11.29.2023Heads Up To Group Health Plans: December 31 Gag Clause Attestation Deadline ApproachesThe Consolidated Appropriations Act of 2021 prohibits group health plans from agreeing to avoid making certain disclosures of provider-specific cost or quality-of-care information. This is referred to as the gag clause prohibition. The Act also requires health plans and insurers offering group health insurance coverage to attest annually that they are in compliance with the gag clause prohibition. The attestation requirement applies to health insurers offering group or individual coverage and to insured and self-insured group health plans, including ERISA covered plans, non-federal government plans, and church plans.
08.31.2023Risk of Cemex Bargaining Order Raises Stakes for Employers that Commit Serious Unfair Labor Practices During Union CampaignsExpressing palpable frustration with an employer that committed many unfair labor practice charges after a union filed an election petition, and acknowledging the lack of serious disincentives to engage in unlawful behavior opposing a union campaign, on August 25, 2023, the NLRB issued a new set of rules that will apply immediately to many employers and unions locked in a unionizing campaign. The major change is that the Board has determined that it has the power to impose a bargaining order on an employer that engages in serious unfair labor practice charges during an organizing campaign despite the union’s losing a Board-supervised election and without entertaining the remedy of a re-run election.
08.10.2023NLRB Applies a Shifting Burdens Analysis in Reviewing Employer Work Rules; Boeing OverruledOn August 2, 2023, the NLRB further limited employers’ flexibility in designing work rules by holding that all work rules will be reviewed on a case-by-case basis, and no work rules will get an automatic pass. The Board’s 3-1 decision in Stericycle Inc. holds that once the NLRB General Counsel proves that a work rule could chill employees’ exercise of Section 7 rights, there is a presumption that the rule is unlawful, which the employer can rebut only with proof that the work rule serves a lawful business interest, the rule advances the lawful interest, and a more narrowly tailored rule would not advance the interest.
08.08.2023NJDOL Issues Proposed Regulations Implementing N.J. Temporary Workers Bill of Rights ActOn July 21, 2023 the N.J. Department of Labor and Workforce Development (Department) issued long-awaited guidance regarding the Temporary Workers Bill of Rights Act. Certain provisions of the Act took effect on August 5, 2023. These regulations address Sections 1 through 7, and Section 10 of the Act only and are not technically binding on employers and temporary help service firms (THSFs) now since they are in their proposed form and the Department is accepting public comments through October 20; however, they provide additional guidance for employers and THSFs who are trying to comply with the provisions of the Act.
08.03.2023Entrepreneurial Opportunity Takes A Back Seat In Revised NLRB Test Of Employee Versus Independent Contractor StatusOn June 13, 2023, in a 3-1 decision, the NLRB overruled its own 2019 decision in SuperShuttle DFW and returned to the test of statutory employee status in its 2014 FedEx II decision which it terms carefully calibrated. In doing so, the Board held that the Atlanta Opera’s makeup artists, wig artists, hairstylists, and others who worked at the Opera only when operatic productions were staged are employees within the meaning of the National Labor Relations Act, and not independent contractors. The Atlanta Opera, Inc. The NLRB refused to apply the U.S. Court of Appeals 2009 ruling in FedEx I which held that entrepreneurial opportunity is an animating principle of the independent contractor test and accused the Court of misperceiving Board law. The Board decision in Atlanta Opera leaves no doubt that entrepreneurial opportunity is not a super-factor in the analysis of employee status, and is only one factor to be considered in analyzing independent contractor versus employee status. The NLRB held that its prior SuperShuttle DFW holding is no longer the law since it conflicts with common law agency principles, and U.S. Supreme Court and NLRB precedent.
