Category Archives: Laws/Legislation

How To Fire An Employee Returning From Leave

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 15, July 24, 2018
(subscription required)

An employee has major surgery and uses six weeks of Family and Medical Leave Act (FMLA) leave during recovery. While he’s absent, another employee takes on his duties and finds a major mistake had been made in a calculation on an important project and a number of assigned tasks were incomplete or poorly done. Normally, this level of performance would result in termination, but you can’t fire someone just returning from leave, can you? Isn’t that just asking for a lawsuit?

Terminating an employee who is returning from any type of protected leave can be tricky, but it’s doable if you have the right evidence and documentation. Courts will look closely to be sure the termination isn’t a pretext for illegal discrimination, but if the business justification is clear, they are apt to side with the employer.

Employee Benefits—Tax Cuts and Jobs Act of 2017

Source: Mark E. Bokert and Alan Hahn, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
(subscription required)

On December 22, 2017, President Trump signed into law the Tax Cuts and Jobs Act of 2017 (TCJA), which significantly amends the Internal Revenue Code of 1986 (Code). While the main focus of the TCJA may be on lowering corporate and individual tax rates, the TCJA also includes meaningful changes in the area of employee benefits and executive compensation, including changes to the Patient Protection and Affordable Care Act (ACA), the tax treatment of how public companies and tax-exempt organizations pay their executives, and the tax treatment of various fringe benefits. Among the changes in the benefits and compensation arena, the TCJA effectively repeals the ACA individual mandate by reducing the individual mandate penalty to zero, effective as of January 1, 2019; prohibits public companies from deducting certain performance-based compensation paid to their top executives; and provides that nonprofit organizations are subject to excise taxes for certain compensation packages paid to their highest paid employees.

Some expected changes impacting benefits and compensation never came to fruition. For example, while some earlier drafts of the TCJA included a repeal of Section 409A of the Code and the expansion of Health Savings Accounts (HSAs), the final law does not include any meaningful changes in these areas.

This column provides an overview of some of the changes enacted by the TCJA that impact the employer-employee relationship. Employers will want to work with their legal counsel to understand the nuances of the TCJA to determine whether any of their employee benefits plans or executive compensation arrangements should be amended in light of the TCJA and whether they should consider revising benefit packages offered to their employees.

What We Can Learn About Stare Decisis (Respect for Precedent) from the Last Supreme Court Term

Source: Vikram David Amar, Verdict, August 6, 2018

The 2017–18 Supreme Court term was noteworthy for many reasons. One is the fact that the Court overruled two longstanding (at least 40 years old) constitutional precedents by 5–4 votes, albeit with different lineups. In Janus v. American Federation of State, County and Municipal Employees, Council 31, the five more conservative justices held that it violates the First Amendment for public employees who choose not to become a member of the public sector union that represents them to nonetheless have to pay so-called “fair share” fees to the union to defray the cost of collective bargaining. In contrast, in South Dakota v. Wayfair, Justice Ginsburg joined four of the more conservative justices in the majority to uphold against a Commerce Clause challenge a state law requiring an online retailer that does significant business in the state but that lacks a brick-and-mortar presence in the state to collect and remit sales taxes, while the usually more conservative Chief Justice Roberts led Justices Breyer, Kagan and Sotomayor in dissent.

Notwithstanding these distinctive lineups (which perhaps can be explained at least in part by reference to the subject matter of the two cases) the justices’ writings in both cases, looked at in connection with each other, can help us better understand important principles about the proper way to implement the doctrine of horizontal stare decisis—the Court’s respect its own prior rulings. In particular, I focus below on the justices’ approach to three questions that are raised by one or both of the high-profile stare decisis cases of last term…..

Viewpoint: Boss Can’t Be Janus Fix

Source: Chris Brooks, Labor Notes, July 25, 2018

In the wake of the Supreme Court’s Janus decision, a new approach to financing unions called “direct reimbursement” is gaining traction with Democratic politicians, academics, and even the New York Times editorial board.

It boils down to this: rather than public sector workers paying dues, their government employer would pay an equivalent amount directly to the union.

Proponents claim this approach will neutralize the impact of the Janus decision and shore up union budgets.

The idea has legs. New York’s most senior Democratic Assemblyman Richard Gottfried is sponsoring a bill to allow public sector unions to negotiate this scheme into their contracts. Hawaii is entertaining a version too.

Backed into a corner and fearful for the future, some unions might jump at this quick fix. It’s a big mistake.

Corporate Impunity – “Tough on Crime” Trump Is Weak on Corporate Crime and Wrongdoing

Source: Rick Claypool, Taylor Lincoln, Michael Tanglis and Alan Zibel, Public Citizen, July 2018

From the press release:
During President Donald Trump’s first year in office, enforcement against corporate crime and wrongdoing declined dramatically, with total penalties for such violations plummeting from the final year of the Obama administration, according to a new report from Public Citizen.

In almost every federal agency under control of a Trump appointee – and most notably at the U.S. Department of Justice (DOJ), the nation’s lead law enforcement agency – enforcement against corporations dropped, often plunging to just a small fraction of what it had been.

Public Citizen’s report “Corporate Impunity” tracked enforcement activities against corporate violators by 12 federal agencies overseen by a Trump administration official for the majority of Trump’s first year in office. The report was co-released with Violation Tracker, a corporate enforcement database produced by the Corporate Research Project of Good Jobs First.

In 11 of the 12 agencies, the amount of penalties imposed on corporate violators declined, in many cases drastically. In 10 of the 12 agencies, the number of individual enforcement actions against corporate violators also declined significantly.

