Message from the Chair
It’s all about the resources! One of the main purposes of the ACC is to provide resources to members. For the Employment & Labor Law Committee, that means answering questions in the eGroup and sending out sample forms, policy statements, and similar documents, and it also means stocking the ACC library with such useful documents as well as whitepapers, InfoPAKs, checklists, and presentations. All ACC members have access to the library and its extensive cache of information. This year, the ELLC is undertaking an ambitious project to improve the library of resources – and we can use your help.
Many members have suggested that we should make the resources in the ACC library easier to find and access. The ELLC has formed a Library/Archives Task Force to work with ACC’s administrators and librarians to accomplish this. Our Task Force is led by Alexis Pfeiffer (Sprouts Farmers Markets), Judith Villarreal (CorCap Investments), Meika Slotsema (Alzheimer’s Association), and Jonathan Emro (SABIS Educational Systems). We’re exploring all ways that we can improve your access to the library materials. Specifically, we’re currently working on:
- Reviewing material that is more than five years old to determine whether the information is still valid or needs to be refreshed.
- Re-tagging documents to enhance the ability to search for (and find) them through key-word searches.
- Reviewing the organizational methodology of the library.
- Creating a table of contents by topic that will permit browsing of resources without needing to retrieve documents exclusively via a key-word search.
We need volunteers to help with these efforts, so if you are interested in helping us make the library better, please reach out to me or to our Library/Archives Task Force. And, if you have materials that you would like to contribute to the library, you can send them directly to ACC by attaching them to an email to firstname.lastname@example.org (Erin Berkowitz).
ACC is only as good as we make it. Let’s make the library as good as it can be!
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Our next monthly Employment and Labor Law Committee call is Wednesday, March 7, 2018 at 3:00 PM ET / 8:00 PM GMT.
All members are welcome on the ELLC’s monthly committee calls. Come join us!
To participate on the call: Toll free dial-in: 1-877-647-3411. Code: 2771634930.
Other upcoming events include the mini MBA for in-house counsel program occurring in Boston on February 26-28, 2018, and the ACC Mid-Year Meeting in Denver on April 22-24, 2018. Be sure to visit www.acc.com for more information and to register.
Also, do not forget to register for the upcoming Jackson Lewis Corporate Counsel Conference in Miami, FL on March 14 – 16, 2018. The conference will address significant legislative and regulatory developments in workplace law and provides opportunities for discussion and collaboration on these topics.
Conference details can be found at: https://www.jacksonlewis.com/ccc2018. ELLC members will receive a $200 registration discount using the following registration link: CCC Registration and using the following code: JLACCDiscount on the payment page.
Thank you Jackson Lewis for hosting this highly anticipated conference and offering our membership a discounted rate!
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Recent Presentations and Webcasts
Wednesday February 7, 2018 at 3:00 PM ET/ 8:00 PM GMT/ UTC. Legal Quick Hit: NLRB Decisions: Next Steps for Organizations to Consider
Presented by Jackson Lewis’s Phil Rosen, Principal in the New York office, this Legal Quick Hit focused on the various opportunities this presents for the proactive employer, including reconsidering joint employment issues, reinstituting rescinded handbook policies and reassessing potential bargaining unit configurations under these employer-friendly decisions.
To learn more, check out the presentation slides at:
Wednesday, January 4, 2018 at 3:00 PM ET/ 8:00 PM GMT/UTC. Legal Quick Hit: Employment and Labor Year in Review: Top Topics Looking Back and Ahead.
Presented by Jackson Lewis’s Marlo Johnson Roebuck, Principal in the Detroit and Grand Rapids, Michigan offices, this Legal Quick Hit focused on the most notable labor and employment developments in 2017 and a peek ahead to 2018.
Among the key points of discussion are:
- We can expect sexual harassment to be a focus in 2018. One important takeaway—employees should not treat the workplace as an extension of their social environment. Additionally, seemingly innocuous comments can easily be misconstrued and contribute to an allegation of a hostile work environment.
