You probably already know that the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) generally requires an employer to restore an employee to his or her previous position of employment upon returning from military duty. But you may not be familiar with an employer’s obligations to an employee during the time that employee is away on military leave. In particular, what are your obligations as far as health benefits offered to employees?
Looking for the perfect gift for your employees this holiday season? Consider giving the gift of feedback (although turkeys and bonuses are certainly good, too!). An overwhelming amount of information has been published on the benefits of feedback in the workplace in recent years. Studies consistently show that employees crave more, real-time feedback and have become dissatisfied with the traditional annual review process.
This time of year, gift-givers may feel rich in spirit but otherwise penniless. They may ask whether they can receive a hardship distribution from their 401(k) account when faced with a not-so-holly or jolly bank statement at the end of December. Those of us who work with 401(k) plans know, however, that it takes more than a large credit card bill to justify a participant’s request for a hardship distribution. Generally, the federal tax code restricts a participant’s access to a 401(k) account balance so that such benefits can provide retirement income, not replenishment of a checking account. More specifically, federal tax rules permit a hardship distribution only if (a) the participant experiences an “immediate and heavy financial need” and (b) the distribution is no greater than the amount “necessary to satisfy the financial need.” In turn, Treasury regulations provide that hardship withdrawals on 401 (k) balances are available for participants who satisfy any of 6 safe harbors or a general, catch-all provision.
Under the National Labor Relations Act, the National Labor Relations Board (the Board) has jurisdiction over the process by which employees decide whether to select union representation for their workplace. The Board will get involved in response to a petition filed by an employer or union requesting it to conduct a secret ballot election in which the employees vote for or against representation by a particular union. To encourage stability in labor relations and to avoid a merry-go-round on the question of whether employees wish to be represented by a union, the Board has established various rules setting forth the circumstances under which it will or will not conduct an election. The Election Year Bar Rule provides that the Board will not conduct an election in the same bargaining unit within one year of a previous election. The Contract Bar Rule provides that a written, signed collective bargaining agreement with an effective date will prevent the holding of an election for the duration of that agreement or up to three years; whichever time period is shorter.
On November 6, 2018, the Supreme Court issued its decision in Mount Lemmon Fire District v. Guido, 2018 WL 5794639 (2018), and held that state and local governments of any size are covered under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. Therefore, states and their political subdivisions are covered by the ADEA regardless of whether they have twenty employees.
As a result of numerous security issues in this day and age, employers are looking into new technological ways to counteract security risks. One such way is the use of various types of employee biometric data to confirm the identity of an individual before giving him access to the physical or intellectual property of the employer. The obvious advantages to employers are that this data is unique to the known/approved individual and may not be duplicated. The mandatory use of such data, however, creates another, non-security-related legal issue for employers.
It’s natural that you do not want employees operating equipment or engaging in potentially hazardous work while they are under the influence of drugs or medications. While many employers with safety-sensitive jobs have a zero-tolerance policy and test for illegal drugs, you may be worried about the effect a legitimately-prescribed medication may have on an employee’s ability to work safely. Many commonly-prescribed medications can cause drowsiness or disorientation as a side effect. So, can you ask your employees if they are taking prescription medications or require your employees to notify you if they are?
Over 30 states and the District of Columbia have legislation providing citizens access to marijuana. Some states have “de-criminalized” the substance while others have legalized it for medicinal or even recreational purposes. No matter the form, these laws contradict the federal Controlled Substance Act (“CSA”) under which marijuana is categorized as an illegal controlled substance. The conflict between states’ laws and federal law regarding marijuana presents a confusing crossroad for employers.
Employers likely recall the ill-fated federal overtime rule that was proposed during the Obama administration and was struck down last year. Even though the changes to the Fair Labor Standards Act’s overtime salary threshold never came to fruition at the federal level, Pennsylvania employers should be prepared for possible changes at the state level.