Related:
OSHA Broke the Law by Refusing Worker Injury and Illness Data – Timely Data Is Needed to Protect Workers From Threats to Health and Safety
Source: Public Citizen, Press release, July 25, 2018

The U.S. Occupational Safety and Health Administration (OSHA) broke the law by suspending parts of its electronic recordkeeping rule, Public Citizen, the American Public Health Association and the Council of State and Territorial Epidemiologists said in a lawsuit filed today with the U.S. District Court for the District of Columbia. To help the agency monitor and prevent workplaces injuries and illnesses, the rule requires covered workplaces to submit certain 2017 work-related injury and illness data to the agency by July 1. OSHA recently announced that it would not accept the data.

Instead of following notice-and-comment rulemaking procedures required by the Administrative Procedure Act, OSHA simply announced on its website that it was suspending the July 1 deadline, that it would neither require nor accept the data and that it intended to revise the rule. In the lawsuit, the groups explain that OSHA lacks the legal authority to suspend the deadline without first providing public notice and an opportunity to comment, and that OSHA’s stated reason for the suspension is arbitrary and capricious. The groups are asking the court to order OSHA to require and accept the workplace injury and illness data, as required by the rule.

Public Citizen’s Corporate Presidency Project

State Constitutions in the Era of a Shifting Supreme Court

Source: Rockefeller Institute of Government and the Government Law Center at Albany Law SchoolJuly 23, 2018

The Rockefeller Institute of Government and the Government Law Center at Albany Law School recently hosted “How Can State Constitutions Respond to a Shifting Supreme Court?” to examine the role state constitutions can play if the Supreme Court begins to roll back federal protections.

With the retirement of Supreme Court Justice Anthony Kennedy and the recent nomination of Brett Kavanaugh to take his place, the Supreme Court is expected to shift further to the conservative end of the ideological spectrum, with the potential for weakening or even extinguishing important constitutional protections.

Much attention is being paid to the possible implications for reproductive rights, protections for immigrants, affirmative action, environmental protections, LGBTQ rights, and other issues. So what does it mean for New Yorkers — or for states more generally? Although we often don’t think of state constitutions, many of them offer protections above and beyond what is provided in the federal Constitution.

What role can state constitutions play if the Supreme Court begins to weaken federal protections? In many ways, your position on the states-versus-federal rights issue often depends upon where you sit. Last year the Rockefeller Institute and Government Law Center at Albany Law School issued a report on the topic.

Related:
Protections in the New York State Constitution Beyond the Federal Bill of Rights
Source: Edited by Scott N. Fein and Andrew B. Ayers, the Government Law Center at Albany Law School and the Rockefeller Institute of Government, April 18, 2017

Purges: A Growing Threat to the Right to Vote

Source: Jonathan Brater, Kevin Morris, Myrna Pérez, Christopher Deluzio, Brennan Center for Justice at New York University School of Law, 2018

From the abstract:
Voter purges are an often-flawed process of cleaning up voter rolls by deleting names from registration lists. Done badly, they can prevent eligible people from casting a ballot that counts. This report examines the growing threat, and outlines steps every state can take to protect voters in November and beyond. This builds on the Brennan Center’s 2008 report, Voter Purges.

The impact of Dodd-Frank on credit ratings and bond yields: The municipal securities’ case

Source: Craig L. Johnson, Yulianti Abbas, and Chantalle E. LaFontant, Indiana University, April 2018

We empirically test the reputation and disciplining hypotheses on the potential impact of Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) on Standard & Poor’s (S&P) state government credit ratings and bond yields. Our empirical findings indicate that S&P ratings after Dodd-Frank are higher and more stable, as evidenced by fewer total rating changes. We find fewer overall negative rating actions, fewer rating downgrades, and more rating upgrades. We also find that after Dodd-Frank bond yields are lower and that Dodd-Frank impacted bond yields through credit ratings. The impact of Dodd-Frank on bond yield is significant across all rating classes. Our findings are consistent with the disciplining hypothesis, and we find no support for the reputation hypothesis.

Related:
View LaFontant’s slides
View Goodfield’s slides
Ashton Goodfield (Deutsche Asset Management)

President’s Selection of a Nominee for a Supreme Court Vacancy: Overview

Source: Barry J. McMillion, Congressional Research Service, CRS Insight, IN10923, June 27, 2018

On June 27, 2018, Justice Anthony Kennedy, after serving on the Supreme Court as an Associate Justice since 1988, announced his intention to retire from the U.S. Supreme Court. Justice Kennedy indicated that his retirement would be effective July 31, 2018. This Insight provides an overview of several issues related to the selection of a nominee by a President for a vacancy on the Court.

Related:
Justice Kennedy Retires: Initial Considerations for Congress
Source: Andrew Nolan, Michael John Garcia, Congressional Research Service, CRS Legal Sidebar, LSB10159, June 28, 2018

This Sidebar highlights various areas of lawin which Justice Kennedy —either by authoring or joining a Supreme Court opinion— proved consequential to the trajectory of Supreme Court jurisprudence. In so doing, this post provides a broad overview of key legal issues Congress (and, more specifically the Senate, through its advice and consent role) may wish to consider as it reflects on Justice Kennedy’s jurisprudence and how his eventual successor might shape the future of the Court, Congress, and the nation as a whole.

Supreme Court Nomination: CRS Products
Source: Andrew Nolan, Congressional Research Service, CRS Legal Sidebar, LSB10160, June 29, 2018

On June 27, 2018, Justice Anthony M. Kennedy announced his retirement from the Supreme Court, effective July 31, 2018, ending a thirty-year tenure on the Court. Below are key CRS products related to Supreme Court vacancies and nominations.