- The EEOC has requested that companies “reboot” their sexual harassment prevention training. Also, the EEOC updated its sexual harassment guidelines on November 9, 2017.
- Pregnancy discrimination is second only to disability discrimination as the most common charge by the EEOC, and is emphasized in the EEOC’s 2017-21 strategic enforcement plan.
- The DOJ has filed an appeal regarding the proposed overtime rule, in part, to support the DOL’s authority to set salary levels related to this issue. There is consensus that salary levels are low, but there is disagreement as to what those numbers should be.
- The NLRB is expected to be very busy in 2018 with a Republican majority board. Late last year, in the course of two days, three key decisions were repudiated—Hy-Brand Industrial Contractors (joint employer definition), PCC Structural (micro-bargaining units), and The Boeing Corporation (concerted activity). This year, expect a review of class action waivers, inclusion of temporary workers in bargaining units, quickie elections, and protected concerted activity.
- In 2018, there will be a focus in immigration and custom enforcement, particularly, heightened scrutiny of H-1B visas.
- Federal paid sick leave was not rescinded by Trump and we can expect more states adopting these laws. As federal family leave was a campaign promise, we may expect to see some activity from the Trump Administration on this issue in 2018.
To learn more, check out the presentation slides at:
http://webcasts.acc.com/handouts/JL_ACC_Legal_Quick_Hit_January_2018_Roebuck.compressed.pdf and the link is also live on the ELLC committee web page at ACC.com. Questions or comments related to the presentation, can be directed to Marlo Johnson Roebuck at email@example.com or by phone at 248-936-1900.
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This issue’s Member Spotlight is on our fearless leader and ELLC Chair, Mr. Kevin Chapman. Kevin is Associate General Counsel for Dow Jones & Company. Kevin is based out of Princeton, New Jersey and has worked for Dow Jones for over 20 years.
1. What do you like most about practicing employment law in-house?
What I love about being in-house as an employment lawyer is the combination of being able to influence policy, provide training to head off problems, and still have the opportunity to litigate in the administrative forums and arbitration. I feel like I really make a difference at my company and often have the opportunity to make sure that things go right in situations that affect people's lives and not just the financial bottom line.
2. How long have you been in-house and how long have you been a member of ACC?
I have been in-house since 1995. I got involved in my local ACC Chapter in New Jersey shortly thereafter and served as co-chair of the NJ Labor & Employment Committee. I got involved with the national ACC about six years ago when I was invited to be a speaker at the annual meeting and enjoyed the experience so much that I kept coming back!
3. What is your favorite pastime?
Tournament poker and recreational golf, as well as watching baseball.
4. What is your proudest career moment?
When I prevailed in a case before the Second Circuit Court of Appeals in a litigation that I was able to handle in-house and where the court issued a significant ruling in favor of employers regarding a challenge to the validity of separation agreements under the Older Workers Benefits Protection Act. Riddinger v. Dow Jones & Company, 651 F.3d 309 (2011).
5. What is your most interesting or favorite place to travel?
Bermuda. My wife and I honeymooned there and have been back a dozen times since. It's the most beautiful place in the world and it's a great place to be an American tourist.
Thank you, Kevin, for letting us shine the spotlight on you, and thank you for leadership in making our Employment and Labor Law Committee so successful!
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Policy, Absence & Disability and ERISA Reports
1. NLRB Reverses on Browning-Ferris Standard, Limiting Joint-Employer Standard
The NLRB has reversed its 2015 decision which had greatly expanded the Joint-Employer Doctrine, and has reaffirmed its previous, narrower definition. In a 3-2 party line decision, the NLRB ruled that “[i]n all future and pending cases, two or more entities will be deemed joint employers under the National Labor Relations Act (NLRA) if there is proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine. Accordingly, under the pre–Browning Ferris standard restored today, proof of indirect control, contractually-reserved control that has never been exercised, or control that is limited and routine will not be sufficient to establish a joint-employer relationship.”
