D.C. Circuit Provides Additional Support For Specialty Healthcare, Union-Friendly Micro-Units

The U.S. Court of Appeals for the D.C. Circuit has sided with the National Labor Relations Board in affirming the union-friendly practice of “micro-unit” organizing.  The D.C. Circuit’s opinion issued in Rhino v. NLRB is unwelcome news for employers who were hoping the federal appellate court would reject the organizing practice made possible in 2011 when the Board issued its controversial Specialty Healthcare decision.  Continue reading

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New OregonSaves Retirement Program Impacts Employers with Oregon Employees

On July 1, 2017, OregonSaves Retirement Program (“OregonSaves”) went into effect. OregonsSaves is sponsored by the State of Oregon, and is a state-run automatic Roth Individual Retirement Account (“IRA”) for private-sector employees.

OregonSaves will operate such that employers who do not sponsor a qualified retirement plan will be required to automatically enroll employees into the OregonSaves program, and employees will be required to contribute 5% of their compensation to a Roth IRA account. However, employees will be able to opt-out, or choose a different savings rate. After the employer completes the initial employee registration to set up its employees’ Roth IRA accounts, its ongoing obligations are limited to providing OregonSaves update information to its employees, and to make ongoing payroll deductions. Employers are not required to make contributions under OregonSaves. Continue reading

IRS Retirement Plan Guidance Simplifies Pre-Approved Plans and Provides Roadmap for Individually Designed Plan Conversion

In Revenue Procedure 2017-41, the IRS makes significant changes to the procedures that it will use in reviewing and approving “pre-approved” retirement plans.  The revenue procedure applies to almost all types qualified retirement plan, including 401(k) plans, ESOPs, profit sharing plans, pension and cash balance plans.  Although this revenue procedure does not apply to tax-sheltered annuity [Section 403(b)] plans, the IRS, in Revenue Procedure 2013-22 separately established a pre-approval program for Section 403(b) plans.  By liberalizing the types of plans and the design options that will it will consider as pre-approved, the IRS is encouraging adopters of individually designed plans to consider the adoption of a pre-approved plan in the future. Continue reading

Medical Marijuana User’s Disability Discrimination Claim Survives Employer’s Motion to Dismiss in Massachusetts

By: Shannon Byrne and Pete Kirsanow

In a decision that is the first of its kind, the Supreme Judicial Court of Massachusetts reversed the dismissal of a state law disability discrimination claim arising from an employee’s request for a reasonable accommodation in the form of a waiver of the employer’s drug policy.  (Barbuto v. Advantage Sales & Mktg., LLC, Mass. No. SJC-12226, 2017 Mass LEXIS 504 (July 17, 2017)).  This decision is the first time a court has held that state medical marijuana laws protect employees who use medical marijuana as a treatment for a disability, despite the requested accommodation being illegal under federal law. Here, the complaint alleged that the employee’s Crohn’s disease resulted in her inability to maintain a healthy weight without the use of medical marijuana.  The employee was terminated for failing a drug test even though she told the employer of her medical marijuana use.  In response to the resulting lawsuit, the employer moved to dismiss by arguing the employee failed to state a claim of handicap discrimination for two reasons: (1) she could not be a “qualified handicapped person” because the accommodation she sought, use of medical marijuana, must be per se unreasonable because it is illegal under federal law; and (2) even if she could be a “qualified handicapped person,” she was terminated for failing a drug test that all employees must pass, not because she was disabled.  Continue reading

As Supreme Court Declines Opportunity to Review Closely Watched Union-Friendly Decision, Micro-Units Remain a Threat to Employers—For Now.

Representing the latest in a series of significant labor law developments in an already busy month of June, the United States Supreme Court declined to review the Fifth Circuit’s controversial, pro-union decision in Macy’s v. NLRB this Monday.   The high court’s decision not to weigh in on the closely-watched case stands as a decidedly  unwelcome development for employers, as Supreme Court review would have presented an opportunity to overturn the National Labor Relation Board’s (“NLRB” or “Board”) now-infamous 2011 Specialty Healthcare decision, which approved union organizing of so-called “micro-units.” Continue reading

DOJ Now Supports Enforcement of Employment Arbitration Clause

The U.S. Justice Department has abruptly reversed course in a U.S. Supreme Court case concerning an employment agreement that restricts employees from participating in class and collective lawsuits, arguing that a mandatory arbitration clause in the agreement does not deprive employees of federally protected rights. Continue reading

June Kicks Off with a Flurry of Labor and Employment Law Developments and Activity

DOL Actions Undercut Obama Administration on Joint Employers and Independent Contractors

In the past week, the U.S. Department of Labor (“DOL”) under new Labor Secretary Alex Acosta has moved to dismantle a series of the Obama Administration’s rules and guidance regarding employment regulation. Continue reading

DOL Takes Action to Rescind the Persuader Rule

In March 2016, the Department of Labor (“DOL”) published a revised “Persuader Rule” requiring attorneys involved in union organizational campaigns to file broad public financial disclosures about their own and their law firm’s compensation related to these efforts. Traditionally, persuader activity had to be publically reported only if an attorney communicated directly with a client’s employees regarding union activity. The revision expanded these public reporting requirements to include any advice that “indirectly persuades” a client’s employees regarding union organizing and collective bargaining, even if the persuader had no direct contact with employees. The revisions were aimed at, among other things, discouraging law firms from being involved in organizational campaigns to avoid such disclosures. The revisions, however, also infringed on the attorney-client privilege. Continue reading