President Obama signed H.R. 4851 into law on April 15, 2010. The new law amends the American Recovery and Reinvestment Act of 2009 (“ARRA”) yet again to extend the 65% COBRA premium assistance through May 31, 2010.
Continue Reading...On March 2, 2010, President Obama signed the Temporary Extension Act of 2010 (H.R. 4691) that, among other things, extends the eligibility period for the COBRA subsidy provided in the American Recovery and Reinvestment Act (ARRA) for an additional 30 days.
Continue Reading...Sacramento County’s Department of Human Assistance (DHA) is implementing a new subsidized employment program called the “Job Opportunity Program.” The Job Opportunity Program is a new job stimulus program funded by the American Recovery and Reinvestment Act (ARRA) of 2009 and authorized under the federal TANF Emergency Contingency Fund (ECF). Through this funding the County will reimburse participating employers 80% of the employer’s subsidized employment program, which could include 100% of the employee’s wages for up to six months. Participants are men and women who have marketable skills but are currently unemployed or underemployed. Participants placed with an employer will closely match the established minimum requirements.
Continue Reading...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...The Genetic Information Nondiscrimination Act (GINA) takes effect November 21, 2009. Among other things, GINA requires that employers post a notice informing employees that the employer does not discriminate on the basis of genetic information.
Continue Reading...The FTC issued a news release on October 30, 2009 advising that at the request of Members of Congress, the Federal Trade Commission is delaying enforcement of the “Red Flags” Rule until June 1, 2010, for financial institutions and creditors subject to enforcement by the FTC.
The Rule was promulgated under the Fair and Accurate Credit Transactions Act, in which Congress directed the Commission and other agencies to develop regulations requiring “creditors” and “financial institutions” to address the risk of identity theft. The resulting Red Flags Rule requires all such entities that have “covered accounts” to develop and implement written identity theft prevention programs to help identify, detect, and respond to patterns, practices, or specific activities – known as “red flags” – that could indicate identity theft.
A copy of the news release is available at http://www.ftc.gov/opa/2009/10/redflags.shtm
by Dale Campbell and Emily Hirsekorn
State rules concerning electronic discovery just got clearer. On June 29, 2009, Governor Schwarzenegger signed the Electronic Discovery Act (the “Act”), which became effective immediately. Just last year, the Governor vetoed an almost identical version of the Act in order to focus more attention on the budget crisis. Of course, we see how well that plan worked. The Act is modeled after the 2006 amendments to the Federal Rules of Civil Procedure. The new rules govern the discovery procedure for electronically stored information (“ESI”) in California civil actions.
Continue Reading...On January 6, 2009 the Department of Labor (DOL) issued Opinion Letter FMLA2009-1-A to respond to a request for clarification regarding employee notification procedures under the Family and Medical Leave Act (FMLA) as discussed in the DOL’s previous Wage and Hour Opinion Letter FMLA-101 (January 15, 1999). The DOL indicated that it was brought to its attention that some employers had interpreted Opinion Letter FMLA-101 to stand for the proposition that under the FMLA, employers were not permitted to apply their internal call-in policies or discipline employees under their no call/no show policies, provided the employees provide notice within two (2) business days that the leave was FMLA-qualifying, regardless of whether the employee could have practicably provided notice sooner.
Continue Reading...The Federal Trade Commission (FTC) has just announced that it will delay enforcement of the identity theft "Red Flags Rule" (Rule) until August 1, 2009. The Rule was discussed previously in Weintraub Genshlea Chediak’s Law Alert Article: Deadline to Have Identity Theft Prevention program Prepared and Implemented is May 1, dated April 15, 2009.
Continue Reading...Pursuant to the Federal Trade Commission’s (“FTC”) Identity Theft Prevention Red Flags Rule (16 .C.F.R. § 681.2) which went into effect on January 1, 2008, all financial institutions and creditors must prepare and implement a written “Red Flags” Program by May 1, 2009. The determination of whether a business or organization is covered by the Red Flags Rule is not based on a particular industry or sector, but rather on whether the activities of the business or organization fall within the relevant definitions.
Continue Reading...The IRS has issued Notice 2009-27 which provides a thorough interpretation of Section 2001 of the American Recovery and Reinvestment Act of 2009 (“ARRA”) relating to premium assistance for COBRA continuation coverage.
