Legislative Update for the Week of November 21, 2011
Recent Changes to Federal Tax Laws Affecting Employers
A variety of recent changes to federal tax laws that will impact employers include repeal of withholding on payments to federal contractors, enhanced tax credits for hiring veterans, and increased federal unemployment tax rates. Read the full post here. (November 22)
House Approves Rule for Vote on Workforce Democracy and Fairness Act
The House of Representatives has set the stage for future debate and vote on the Workforce Democracy and Fairness Act, a bill that would effectively undo the criteria used to determine an appropriate bargaining unit under the Specialty Healthcare decision, and serve as a preemptive strike against the NLRB's proposed changes to representation election procedures. Read the full post here. (November 22)
Image credit: JuDesigns
Major Employment Law Shake-up Unveiled
The UK Government has announced wide-ranging plans for what it claims to be "the most radical reform to the employment law system for decades". The proposals were set out by the Secretary of State for Business, Dr Vince Cable, in a speech to the EEF manufacturers' organization. Some of the measures had been previously floated but others were novel, including:
- amending the UK's whistleblowing legislation so that complaints by employees about a breach of their own employment contract will no longer constitute a protected disclosure;
- seeking views on introducing compensated no-fault dismissals for "micro employers" with fewer than ten employees;
- simplifying and "slimming down" the processes required to carry out a fair dismissal, including potentially working with the conciliation service Acas to change their Code of Practice on Disciplinary and Grievance Procedures;
- consolidating the myriad regulations relating to the national minimum wage; and
- streamlining the current regulatory regime for the recruitment sector.
Legislative Update for the Week of November 14, 2011
NLRB Vote on Portions of Proposed Election Rule Imminent
The National Labor Relations Board has announced that on November 30, 2011, it will vote on a portion of its controversial proposed rule that would dramatically change representation election proceedings. Read the full post here. (November 18)
EEOC Receives a Record Number of Private Sector Discrimination Charges and Secures Highest Amount in Damages in FY 2011
The Equal Employment Opportunity Commission announced the publication of the Fiscal Year (FY) 2011 Performance and Accountability Report, which includes statistics concerning claims the agency received, investigated, and litigated. Read the full post here. (November 18)
Compulsory Dividend Bonus
The law passed on July 28th, 2011 requires all French companies and groups of companies whose holding company is in France, to pay a bonus to employees if they distribute a dividend to their shareholders, which is higher than the average of the dividends of the two previous years. The amount of the bonus is to be negotiated with the unions. If these negotiations are not successful, the employer can unilaterally decide the amount. For 2011, companies had until October 31st, 2011 to come into compliance. The bonus is exempt from social security contributions up to 1200 euros. According to preliminary surveys, the amount proposed by companies is mostly between 150 and 500 euros.
Legislative Update for the Week of November 7, 2011
Senate Bill Would Nullify Specialty Healthcare Decision
The Representation Fairness Restoration Act (S. 1843) would effectively revoke the National Labor Relations Board's recent decision in Specialty Healthcare, and establish criteria for determining an appropriate bargaining unit. Read the full post here. (November 11)
EBSA Creates Web Page to Assist Benefit Plan Participants
The DOL's Employee Benefits Security Administration has launched a Consumer Assistance Web Page to answer questions for retirement and health benefit plan participants and beneficiaries, and enable them to submit electronically any complaints regarding their plans. Read the full post here. (November 11)
Legislative Update for the Week of October 31, 2011
Littler's Tammy McCutchen Examines Department of Labor FLSA Enforcement Issues at Congressional Hearing
During a House Subcommittee on Workforce Protections hearing on the Fair Labor Standards Act, Littler Shareholder Tammy McCutchen outlined how the DOL's shift in regulatory and enforcement tactics have made complying with the FLSA increasingly difficult for employers, and suggested changes. Read the full post here. (November 3)
OSHA Issues Interim Regulations and Request for Comment on Certain Whistleblower Protections Added by Dodd-Frank Act
The Occupational Safety and Health Administration has issued interim final regulations governing its procedures for processing retaliation/whistleblower complaints under the Sarbanes-Oxley Act of 2002 as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Read the full post here. (November 3)
DoD, GSA, and NASA Issue Final Rule Disallowing Federal Contractor Reimbursement for Persuader Activities
The agencies have issued a final rule implementing Executive Order 13494, Economy in Government Contracting, which precludes government contractors from being reimbursed for expenses incurred to influence employees regarding their decisions to form unions or engage in collective bargaining. Read the full post here. (November 2)
