Category: Legal/Alerts and Updates
The Worklaw® Network has put together excellent summaries of the recent US Supreme Court decision on same sex marriages and regarding supervisors and retaliation. These are must read articles. A few of my quick observations:
- These were all tightly contested 5-4 cases with Chief Justice Kennedy being the swing vote.
- The United States v. Windsor same sex marriage case simply means there must be equal benefits under federal law and some state laws. So if a state allows same sex marriage then they must get equal benefits. This will also affect the FMLA definition of what is a spouse.
- In Vance v. Ball State the court ruled that an employee is a supervisor in Title VII harassment cases only if empowered by the employer to take a “tangible” employment action against the plaintiff (hiring, firing, etc.). The mere ability to direct the plaintiff’s tasks, and nothing more, does not make them a supervisor. The court drew a very narrow definition of a supervisor, which reduced the breadth of direct liability for the acts of these people. For example the California definition of supervisor is much broader under its laws. None of this matters of course until and unless somebody sues you. I will note that this is a “low level” discrimination case that was originally filed in 2006! I am sure it costs hundreds of thousands on both sides to get to this point, not including all the public resources utilized. How ridiculous. One reason why the conservative Supreme Court is looking to clamp down these cases. Note that they also threw the EEOC regulations/definitions under the bus.
- Lastly, in University of Texas v. Nassar, the court did some more narrowing saying that retaliation cases require a “but for” standard to show discrimination. What this means to you is this: In the past if somebody filed a complaint they would get a free pass on discipline for a few months so as to not trigger a retaliation claim. Now you don’t have to do that anymore, at least under Title VII. If you can prove that the action was in part motivated due to performance, then the employer wins. As in the Vance case, the court pointed to perhaps poor legislative drafting, not some moral imperative on their part. Of course the vigorous defense felt this undermined Title VII protections which it did.
- Looking at how deadlocked Congress has been you can expect these decision to avoid legislative cleanup for at least some time. You must also remember that in many states, like California, these decisions have no effect as broader state laws already apply.
The Fair Employment and Housing Commission has been cleaning up its regulations and laws in the area of pregnancy, disability and family and medical leave. They just released the final regs for pregnancy disability that you can get here. It’s actually a very clear document that you probably should save or take the time to read. Thankfully, no big surprises. Remember, this leave applies to any company with 5 or more employees. Updated policies are posted in the California Policies area of the Personnel Forms on HR That Works.
They are working on a final doc for disability accommodation regs…which does hold a few surprises. We’ll get that to you too once finalized.
The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.
Most private sector employers will be required to post the 11-by-17-inch notice on the new implementation date of April 30. The notice is available at no cost from the NLRB through its website, www.nlrb.gov, which has additional information on posting requirements and NLRB jurisdiction.
California just passed legislation today which makes anyone other than a lawyer who “advises” employers to hire someone as an Independent Contractor jointly and severably liable for any mis-classification. And there’s more. Here’s the bill itself: http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0451-0500/sb_459_bill_20110912_enrolled.pdf
- Essentially, SB 495 makes it unlawful to willfully misclassify an individual as an independent contractor. If found guilty a company would have civil penalties of no less than $5,000 and no more than $10,000 per occurrence. If found guilty of repeated violations the result could be as much as $25,000 for each violation – willful is defined as with voluntary intent *( a very broad standard).
- The company must maintain records by completing a document developed by the EDD for each independent contractor retained.
- A notice indicating the individual will be engaged as an independent contractor
- What EDD factors were included to determine the individual is an employee or an independent contractor
- A statement explaining the impact the independent contractor status has on tax obligations and eligibility for labor and employment protections
- Notice to the individual that they can seek advice from EDD or the Labor Commissioner regarding whether they were properly classified
- Provides that any person who knowingly advises an employer to treat an individual as an independent contractor, to avoid employee status, shall be jointly and severably liable if the individual is found not to be an Independent Contractor. Of course, except for the lawyers.
No surprise, many entrepreneurs are livid about bills like this. As one entrepreneur stated:
“As a small business owner, if this passes I don’t see myself hiring any more contract programmers in state. It would be too risky. $25,000 fine and a required ‘Scarlet Letter’ on my web site? No thank you. It’s bills like this that force jobs to go overseas”
In contrast to the employer viewpoint another commentator on the bill said:
“I know an ‘employee’ working as an Independent Contractor, who stepped in a hole at San Quentin State Prison, where she worked as a registry nurse. By the time it was over, she lost half her leg, and ended up with no Worker’s Compensation Insurance, no Disability Insurance, no Unemployment Insurance, no nothing. Employers are totally bastardizing the definition of an Independent Contractor, and paying people who work only for them, 40 hours a week, under their supervision, as Independent Contractors. Great way for an employer to lure an “employee” to work for them, right up until either they’re injured on the job, are laid off, or of course when they get their 1099 at the end of the year, and find out they owe $38,000 of that $90,000 they earned in State and Federal Income Taxes. Great bill. About time. Pass it and enforce it!”
