Employment Archives - Page 49 of 104 - EMPLOYEE BENEFITS BLOG

EEOC Issues Guidance on Employer Provided Wellness Programs

by Jacob Mattinson | Apr 28, 2015 | Employment, Health and Welfare Plans

The Equal Employment Opportunity Commission (EEOC) released a long-awaited proposed rule amending regulations implementing Title I of the Americans with Disabilities Act to provide guidance regarding the extent to which employers may use incentives to encourage employees to participate in wellness programs that include disability-related inquiries and/or medical examinations. The proposed rule provides insight into the EEOC’s approach to regulating employer wellness programs, so employers should consider reviewing their wellness programs for consistency with the proposed rule.

Read the full article.

DOL Provides Greater Flexibility for Distribution of Annual Participant Fee Disclosure Effective Immediately

by Diane Morgenthaler, Jeffrey Holdvogt and Maggie McTigue | Apr 23, 2015 | Employee Benefits, Employment

New guidance by the U.S. Department of Labor provides defined contribution plan administrators with additional flexibility to extend the 12-month period to a 14-month period for distribution of the required annual fee disclosure to plan participants and beneficiaries.

Read the full article.

UK Employment Alert: Holiday Pay – The Case Continues

by McDermott Will & Emery | Apr 16, 2015 | Employment

In the latest in a long-running series of cases on holiday pay, the Employment Tribunal has handed down its first judgment in Lock v British Gas Trading Limited.

This judgment confirms the principle that workers paid commission should receive holiday pay at a rate reflecting normal income, which can include commission, rather than basic salary only.

Read the full article.

German Parliament Enacts Law on Mandatory Quota for Women’s Representation in Businesses

by Bettina Holzberger and Dr. Sandra Urban-Crell | Apr 2, 2015 | Employment, Labor

On March 6, 2015, the German Bundestag passed a law, the so-called “women’s quota” (Frauenquote), which ensures the equal participation of women and men in the management of businesses as well as of public offices.

The Political Context

According to the German government, women are still heavily underrepresented in leading positions. There is no socio-political explanation for the fact that even though more than half of the German population and more than half of the Germans who graduate from college/university are female, this ratio does not even come close to the gender ratio in top management positions. The proportion of women in German supervisory boards currently amounts to only 19 percent; in management boards to an even poorer 6 percent. However, scientific research has proven that mixed-gender teams achieve better work results than same-gender teams.

The Quota System

Even if the new regulation is commonly referred to as “women’s quota”, (as in the medium-term it will likely counteract the underrepresentation of women) the law is legally constructed to ensure that each gender is represented by as many representatives as is necessary to meet the mandatory statutory minimum quota. In a nutshell, the enactment of the “women’s quota” has the following effects:

As of January 1, 2016, the share of women and men in supervisory boards of listed companies that are subject to co-determination in accordance with the German Co-Determination Act (Mitbestimmungsgesetz), the Coal, Iron and Steel Co-Determination Act (Montan-Mitbestimmungsgesetz) or the German Supplementary Co-Determination Act (Mitbestimmungsergänzungsgesetz), needs to reach each at least 30 percent.

In addition, the board of directors of companies that are listed or are subject to co-determination have to determine a target figure of the share of women in the two management levels directly below the board of directors. The companies have to try to reach these self-determined quotas in a certain period of time that must not be greater than five years, and the first period has to end on June 30, 2017 at the latest. The quota has to be determined by September 30, 2015 and must not be lower than the actual share of women in the moment of determination (if it is below 30 percent). The companies have to report and disclose their determined target figures, the period of time during which the target figures shall be achieved, and after that period has expired, whether the target figures have been achieved.

Sanctions in Case of Infringements

If the positions in supervisory boards of listed companies that are subject to co-determination are not awarded as per the statutory 30 percent quota, the election of supervisory board members will be void.

If the self-determined target figure in the remainder of companies is not reached, no direct sanctions will be triggered.

