Author: mbudka

Obama: FMLA Should Cover Same-Sex Couples

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fmlaPresident Barack Obama announced today that he is directing the Department of Labor to propose a rule making legally married, same-sex couples eligible for benefits under the Family and Medical Leave Act in all fifty states regardless of whether they live in a state that recognizes their marital status.

The Family and Medical Leave Act allows employees to take unpaid, job-protected leave for family and medical purposes. Without the regulatory changes, gay couples cannot receive federal benefits in states that do not recognize their marriages. Same-sex marriage is currently legal in nineteen states and the District of Columbia.

Obama’s announcement comes as a precursor to the Justice Department’s announcement this afternoon of findings from their yearlong review of how the landmark 2013 Supreme Court Windsor decision (that held that the survivor of a same-sex couple could claim the federal estate tax exemption for surviving spouses) affects federal rights and obligations linked to marriage and spousal rights and benefits. It is expected that, in almost all instances, same-sex married couples will receive the same federal benefits and obligations as their heterosexual counterparts, regardless of where they live. The two exceptions are Social Security and veterans benefits, which are determined by the law where the couples live. Obama, and gay and civil rights groups, are pressing lawmakers to extend these federal benefits to same-sex couples too.

For ACA, Check Your Handbooks and Intranet

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affordable-care-actIf you are like most employers, you have been diligently revising your health benefit plans and working with your insurance providers to make sure your Summary Plan Descriptions comply with the Affordable Care Act. After those revisions are in place, if your handbook and intranet contain benefits-related information, you will need to make revisions there too.

For example, if you exclude “part-time” employees from your health plan, make sure to define that exclusion in your handbook. If your definition of “part-time” is different for health benefits than it is for other purposes (hours, compensation, or vacation for example), be sure to make a clear distinction and consider using a term other than “part-time” when referring to health benefits to avoid possible confusion. The level of detail you include will depend on your preference, but as with other benefit plan discussions it is best to avoid heavily detailed information about your benefits in a handbook.

Any handbook or intranet description of benefits should include language that:

  • Emphasizes that the handbook only summarizes benefits and directs employees to plan documents for detailed information.
  • States that the plan documents control if there are inconsistencies between them and the handbook or intranet.
  • Makes it clear that eligibility for participation in any plan is governed by the terms of that plan’s documents and specifies whether or not a waiting period applies and what it is.
  • States that the benefits described in the handbook may be modified or discontinued at the company’s sole discretion.

Are You Ready for 2014?

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checkLaws are always changing and can sneak up on even the most aware companies. Each year, LP’s Labor & Employment Practice Group is pleased to offer a short checklist of items all companies should consider to improve their readiness, avoid litigation, meet compliance obligations, and stay current with best practices in 2014. We hope you find this 2014 Labor and Employment Law Compliance Checklist to be a helpful guide for the year ahead.

2014 Labor and Employment Law Compliance Checklist

Company Handbook Items Draw NLRB Scrutiny

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EmployeeHandbookThe National Labor Relations Board is drawing a lot attention from the media for its recent crackdowns on companies’ social media policies, but the NLRB has increasingly been scrutinizing other common policies in non-union companies’ employee handbooks.  Guidelines on keeping information confidential, being courteous in the workplace, not disparaging the company or supervisors, and resolving disputes are all under the NLRB’s microscope. The key, in the NLRB’s eyes, is whether the policy would limit employees’ right to “engage in concerted activity” (which includes everything from two employees discussing the workplace to a group of employees forming a union) or suggests that employees can’t engage in collective bargaining.  So, for instance, the NLRB has taken issue with confidentiality policies that prohibit the sharing of information regarding other employees because sharing employee information is a key step in organizing.  Similarly, the NLRB has taken action against non-union companies that prohibit employees from disparaging co-workers or the company, because employees have a right to share their grievances about the workplace.  There is no question that the NLRB is continuing to assert itself in non-union workplaces. Employers can look forward to more NLRB cases claiming that standard handbook policies violate the National Labor Relations Act.  If you haven’t recently reviewed your employee handbook and policies with an eye toward these issues, it makes sense to do so before you find yourself in the NLRB’s crosshairs.