Bottom line is it is now the law. Here is the current info on it which will be updated in light of the new law. http://www.edd.ca.gov/payroll_taxes/independent_contractor_reporting.htm
Congress gave business a break and repealed a portion of the health care reform law last week, when the Senate approved legislation rescinding a controversial tax-reporting requirement. The measure, signed by President Barack Obama on April 14th, repeals a provision that would have required all businesses to file 1099 tax forms for transactions of $600 or more. White House released a statement announcing the Obama had signed the measure, which it said “repeals the expansion in the Affordable Care Act of requirements for businesses to report information to the Internal Revenue Service on payments for goods of $600 or more annually to other businesses and increases the amount of overpayment subject to repayment of premium assistance tax credits for health insurance coverage purchases through the Exchanges established under the Affordable Care Act.”
CHANGES IN THE NEW YORK LABOR LAW – Wage Theft Prevention Act (WTPA) Notice of Rates of Pay and Regular Payday
Effective April 9, 2011, Section 195.1 of the Labor Law requires all New York employers, other than governmental agencies, to give employees at the time of hire (before work is performed) and on or before February 1st of each year, notice of the following:
- the employee’s rate or rates of pay
- the overtime rate of pay, if the employee is subject to overtime regulations
- the basis of wage payment (per hour, per shift, per week, piece rate, commission, etc.)
- any allowances the employer intends to claim as part of the minimum wage including tip, meal, and lodging allowances
- the regular pay day
- the employer’s name and any names under which the employer does business (DBA)
- the physical address of the employer’s main office or principal place of business and, if different, the employer’s mailing address
- the employer’s telephone number
More information, including a FAQ, can be found on the NY State website at http://www.labor.state.ny.us/workerprotection/laborstandards/workprot/lshmpg.shtm.
You can also read a summary of the law by Worklaw® Network member firm Collazo Florentine & Klein llp by going to http://www.cfk-law.com/linkdocs/129.pdf.
Note: This ONLY affects the State of New York.
As the United States Supreme Court’s 2009-2010 term drew to a close, commentators remarked on the evolution of the Roberts Court. Justice Roberts continued to emerge as a key figure this term, as he was a member of the majority 92 percent of the time, more than any other justice. While his majority percentage may suggest to some a willingness to comprise with his more liberal colleagues on certain issues, he also clearly demonstrated firm convictions on important issues such as campaign finance and gun rights, which yielded some the most highly publicized decisions of the term. Indeed, the Court’s ruling in the Citizens United case, which invalidated legislation imposing limits on corporate spending in elections, has led some commentators to conclude that the Roberts Court is ushering in era where business interests will reign supreme.
This view, however, does not accurately characterize the Court’s labor and employment decisions, which demonstrate a far more even split between employer and employee interests….
To read the entire article, please go to http://www.franczek.com/assets/attachments/Supreme%20Court%2009-10%20Review.pdf.
Article courtesy of Worklaw Network firm Franczek Radelet (www.franczek.com).
The IRS has issued form W-11 to use when employing someone under the HIRE Act. To view the form and learn more about the law go to http://www.irs.gov/newsroom/article/0,,id=221036,00.html.
Every month I read dozens of legal and HR newsletters; in large part so you don’t have to! But, if you want to go directly to the source, here’s what I read:
Here you can and should subscribe to the DOL newsletters: https://service.govdelivery.com/service/subscribe.html?code=USDOL_167
JAN Updates: The best source of accommodation info To subscribe, e-mail email@example.com. When subscribing, be sure to include the e-mail address at which you want to receive the newsletter.
California Fair Times from the DFEH- NEW FAIRTIMES is a quarterly electronic newsletter. To change or remove your e-mail address from the NEW FAIRTIMES mailing list, or for more information, e-mail firstname.lastname@example.org
Many of our Worklaw Partners have firm newsletters. Go to www.worklaw.com/alerts.php to view overall alerts and to www.worklaw.com/law_firm.php to see if a firm in your state has a newsletter or alerts page.
ASTD’s Newsletters for Trainers: www.astd.org/content/publications/newsletters_journals/public/
Lastly, you can subscribe to many of SHRM’s Newsletters at www.shrm.org/Pages/default.aspx.