Start of a Cultural Change?

It remains to be seen, if the much invoked cultural change in German companies will indeed occur based on the new law, as only 100 companies in Germany will be affected by the new mandatory 30 percent. Moreover, the new law [...]

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C-Suite – Changing Tack on the Sea of Data Breach?

by McDermott Will & Emery | Mar 24, 2015 | Employment, Privacy and Data Security

The country awoke to what seems to be a common occurrence now: another corporation struck by a massive data breach. This time it was Anthem, the country’s second largest health insurer, in a breach initially estimated to involve eighty million individuals. Both individuals’ and employees’ personal information is at issue, in a breach instigated by hackers.

Early reports, however, indicated that this breach might be subtly different than those faced by other corporations in recent years. The difference isn’t in the breach itself, but in the immediate, transparent and proactive actions that the C-Suite took.

Unlike many breaches in recent history, this attack was discovered internally through corporate investigative and management processes already in place. Further, the C-Suite took an immediate, proactive and transparent stance: just as the investigative process was launching in earnest within the corporation, the C-Suite took steps to fully advise its customers, its regulators and the public at-large, of the breach.

Anthem’s chief executive officer, Joseph Swedish, sent a personal, detailed e-mail to all customers. An identical message appeared in a widely broadcast press statement. Swedish outlined the magnitude of the breach, and that the Federal Bureau of Investigation and other investigative and regulatory bodies had already been advised and were working in earnest to stem the breach and its fallout. He advised that each customer or employee with data at risk was being personally and individually notified. In a humanizing touch, he admitted that the breach involved his own personal data.

What some data privacy and information security advocates noted was different: The proactive internal measures that discovered the breach before outsiders did; the early decision to cooperate with authorities and press, and the involvement of the corporate C-Suite in notifying the individuals at risk and the public at-large.

The rapid and detailed disclosure could indicate a changing attitude among the American corporate leadership. Regulators have encouraged transparency and cooperation among Corporate America, the public and regulators as part of an effort to stem the tide of cyber-attacks. As some regulators and information security experts reason, the criminals are cooperating, so we should as well – we are all in this together.

Will the proactive, transparent and cooperative stance make a difference in the aftermath of such a breach? Only time will tell but we will be certain to watch with interest.

DOL Extends FMLA Spousal Leave Rights to Same-Sex Spouses in All States

by Brian Tiemann, Jacob Mattinson and Todd Solomon | Mar 19, 2015 | Employment

On February 23, 2015, the U.S. Department of Labor (DOL) Wage and Hour Division published its final rule regarding the definition of “spouse” under the Family and Medical Leave Act (FMLA). Specifically, the rule recognizes all lawful same-sex spouses for purposes of FMLA leave, regardless of the couple’s state of residence. This final rule takes effect on March 27, 2015.

The FMLA permits eligible employees to take unpaid leave to care for a spouse with a serious health condition. Under the final rule, the DOL adopts the “state of celebration” rule in determining who is considered a spouse for these purposes. Accordingly, an eligible employee who has married a same-sex spouse in any state is permitted to take advantage of spousal FMLA leave, regardless of whether the couple resides in a state where same-sex marriage is recognized. The DOL previously adopted a “state of residence” rule for purposes of the FMLA, meaning an employee could take advantage of FMLA leave to care for a same-sex spouse only if the couple resided in a state where same-sex marriage is recognized. The “state of celebration” rule is consistent with the approaches adopted by the DOL and the Internal Revenue Service for purposes of other laws governing employee benefits.

Employers must review and revise their FMLA leave policies in light of this new definition to ensure spousal FMLA leave is extended to same-sex couples residing in all states beginning March 27, 2015.

UK Employment Alert: Flexibility Clauses: Worth the Paper They’re Written On?

by Katie Clark | Mar 17, 2015 | Employee Benefits, Employment

A recent decision by the Employment Appeal Tribunal (Norman & Others v National Audit Office [2014] UKEAT 0276/14/1512) has emphasised the need for employers to ensure that “flexibility clauses” are drafted unambiguously and have contractual effect if they are to be effective.