DoD, GSA, and NASA Adopt Final Rule on Notification of Employee Rights Under Federal Labor Laws
The agencies have issued a final rule adopting regulations that implement Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws. Read the full post here. (November 1)
Image credit: JuDesigns
Russia: Employee Privacy at the Workplace
Employee surveillance, especially in the context of monitoring employees' electronic communications, is becoming a hot topic in Russia. Many local and global companies operating in Russia are considering their options for protecting company assets while observing privacy rights of employees. This creates a requirement to have an understanding of the employee privacy requirements set out by Russian law. Generally, Russian law does not set out any specific requirements with respect to monitoring employees' e-mails sent from their corporate e-mail address. Nevertheless, the Russian Constitution guarantees to all individuals rights for private life and privacy of correspondence that shall not be infringed by an employer.
Because the law contains no express exception, and courts have not weigned in on the issue, there is a diversity of opinions whether the above described general principle on monitoring employees' private e-mails must apply to monitoring of e-mails kept on the computer of the company. Most common opinions are the following:
- There is an opinion that the general principle must apply to these situations and monitoring employees' private e-mails even if they are sent from the corporate e-mail address may be considered as an infringement of Russian law;
- Another opinion is that the employer can monitor the contents of its computers provided that the employer: (i) properly informed employees that its computers can be used only for business purposes and that use of corporate e-mail for private purposes is prohibited; (ii) properly informed employees that the employer monitors or can monitor employees' e-mails, including private e-mails. "Properly inform" in this context would mean that this information is included either in the employment contract or in the internal rules, and that the employees familiarized themselves with the information, providing written acknowledgment of their receipt and understanding thereof.
Legislative Update for the Week of October 24, 2011
DOL Finalizes Investment Advice Regulations
The Department of Labor's Employee Benefits Security Administration recently issued final investment advice regulations that are intended to make fiduciary investment advice more accessible for Americans who participate in 401(k) plans and/or IRAs. Read the full post here. (October 28)
DOL Issues Its Final Rule on Prohibited Transaction Exemption Procedures
The Department of Labor's Employee Benefits Security Administration issued a final rule governing the process for filing requests for administrative exemptions from the prohibited transaction provisions under the Employee Retirement Income Security Act. Read the full post here. (October 27)
New Littler Blog: Employee Benefits Counsel
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We are pleased to announce a new addition to Littler's blogroll:
Brought to you by Littler's Employee Benefits, ERISA and Benefit Plan Litigation, and Executive Compensation practice groups, this blog covers:
- Legislative and regulatory developments in the employee benefits arena, including the topics of health care reform; plan design and administration; employee benefits litigation; and
- Executive compensation, providing insight and analysis on legal developments that warrant discussion.
During this time of significant governmental change and shifts in the strategy and style of benefits litigation, Littler's depth of experience in employee benefits, litigation, and executive compensation matters gives our attorneys a distinctly broad perspective with which to provide insight and useful analysis of the latest developments. To subscribe to receive email alerts of new blog posts, please enter your email address in the Subscribe box on the right side of the Employee Benefits Counsel blog homepage.
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Immigration Update for the Week of November 14, 2011
United States: President Obama Signs Legislation Allowing Issuance of the APEC Business Travel Card to Eligible U.S. Travelers
President Obama signed the APEC Business Travel Card (ABTC) Act, which will expedite travel in the Asia-Pacific region for qualified American travelers. Read the full post here. (November 17)
Image credit: CDH Design
Survey: 73% of Companies Consider Whistleblowing and Retaliation Claims an Emerging Risk
According to the recent Littler Mendelson Whistleblower Survey (pdf), companies are increasingly concerned about the potential impact of whistleblower claims on their organizations, although the level of concern has not fully peaked as companies are still adapting to the new regulatory environment created by Dodd-Frank:
- 73% of respondents identified whistleblowing and retaliation as an emerging risk area and 96% are either very concerned or moderately concerned about potential whistleblower claims.
