Three Key Takeaways From Supreme Court Union Ruling

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 15, July 24, 2018
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Whether you’re a public employer with a union or a private employer with no union fears, there’s much to consider in the U.S. Supreme Court’s ruling in Janus v. AFSCME, Council 31. The 5-4 decision, issued on June 27, 2018, the final day of the 2017-2018 Supreme Court term, could change the influence unions have in elections and in policymaking.

The case centered on the legality of “fair share” fees that must be paid to unions by non-union members. The fees, also known as “agency fees,” are typically a percentage of the full dues paid by union members and represent the costs of union activities thought to directly benefit all employees, such as collective bargaining, grievance resolution and general representation. The goal is to prevent employees from becoming “free riders,” or individuals who benefit from union services without paying for them.

Navigating the Maze of State and Local Employment Laws Concerning Sick Time and Family Leave, Criminal and Salary History Checks, Pregnancy and Lactation Accommodation, and Anti-Discrimination Protection for Medical Marijuana Users

Source: Alan D. Berkowitz, J. Ian Downes, and Jane E. Patullo, Employee Relations Law Journal, Vol. 43, No. 4, Spring 2018
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This article provides a brief overview of some of the major trends in employment law regulation at the state and local level.

State and local laws have long been an integral part of the web of laws that regulate the workplace. Among other things, such laws have for many years expanded the scope and reach of anti-discrimination laws, and imposed complex requirements concerning the payment of wages and other compensation issues. In recent years, however, state and local legislators seem to have widened their gaze to expand regulation into numerous new areas, including family and sick leave laws, prohibitions on consideration of criminal histories and prior salary information, and protection of the rights of pregnant and breastfeeding employees. Additionally, the dramatic proliferation of medical marijuana laws in many states has brought with it numerous challenges and issues in the employment area. This article provides a brief overview of some of the major trends in employment law regulation at the state and local level.

New Benefits—Time to Address Benefits for Alternative Work Arrangements?

Source: Lori Welding Jones, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
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On February 6, 2018, the Subcommittee on Primary Health and Retirement Security of the U.S. Senate Committee on Health, Education, Labor and Pensions held a hearing on “Exploring the ‘Gig Economy’ and the Future of Retirement Savings.” Although the title would suggest a focus on gig workers only, some of the testimony addressed the retirement security of a broader group of individuals engaged in alternative work arrangements, i.e., all workers employed other than as common law employees.

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
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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.

Five Common Employer Social Media Mistakes and How to Avoid Them

Source: Sara H. Jodka, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
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While social media based discipline is an issue for employers, there are a number of other social media related issues that employers should be aware of. In this article, five are addressed, starting with the most familiar and common offender, social media discipline. Social media has been and will continue to be an issue for employers. It has become the way people, especially Millennials, who make up a significant amount of the restaurant-industry workforce, communicate. When most employers think about social media in the workplace, they tend to think solely in terms of the high-profile social media firing cases where employers have terminated employees for posts made on social media. While social media based discipline is certainly an issue for employers, there are a number of other social media related issues that employers should be aware of. In this article, five are addressed, starting with the most familiar and common offender, social media discipline.

Monitoring Employees Through GPS Technology: What Is Legal and What Are Best Practices?

Source: Elizabeth Austermuehle, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
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Employers that use GPS technology to track their employees’ locations and activity can help improve a company’s efficiency and ensure compliance with labor and safety laws, however, important legal and employee privacy issues also are implicated. Employers are encouraged to take steps to ensure that GPS monitoring activities do not violate applicable laws or employees’ trust.

