifts. The phrase “applicable wage rate” is defined as the employee’s regular or overtime rate of pay, whichever is applicable, minus any customary and usual tip credit. This is a change from the former Wage Orders, which required payment at the “applicable minimum wage rate.”

Spread of Hours

Under the Wage Order, any employee whose spread of hours from the beginning to the end of the work day exceeds ten is entitled to an additional hour of pay at the basic minimum hourly wage rate, regardless of the employee’s regular rate of pay. Therefore, employers are no longer permitted to a take a credit toward this spread of hours payment for wages paid to an employee in excess of the minimum wage for the other hours worked in the day.

Uniforms

The uniform maintenance allowance amounts remain the same under the Wage Order, but two exceptions have been created. First, under the “wash and wear” exception, an employer is not required to provide any uniform maintenance allowance if the uniforms: (1) are made of “wash and wear” materials; (2) can be washed and dried with other garments; (3) do not require ironing, dry cleaning, daily washing, commercial laundering, or other special treatment; and (4) are furnished in sufficient number consistent with the average number of days per week worked by the employee. Second, an employer is not required to provide any uniform maintenance allowance if it informs the employee in writing that it will launder the uniforms free of charge and the employee chooses not to use the employer’s laundry service.

Meal Credit

The amount of credit that an employer in the hospitality industry may take for providing an employee with a meal has been increased from $2.10 to $2.50 per meal.
 

Last month we posted on the EEOC’s GINA regulations and discussed the inadvertent disclosure exception and family medical history. This post follows up by discussing the impact of the regulations on FMLA certifications and by providing some recommended affirmative steps employers should take now.

As we discussed last month, the regulations recognize that employers may inadvertently obtain genetic information when they request that health care providers complete certification forms to support a leave under the Family and Medical Leave Act (“FMLA”) or an accommodation under the Americans with Disabilities Act (“ADA”). The regulations, however, create a “safe harbor” for employers who use the following language when requesting medical information to certify an employee’s own serious health condition under the FMLA:
 

The Genetic Information Nondisclosure Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic Information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Employers should not use the “safe harbor” language when they are requesting information to certify a family member’s serious health condition, as opposed to the employee’s own serious health condition. GINA includes an additional exception that allows employers to ask for “family medical history” when seeking certification of a family member’s serious health condition.

In light of the new GINA regulations, employers should take affirmative steps to reduce the risk of inadvertently obtaining genetic information about their employees, including the following:

• Update FMLA certification forms to include “safe harbor” language, when appropriate.
• Include “safe harbor” language on other requests for medical information, such as requests for documentation of an employee’s need for an accommodation and fitness-for- duty certification.
• Inform health care providers not to gather family medical history or other genetic information during fitness-for-duty examinations or during medical examinations to certify an individual’s ability to perform his or her job.
• Educate HR personnel, managers and supervisors about what constitutes protected genetic information and how to avoid making inadvertent requests for such information.
• Ensure that internal policies and procedures comply with the new GINA regulations.
• Review workplace “wellness programs” to ensure that the health assessment and other forms do not require the disclosure of genetic information without the employee’s prior voluntary, knowing, and written authorization.
• Post the new EEO poster which contains added information about GINA.
• Ensure that the genetic information, like medical information, is maintained in a confidential file, separate from the employee’s personnel file.
   

Sensibly, the EEOC does not make any effort to conceal its enforcement “playbook.” To the contrary, it publishes an annual Performance and Accountability Report so that employers and other stakeholders will have a better understanding of how the agency has used, and intends to use, its financial and human resources. The 2010 Performance and Accountability Report, released in mid-November 2010, contains the EEOC’s assessment of its performance as the federal agency with the broadest responsibility for enforcing the civil rights laws. Based on information contained in the report, a few general observations about the direction of the Agency can be made.

1. The EEOC’s Financial and Human Resources Continue To Grow.

For fiscal year 2010, the EEOC received a $367.3 million appropriation (a 7% annual increase). Most of this increased funding was used to add personnel. EEOC employed 2,385 FTE employees during 2010 (an 11% increase since 2007) and plans to grow its work force by 8% in 2011 to 2,577 FTE employees. More resources and more employees should result in more aggressive enforcement efforts by the EEOC.

2.  Greater Resources Will Enhance EEOC's Strategic Enforcement Initiative.

In April, 2006, the EEOC launched a program designed to identify, investigate, and litigate “systemic cases” – cases involving an allegedly discriminatory pattern, practice, or policy which has a broad impact on an industry, profession, company, or geographic location. This systemic initiative is one of the EEOC’s top priorities, because such cases affect large numbers of individuals.

