As college basketball makes it run through March and April in search of champions, (yes, there are tournaments for both men's and women's basketball), the employment world continues to provide madness to both employers and employees,as well as state and federal governments. Some examples of March Madness in the employment world:
Alabama Constitutional Amendment re Right to Work. On March 17, the Alabama legislature officially finalized Act # 2016-86CA. This Act seeks to amend Alabama's Constitution, which is already the longest in the country, by submitting to voters the following Constitutional Amendment:
"Proposing an amendment to the Constitution of Alabama of 1901, to declare that it is the publicpolicy of Alabama that the right of persons to work may not be denied or abridged on account of membership or nonmembership in a labor union or labor organization; to prohibit an agreement to deny the right to work, or place conditions on prospective employment, on account of membership or nonmembership in a labor union or labor organization; to prohibit an employer from requiring its employees to abstain from union membership as a condition of employment; and to provide that an employer may not require a person, as a condition of employment or continuation of employment, to pay dues, fees, or other charges of any kind to any labor union or labor organization
"Proposed by Act ____"
This description shall be followed by the following language:
"Yes ( ) No ( )"
Alabama is already a “right to work” state, and I anticipate that this Constitutional Amendment will pass when put to a vote.
- Final Overtime Exemption Rule is almost here. In mid-March, the Department of Labor submitted its overtime rule to the White House Office of Management and Budget for review. I blogged about this change last year, and you can read about it here. Based on its normal review time, the final rule could be published as early as April, and probably no later than May. It would become effective within 60 days of publication in the Federal Register, as early as mid-July. Service industries, such as restaurants, are expected to be severely impacted by this new rule. Now is the time for employers who are impacted by this change to begin preparing to comply when it becomes effective. It should be noted that Republican members of Congress have introduced legislation to block the Rule. Even if passed, the legislation is sure to be vetoed by President Obama.
- When an overtime loss is actually a win. In California, a class of Taco Bell employees, numbering over 130,000, may have won their conference, but it appears as if they got booted out of the tournament in the first round. The class prevailed on their claims that Taco Bell did not comply with California's meal and rest period laws. The class was awarded almost $500,000. Although I am not that good at math, a quick calculation reveals that the average employee would receive less than $4.00 as a result of the “victory”. This is actually one of those rare cases where it may have been more economical to try the case than to settle. However, that does not factor in the adverse publicity from the judgment rendered against Taco Bell.
- FMLA. In another one of those SMH moments, an employee, who was an activity director for a central Florida nursing home, was on FMLA leave as the result of a shoulder injury. While on leave, he posted pictures on his Facebook page showing him going to a local theme park, vacationing in St. Martin, and swimming in the ocean. Upon learning of these posts, the employer terminated the employee. The court rejected the plaintiff's best shot, and upheld the termination as lawful, finding that the termination was not pretextual based on the employer's alleged perception of FMLA abuse, and his retaliation claim was not successful.
- Chipotle. Not only has Chipotle taken a beating because of a number of food safety issues, but they have been unable to score in the social media arena. A server in one of its Philadelphia restaurants was fired last year after criticizing Chipotle for paying low wages. An NLRB Administrative Judge recently ruled that the server is entitled to back pay as well as reinstatement. He is not going back to work at Chipotle, having found a union job working at the Philadelphia airport. The Philadelphia Inquirer quoted him as saying that he would take food vouchers for a portion of the damages the ALJ awarded: “You cannot deny that their food is delicious,…but their labor policies were atrocious.”
- Budget deficit may help employers. The regional offices of the NLRB received an Operations Memorandum from the Office of the General Counsel, entitled “Casehandling Cost Saving Instructions for Remainder of Fiscal Year 2016” directing the offices to implement cost-saving measures as a result of a budget deficit facing the NLRB. The cost saving measures include early settlement of unfair labor practice and election disputes, streamlining the litigation process, reducing litigation costs and early settlements if possible, and reducing office expenses such as copying, use of regular mail and disconnecting unnecessary phone lines.
A follow up to a previous Sirote blog entry here, the extended deadlines for 2015 Affordable Care Act (“ACA”) Forms 1095-C are on the near horizon. Applicable Large Employers must furnish to full time employees 2015 Forms 1095-C no later than March 31, 2016.
Forms 1095-B also must be provided by insurers. Note that employers who self-insure are responsible to provide Forms 1095-B. A summary table of the relevant deadlines is below.
Click here to view the table.
Also, in December 2014 Sirote published a more in-depth article on ACA reporting requirements available here.
Practice Pointers. Unlike March madness which has a beginning and an end, the madness in the employment world is never ending. It is especially insane during an election year, with a lame duck democratic President and a republican controlled Congress. Add to the mix the empty seat on the Supreme Court, and there will be many upsets through the end of the year. Federal agencies will continue to push their agendas as long and as far as they can, with employers crying foul. Employees cry foul when their agenda is not victorious, such as Birmingham's minimum wage law that was invalidated by the legislature. The courts have, on a regular basis, imposed time outs, and called technical fouls on the agencies. As we head to the final buzzer (at least for 2016), which will go off on November 8, there will be many game changing moments in the employment world. Buckle up and enjoy the ride, if you can.