The Browning-Ferris Joint-Employer Doctrine was of concern to companies operating a franchise business model, because under this previous definition, the employees of a franchisee could in theory engage in labor organizing activities with the franchisor’s employees. The Policy sub-committee expects this ruling to remain in place until the NLRB has a Democratic majority, therefore companies may evaluate their joint-employer risks under the relaxed Joint-Employer standard for at least the next 4 years.
For More Information: https://www.nlrb.gov/news-outreach/news-story/nlrb-overrules-browning-ferris-industries-and-reinstates-prior-joint
2. New California Law Requiring Sexual Harassment Training to include LGBT Issues
On January 1, 2018, California's Senate Bill 396 will take effect which will require companies with 50 or more employees to provide 2-hours of training on sexual harassment every 2 years in addition to an initial training upon promotion or hire as a supervisor. The law has been further amended to require the training to incorporate harassment based on gender identity, gender expression, and sexual orientation, and “shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.”
This law only applies to supervisors of California employees. The policy sub-committee expects similar legislation to be passed in traditionally employee-friendly states, although we are unlikely to see federal legislation on this topic. The new law also requires an update of California labor posters and notices.
For More Information: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB396
3. California - Various
In addition to Senate Bill 396 above, the Policy sub-committee could spend its entire report (and then some) summarizing California’s new employment and labor related laws coming online on or around the New Year’s Day. By our count, there are at least 15. The sub-committee recommends California employers look at a summary of new laws to determine which apply to them, such as the following provided by Littler: https://www.littler.com/publication-press/publication/ready-or-not-here-it-comes-2018-brings-new-labor-employment-laws
4. Department of Labor Proposes Change to Tip Sharing
The U.S. Department of Labor has submitted a proposal that would over-turn the Department’s 2011 rule that requires employers of tip earning employees to only provide tips to those earning them. If enacted, the new rule would allow employers the option to require tips to be distributed among other employees. The restaurant industry has lobbied heavily to repeal the 2011 rule, arguing that it allows them to manage costs and also is fairer to behind-the-scenes employees. Critics complain that tips belong to those that earn them. The Policy sub-committee expects the proposed rule to ultimately be enacted after a public comment period. The Supreme Court of the United States is currently reviewing a legal challenge to the 2011 rule, and is expected to rule on the petition early this year.
For more information or to get involved with the Policy Subcommittee, we encourage you to contact chairs Gregory Watchman at Gregory.firstname.lastname@example.org; Colleen Higgins Schultz at email@example.com; Michelle Walters at firstname.lastname@example.org; or Ryan Brown at email@example.com.
Absence and Disability (A&D) Subcommittee:
The Senate Tax Cut Bill contains a Paid Family Leave provision!
The new Senate Tax Cut bill creates a federal Paid Family and Medical Leave law.
Senator Fischer snuck in a provision giving a tax credit to employers who offer at least 2 weeks of paid family and medical leave (with wage replacement of at least 50%).
The bill provides that this leave is in addition to any leave required under state or local law.
The tax credit applies to paid leaves up to a 12 week maximum.
There is a “sunset” of 12/31/19.
The trend continues.
ERISA Disability Claims Regulations: Go into Effect on 4/1/18
The new DOL Disability Claims regulations (adopted under Pres. Obama) were supposed to go into effect on 1/1/18 but were delayed.
The Department of Labor has announced they will go into effect on 4/1/18.
The New York Paid Family Leave (NY PFL) law is live on 1/1/18.
