Category Archives: Human Resources/ Employer Matters

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Antitrust Scrutiny of No-Poaching Agreements Continues to Pick Up Steam

poaching
To most people, “poaching” is a bad thing, connoting a mix of elephant hunting and mediocre eggs. But in labor and employment—where “poaching” means recruiting away another employer’s talent—antitrust regulators, legislators, and class action attorneys have increasingly made clear that companies should engage in poaching, or else they will face potentially serious consequences under the … Continue reading this entry

Incentive Compensation That is Never Subject to Income Tax – Too Good to Be True?

Incentive
Clients frequently ask if they can provide incentive compensation to their employees and executives in a manner that gives them flexibility and drives performance, but receives coveted capital gains treatment. This usually sounds too good to be true. In most cases, you can defer or sometimes minimize income tax for employees (retirement plans, deferred compensation … Continue reading this entry

Add One to the List: New York Prepares to Expand Paid Family Leave

York
New York employers should prepare to make changes to their family leave policies. During an August 29, 2018, debate, Gov. Andrew Cuomo indicated that he may soon sign into law a bill passed by the State Legislature on June 20, 2018, that adds bereavement leave to the list of qualified reasons to take job-protected, paid … Continue reading this entry

Parental Leave Benefits are Under Scrutiny – Be Sure Yours Don’t Discriminate!

Benefits
As the pool of talented employees tightens, more and more employers are offering perks and benefits to lure the best and the brightest into their ranks. Offering generous benefits for working parents is one of the particularly hot trends at the moment, with paid time off chief among them. Companies offer a range of paid … Continue reading this entry

Labor Board Moves to Clear the Confusion on Joint Employment

Independent
On Friday, September 14, 2018, the National Labor Relations Board (NLRB) issued its Notice of Proposed Rulemaking in the latest attempt to address the “joint employer” standard under the National Labor Relations Act. The proposed rule states that a separate entity will be considered a joint employer “only if the two employers share or codetermine … Continue reading this entry

Non-Qualified Retirement Plans & Divorce: You May be Able to Honor DROs, But Should You?

Honor
You probably already know that employers are required to honor qualified domestic relations orders (commonly referred to as “QDROs”) regarding the division of qualified retirement plan benefits (such as 401(k) balances) when an employee gets divorced. However, many employers mistakenly assume that they must also honor domestic relations orders (“DROs”) related to nonqualified retirement plans … Continue reading this entry

Potential #MeToo-Motivated Laws Address More Than Just Sexual Harassment

#MeToo
The #MeToo movement has spawned several bills, many of which are aimed at prohibiting private arbitration of sexual harassment claims or outlawing confidentiality provisions in settlement agreements addressing sexual harassment claims.… Continue reading this entry

You Might Be a Federal Government Contractor — Better Check Now

federal
If your company: sells goods or services to the federal government; or sells goods or services to companies that use those goods or services in the products they sell to the federal government, you need to read this article. If you have human resource management responsibility, and you do not know to whom your company … Continue reading this entry

Employee Need Not Give Severance Back Before Moving Forward

Severance
An employee signs a separation agreement and receives severance pay. The employee then has second thoughts, alleges she was coerced into signing the agreement, and wants to pursue her discrimination claims in court. Must the employee give back the severance before suing? On August 13, 2018, in McClellan v. Midwest Machining, the Sixth U.S. Circuit … Continue reading this entry

A New Way to Use Your 401(k) Plan to Attract and Retain Recent Graduates

401(k)
According to a recent report, the average student loan debt for a Class of 2016 graduate is $37,172. As recent graduates enter the work force, they often choose not to contribute to their employers’ 401(k) plans and lose out on corresponding employer match because they prefer to focus on paying off their student loans or … Continue reading this entry

First Preference, Employment-Based Priority Workers’ U.S. Immigrant Visas at a Processing Standstill

Immigrant
As of July 18, 2018, the Visa Control and Reporting Division of the U.S. Department of State (DOS) advised that due to heavy worldwide demand it was retrogressing the processing of immigrant visas for certain “priority workers.” First preference priority workers, commonly referred to as “EB-1” (employment-based first preference) workers, consist of: persons of extraordinary … Continue reading this entry

OFCCP Signals Emphasis on “Religious Liberty” in Federal Contractor Compliance

OFCCP
On August 10, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a new policy directive aimed at protecting the religious freedom of employees and ensuring a “level playing field” for religious organizations to compete for federal contracts. While the 2014 Obama administration rule prohibiting discrimination based on sexual orientation and gender … Continue reading this entry

