New NLRB General Counsel Sets New Tone For The "Trump Board"

NLRB

We are now almost a year into the Trump presidency, but we are still grappling with how the administration will address many issues throughout the country. To a certain extent we can never be sure of a clear path, as President Trump has not always taken consistent positions on policy issues. However, from time to time, the president’s appointees issue guidance that provides insight on how they will approach their new positions.  The National Labor Relations Board’s (NLRB) new general counsel did just that at the beginning of the month.

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Labor Department Proposes A Reversal Of Its Current Tip-Pooling Rules

Department

On December 5, the Department of Labor published a Notice of Proposed Rulemaking to reverse its 2011 rule prohibiting employers from sharing tips obtained by service workers with non-tipped staff.

The proposed rule would allow employers who pay at least minimum wage (without taking a tip credit) to share tips through a tip pool with employees who do not traditionally receive direct tips — such as restaurant cooks, dishwashers, and other “back of the house” employees. The proposed rule could arguably even allow an employer to pocket the tips altogether.

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Another Joint Employment Development, And Still More Uncertainty

Joint

For the last several years, “joint employment” (whatever that now means legally) has been anything but the gift that keeps on giving for employers. First, joint employment became a tool that the previous Administration locked onto in seeking to expand wage and hour liabilities and to open up potential union organizing opportunities and labor relations obligations.  After those actions sent tremors through franchise-based businesses and companies that have significant subcontractor relationships, the new Administration took relatively swift action seeking to unwind the previous joint employment expansion.  And even where the federal appellate courts have weighed in on the joint employment changes, to this point they have provided little helpful guidance about what joint employment means (and what the derivative legal obligations will become) for the long term.

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Watch Your Mail: IRS Begins Collection of Employer Mandate Penalties

IRS

It’s official. The IRS has finally begun the process of collecting penalties under the Affordable Care Act’s (ACA) employer shared responsibility provisions, better known as the employer mandate.  The IRS has started mailing out letters to employers that potentially owe an employer shared responsibility payment (ESRP) for the 2015 calendar year.  These letters follow the format of the IRS’s recently released template letter, Letter 226-J. The letter outlines the IRS’s preliminary calculation of the ESRP owed by the employer based on information contained in the ACA tax forms filed by the employer and the individual income tax returns filed by employees.

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Reconsidering Limits on Confidentiality Provisions Where Sexual Misconduct is Involved

Confidentiality

It does not require insightful analysis to conclude that something is broken when it comes to reporting and addressing sexual misconduct in the workplace.

One attempt to fix part of the “brokenness” comes from the Pennsylvania legislature – a bill that would place limits on confidentiality restrictions. (New Jersey is considering something similar and other states, such as California, are assessing possible revisions to reporting and investigative processes).

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