Taking the time to include a well-crafted arbitration agreement in your employment contracts sometimes feels like a moot point, but a recent unanimous U.S. Supreme Court opinion in Henry Schein, Inc. v. Archer & White Sales, Inc. should inspire some confidence in the enforcement of arbitration. The story is a familiar one—an employee who signed an agreement sues their employer, the employer tries to invoke the agreement’s arbitration clause, and both parties spend countless time and money arguing over who should decide whether the dispute is subject to arbitration: the judge or an arbitrator? To cut off such fights, some employers put “delegation clauses” in their arbitration agreements. A delegation clause states that it is the arbitrator who decides whether the dispute is fit for arbitration. Even with such language in agreements, delegation clauses have been fiercely contested and courts could determine that they and not the arbitrator should hear the case because the assertion of arbitrability was “wholly groundless.”
On January 23, 2019, the Occupational Safety and Health Administration (OSHA) increased the maximum civil penalties that employers can receive for health and safety violations by 2.5 percent to account for inflation.
In the classic version of the iconic board game Monopoly, “Monopoly Jail” is the first corner space after “Go.” When playing the game, no one really wants to be sent to jail, as it immediately takes away your turn and ends your ability to keep collecting money and property.
The same is true about your “work life.” Almost no one wants to go to jail because of their work. But federal, state, and local governments continue to enact laws that potentially send employers to jail for doing bad things—like engaging in wage theft.
Innocent mistakes are an unfortunate reality in our fast-paced, technology-driven society. But an employer does not have to tolerate an employee doubling down on his mistake by deceiving his employer and actively impeding an investigation into that mistake. That’s the main lesson from a recent Alabama federal district court opinion in which the judge held that the employer, which happened to be the National Labor Relations Board (NLRB), was within its rights to terminate its employee Gregory Powell, an NLRB field attorney with over 16 years of experience.
Takeaway Message: A recent IRS notice provides a future path for employers to avoid ACA employer mandate penalties by reimbursing employees for a portion of the cost of individual insurance coverage through an employer-sponsored health reimbursement arrangement (HRA). While the notice is not binding and at this stage is essentially a discussion of relevant issues, it does represent a significant departure from the IRS’s current position that an employer can only avoid ACA employer mandate penalties by offering a major medical plan.