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Publications | May 23, 2018
3 minute read

HR Focus – News Digest – Spring 2018

    The NLRB has once again reminded employers that nonunion employees are still protected by the NLRA. An advice memo issued by the Associate General Counsel Division of Advice informed Region 7 (the region encompassing Michigan) that it should issue a complaint against a company that fired 18 employees who stayed home on the “Day Without Immigrants” in 2017. Section 7 of the NLRA grants employees—even nonunion employees—the right to engage in “concerted” activities for the purpose of “mutual aid or protection.” According to the memo, the 18 employees who did not come to work in support of the Day Without Immigrants were engaged in a “protected strike” because they sought to improve working conditions they believed had been affected by President Trump’s immigration policy. The General Counsel’s office perceived that the purpose of the strike was to counteract the new immigration policy’s impact on job security, workplace standards and employment opportunities for both documented and undocumented workers. The General Counsel’s office also noted that even if the action was not a strike, the employer had discriminatorily applied its attendance policy in order to justify the termination of the employees for engaging in protected concerted activities. 

      As summer draws near, employers should take proactive steps to protect their employees from heat-related stress or illnesses. As a reminder, employers are required under OSHA’s General Duty Clause to provide their employees a workplace that is “free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” Courts have interpreted this clause to include heat-related hazards such as heat strokes and heat exhaustion. Some general guidelines offered by OSHA to reduce the potential for heat-related illnesses include permitting employees to drink water at liberty, establishing a work regimen that limits exposure to high temperatures and developing a heat stress program that provides training on recognizing early symptoms of heat-related illnesses. In addition, employers should become familiar with OSHA’s recordkeeping requirements concerning heat-related illness.

        The Department of Labor has significantly ramped up its audit activity of retirement plans with missing participants and has taken aggressive positions on how plan fiduciaries should deal with missing participants and beneficiaries. Given this heightened attention, it’s critical that plan fiduciaries establish procedures, or review existing procedures, for locating missing participants. The Department of Labor, Internal Revenue Service and Pension Benefit Guaranty Corporation have each issued guidance on how to locate missing participants, so it’s important to shape your procedures accordingly. If the Department of Labor or any other agency comes knocking, plan fiduciaries should be ready to explain in detail how they’re complying with their fiduciary duties to locate these participants and care for their benefits. Contact any member of Warner’s Employee Benefits group to discuss how you can be prepared to do just that.

          Remember that a dependent care flexible spending account can only reimburse expenses for childcare that has already been provided, even if the employee paid the expense earlier. For example, a dependent care flexible spending account may not reimburse a claim in April for the employee’s payment of a daycare’s bill for care that will be provided in May. Even if the employee pays the daycare’s bill in April, the expense will not be incurred until the care is actually provided, and the dependent care flexible spending account may not reimburse the employee for the expense until childcare services have been provided.