Read the full article.

German Employment Update – Obesity May Qualify as Severe Disability

by Bettina Holzberger | Mar 3, 2015 | Employment

European employers should exercise caution in the event of the dismissal of an obese employee. The European Court of Justice (ECJ) determined that obesity may qualify as severe disability if it significantly restricts participation in working life (ECJ, judgment of December 18, 2014 in Case C-354/13). This decision may be relevant not only for dismissals but also in hiring decisions. In order to avoid undue discrimination, an employment rejection letter should in no way whatsoever refer to the applicant’s weight. The plaintiff in the present case was an obese nursery teacher who filed a suit against his employer, the Danish community Billund, because of his dismissal. The employer argued that the dismissal was due to declining numbers of children being registered. The nursery teacher argued that the reason for his dismissal, after 15 years of employment, was his obesity, which constituted undue discrimination due to disability.

The ECJ clarified that European Union law does not contain a general prohibition with respect to obesity discrimination in employment. Nevertheless, obesity may qualify as severe disability if it significantly interferes with full and equal participation in working life. This can happen in cases of a particularly serious obesity of long duration, which causes physical, intellectual and mental impairment. According to this definition, the cause of the obesity is irrelevant. Now, following the decision of the ECJ, the Danish trial court has to decide if the nursery teacher’s obesity significantly interferes with full and equal participation in working life.

The decision of the ECJ may have significant impact on German employment law. Up until now, only conditions resulting from obesity (e.g., diabetes or chronic back pain) qualified as a severe disability. Following the decision of the ECJ, obesity itself may qualify as severe disability. It remains to be seen whether – and, if so, at which level –the ECJ will establish thresholds under which a dismissal or a rejection of an applicant is considered discriminatory due to obesity. Until then, the decision of the ECJ gives rise to considerable legal uncertainty.

Webinar: Employee Benefits for Same-Sex Partners

by Irina Denisova | Feb 20, 2015 | Employment

Employee Benefits for Same-Sex Partners
Clear Law Institute Webinar – for 25% off use discount code ‘Solomon25’

In this interactive webinar, attorney Todd Solomon—who literally wrote the book on domestic partner benefits—discusses the impact of these rulings and the steps employers should take now to ensure that they are in compliance with all applicable laws for same-sex partners.

McDermott Predictions for 2015 on Employee Social Media Accounts

by McDermott Will & Emery | Feb 19, 2015 | Employment, Privacy and Data Security

In 2015, I predict an increased focus on employees’ rights regarding their personal social media accounts. Since 2012, individual states have enacted laws prohibiting employers from requesting access to their employees’ (or job applicants’) personal social media accounts. In 2014 alone, six states enacted such laws, bringing the total number of states with this type of legislation to 18. (Click here for additional analysis of the impact of these laws on employers.)

In addition to individual states’ laws, I expect clarification on a national level regarding employer policies and actions related to employees’ personal social media accounts. In the past year, the National Labor Relations Board (NLRB) has started to focus on whether employer policies regarding employee social media accounts are consistent with the National Labor Relations Act (“Act”). The Act prohibits employers from interfering with employees who come together to discuss their employment for the purpose of collective bargaining or other mutual aid or protection. According to the NLRB, employees’ comments on their personal social media accounts can constitute protected activity under the Act. One recent NLRB case involved two employees who posted on their Facebook accounts about the employers’ alleged failure to correctly withhold taxes from their paychecks. The employer terminated the employees because of their comments on their personal social media accounts. The NLRB found that the employee’s comments were protected under the Act, ordered the employer to reinstate the employees, and ordered the employer to clarify its social media policy. The employer is now appealing the NLRB’s determination in court.

I predict not only that more states will enact employee social media account legislation, but also that the NLRB and the courts will provide more guidance on employer restrictions or sanctions related to employee social media use.

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