Monthly Archives: December 2018

DO YOU SEE WHAT I SEE? HARDSHIP WITHDRAWAL GUIDANCE FROM THE IRS, AS REQUESTED BY CONGRESS

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.

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NLRB ADRESSES PROSPECTIVE CONTRACTS VS. ELECTION BAR

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.

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RECENT SUPREME COURT DECISION INTERPRETS ADEA TO COVER STATE AND LOCAL GOVERNMENTS OF ANY SIZE

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. Read More »