June 29, 2012

Obamacare Decision as Baseball: the Runner is Safe, so Now What?

Posted in Affordable Care Act, Benefits, Health Insurance tagged , , , at 11:22 am by Tom Jacobson

My favorite play in baseball is the second base steal. In the play, the base runner watches the pitch, and at just the right moment, he sprints toward second. The catcher snatches the pitch, springs up and rockets the ball to the second baseman who snags it and tries to tag the runner as he slides into the base. As the dust clears, all eyes are on the second base umpire who, in a split second, calls the runner safe or out. When the play is over, the players dust themselves off, and the game goes on.

Some on the field may disagree with the umpire’s call.  However, the umpire’s decision is final, and arguing can get you ejected. To stay in the game, great teams simply adjust their strategy based on the umpire’s call.

So it is with the United States Supreme Court’s Obamacare ruling. Although it took much longer than a split second to render a decision after months of dramatic build-up and political rhetoric over this landmark legislation, the nation’s highest court has called the runner safe. Many side with the four dissenting justices, but the fact of the matter is that the other five have declared the law to be constitutional. Therefore, it is, for the time being, the law of the land.

As with our reaction to an umpire’s call on a second base steal, we now have two options. We can argue over whether or not the Court made a bad call, or we can dust ourselves off and adjust our strategy. Because arguing won’t change the outcome, making adjustments is the only productive option.

Sometimes making adjustments means changing the rules. So if you don’t like the rules, the best way to change them is with the ballot box in November.

For more information about this issue, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.  Also, the views expressed in this commentary are those of the author and do not necessarily reflect the views of Swenson Lervick Syverson Trosvig Jacobson Schultz, PA.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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June 22, 2012

Poster Wars — the Saga Continues

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requirements, Posting Requrements tagged , , , , , , , , , , , , , , , , at 2:16 pm by Tom Jacobson

The saga continues over the workplace poster requirement imposed by the National Labor Relations Board. As I have previously noted, in a lawsuit brought by the National Association of Manufacturers, the United States Court of Appeals for the District of Columbia has already issued an injunction temporarily blocking the requirement.

In a separate federal lawsuit brought by the United States and South Carolina Chambers of Commerce, another federal judge concluded that the rule is unlawful. However, the NLRB has now appealed that decision to the United States Court of Appeals for the Fourth Circuit. If the Fourth Circuit rules in favor of the NLRB, the split between the Fourth Circuit and the DC Courts of Appeal would set up the possibility of the issue ultimately being resolved by the United States Supreme Court.

For more information about the roller coaster history of this proposed rule, see my previous articles (A Post about Posters – New Workplace Posting Requirement Imposed by NLRBNLRB’s Posting Requirement Delayed, NLRB’s Posting Requirement Delayed Again, and NLRB’s Posting Requirement Blocked by Federal Court).

What you need to know: The NLRB’s rule, if eventually upheld, would require nearly all private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act. The rule would also establish that an employer’s failure to post the notice “may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by [the] NLRA…“. However, because of the DC Circuit’s temporary injunction, the rule is not in effect, so employers are not  required to post the notice. The Fourth Circuit appeal will also shed more light on the issue. Stay tuned.

For more information about this issue, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

June 19, 2012

Drug Reps’ Overtime Claims Rejected by US Supreme Court

Posted in Exempt/Non-Exempt Employees, Fair Labor Standards Act, Outside Sales Exemption, Overtime tagged , , , , , , at 9:57 am by Tom Jacobson

In a much-anticipated decision, the United States Supreme Court has rejected the overtime claims brought by pharmaceutical sales representatives in the case of Christopher v. Smithkline Beecham Corp.

The case centered around a group of drug reps whose primary objective was to obtain nonbinding commitments from physicians to prescribe Glaxosmithkline’s products in appropriate cases. Each week the reps spent about 40 hours in the field calling on physicians during normal business hours and an additional 10 to 20 hours attending events and performing other tasks. They were not required to punch a clock or report their hours, and they were subject to only minimal supervision. The reps were well compensated, and their gross pay included a base salary plus incentives determined based on the performance of their assigned portfolio. Because they were not paid time-and-a-half wages when they worked more than 40 hours per week, they brought claims for unpaid overtime under the Fair Labor Standards Act (FLSA).

In a 5-4 decision filed June 18, 2012 the nation’s highest court threw out the reps’ claims. To reach this conclusion, the Court first rejected the Department of Labor’s interpretations of the FLSA on this issue. This is a very important aspect of the case because it sends a signal that comparable DOL interpretations on related issues (for example, that mortgage loan brokers are not exempt under the FLSA) may not be given the deference that is often afforded to the DOL.

After declining to adopt the DOL’s interpretation of the FLSA’s outside sales exemption as applied to these employees, the Court then analyzed the language of the FLSA itself and concluded that these sales reps were subject to the FLSA’s outside sales exemption and, therefore, were not entitled to overtime pay.