At the close of fiscal year 2010, the EEOC was conducting 465 systemic investigations, involving more than 2,000 charges, and had completed work on 165 systemic investigations – resulting in 29 settlements or conciliation agreements that recovered $6.7 million. Systemic cases are highly complex and require greater resources (for example, expert analysis by statisticians, industrial psychologists, and labor market economists). As a result, it is likely that the EEOC will devote a substantial portion of its expanding resources and staff to its systemic initiative. The message for employers is simple. Review your written employment policies and your unwritten employment practices to insure compliance with recent changes in the law.

3.   Employers Should Seriously Consider The EEOC’s Mediation Program.

Despite its expanding resources and personnel, the EEOC has continued to struggle to meet its time target for resolving private sector discrimination charges. During fiscal year 2010, only 38.3% of the private sector charges filed with the EEOC were resolved in less than 180 days - substantially less than the EEOC’s 2010 target (48%) and much worse than its performance in 2005 (66%). In fact, the Office of Inspector General has identified the continued rise in private-sector charge inventory as one of the most significant management challenges facing the EEOC. In its defense, however, EEOC did receive a record number of discrimination charges during fiscal year 2010 (99,922).

Delays in investigating and making a determination on pending discrimination charges can have a significant monetary impact on employers. Considering that the standard remedy for disparate treatment discrimination is back pay and benefits, an employer’s potential financial exposure escalates during the time that a discrimination charge is pending before the EEOC. For that reason, an employer defending a discrimination charge should seriously consider using the EEOC’s mediation program – which has earned praise from both charging parties and employers. Indeed, during fiscal year 2010, 96.7% of all participants reported that they would use the EEOC’s mediation program in the future. Participating in the EEOC’s mediation program might produce a timely and successful resolution and will not derail or substantially delay the EEOC’s investigative process should mediation not prove successful.

A version of this post was previously published in the Rochester Business Alliance, Regional Chamber of Commerce Newsletter for January/February 2011.

 

The use of credit histories in the hiring process is coming under increased scrutiny by the Equal Employment Opportunity Commission. On December 21, 2010, the EEOC filed suit against Kaplan Higher Education, alleging that Kaplan’s use of credit history as a selection device is discriminatory because it screens out a disproportionate number of black applicants. The suit seeks injunctive relief barring Kaplan from using credit histories, as well as lost wages, benefits and offers of employment for applicants who were not hired due to the practice.

The lawsuit is not surprising given the EEOC’s earlier attention to this issue. In October 2010, the EEOC held a public hearing on the topic to explore whether the practice is discriminatory. Critics of the practice describe it as a “Catch-22” for applicants: you cannot establish good credit unless you have a good paying job, but you cannot get hired if you have poor credit. The EEOC is concerned that minority groups typically have poorer credit, and therefore the practice has a disparate impact on those groups. There is also a question of whether credit histories have any real predictive value when it comes to employment.
 

The issue has the attention of Congress and state legislatures as well. In 2009, the Equal Employment for All Act was introduced in the House. This bill would prohibit an employer from using information regarding a person’s credit history or credit worthiness in employment decisions, with some exceptions. A similar bill was also introduced in New York in 2009. Several states already limit the practice, including Illinois, Hawaii, Oregon, and Washington.

In light of the position taken by the EEOC, employers should re-evaluate their use of credit histories. An across-the-board approach which uses credit checks for all applicants presents the greatest risk of a disproportionate impact claim, and it will be the most difficult to successfully defend. In a disparate impact suit like the one filed against Kaplan, the employer may have to show that the selection criteria is “job-related” and “consistent with business necessity,” and that there are no less discriminatory alternatives available. For that reason, employers should limit the review of credit history to positions where there is a strong nexus between a person’s credit history and the position for which he or she is applying. The most obvious examples are positions involving direct access to the employer’s or client’s funds, particularly for individuals in higher level positions such as a controller or store manager. Although such a limitation will likely make a lawsuit easier to defend, it may not be sufficient to avoid being sued. According to the Kaplan complaint, the company used credit checks only for employees whose responsibilities included financial matters, such as advising students on financial aid.

In addition, even in cases where it may be appropriate to review a credit history, that information should be used as a supplement to all the other information gathered in the interview and reference checking process. Employers should avoid making credit the determinative factor in denying employment.  Of course, all credit checks should be conducted in accordance with the requirements of the Fair Credit Reporting Act and similar state laws.
 

