Thursday, April 15, 2010

UPDATED: If You're Hiring, Are You HIRE-ing?

Here is the link to the form prepared by the IRS for employers to use in claiming the tax exemption.

For you employers out there who are filling out your workforce, this is a gentle reminder to check into whether you can avail yourselves of the tax benefits under the Hiring Incentives to Restore Employment (HIRE) Act.

Employers who make a qualified hire between February 3, 2010 and January 1, 2011 are eligible to receive a 6.2 percent payroll tax exemption (equivalent to the Social Security tax on that employee's wages). The employee will still get full Social Security credit for the wages earned.

As with most incentives, restrictions do apply. If you've made hires or are preparing to do so, check with your counsel to see if your hires qualify as HIREs.

Wednesday, April 14, 2010

Ask Not For Whom The Whistle Blows . . .

That whistle you hear may not mean the end of the work day has arrived.

In the past two decades numerous states and the federal government have passed laws prohibiting employers from discharging employees for “blowing the whistle” on certain matters at work. Although these laws have been on the books for several years, it can still be difficult to differentiate between simple employee complaints and true “whistleblowing” that can land an employer in hot water. A recent $1 million dollar judgment issued against a Tennessee employer by the Occupational Health and Safety Administration (“OSHA”) re-emphasizes the importance of understanding this difference and the numerous state and federal whistleblower laws in general.

Last month, OSHA ordered Tennessee Commerce Bank in Nashville to reinstate a former corporate officer and pay more than $1 million in back pay, compensatory damages, interest, attorney fees, and other relief. The employee filed a complaint with OSHA after he was placed on administrative leave and then fired. The employee’s complaint alleged that the Bank placed him on leave and then fired him because he raised concerns about internal controls, employee accounts, insider trading, and other issues at the Bank. The employee first raised these issues to the Bank’s audit committee and later to the FDIC and the Tennessee Department of Financial institutions. OSHA investigated the employee’s complaint and found that the Bank had discharged the employee in violation of the whistleblower provisions of the Sarbanes-Oxley Act of 2002 (“SOX”). The Bank indicated that it would appeal OSHA’s decision.

Despite the outcome of the appeal, this case serves as an important reminder that retaliating against a “whistle blower” can expose an employer to as much liability as discharging an employee based on his or her race, gender, or age. And often times, this liability is much more difficult to identify than determining whether an employee is covered by other non-discrimination statutes.

Given the scope and ambiguity still present in the whistleblower laws, it is vitally important for employers to be aware of the parameters of state and federal laws prohibiting retaliation against whistleblowers. If you have any questions about a particular situation, feel free to contact us.

Monday, April 12, 2010

When TMI becomes TMI4TW

I just read several posts on Facebook by an acquaintance speaking to a recent medical procedure she had.

Right below that was a posting by a friend who was asking for prayers for a family member who had "taken a turn for the worse".

Scrolling a little more led to the discovery that another friend was pregnant and experiencing complications from it.

Finally, I had a post by someone who was insulted that he had to sign the book at the drugstore when he picked up his prescription for Cymbalta.

I, like many of you, shake my head at some of the discussions people hold publicly (via Facebook, Twitter, on mobile phones while walking through the mall). I could find humor amongst the not-so-newfound-openness more easily because none of these posts were by co-workers or my employees.

But what if they had been?

These entries are all reminders as to why I do not friend, follow or otherwise social network with co-workers. Let's face it--I'm on these sites to keep up with people whom I don't see on a regular basis or talk to as frequently as I would like. I can walk down the hall, dial an extension, or (if I'm sore from a long run) zip an e-mail to a co-worker to find out what is happening if I am so inclined.

Who would have thought that e-mail now feels like one of the safest ways to interact?

(TMI4TW = TMI for the workplace)

Thursday, April 1, 2010

Obama Fills Two of Three Vacant Positions On NLRB With Recess Appointments

One of a President’s most effective tools to change labor law to his liking without passing legislation is by appointing members to the National Labor Relations Board who support his view of the National Labor Relations Act. The National Labor Relations Act (the federal law that governs labor law in the private sector) provides for a five-member Board with each member serving a 5-year term. As the terms expire, the President nominates replacements, which must be approved by the Senate before they are seated on the Board. By tradition, three of the members are from the same political party as the President in the White House.

Since January 2008, the Board has been operating with only two of its five allotted members. President Obama nominated three replacements after taking office, but none had been confirmed by the Senate.

One of the replacements Obama nominated, Craig Becker, was highly controversial. Becker was serving as associate general counsel for the Service Employees International Union (SEIU) and the AFL-CIO, one of the most aggressive unions in lobbying for legislation, including the Employee Free Choice Act. The President of the SEIU, Andy Stern, has been in the news for being the most frequent visitor to the Obama White house.

Much of the controversy over Becker stems from two of his law review articles. Becker has expressed the view that employers should have only very restricted, if any, role in union elections. He believes that employers have no legitimate interests in union organizing. Because of this, and other, controversial positions, Becker’s nomination was hotly contested in the Senate. Many employers and employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, were concerned that Becker would try to implement provisions of the Employee Free Choice Act through Board decisions since the EFCA had bogged down in Congress. Many Senators shared these concerns about Becker’s pro-labor bias and refused to approve his nomination. The Senate agreed to pass on Obama’s other two less controversial nominations (one Democrat and one Republican), but the Senate Democrats insisted that the nominees be considered as a package. Therefore, the nominees were never confirmed by the Senate.

Now that the healthcare reform bill has passed and Congress is in recess, Obama took the opportunity to make two recess appointments to the Board. Recess appointments do not require approval from the Senate. Last Saturday (March 27th), Obama announced the recess appointments of Craig Becker and Mark Gaston Pearce, the two Democrat nominees. Obama did not nominate Brian Hayes, his Republican nominee, for a recess appointment. Accordingly, the Obama Labor Board currently consists of four members: three Democrats and one Republican.

Following the announcement of the recess appointments, pro-labor groups were expectably pleased. One such group, American Rights at Work, congratulated President Obama and asked its members to send him electronic “thank you notes.” According to the group's email distribution, President Obama “used his executive power to held the NLRB tackle its backlog of critical cases, making ‘recess appointments’ when Congress left town.” The email also quoted Obama as saying “I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”

Some commentators suspected that the two-member Board consisting of one Democrat (Liebman) and one Republican (Schaumber) were deciding only the “easy” cases – the ones they could agree on – while leaving the more significant, and more contested cases until the Board had at least a three-member quorum. Now that the Board has its three-member quorum, it will likely start deciding those more significant and contested cases. With a strong pro-union majority, it is reasonable to expect decisions that will heavily favor organized labor.

We will continue to monitor the recess appointments and the Board’s activity with its new pro-union majority. If you have any questions about the Board decisions we see coming down the pike and how they could affect your business operations, please don’t hesitate to contact us.