On January 19, 2010, the Department of Labor (“DOL”) issued model notices to help plan administrators and employers comply with COBRA notice requirements as dictated by the American Recovery and Reinvestment Act (“ARRA”), as amended by the Department of Defense Appropriation Act, 2010 (“2010 DOD Act”).
Continue Reading...President Obama signed the “Fiscal Year 2010 Defense Appropriations Act” (“DAA”) on December 21, 2009. The DAA provides two important changes to the COBRA subsidy that was established under the “American Recovery and Reinvestment Act of 2009” (“ARRA”) earlier this year.
Continue Reading...The sixty-five percent (65%) COBRA premium subsidy provided for in the American Recovery and Reinvestment Act of 2009 (ARRA) will come to an end on November 30, 2009 for some qualified beneficiaries.
Continue Reading...In Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties, a California Court of Appeal has held that an employee can prove a case of discrimination by putting on evidence from other employees that claim that they too were subject to discrimination by the employer (“me too” evidence).
Continue Reading...In Nein v. HostPro, Inc., a Court of Appeal held that the language of the employee’s employment agreement precluded him from recovering commissions following his termination of employment. Plaintiff worked as a sales representative for HostPro for a period of 2 years. He signed an employment agreement that expressly provided that Plaintiff would be eligible for commission pay “so long as [he] remains employed with the Company as a Sales Representative.”
Continue Reading...Labor Code section 206.5 provides that “an employer shall not require the execution of a release of a claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment of those wages has been made. A release required or executed in violation of the provisions of this section shall be null and void as between the employer and the employee.” The section also provides that requiring such a release could constitute a misdemeanor.
Continue Reading...The United States Supreme Court has issued its ruling in the Ricci, et. al. v. Destefano, et. al. case (referred to by the press as the “reverse” discrimination case that U.S. Supreme Court nominee, Sonia Sotomayor, decided with other Court of Appeal justices). Essentially the case stands for the rule that an employer may not manipulate (adjust for race conscious reasons) the results of a legitimate, facially neutral, and job-related promotional examination to obtain a more diverse workforce absent a showing that there is a strong basis for the employer to believe that if it does not manipulate the results it will be exposed to disparate impact liability (unintentional discrimination liability based on the negative effect an otherwise neutral policy or practice may have on a protected class).
Continue Reading...In the recent case of Gross v. FBL Financial Services, Inc., the United States Supreme Court held that a plaintiff must prove that his/her age was the “but for” cause of the adverse employment action they claim was discriminatory (e.g. demotion). Plaintiff was 54 years old when his employer reassigned him from his position as a claims administration director to a claims project coordinator. Many of his responsibilities in the director position were transferred to one of his subordinates who was in her early 40’s. Although Plaintiff’s compensation was not reduced, he believed that his transfer to the coordinator position was a demotion and filed an age discrimination claim under the federal Age Discrimination in Employment Act (ADEA).
Continue Reading...According to Union proponents, the biggest obstacle to a modern organizing campaign is management delay tactics. In a traditional organizing campaign, union representatives meet with bargaining unit employees (i.e. all the mechanics at a car dealership) and talk with them about union representation. The union then attempts to secure signed authorization cards from the employees. If the union can show that a majority of the employees in the bargaining unit favor union recognition, the employer may voluntarily forego an election and recognize the union. If, however, the employer refuses or the card-check process generates at least 30%, but not majority, employee support, the union may petition the NLRB for a secret ballot election administered by the NLRB. Unions plead for majority card-check rules because they claim that employees suffer at the hands of underhanded management tactics during traditional Board elections. “These delays make it too easy for employers to intimidate and coerce workers, including by dismissing them for organizing. And this in turn diminishes employee interest in unions and thus undercuts the right to collective bargaining they are supposed to enjoy.” However, unions still have the same success rate in traditional elections (approximately 60%) as they did in 1965.
Organized Labor’s pleas were answered when the Employee Free Choice Act (EFCA), which was co-sponsored by then Senator Barack Obama, was introduced. Under the EFCA, unions would no longer have to go through the NLRB traditional election process to gain recognition. Instead, a union must obtain signed authorization cards from a majority of employees in the bargaining unit. Additionally, the EFCA would invoke binding interest arbitration if labor and management cannot agree upon the first contract within nine months. Once in arbitration, a government appointed arbitrator would decide the parties’ obligations in the first contract. Because of the results of the November 2008 national elections, we are likely to see some sort of change in 2009. Barack Obama promised to sign EFCA. Should the EFCA pass, unions estimate that they will be able to organize millions of new workers. Below are some of the more notable features of the EFCA in detail:
Traditional labor law in this country has essentially been a non-issue over the past decade. Today unions represent 12% of all American workers (7.4% in the private sector), down from a high of 35% in 1955. However, thanks to the recent dramatic shifts in Washington, this trend may soon be changing. Labor law in the private sector is governed, in large part, by the National Labor Relations Act (“NLRA”). The NLRA guarantees the right of employees to organize and to bargain collectively with their employers, and to engage in other protected concerted activity with or without a union, or to refrain from all such activity. The National Labor Relations Board (“NLRB”) is is an independent federal agency created by Congress to administer the NLRA. The NLRB, which normally has five sitting members, currently has only two current members. The Democrats have refused to confirm any of President Bush’s appointees, hoping that a Democrat presidential victory will lead to more favorable appointments. As such, President-elect Obama, who is openly pro-labor, will be called upon to appoint three members immediately, and will be able to influence significantly the Board’s agenda and decision making. The new Board is likely to revisit and overturn a number of important rulings. More importantly, the Board will play an important role in interpreting any new legislation that Congress might pass amending the NLRA, including the Employee Free Choice Act.
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