The Harshbarger Report

More Preliminary Reinstatements Ordered For Sarbanes-Oxley Retaliation Complainants
Under SOX, if the federal Department of Labor ("DOL") makes a preliminary determination that a complaint of retaliation is reasonably-based, it may order the preliminary reinstatement of the Complainant pending final resolution of the litigation.

And ERISA Has A Whistleblower Provision Too, Sort Of
Director of Human Resources allegedly fired for complaining about 401(k) plan underfunding.

OTHER EMPLOYMENT LAW HEADLINES

Mass. Appeals Court Addresses "Joint Employer" Issue In Discrimination Case
Interaction between contracting agreement on one hand, and state licensure requirements on the other, confuse an already confusing issue.

OK To Require Blanket FCRA Authorization As Condition Of Employment
At least according to the 3rd Circuit Court of Appeals.

Inappropriate Religious Comments Cause For Discharge
Telephone triage nurse terminated for, among other things, telling one co-worker she was under attack by the "powers of darkness."

AT THE SUPREME COURT

ADEA "Disparate Impact" Claims Allowed
Sharply divided Court ruled that disparate impact claims could be maintained under the ADEA, but also ruled that these particular plaintiffs still had not proven such a claim.

Title IX Claim Lies For Retaliation
Male coach of a girl's basketball team who complained about unequal treatment his team received could maintain a retaliation claim under Title IX.

Public Employee "Free Speech" Case Accepted By Court
Court may resolve considerable confusion among the various Circuit Courts of Appeal about the appropriate standard for determining whether or not public employees' speech is protected under the First Amendment or not.

Legislative/Regulatory Actions Of Note

Update On EEOC Retiree Health Benefit/ADEA Rule - It's Now Stymied In Court
New rule allowing employers to reduce or end benefits when a retiree becomes eligible for Medicare without violating the ADEA probably won't be in effect for some time, if ever.

IRS Issues Proposed Rules For 401(k) Roth Contributions
Will allow for employees to designate all or a portion of their 401(k) employee deferrals on an after-tax basis.

EBSA Rules Insurers Must Disclose Commissions And Fees To Plan Administrators
Insurers must provide plan administrators with a proportionate allocation of commissions and fees attributable to each contract for which a Schedule A must be filed.

EBSA Also Opines On Fiduciary Duties
Issue was of a trustee of a local union health and benefit fund who received, and later returned, political contributions for his election and re-election to a county legislature from several current and prospective service providers to the fund.

Don't Bother Submitting H-1B Applications Until USCIS Provides Guidance
And don't hold your breath.

The Poster Is Finally Here
USERRA notice poster available.

FLSA/FMLA Cases

1st Circuit Holds That Pharmacists Are Professional Employees
Apparently the first federal appeals court case addressing the issue.

In The Public Sector

Some Of The Ins And Outs Of G.L. c. 41, §111F Leave
It's tough to claim someone voluntarily abandoned their job by not showing up for light duty work when no one from the Employer ever told the employee he had to show up for light duty work.

On The Employee Benefits Front

Plan Lacked "Reservation Of Rights" Clause, So "Lifetime" Benefit Claim Could Go Forward
The moral here, obviously, is always to include a reservation rights clause in your plan.

Trustees Breached Fiduciary Duty By Terminating Employer For Union Organizing Goals
Union trustees have to act on behalf of the plan, not their own organizing interests.

Claim Alleging Breach Of Fiduciary Duty By Overcharging For Insurance Benefits Can Go Forward
Plaintiffs claimed that defendants "grossly overcharged the Plaintiffs for insurance benefits provided" through the Plan, in violation of their fiduciary duty under ERISA, and basically that "the benefits offered under the Policy were not proportional to the premiums charged."

On The Labor Front

Union On Hook For Hostile Work Environment
Plaintiff sued union for creating a hostile work environment in the employer's workplace.

Did You Know . . . ?

That April's Molecule of the Month is Serotonin, "A Molecule of Happiness." "One role of this 'wonder drug' is as a neurotransmitter, allowing numerous functions in the human body including the control of appetite, sleep, memory and learning, temperature regulation, mood, behavior, cardiovascular function, muscle contraction, endocrine regulation and depression."

That April's flower is the Daisy, and its birthstone is the Diamond?

That April is National Poetry Month, (and also, at least according to T.S. Eliot, "the cruellest month"), Cancer Control Month, Humor Month, Alcohol Awareness Month, Panda Month, National Landscape Architecture Month, National Child Abuse Prevention Month, Internet Safety Month, National Autism Awareness Month, International Customer Loyalty Month and Stress Awareness Month?

"The first of April is the day we remember what we are the other 364 days of the year." Samuel Langhorne Clemens, (AKA Mark Twain).