05.31.2023COVID-19 Flexibilities for I-9 In-Person Document Inspections Extended to July 31, 2023, but Physical Inspections of Remotely Verified Documents Must be Completed and Documented by August 30, 2023Federal law requires employers to perform in-person inspections of new employees and their documents (as well as current employees with expiring Employment Authorization Documents (EADs) to verify that they are authorized to work in the United States. Employers must fully and accurately complete a Form I-9, Employment Eligibility Verification, when they inspect the employee’s documents, within three business days of a new hire’s first day of employment (or upon the expiration of a current employee’s EAD.) Beginning in March 2020, though, employers were permitted to perform virtual, remote Form I-9 verifications and document inspections for employees working remotely due to COVID-19.
09.16.2021Third Circuit Upholds Arbitrator’s Imposition of Parent Company Liability for Pension Withdrawal LiabilityOn August 26, 2021, the Third Circuit confirmed that a corporation remained on the hook for the pension withdrawal liability of its bankrupt subsidiary despite diluting its ownership interest in the subsidiary below 80%, to avoid controlled group liability. The decision is an example of a court’s power under ERISA Section 4212(c) to disregard a transaction when it finds that the transaction’s principal purpose is avoiding pension withdrawal liability.
07.09.2021New Jersey Enacts Higher Penalties for Employee MisclassificationOn July 8, 2021, Governor Phil Murphy signed three bills into law that continue to raise the stakes for employers that misclassify employees as independent contractors. With these changes, businesses that operate in New Jersey and misclassify employees can expect to pay stiffer fines and face legal enforcement actions that did not exist before.
07.07.2021Trenton Okays State And Local Government Use Of Project Labor Agreements On Public Works ProjectsFor many years construction contractors that bid on public works projects have had to contend with complying with prevailing wage and benefit, apprenticeship program, certified payroll, and Labor Commissioner registration requirements. Now add to these requirements the risk that a bidding contractor must sign onto a project labor agreement as a condition to performing on a medium or large sized public works project.
On April 30, 2021, Governor Murphy signed Bill S.3414/A.5378 into law, which took effect immediately and allows state, county and municipal governments and agencies, including school districts, to require public works projects they fund to be subject to a project labor agreement (“PLA Law”).
04.07.2021The Biden Administration’s Health Insurance PrioritiesThe Biden Administration wasted no time in implementing some of the new President’s campaign promises relating to health insurance and the Affordable Care Act (“ACA”).
09.29.2020Federal Court in Manhattan Vacates Key Part of USDOL’S Final Rule on Joint Employer StatusOn September 8, 2020 U.S. District Court Judge Gregory H. Woods in Manhattan granted partial summary judgment to 17 states and the District of Columbia striking down a major part of the Department of Labor’s Final Rule on vertical joint employer relationships.
09.21.2020NJ Supreme Court Enforces Arbitration Agreement Despite Failure to Specify Forum, Arbitrator, & Governing Law On September 11, 2020, in a unanimous decision, the New Jersey Supreme Court found that New Jersey law does not require that an arbitration agreement identify the arbitrator, name the arbitral forum, describe the arbitrator selection process, or provide for the governing law, so long as the agreement to arbitrate includes a clear and unmistakable waiver of the right to a jury or other civil trial of the claims.
09.01.2020Federal Court Judge Block Blocks Temporarily HHS’s Enforcement of Revised ACA Anti-Sex Discrimination Rules, Restores ACA Protections for LGBTQ Individuals On August 17, 2020 the U.S. District Court for the Eastern District of N.Y. preliminarily enjoined the U.S. Department of Health and Human Services (“HHS”) from enforcing provisions of its June 2020 final Section 1557 regulations (“2020 Rules”) which were slated to take effect the next day. The 2020 Rules, in part, interpret the Affordable Care Act’s prohibition of sex discrimination as excluding discrimination based on gender identity and sex stereotyping, which is contrary to the interpretation under the Obama-era rule.
08.19.2020Crossing State Lines: Road Tripping with Amazon and Interstate CommerceOn July 28, 2020, Chief District Judge Freda L. Wolfson from the District of New Jersey denied Amazon’s Motion to Dismiss and Compel Arbitration in Harper v. Amazon. The parties were ordered to engage in discovery to determine whether plaintiff was engaged in interstate commerce to be exempt from arbitration under the Federal Arbitration Act (FAA).
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