Continue Reading...On March 19, 2009, the DOL released the following model notices in connection with the COBRA subsidy outlined in the American Recovery and Reinvestment Act of 2009 (“ARRA”):
1. General Notice (Full Version). This General Notice is to be sent to all qualified beneficiaries who experienced a qualifying event at any time from September 1, 2008 through December 31, 2009, regardless of the type of qualifying event. This full version includes information on the COBRA subsidy (or premium reduction) as well as information required in a standard COBRA election form.
Continue Reading...On February 17, 2009 President Obama signed the American Recovery and Reinvestment Act of 2009 (“ARRA” or “Recovery Act”) which contains a number of entitlements and obligations affecting the workplace. In order to comply with their new obligations and understand the benefits available to employees or former employees, employers should familiarize themselves with the ARRA promptly. Below is a summary of some of the various employment-related provisions from the ARRA
1. COBRA Subsidy.
a. What is it?
The ARRA provides for a 65% COBRA premium subsidy for certain “assistance eligible individuals.” An “assistance eligible individual” is a COBRA “qualified beneficiary” who meets all of the following requirements:
a. Is eligible for COBRA continuation coverage at any time during the period between September 1, 2008 and December 31, 2009;
b. Elects COBRA coverage (when first offered or during the additional election period provided for under the ARRA); and
c. Has a qualifying event for COBRA coverage that is the employee’s involuntary termination during the period of September 1, 2008 and December 31, 2009.
Continue Reading...In his first significant act as President in the labor and employment arena, President Obama effectively overturned the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. by signing the Lilly Ledbetter Fair Pay Act ("Ledbetter Act") into law this Thursday. The main thrust of the Ledbetter Act is that it “resets” the statute of limitations for wage claims based on discrimination each time an employee receives a paycheck affected by the alleged discriminatory practice.
Background
Lilly Ledbetter worked for her employer, Goodyear, for 19 years. She accused Goodyear of gender discrimination under Title VII on the grounds that, throughout her almost 20 career, she was consistently paid less than male employees who were similarly situated. The Supreme Court found that Ledbetter’s Title VII action was time-barred; holding that the statute of limitations starts running under Title VII when the employer makes the original discriminatory pay decision. The Court rejected Ledbetter’s argument that her claim was “refreshed” each time she received a paycheck affected by Goodyear’s discrimination.
The Ledbetter Act
The Ledbetter Act “resets” the statute of limitations for wage claims based on discrimination (in any form recognized by federal law) each time an employee receives a paycheck affected by the alleged discriminatory practice. Moreover, the Act defines “unlawful employment practices” broadly to encompass any practice that affects an employee’s compensation.
Bottom Line
Given the speed of which this new administration was able to push through this fairly substantial legislation, employers should anticipate continued robust efforts from Washington to further bolster employee protections in the coming months.
What Steps Should Employers Take?
While it will likely take some time for the courts to interpret the new law and provide guidance for employers to take steps to avoid litigation, there are a few initial steps employers should consider taking now:
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:
Effective January 1, 2009, Senate Bill 940 creates new wage and hour requirements for temporary service employers. Along with adding section 210.3 to the California Labor Code, SB 940 also amends sections 203, 203.1, 204, 210, 215, 220, and 2699.5 of the Labor Code. Existing law requires that employers pay their employees twice during each calendar month. SB 940 creates a special set of requirements for temporary service employers with employees' working week-to-week or day-to-day. Employees on week-to-week assignments are now required to be paid weekly, while employees working day-to-day must be paid daily. Further, employees assigned to clients engaged in a trade dispute must be paid daily. These new requirements do not apply to employees who are assigned to a client for more than 90 consecutive calendar days.
Because existing law imposes civil and criminal penalties for wage violations, SB 940 also creates state-mandated local programs to enforce these existing civil and criminal penalties for violations of the new temporary employee wage requirements.
California passed SB 28 which makes it illegal to read or send text messages while driving in California. The law goes into affect on January 1, 2009. The bill imposes a $20 fine for a first offense and $50 for repeat offenders using any electronic devices to read or send messages. California motorists using cell phones have been required to use hands-free devices since July 2008 when speaking on the phone, and drivers under age 18 can't use any electronic devices. Employers should conform their workplace policies accordingly.
AB 10 was passed and clarifies that computer professionals who meet the computer professional exemption requirements outlined in Labor Code section 515.5, are exempt if they are paid no less than $36 per hour if paid on an hourly basis, and if no less than $75,000 per year for full-time employment if paid on a salary basis. Such salary must be paid at least once a month at a monthly rate of no less than $6,250.
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