On December 17, 2010, President Obama signed into law the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (“Tax Relief Act”), which generally extended the Bush-era tax reductions through December 31, 2012. The Tax Relief Act also includes several employee benefits-related extensions of interest to employers.

Educational Assistance Programs

Section 127 of the Internal Revenue Code (“Code”) permits an employer to maintain a program to provide tax-free educational assistance to its employees, provided that certain eligibility and nondiscrimination requirements are satisfied. A qualified educational assistance program may provide up to $5,250 in tax-free educational assistance for the payment of tuition and related expenses for undergraduate and graduate level coursework. Code Section 127 was scheduled to expire on December 31, 2010. The Tax Relief Act extends the application of Code Section 127 through December 31, 2012, allowing employers to continue to provide tax-free educational assistance to their qualifying employees for an additional two years.

Adoption Assistance Programs

Code Section 137 permits an employer to provide tax-free adoption assistance benefits (up to $13,360 per eligible child for 2011) to its employees, subject to the satisfaction of certain eligibility and nondiscrimination rules. Code Section 137 was scheduled to expire on December 31, 2011. However, the Tax Relief Act extends the application of Code Section 137 through December 31, 2012.

Mass Transit and Vanpool Benefits

Under current law, an employee may exclude from income up to $230 per month in qualified employer-provided mass transit and vanpool benefits (along with employer-provided parking benefits), provided that the program satisfies the requirements of Code Section 132(f). However, the permitted exclusion amount for mass transit and vanpool benefits was scheduled to be reduced to $120 per month after December 31, 2010. The Tax Relief Act extends the $230 monthly exclusion amount for employer-provided mass transit and vanpool benefits through December 31, 2011. The exclusion for employer-provided parking benefits is not subject to this sunset provision.
 

Last month, we posted on the NLRB’s renewed focus on remedies, including the use of federal court 10(j) injunction proceedings in cases involving discharges of union organizers. Last week, the NLRB’s Acting General Counsel, Lafe E. Solomon, issued a memorandum to Regional Directors discussing other remedies they should seek in cases involving alleged employer unfair labor practices committed during a union organizing campaign. The expressed rationale for this initiative is that stronger remedies are often required for unfair labor practices committed during a union organizing campaign in order to ensure a fair election. One cannot help but wonder, however, if the Board’s new-found emphasis on remedies related to organizing campaigns is not designed to compensate for the Obama administration’s inability to fulfill its promise to its union supporters by passing the Employee Free Choice Act.

One of the alternative remedies would require a member of management to read the Board’s notice of violation to all employees (or have the Board Agent read it in the presence of a management employee), instead of simply posting it on the bulletin board. The Acting General Counsel believes the information in the notice is more likely to reach all employees if it is read to them, and that a personal reading “places on the Board’s notice the imprimatur of the person most responsible” for the violation. In other words, the employees are more likely to think the notice means something if it is read to them by a member of management.

Another alternative remedy on which the memorandum focuses is permitting union access to employees in cases which involve unfair labor practices which have an adverse impact on employee-union communication. The memorandum concludes that in such cases, the appropriate remedy may be to allow the union to post information on the employer’s bulletin board, or to provide the union with the names and addresses of employees so that it can communicate with them directly. The memorandum also concludes that in rarer cases, the best remedy may be to permit the union to hold captive audience meetings with the employees as often as the employer does so, or to allow the union access to employees in non-work areas during non-work time.

When will the Regional Directors be justified in seeking such remedies? The memorandum suggests that whenever a Regional Director has a discharge case warranting a 10(j) injunction proceeding, a notice-reading remedy should be sought. In addition, the memorandum appears to leave little doubt that the notice-reading remedy should be considered in cases involving so-called “hallmark violations,” cases involving threats of discharge, layoffs, or plant closure. But it goes much farther, and discusses at length how lesser violations, such as grants or promises of benefits, solicitation of employee grievances, and improper employer interrogation or surveillance can have a severe impact on employee free choice. The memorandum appears to encourage the Regional Directors to consider seeking the notice-reading remedy in all cases where such typical 8(a)(1) violations are “serious.” It also states broadly that: “When the employer’s unfair labor practices interfere with communications between employees, or between employees and a union, Regions should also seek union access to bulletin boards and employee names and addresses.” Nowhere does the memorandum explain what types of violations are those which interfere with communication. Presumably, an employer’s enforcement of an improper no-solicitation, no-distribution policy would be sufficient.