On 10/17/17, the NY Worker’s Compensation Board (WCB) released a number of forms, including the PFL request and certification forms and the waiver for employees who are not scheduled to meet eligibility requirements. They can be found here: https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-employer-and-employee-forms-0
The statement of rights for employees has now been released. https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-forms-employees-employers-and-insurance-carriers#statement-of-rights-for-paid-family-leave-pfl-271s
Your co-chairs have weekly calls with other carriers (and sometimes the WCB) to discuss challenges in implementing the law. Contact them for more information.
Is Extended Leave a Reasonable Accommodation under the ADA?
In the November Report of our Subcommittee we advised that the 7th Circuit Court of Appeals says no in two recent cases:
Severson v. Heartland Woodcraft (9/20/17) (2 to 3 months beyond FMLA)
Golden v. Indianapolis Housing (10/17/17) (6 months beyond FMLA)
Since then, a new case from 11th Circuit essentially decided the same.
In Billups v. Emerald Coast Utilities Auth. (11th Cir. 10/26/17), the court concluded that an employee who needed "an open-ended" leave to recover from surgery was not a qualified individual under the ADA.
The court's decision is not necessarily new law -- many courts have concluded that if an employer has already provided an employee with an extended leave, the ADA does not require an employer to grant further leave to allow an employee to return to work "at some indefinite point" in the future.
The court also noted that while the employer's policy generally limited leaves to 6 months, it also contemplated an individualized inquiry when the 6 months expired.
New York City Adopts law requiring “cooperative dialogue” about reasonable accommodations
On 12/19/17, New York City passed a law requiring employers to engage in a "cooperative dialogue" regarding reasonable accommodations for
employees with disabilities,
victims of domestic violence and
employees with religious needs.
Employers are now also required to provide a written final determination on the outcome of the cooperative dialogue process
You may find out recent developments in Absence & Disability on any of the following blogs:
Marti Cardi/matrix: http://matrix-radar.com/
Megan Holstein/Reed Group: https://reedgroup.com/blog
Marjory Robertson, Sun Life Financial: https://www.linkedin.com/in/marjoryrobertson
For more information or to get involved with the A&D Subcommittee, we encourage you to contact chairs Marti Cardi, firstname.lastname@example.org; Megan Holstein; Holly Rich, email@example.com; or Marjory Robertson, firstname.lastname@example.org.
ERISA Subcommittee highlighted the following issues at the last January meeting:
Executive Compensation – Expansion of 162(m) Deduction Limit. Eliminates the performance based exclusion on executive pay over $1M for covered persons. Covered persons remain subject to deduction limit even if no longer in that corporate position.
Welfare & Fringe Benefits – Paid Leave Tax Credit. For 2018 and 2019, employers can claim a business tax credit equal to a percentage of wages paid to qualifying employees.
Welfare & Fringe Benefits – Employee Achievement Awards. Non-taxable employee achievement awards must be in the form of tangible personal property, and that awards would be taxable if provided in other forms such as cash, cash equivalents, gift cards, etc.
Qualified Retirement Plans - Relief for 2016 Disaster Areas. Distributions made to 2016 disaster area victims from January 1, 2016 through December 31, 2017 are exempt from the 10% early withdrawal tax, if the plan is amended by December 31, 2019.
For more information or to get involved with the ERISA Subcommittee, we encourage you to contact chairs, Ron Peppe, email@example.com; Mark Burgreen, firstname.lastname@example.org; or April Goff, email@example.com.
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is a wrap on our first bi-monthly newsletter of 2018! Please do not hesitate to
reach out to the Communications Subcommittee with any newsletter ideas, substantive
content for an upcoming newsletter, or with a nomination for our next ELLC Member
Spotlight. Newsletters are published on a bimonthly basis. Suggestions for content should be received by
the Communications Subcommittee approximately one-week in advance of the
- March 12, 2018
- May 14, 2018
- July 16, 2018
- September 10, 2018
Subcommittee can be reached at: Jennifer Harper at firstname.lastname@example.org; Justin Sorrell at email@example.com; or Monica Torrez-Pfister at firstname.lastname@example.org.
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