THE EMPLOYMENT LAW GENERALIST

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THE EMPLOYMENT LAW GENERALIST
Navigating a panoply of laws including ERISA,
NLRA, and OSHA
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WHY ARE WE HERE?
To avoid getting caught in a big storm with a
small boat
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WHO IS A GENERALIST?
A jack of all trades, master of none?
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WHO IS A GENERALIST?
A person with broad, general knowledge beyond the
superficial who can apply ideas from diverse
fields.
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ERISA ERRORS
Employment Retirement Income Security Act
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ERISA ERRORS
Failing to .

• recognize creation of an informal benefit
• enforce and/or apply benefit plan definitions
• understand COBRAs qualifying events
• use ERISAs limited remedies to your advantage

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NLRA MISCONCEPTIONS / MISTAKES
National Labor Relations Act
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NLRA MISCONCEPTIONS / MISTAKES

• applies to non-union employees
• cannot discriminate against union proponents
• protected / concerted activity
• confidentiality of wages
• Weingarten does not apply to non- union
  employers at this time
• rules today ? rules tomorrow

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OSHA REMINDERS
Occupational Safety and Health Act
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OSHA REMINDERS

• applies to almost all private employers
• exception employers otherwise regulated, e.g.
  MSHA
• record keeping exemptions
• reporting deaths / serious injuries
• 8 hours to report death / hospitalization of
  3 employees
• posting requirements

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FLSA MISCONCEPTIONS
Fair Labor Standards Act
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FLSA MISCONCEPTIONS

• working off-the-clock
• destroying exempt status
• full day absence
• jury duty
• major disciplinary issue
• docking / equipment
• salary ? exempt
• job title is irrelevant

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FLSA PAY MISTAKES

• no comp time in private sector
• averaging pay during bi-weekly pay cycle
• failure to account for bonuses commissions
  in calculating overtime pay
• travel pay rules
• break rules
• working during meal time
• clocking in / clocking out

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ADA INQUIRIES
Americans with Disabilities Act
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ADA INQUIRIES

• pre-hire / post-offer medical inquires
• must give medical exam / inquires to all persons
  in same job category, regardless of disability
• post-hire medical inquires
• very limited
• direct threat analysis

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WELLNESS PROGRAMS
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WELLNESS PROGRAMS

• impacted by ADA, ERISA HIPAA
• the key is the design
• ADA rules apply
• think accommodation
• allows employees to voluntarily participate in
  programs that are designed to identify medical
  conditions which might affect employment

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WELLNESS PROGRAMS - ERISA

• prohibits discrimination with plan eligibility or
  premiums
• prohibited design factors include
• (A) Health status (B) Medical condition
  (including both physical and mental illnesses)
  (C) Claims experience (D) Receipt of health
  care (E) Medical history (F) Genetic
  information (G) Evidence of insurability
  (including conditions arising out of acts of
  domestic violence) and (H) Disability

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WELLNESS PROGRAMS - HIPPA

• requirements laid out at 29 C.F.R. 2590.702(f)
• five tests including
• premium reduction 20 maximum
• design to promote health or fitness
• minimum reward once a year
• reasonable alternative to achieve reward if due
  to medical condition or inadvisability
• writing that advises participant of alternative
  standard

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WELLNESS PROGRAMS - DOL

• reimburses all / part of fitness center
  membership cost
• diagnostic testing program rewards participation,
  not outcome
• encourages preventive care by waiving co-payment
  / deductible costs, e.g. prenatal care or
  well-baby visits

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WELLNESS PROGRAMS - OTHER

• reimburses costs of smoking cessation program
  regardless of success
• rewards employees for attending a monthly health
  education seminar

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EPPA
Employee Polygraph Protection Act
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EPPA

• employers still dont know it is around
• fortunately employees dont either
• very specific requirements set up employer up for
  litigation
• dont recommend using employee polygraph except
  as a tool of last resort

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FCRA
Fair Credit Reporting Act
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FCRA

• covers consumer reports, including background
  checks by third parties
• direct contact with reporting agency not covered
• requires written permission after disclosure
• pre-adverse action letter
• must include the report and notice of rights
• adverse action letter
• must include name of reporting agency, notice of
  right to receive free copy of report

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FACTA
Fair and Accurate Credit Transaction Act
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FACTA

• effective May 1, 2009
• designed to prevent / mitigate identity theft
• if employer obtains background checks covered by
  FCRA, then subject to Red Flag Rules
• requires design and implementation of program

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FACTA RED FLAG PROGRAMS

• identify patterns / practices signaling possible
  identity theft
• monitor for red flags
• proper response to detected red flags
• periodic updates to the program

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WIRETAP LAWS
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WIRETAP LAWS

• governs electronic communications
• includes telephonic and computer communications
• every employer should have a policy
• disclosing monitoring
• indicating the employee does not have a privacy
  interest in any communication
• informing that usage constitutes consent

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IRS LEAVE SHARING
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IRS LEAVE SHARING

• the IRS is going to get its share
• with current spending, it needs all it can get
• unless specific design requirements are met,
  transfer of leave from one employee will result
  in taxation to both employees
• medical emergency leave plan
• major disaster leave plan

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GARNISHMENTS
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GARNISHMENTS

• Consumer Credit Protection Act
• prohibits termination of employee for the
  garnishment of any one debt
• sets maximum earning capable of garinishment
• specific rules for child support / alimony
  deductions

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CHILD SUPPORT
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CHILD SUPPORT

• required under federal law but is a matter of
  state law
• Uniform Interstate Family Support Act
• out-of-state child support orders enforced
• employer can be held liable for the amount which
  should have been deducted if it fails to do so

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STATE WAGE PAYMENT ACTS
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STATE WAGE PAYMENT ACTS

• unless you are from Alabama

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QUESTIONS?
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OKAY FOLKS, ITS A WRAP!