Only time will tell whether these alternative remedies are used by the Regional Directors in unusual cases when needed to remedy serious employer unfair labor practices in order to obtain a fair election, or are used routinely in an effort to give unions a leg up in organizing campaigns. In the meantime, the threat of these alternative remedies is yet another reason for employers to be extremely careful when responding to union organizing campaigns and to train their managers and supervisors to avoid committing unfair labor practices.
 

Providing further evidence that the Obama National Labor Relations Board will be highly activist and pro labor, the Board has proposed a new rule  which would require employers to post a notice informing employees of their National Labor Relations Act (“NLRA”) rights, including the right to: organize a union; form a union; bargain collectively through a union representative; and engage in concerted activity with other employees.

The Board justifies the rule as necessary based on presumption that  most employees are unaware of their rights under the NLRA to engage in protected concerted activities and form unions. The Board believes that requiring a notice posting by all employers will inform employees of their rights and will also dissuade employers from engaging in unfair labor practices under the NLRA.
 

The proposed rule would require every employer to post an 11 by 17 inch poster, and distribute the notice electronically if the employer customarily communicates with employees electronically. Concerning the content of the notice, the Board has proposed using language adopted by the Department of Labor (“DOL”) for its rule requiring Federal contractors and subcontractors to post a notice of employees’ rights under the NLRA. According to the Board, using DOL’s posting also would allow employers who have already posted DOL notices to be in compliance without posting a new notice.

Proposed sanctions for employers who fail to comply with the rule include treating the failure to comply as an unfair labor practice under the NLRA. The Board has also proposed tolling the NLRA’s six month statute of limitations on the filing of an unfair labor practice charge if the employer fails to post the required notice.

Republican Board Member Brian Hayes has dissented from the proposed rule and believes the Board lacks statutory authority to promulgate it. Hayes also believes the Board lacks the authority to impose the proposed remedies.

The proposed rule is subject to a sixty day comment period. Public comment on the proposed rule can be submitted electronically to www.regulations.gov, or by mail to Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, DC
 

In a move akin to delaying Christmas after all the hard work of shopping, wrapping and baking is done, the IRS (and the Departments of Labor and Health and Human Services) have delayed compliance with the nondiscrimination requirements of the Affordable Care Act until after regulations or other administrative guidance are issued (IRS Notice 2011-1).  The nondiscrimination rules would otherwise apply to insured, non-grandfathered group health plans for plan years beginning after September 23, 2010. Grandfathered insured plans are required to comply beginning with the first plan year grandfathered status is lost.

Section 2716 of the Affordable Care Act (the preferred moniker for the Patient Protection and Affordable Care Act, or “Healthcare Reform”) requires insured group health plans to satisfy the requirements of section 105(h)(2) of the Internal Revenue Code (“Code”). Code Section 105(h)(2) prohibits discrimination in favor of highly compensated individuals as to eligibility to participate, and benefits provided. A highly compensated individual is defined as one of the five highest paid officers of the employer, a 10 percent or greater shareholder, or (with some exclusions) an individual among the highest paid 25% of all employees when ranked by compensation. Section 2716 also provides that “rules similar to” the nondiscriminatory eligibility classification test, nondiscriminatory benefits test and the controlled group rules of Code Section 105(h)(3), (4) and (8), respectively, shall apply. Failure to satisfy these requirements could result in a hefty excise tax being imposed on the employer: $100 per day per individual discriminated against.

In September, Notice 2010-63 requested comments about the guidance needed in order to satisfy the nondiscrimination requirements. In addition to guidance concerning the meaning of “rules similar to” Code Section 105(h), commentators noted that compliance prior to 2014, when the State Exchanges and individual and employer responsibility and penalty provisions take place, would be difficult without substantial guidance. The Notice acknowledges that guidance is required with respect to such questions as whether the rate of employer contribution is a “benefit” that must be provided on a nondiscriminatory basis, whether the nondiscrimination standards can be applied separately to distinct geographic locations, how the rules apply to expatriates and inpatriates, treatment of employees who voluntarily waive coverage, and whether paying for the coverage of highly compensated individuals on an after-tax basis affects the nondiscrimination requirements, among other things.

Comments will be accepted by the IRS on the application of the nondiscrimination requirements until March 11, 2011. It seems unlikely we will see proposed regulations until close to the end of 2011, at best.

Employers who have already adjusted health plan eligibility and premium contributions in an effort to comply with the Affordable Care Act may wish to re-evaluate the changes made. Keep in mind, however, the Code Section 125 rules for changing pre-tax premium payments once the plan year has begun: changes in elections are only permitted in limited circumstances -- unless, of course, we get Section 125 relief in connection with this 11th hour nondiscrimination reprieve.