Termination Documentation

Termination
When terminating an employee, an employer should create documentation showing the reason for and circumstances relating to the termination. The documentation serves two purposes. First, it helps the employer remember why it terminated the employee, especially in situations where the original decision makers are no longer with the employer. Second, it will help the employer … Continue reading this entry

Massachusetts Legislature Passes Comprehensive Noncompetition and Trade-Secrets Reform

noncompetition
The Massachusetts General Court has passed legislation that, if signed by the governor, will comprehensively reform the law governing employee noncompetition agreements and trade-secret misappropriation. If enacted, these laws will become effective October 1, 2018, giving Massachusetts employers only two months to assess their current practices and adapt to the new laws.… Continue reading this entry

California Supreme Court Says Employers Must Pay for Several Minutes of Off-the-Clock Work

Off-the-clock
Last Thursday, July 26, the California Supreme Court issued an opinion concluding that coffee retailer Starbucks must pay its employees for off-the-clock duties that take several minutes per shift. In issuing its opinion, the Court rejected Starbucks’ request to invoke a federal wage rule (known as the de minimis doctrine) that excuses employers from paying … Continue reading this entry

Online Forum Activity = Protected Concerted Activity

online
Much can be (and has been) made about the newly constituted National Labor Relations Board overturning many precedents of the prior Board, which was largely appointed by President Obama. Nonetheless, even with a more “conservative” (i.e., pro-employer) Board, some employers still cross the line. In one recent case, it all came down to what an … Continue reading this entry

The Heat Is On: Is Your Company in Compliance with State Sun and Heat Worker Protections?

heat
With summer in full swing and heat waves sweeping the country, it is important that employers comply with any state regulations protecting employees who work outdoors from suffering from heat-related illnesses. Just last week, with the National Weather Service issuing excessive heat warnings for California, Cal/OSHA reminded all employers with outdoor workers to be mindful … Continue reading this entry

Invention Assignment Agreements – How to Avoid Pitfalls

invention
Intellectual property assets are the lifeblood of many businesses today. No employer wants to see those assets walk out the door when an employee leaves. Employee invention assignment agreements are one crucial tool for protecting intellectual property, but the laws governing them contain traps for the unwary. If the agreement is too narrow or ambiguous, … Continue reading this entry

Good News for Private Employers in California: Federal Court Temporarily Enjoins Several Provisions of New Law Prohibiting Cooperation with Immigration Enforcement Agents

immigration
Private employers received good news this month when a federal court temporarily stopped the state of California from enforcing most of a new law that restricts an employer’s ability to cooperate with officers who enforce federal immigration laws. This new California law is known as Assembly Bill 450 or the “Immigrant Worker Protection Act”.  It … Continue reading this entry

No Summer Break for New York State’s and New York City’s Anti-Sexual Harassment Protections

New York
With the summer (and many vacations) now in full swing, it would be easy for employers to miss the anti-sexual harassment protections that were added to the New York Civil Practice Law and Rules (NY CPLR) and New York’s General Obligation Law, effective July 11, 2018, as well as the additional training, policy and other … Continue reading this entry

How Do I Report Non-Qualified Plan or Severance Payments to a Former Employee? Hint: You Should Probably Use a W-2, Not a 1099!

Payments
Employers commonly make payments to former employees for a number of reasons. Two of the more routine payments are those from a non-qualified deferred compensation plan (such as payments from a supplemental executive retirement plan or a 401(k) restoration-type plan) or pursuant to a severance arrangement, and sometimes both. (Other termination- or settlement-type payments, such … Continue reading this entry

Employers Are Allowed to Choose Alternative Reasonable Accommodations if Effective

Reasonable
Employers generally understand their obligation to provide a reasonable accommodation to qualified individuals with disabilities as required under the Americans with Disabilities Act (ADA), as well as a number of state and local laws. A recent federal court case reminds employers that they may choose among reasonable accommodations and that as long as the selected … Continue reading this entry

When is a “Bonus” Really a “Commission”? A Helpful Reminder to Ensure Your Pay Plans Comply with State Laws

Commission
In the past, we have highlighted some of the legal risks of employing commission-based employees, as well as some of the methods for limiting those risks.  A new court decision out of Illinois provides a good reminder that vaguely described policies and restrictive payment rules can expose employers to large liabilities.… Continue reading this entry

Do You Really Need to go to That Seminar?

Seminar
With only a few exceptions (e.g., harassment training in California), employment-related training is voluntary, not mandatory.  We all have so many demands on our time and not enough time in the day to meet them.  As an HR professional, sometimes the last thing you want to do is go to another seminar about harassment, or … Continue reading this entry