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Apr 1, 201309:36 AMOpen Mic

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Employment Law Update: IRS proposes rules on health care coverage; two-second phone call leads to firing

Employment Law Update: IRS proposes rules on health care coverage; two-second phone call leads to firing

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Legislative and administrative action

Who is covered? IRS proposes rules on health care coverage. Employers of 50 “full time equivalents” must cover “full-time” employees under the Affordable Care Act. The IRS has proposed guidelines on how to calculate “equivalents,” when someone is “full time,” and how to determine if those with fluctuating work schedules are “full” or “part” time. The rules have different definitions than DOL uses for Title VII, FMLA, ADA, etc. An employer might have 50 employees for DOJ-FMLA coverage yet not have 50 employees under the IRS-AHCA rules. The new IRS rules require more calculations and have more sorts of “qualifying time” measurement periods than employers are used to under the existing DOJ regulations.

OFCCP’s new directive on use of criminal records in hiring. Following the lead of the EEOC, the Office of Federal Contract Compliance Programs has issued a directive cautioning that excluding applicants due to conviction records may have a discriminatory adverse impact on race and national origin. The directive references EEOC’s guidelines, which were issued in 2012, as well as the Fair Credit Reporting Act requirements on background checks. In addition, the directive cites the benefits employers might receive by hiring people who do have a criminal record through the Work Opportunity Tax Credit and the Federal Bonding Program.

Litigation

This update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state’s court decision, may not quite be “the law” in your jurisdiction. Some courts lead the way; others lag behind. This update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois, and Indiana).

Constitutional Rights

HR manager had no free-speech protection to write private article against gay rights; top officials have fewer rights. Being at the top is not always a good thing. A university vice president of HR was fired after writing a private opinion letter to a local newspaper objecting to the comparison of the gay rights movement with the civil rights movement for racial equality. The letter expressed indignation that “those choosing the homosexual lifestyle should be considered as civil rights victims.” The article implied that gay people should not be afforded the same rights as African Americans. The fired VP sued, claiming a violation of her constitutional rights to express social and political views on her private, non-work time. The court dismissed the case. A vice president of HR is in a policymaking position. She was in charge of implementing and enforcing the university’s EEO policies, which clearly included protecting rights and equal treatment on the basis of sexual orientation. A policy developer cannot undermine the key policies he or she is supposed to enforce without also destroying the public trust in the policies and the organization’s effectiveness, even if the comments are off the job. A person who publicly expresses disdain for the policies he or she is supposed to be responsible for should not be in that job. Dixon v. U. of Toledo (6th Cir., 2013).

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