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Mar 2014
13
March 13, 2014

News Briefs


NLRB Revives Expedited Election Rules

On February 5, 2014, the National Labor Relations Board voted to re-issue proposed rules that would substantially revise its representation election procedures. The NLRB previously promulgated similar rules in 2011, but those were invalidated by a federal court on procedural grounds. Under the re-proposed rules, many of the current pre-election steps would be deferred until after an election (if they are even necessary at that point), and many time-limits will be shortened. Some observers suggest that the time between the filing of a petition and an election could be reduced from around 38 days to 25 days. With Democrats controlling the NRLB, passage of the new rules is a virtual certainty. Employers are therefore advised to: Focus on creating a culture of engagement and positive employee relations to help avoid union organizing activity; train supervisors and managers on how to recognize and lawfully respond to organizing activity; and have a plan in place to deal with an organizing effort if one occurs.

Michigan Increases Workers’ Compensation Maximum Weekly Wage Loss Benefit

Michigan’s maximum workers’ compensation weekly wage loss benefit for 2014 is $805, up from the 2013 maximum rate of $798. The statutorily established cap is 90 percent of the state average weekly wage which, according to the Bureau of Labor Market Information & Strategic Initiatives, totals $893.44 for 2014. The modest $7 per week increase this year follows a jump of $24 per week from 2012 to 2013.

Filing Period for H-1B Petitions for Foreign Workers Begins April 1

Employers wishing to obtain an H-1B visa for a highly skilled foreign worker must be ready to file an H-1B petition on April 1 with the U.S. Citizenship and Immigration Service. Last year, for the first year since 2008, high demand during the first week of the filing period resulted in a lottery for the limited number of H-Bs available. The H-1B program provides U.S. work authorization for highly skilled professionals in a variety of fields, including engineering, information technology, the sciences, business and education. The April H-1B filing season is particularly important to employers who currently employ a foreign national under the Optional Practical Training program, which provides short-term work authorization for foreign nationals upon their graduation from U.S. universities. An H-1B visa is often the only avenue available for an employer to continue to employ a recent graduate after the limited Optional Practical Training time expires.

Pay Employees to Sleep? Find Out When It’s Appropriate

Want to know when to pay your employees for sleeping? Ever wonder if you must pay your employees when they are in training? Do you have to give your employees breaks? Get the answers to these and other Fair Labor Standards Act questions in Steve Palazzolo’s ongoing FLSA series at http://zomichiganemploymentlaw.wnj.com/.

Self-audit Your Company’s Retirement Plans

The IRS website includes many resources to assist employers in performing self-audits of retirement plans. Best practices for retirement plan governance and fiduciary protection include regular internal audits of your retirement plans. Finding and correcting problems early also minimizes potential correction costs and audit risk.

Court Issues Ruling in Pregnancy Discrimination Case

The federal court with jurisdiction over Michigan employers recently reaffirmed that refusing to allow a pregnant employee to work due to concerns that the work will jeopardize the health of the employee’s unborn child is unlawful pregnancy discrimination. The U.S. Court of Appeals for the Sixth Circuit explained that if a pregnant employee is able to work, with or without restrictions, employers may not force her to take leave. Separately, the court also held that the employer could not be sued under the Family and Medical Leave Act for requiring the pregnant employee to use her medical leave during the pregnancy, even though the employee intended to use the leave to take care of her newborn because the employee quit before requesting post-partum leave. An employee cannot validly claim that an employer interfered with the employee’s FMLA rights by requiring the employee to take leave unless the use of leave results in the employer denying leave to the employee in the future.

AOL’s CEO Gets a Lesson in Communications 101

AOL recently revised its matching retirement plan contribution to require that employees be employed at the end of the year to receive the matching contribution – rather than making the match each payroll period. That was perfectly legal. Unfortunately, AOL’s CEO blamed rising health care costs (specifically two distressed pregnancies) as the reason for the change. After being labelled a villain by the media and receiving massive backlash from employees, AOL reversed its position and resumed making the matching contribution each payroll period. Changing benefits or employment policies requires legal compliance, but employee relations and communications are critical to ensuring the changes are successfully implemented.

Employer Responsibility Regulations Provide Temporary Delay for Mid-Sized Employers 

Employers with 50-99 full-time employees will not have to comply with the employer responsibility requirements until plan years beginning in 2016. An employer may not purposefully reduce the size of its workforce in order to qualify for this transitional relief, must continue to provide health benefits already in place as of February 9, 2014, and must certify that it meets these requirements on a form still under development. If your company qualifies for this delay, your plan will have to offer coverage to at least 95 percent of your company’s full-time workers (those who average 30 hours or more of service per week) beginning on the first day of the plan year that starts on or after January 1, 2016.

Limited Relief for Large Employers under Employer Responsibility Regulations

If your company employs 100 or more full-time equivalent workers, you remain subject to the employer responsibility requirements starting January 1, 2015, but you do get some limited relief. For plan years starting in 2015, your company will not be subject to the 4980H(a) penalty for failure to offer coverage as long as your health plan offers coverage to at least 70 percent of your full-time workers. But keep in mind that each full-time employee who is not offered coverage will be eligible for subsidized coverage through the Exchange — and your company will have to pay a $3,000 penalty for each such worker who actually qualifies for subsidized coverage.

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