Second Circuit Decision in Sexual Harassment Case Shows Heightened Risk for Health Care Employers

Source: Frank C. Morris, Jr., Jonathan K. Hoerner, and Katherine Smith, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
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Health care employers should be aware that a recent holding from the U.S. Court of Appeals for the Second Circuit may indicate that courts and juries are beginning to weigh in on the dramatic sexual harassment developments, such as the #MeToo and #Time’sUp movements addressing workplace harassment, by holding employers to heightened standards, including as to “last chance” agreements. In MacCluskey v. University of Connecticut Health Center ( MacCluskey), the Second Circuit upheld a jury verdict awarding plaintiff Mindy MacCluskey $125,000 in damages after finding that she was subject to a hostile work environment where she was repeatedly sexually harassed by a coworker, dentist Michael Young, who was subject to a last-chance agreement from 10 years earlier. The bottom line in the MacCluskey holding is that it is not enough for employers to merely maintain a policy prohibiting sexual harassment, they must also take reasonable care to enforce the policy.

Differences in Perceptions of Organizational Fairness Based on Job Characteristics among Police Officers

Source: Paul D. Reynolds, Richard C. Helfers, American Journal of Criminal Justice, Volume 43 Issue 2, June 2018
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From the abstract:
Profuse research supports that organizational work environments are linked to varying police officers’ work-related attitudes and behaviors. Yet, there remains a lack of information pertaining to how perceptions of organizational fairness may differ among police officers based on job characteristics. To help fill this void, this exploratory research examines differences in fairness perceptions based on officers’ tenure, rank, duty assignment, and department size with their perceptions of organizational fairness. To examine this relationship, an online survey of police officers (n = 1649) in a southern state in the United States that were members of a police officer association was conducted. Findings support that differences in overall fairness perceptions exist for all the aforementioned job characteristics. This study furthers our knowledge and understanding of how job characteristics (e.g., tenure, rank, duty assignment, and department size) may be associated with police officers’ work-related attitudes.

Do Work-Family Conflict and Resiliency Mediate Police Stress and Burnout: a Study of State Police Officers

Source: Jennifer D. Griffin, Ivan Y. Sun, American Journal of Criminal Justice, Volume 43 Issue 2, June 2018
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From the abstract:
Occupational stress and burnout have long been recognized as common hazards among police officers. The present study examines whether demographic characteristics and assignment affect police officers’ work-family conflict (WFC), resiliency, stress and burnout, and whether WFC and resiliency mediate the stress and burnout of police officers. The data were collected from a Mid-Atlantic state police agency in the United States of America through a web-based survey. Regression results revealed that minority officers tended to have lower levels of WFC and burnout and better educated officers reported lower degrees of WFC and stress. WFC was positively related to stress and burnout, while resilience was inversely linked to stress and burnout. The effects of race and education disappeared when WFC and resiliency entered the regression, suggesting that their impact was largely mediated by WFC and resiliency. Lastly, stress was found to be positively associated with burnout. Implications for research and policy are discussed.

The Employment Doctrine That Screws Over Workers

Source: Moshe Z. Marvit, Jacobin, August 7, 2018

It’s called “at-will employment.” But for workers, it simply means employers hold all the cards.

Last week, over a hundred Latino workers mounted a wildcat strike at a UPS facility to protest the actions of a racist supervisor. One of their coworkers, Antoine Dangerfield, took out his phone and began filming the walkout, his excitement growing as he realized what he was witnessing. Dangerfield posted the video online, where it quickly netted millions of views. Shortly after, his employer offered Dangerfield $250 to take the video down. Dangerfield explained to them that that’s not how the internet works, and that he couldn’t remove the video. So, they fired him.

This may seem like a bad reason to fire someone, and Dangerfield’s employer may even admit that it was a bad reason to fire him — but it is still probably legal. That’s because the US, for the most part, follows the at-will rule of employment, where an employee can be terminated for good cause, bad cause, or no cause at all. (Montana is the only state that has some form of just-cause rule.)

…. An employee’s right to quit her job stems from her right to be free from involuntary servitude. An employer may be inconvenienced when an employee up and leaves, but rarely is the whole enterprise put in jeopardy. When an employee is pink-slipped, on the other hand, they lose their livelihoods, their health insurance, and potentially their homes and other assets. Far from creating a balance in the relationship, the at-will rule tilts things toward the employer — who already has outsized power. ….

….The other major exception to the at-will rule is contractually negotiated just-cause. This largely exists for two groups of employees: unionized workers and high-level executives…..