What you need to know: The Supreme Court’s decision provides some much-needed clarification of the FLSA. In particular, it indicates that the outside sales exemption is to be broadly applied. Therefore, it is likely that more sales reps will be found to fall under this exemption.  Even so, whether an employee actually falls under this exemption will depend on the specific facts and circumstances of each case.  Therefore, any employer employing a sales force should carefully analyze those jobs to determine if they fall under the FLSA’s outside sales exemption.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

June 12, 2012

NLRB Issues Third Social Media Report

Posted in Computer Use, Employee Handbooks, Facebook, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , at 9:26 am by Tom Jacobson

The National Labor Relations Board (NLRB) on May 30, 2012 issued its third report addressing social media in the workplace.  Like its two previous reports, this one analyzes social media policies used by various employers, and it describes how they are lawful or unlawful under the National Labor Relations Act (NLRA).  This report covers concepts such as:

  • Use of social media and confidential information
  • “Friending” co-workers
  • Privacy, legal matters, online tone, prior permission, and resolving concerns
  • Expressing opinions
  • Bullying
  • Reporting unsolicited electronic communications
  • Unauthorized postings
  • Media and government contact

The NLRB’s third report then concludes with the text of an entire social media policy which it found to be lawful under the NLRA.  “I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area,” said NLRB Acting General Counsel Lafe Solomon.  Despite Solomon’s optimism, others predict court challenges over what may be an overly restrictive view of what workplace social media policies may say (see A. Smith, NLRB Takes Sledgehammer to Social Media Policies, SHRM Legal Resources, 6/1/12).

For more information about the NLRB’s other social media reports, see my previous articles, Social Media Report #2 Issued by NLRB and Social Media Report Issued by NLRB.

What you need to know:  It’s a fine line between social media posts that are protected concerted activity under the NLRA and those that are not. Likewise, it is a fine line between social media policies that do or do not violate the NLRA. Therefore, before action is taken against an employee because of his or her social media activity, and before social media policies are implemented, the NLRA itself and the NLRB’s position on these issues must be taken into account.

For more information about this article or how to address social media issues in the workplace, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

June 8, 2012

No Magic Words Needed under Minnesota Parenting Leave Act, says State’s Highest Court

Posted in Family and Medical Leave Act (FMLA), Family Leave, Minnesota Parenting Leave Act tagged , , , , , at 9:24 am by Tom Jacobson

Employees are not required to specifically mention the Minnesota Parenting Leave Act (MPLA) to qualify for MPLA leave, says the Minnesota Supreme Court.

The MPLA requires Minnesota employers with 21 or more employees to grant an unpaid leave of absence to eligible employees who are natural or adoptive parents in conjunction with the birth or adoption of a child. Employers must continue to make coverage available to the employee while on leave under any group insurance policy, group subscriber contract, or health care plan for the employee and any dependents. Employees returning from MPLA leave are entitled to return to employment in the their former position or in a position of comparable duties, number of hours, and pay.

Unfortunately, the statute does not precisely say what an employee must do to request MPLA leave. This lack of precision was at the heart of the Court’s May 30, 2012 decision in the case of Hansen v. Robert Half International.

In this case Kim Hansen, who was employed by RHI, became pregnant and requested a leave of absence. In the paperwork that accompanied her request, Hansen indicated that her leave was pregnancy related, but she did not specifically mention the MPLA. RHI granted Hansen’s leave request and characterized it as a 12-week short term disability/FMLA leave.

Hansen returned to work after her approved leave ended, but she was dismissed a week later during a reduction in force. She then sued RHI, claiming, among other things, that RHI violated the MPLA by failing to reinstate her to the same or a comparable position after her maternity leave. The trial court dismissed Hansen’s MPLA claims for a number of reasons, including that Hansen had no right to reinstatement because the MPLA requires employees to request leave specifically under the MPLA, and Hansen failed to do so.

The case made its way to the Minnesota Supreme Court which analyzed the wording of the statute and compared it to the FMLA. The Court then concluded:

The record shows Hansen informed RHI of a qualifying reason for her leave. When Hansen completed her leave of absence request form, she completed section A of the form pertaining to “short-term medical disability,” “pregnancy-related disability,” or “worker’s compensation disability” leave. She completed the line entitled “[p]regnancy related disability” and stated her delivery date. In addition, [one of RHI’s managers] admitted that she was on notice that Hansen would need to leave due to Hansen’s complications related to her pregnancy. Because Hansen stated a qualifying reason for needing leave under the MPLA – childbirth – we conclude that she invoked the protections of the Act.

Although Hansen won on this issue, the Court threw out her case for other reasons.

What you need to know: Employees who are eligible for MPLA leave are not required to specifically invoke the MPLA in order to qualify for leave. So long as the eligible employee puts the employer on notice of a qualifying reason – childbirth – s/he is protected by the MPLA. Also, the Hansen case highlights the challenges that arise when MPLA, FMLA and other leaves of absence overlap. For these reasons, it is important for employers to establish clear policies and procedures for managing these complicated leave situations.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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