Hunton Employment & Labor Perspectives

On January 14, 2013, the Department of Labor (“DOL”) issued guidance further defining the meaning of “son or daughter” within the Family and Medical Leave Act (“FMLA”).  The FMLA provides qualified employees up to 12 weeks of leave within a 12 month period to care for a son or daughter with a serious health condition.  Under certain circumstances, a son or daughter may include an individual over the age of 18, if that individual has a disability.  The DOL now clarifies, that a child over the age of 18 with a disability may qualify as a son or daughter within the FMLA, regardless of the individual’s age when the disability occurred.

Earlier today the D.C. Circuit issued its decision in Noel Canning, v. NLRB finding that President Obama’s January 4, 2012 recess appointments of NLRB members Griffin, Block and Flynn (who has since resigned) were unconstitutional.  The Court therefore concluded that the Board lacked the required quorum needed to conduct business and therefore that its ruling on the merits of the case was void.  In reaching this determination, the Court interpreted the meaning of “recess” within the Appointments Clause, finding that it referred only to intersession recesses – that is, the ...

In numerous prior posts, we have reported about the pro-labor decisions and regulatory changes by the Democratic-majority National Labor Relation Board.  Unfortunately, the Board is at it again, this time in WKYC-TV, Inc., 359 NLRB No. 30 (2012) , reversing a fifty-year-old precedent regarding the effect of contract expiration on a dues checkoff clause contained in the expired contract.

The Patient Protection and Affordable Care Act requires that employers report the aggregate cost of “applicable employer-sponsored coverage” on Form W-2.  (See our August 6, 2012, posting entitled “Reminder – 2012 Form W-2 Reporting For Group Health Plans” for an explanation of this requirement.)  Applicable employer-sponsored coverage generally includes coverage under any group health plan made available to employees by an employer that is excludable from gross income.  In providing an enumerated list of the types of coverage that are exempt from the reporting requirement, the Internal Revenue Service explained in Notice 2012-9 (Q&A-12) that the term “applicable employer-sponsored coverage” generally does not include any coverage for HIPAA-excepted benefits, other than coverage for on-site medical clinics.

Those employers hoping for an appellate court decision on President Obama’s controversial “recess” appointments to the National Labor Relations Board will have to wait a while longer.  In Richards v. NLRB, 7th Cir. No. 12-1973 (decision issued December 26, 2012), the Seventh Circuit sidestepped a ruling on the “recess” appointment question by denying the employer’s petition for review on standing grounds.

As a result of the National Labor Relations Board’s (the “Board”) decision in Latino Express, Inc., 359 NLRB No. 44 (Dec. 18, 2012), employers will now have greater obligations in cases where individuals are awarded lump-sum backpay.  Making good on its earlier promise, the Board held that employers must reimburse individuals for any additional federal or state income taxes, which may result when a lump-sum backpay award covers more than one calendar year.  The Board also held that employers must submit appropriate documentation to the Social Security Administration (“SSA”) so that backpay is allocated to the appropriate calendar quarters.  The Board’s decision follows, a March 2011 memorandum issued by Acting General Counsel, Lafe Solomon, in which he addressed both of these issues instructing Regions to seek a remedy with a tax component in cases involving lump-sum backpay as well as a remedy requiring employers to notify the SSA of the appropriate periods for allocating backpay.