- Although a high percentage of respondents (45%) indicated that their company had experienced a whistleblower claim in the last 12-24 months, 67% anticipated whistleblower claims to increase within the next 12-24 months.
- While respondents were undoubtedly concerned about whistleblowing activity and were anticipating an increase in claims, the financial incentives created by Dodd-Frank are relatively new and it is anticipated that the level of concern will rise in the next 12-24 months as companies continue to feel the impact of these changes.
- Respondents also expressed concern that provisions within Dodd-Frank could undermine their compliance programs. Only 12% of respondents indicated this was not a concern, while 51% were concerned and 37% remain unclear on the impact on their current procedures.
Littler surveyed 51 senior legal, compliance and human resources executives at publicly traded or highly regulated companies, the vast majority of which were based in the United States. Of those participating, by Standard and Poor's definitions, 60% were LargeCap companies, 26% were MidCap and 14% were SmallCap.
The survey also found that companies were somewhat confident about their ability to protect against whistleblower claims, but were taking steps to better prepare and train management on compliance with government regulations and proper handling of whistleblower claims:
- The majority of respondents (65%) believed that their companies were only moderately prepared to handle whistleblower claims and 8% were not prepared at all. Furthermore, only 54% were confident that executives in their organizations understand unlawful retaliation concepts and knew not to engage in such conduct, while 32% were not confident and 14% did not know.
- 84% of respondents indicated their companies had taken preventative steps to protect against unlawful retaliation claims. In addition, whistleblower and/or retaliation-related training appeared to be prevalent at the companies surveyed, with 41% conducting training in the next 12 months, 18% planning to do so and 27% considering implementing such training.
- Respondents from LargeCap companies expressed greater concern about whistleblower claims, with 73% anticipating claims will increase within the next 12-24 months (compared to 66% of all respondents). A higher percentage of respondents from LargeCap companies indicated they have taken preventative steps to protect against unlawful retaliation claims (93%) and 59% will be conducting training in the next 12 months.
Photo credit: Lkmorlan
Immigration Update for the Week of November 7, 2011
United States: Effective Date Approaches for Key Provisions of Alabama Immigration Legislation
A recent federal court decision has halted implementation of certain provisions of Alabama's HB 56, but the central requirement that employers use E-Verify remains intact and on schedule. Read the Littler ASAP here. (November 11)
United States: DHS Extends Temporary Protected Status for Hondurans and Nicaraguans
The Department of Homeland Security has announced an extension of Temporary Protected Status for eligible nationals of Honduras and Nicaragua for an additional 18 months, beginning January 6, 2012, and ending July 5, 2013. Read the full post here. (November 10)
Image credit: CDH Design
Work: That's the Name of the Game
To help increase worker productivity, foster innovation, and make work seem less like work, some companies have incorporated gaming into their businesses processes, reports the Chicago Tribune. This "gamification" of the workplace includes virtual badges for completing tasks, unlocking more complex training courses when basic levels are completed, and awarding points for improvements, which are noted on an employee scoreboard. A research firm estimated that 70% of large companies will use gaming techniques for at least one business process by 2014.
Global technology and accounting firms are leading the way to putting the "fun" back into business fundamentals. For example, one company's game challenges employees to increase a virtual city's efficiency, and another incorporates gaming into its Leadership Academy. While no metrics currently exist to gauge the effectiveness of workplace games, a cited study shows employees who used video games while training had better factual learning skills, reached higher skill levels, and were better able to retain information compared to non-interactive learners.
Despite its noted potential in the workplace, at least one communications professor advises that companies should ensure that games do not get out of hand. He reasons that what might be perceived by some employees as healthy competition could create resentment among others.
Photo credit: Artemis Gordon