Employment Law This Week®: Changes at the NLRB, New Tax Bill, EEOC Wellness Rules, New California LawsEpisode 99: Week of January 8, 2018 January 8, 2018
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This week’s stories include ...
(1) Change Comes Swiftly at the NLRB
Our top story: The National Labor Relations Board (“NLRB” or “Board”) takes a new direction. The last month of 2017 saw the Republicans take control of the NLRB for the first time in nine years. And the new majority quickly set a new tone, overturning controversial Obama-era decisions. The NLRB discarded the joint-employer test adopted in Browning Ferris, created a new test for handbook and rules violations, and reversed the Specialty Healthcare “overwhelming community of interest” standard for bargaining micro-units. With the end of NLRB Chairman Philip Miscimarra’s term on December 16, the Board has now shifted back to a 2-2 split until a replacement is nominated and confirmed. Steve Swirsky, from Epstein Becker Green, tells us what other changes we can expect in 2018:
“The tea leaves are very clear that there are another indeterminate number of precedents that are going to be reviewed. The Board members Kaplan and Emanuel have given some indications in several footnotes in decisions that said that ... where they've said they want to look at particular issues, and they think that they should be ripe for reconsideration by the Board. These include the precedents from the Obama Board concerning confidentiality in settlement agreements. Something else that came out in December was a Request for Information from the Board looking for comment and experience from parties across the spectrum on the Board's 2014 amendments to the representation election processes. I think it's likely that that's a precursor to another round of rulemaking by the Board to address some of the inequities in those 2014 election rules, if not to revert to the prior rules completely.”
(2) New Tax Bill Impacts Employers
This new year will also usher in new tax rules, thanks to tax reform legislation passed by Republicans in late 2017. Corporations will see a reduction of the corporate rate from 35 percent to 21 percent and a repeal of the corporate alternative minimum tax. Employers will lose deductions for moving and transportation expenses. Companies will not be allowed to deduct as business expenses any settlements paid on claims for sexual harassment if the payments are subject to a nondisclosure agreement. These and other provisions will have a significant impact on the taxes that companies pay and the tax-free fringe benefits they can offer to employees.
(3) EEOC Wellness Rules to Be Vacated
The Equal Employment Opportunity Commission (EEOC) wellness rules allow employers to give employees incentives for participating in workplace wellness programs, worth up to 30 percent of an employee’s cost of health insurance. Back in August, a federal district court judge in the District of Columbia invalidated the rules and directed the EEOC to reconsider them. The court found that the agency did not adequately explain why the incentive did not violate the Americans with Disabilities Act’s requirement that any disclosure of disability-related information must be voluntary. In December, the judge amended his order and vacated the challenged portions of the rules, effective January 1, 2019, stating that the timeline will give employers an opportunity to adjust their programs.
(4) New California Laws Impact Employers
The state of California added 859 new statutes last year, and many of them will have an immediate impact on employers. Among these new laws are a prohibition on salary history and criminal conviction questions in the employment application process and an extension of leave to new parents working for smaller employers. California employers will also see new limitations relating to granting worksite access to immigration enforcement officials without a warrant. Most of the new laws have already taken effect, so employers need to make sure that they are up to date and in compliance.
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(5) Tip of the Week
Dr. Gerlind Wisskirchen, a Partner at CMS Germany, is here with advice on preparing for the artificial intelligence (“AI”) workplace:
“I think HR and Legal has to be aware of three issues that are coming. One could be, could affect the business model, so there might be a disruptive business model which will turn over the organization totally. And secondly, HR and Legal should take into account new forms of the organization. Some of them have already started in many companies. For example, we are talking about matrix structures, we are talking about prosumers, who are a mixture between employees and consumers, we are talking about less hierarchical levels but more project groups, so people just working together, and we are talking about a non-physical form of collaboration. And thirdly, I think that HR and Legal needs to make sure that employees and freelancers, of course, will be trained. We will need a new skill set for employees. It's not that fact-based driven any more. The future will be more geared to creativity, problem-solving, team-playing, issues-spotting, and these are skill sets which you typically do not learn at university or at school.”
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