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The Board Plays On: The NLRB Clarifies Its Position
on At-Will Disclaimers
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In 2012, the National Labor Relations Board (NLRB) set
the business community atwitter when an administrative law judge in
American Red
Cross decided that an at-will disclaimer in an employee
handbook violated the National Labor Relations Act (NLRA) by being
overly broad. In that case, the NLRB made the unprecedented
argument that an at-will employment policy could violate Section 7
of the NLRA because it could chill an employee's ability to
communicate with others about wages, hours and working conditions
or to engage in otherwise protected activity.
Read the full article on our website.
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Interns This Summer? Evaluating Your Unpaid
Internship Programs Under the FLSA
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America's high school and college students will soon
be finishing another school year, and employers across the country
are gearing up to welcome many of these young adults as interns for
the summer. Interns are staples in many organizations and often
provide valuable benefit to a business. As employers strive to keep
costs down, including that of labor, many use unpaid summer help
where possible. Many student interns are happy to have the chance
to learn on the job and will agree, if not volunteer, to work for
free.
Read the full article on our website.
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Affordable Care Act Standards Related to Essential
Health Benefits, Minimum Value, Actuarial Value and Accreditation
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On February 25, 2013, the Department of Health and
Human Services (HHS) released its final rule (the Final Rule)
setting forth standards for health insurance issuers under the
Patient Protection and Affordable Care Act (the Affordable Care
Act). Specifically, the Final Rule outlines exchange and issuer
standards related to coverage of essential health benefits, minimum
value and actuarial value. The Final Rule also confirms a timeline
for qualified health plans (QHP) to be accredited in
federally-facilitated exchanges, among other provisions.
Read the full article on our website.
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Pick Off the Plaintiff? Rule 68 Offers of Judgment
Gain Significant Importance Following New Supreme Court Decision
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Last month, the United States Supreme Court (Supreme
Court) provided an unexpected gift to entities facing collective
actions under the Fair Labor Standards Act (FLSA) by holding that
defendants may moot such a case by making an offer of judgment
pursuant to Rule 68 of the Federal Rules of Civil Procedure. This
ruling could have application to the more common vehicle for
multiple plaintiff claims, class actions under Rule 23, but that
has yet to be tested. Nonetheless, this is an important case for
any defendant facing multiple plaintiff claims because of its
potential application to class actions.
Read the full article on our website.
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Welcome to the second quarter edition of SuperVision Today,
the quarterly e-newsletter published by Spilman's labor and
employment group. As part of our ongoing commitment to client
service, we continue to expand the ways you can gain updates on the
latest in labor and employment news and regulations. In addition to
this quarterly newsletter and our SuperVision symposium series, we
are excited to now offer you the Spilman SuperVision app for iOS
devices, available for
download in the Apple App Store. This app allows you to choose
from several common employment situations and walk through a simple
decision tree on the topic of your choice via a series of yes/no
questions. By using the app, you will gain a better understanding
of your particular issue and what your options are, and learn at
what point you should seek the counsel of a knowledgeable legal
advisor for that issue.
Before we discuss our upcoming regional SuperVision symposium, we
wanted to ask: have
you started using the new I-9 forms?
These forms were recently updated by the United States Immigration
and Naturalization Service, and all employers must be using the
newly revised forms now. Should you have any questions about how to
complete the I-9 or whether you are using the right form, please
contact your Spilman attorney or the chair of our immigration
practice group, Larissa Dean.
We are very excited to invite you to our 2013 regional SuperVision
symposium, scheduled for Friday, June 28, 2013 in Charleston, W.Va.
Our program, which packs a wealth of knowledge into a convenient,
single-day format, takes place during Charleston's 10-day FestivALL
event, culminating with the Wine & All That Jazz festival. This
year's presentations
will focus on providing the keys to unlock today's toughest human
resources issues. Attorneys from each of Spilman's offices will be
joined by a number of corporate counsel and HR professionals with
first-hand experience tackling cutting edge issues and best
practices for your HR department.
A
highlight of the symposium will be the lunchtime panel of HR
professionals and corporate counsel from throughout the region. Our
program will conclude with the always popular "Ask a Lawyer"
segment, giving you the opportunity to vet your toughest issues
with Spilman's labor & employment team. We always have a packed
house for SuperVision, so reserve your place
today or contact Angie Baker for
additional information. We look forward to seeing you there!
In
this edition of SuperVision
Today, Alyesha Asghar Dotson updates her article
featured in our fourth quarter 2012 newsletter, providing the
latest National Labor Relations Board guidance on drafting
allowable at-will disclaimers. Carrie Harris provides tips for
ensuring your unpaid summer interns are properly classified. Erin
Jones Adams continues our series on the Affordable Care Act. Scott
Adams examines a recent development in handling large-scale wage
and hour cases. Finally, Rick Wallace has an update for our clients
with operations in West Virginia on the latest modifications to the
West Virginia Wage Payment and Collection Act, a statute that sometimes
trips up employers to the delight of plaintiff's lawyers throughout
the state.
We hope you enjoy our content this quarter. As always,
if you have any questions or ideas for future articles, please feel
free to reach out to us.
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Easing the Time-frames: W.Va.
Relaxes the Time in which Employer Must Pay Discharged Employees
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Because of recently-enacted changes to the West
Virginia Wage Payment and Collection Act, West Virginia employers
will have more time to pay final wages to discharged employees.
Prior to this change, the Wage Payment and Collection Act required
that employers pay discharged employees within 72 hours of
termination. The revised law, which will become effective July 12,
2013, now mandates that payment to discharged employees be made no
later than the next regular payday or four business days, whichever
comes first. "Business days" are defined as days on which
state offices are open for regular business. Payment is to be made
through regular pay channels or, if requested by the discharged
employee, by mail. An employer remains liable for three times the
unpaid amount to an employee who is not paid in a timely manner.
The timing of payment to employees who are laid off or resign
without a pay period's notice is unchanged; payment must be made no
later than the next regular payday. Similarly, employers must still
pay employee who resign with a pay period's notice on the
employee's last day of work.
With these changes, employers will experience a measure of relief
from the prior draconian 72-hour rule. Unfortunately, in some
circumstances, the relief may not be quite as generous. For
example, if the employee is discharged on a Wednesday before a
Friday payday, under the "next regular payday or four business
days, whichever comes first" rule, the employer now may have
only two business days to provide that last paycheck. So, the
employer may actually have less time to make payment to a
discharged employee than prior to the amendment. By and large, however,
this amendment will provide much needed relief from the prior
72-hour rule. In any case, the best practice for employers is still
to have the final paycheck ready to be given to the employee at the
discharge meeting or exit interview. Following that best practice
will alleviate any possible liability for late payment under this
Act.
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Ellen J. Vance
Ellen is Counsel in the firm's Charleston, W.Va. office. Her practice
focuses on employment litigation. She regularly represents companies
in employment discrimination actions before the West Virginia Human
Rights Commission and before state and federal courts in West Virginia.
She also advises employers regarding personnel policies. She was
recently named to the West
Virginia Super Lawyers magazine's "Rising
Stars" list for employment/ labor law.
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This is an attorney
advertisement. Your receipt and/ or use of this material does not
constitute or create an attorney-client relationship between you and
Spilman Thomas & Battle, PLLC or any attorney associated with the
firm. This e-mail publication is distributed with the understanding
that the author, publisher and distributor are not rendering legal or
other professional advice on specific facts or matters and, accordingly,
assume no liability whatsoever in connection with its use.
Responsible
Attorney: Eric W. Iskra
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