MISTAKE OF THE MONTH - Be Careful How You Explain Plan Benefits To Employees
Don’t tell employees that “if they stay[ ] with the company until they [are] eligible for retirement, they [will] receive free, lifetime life insurance coverage.”

The Harshbarger Report

Articulate And Discuss Integrity Standards And Expectations
Executives must talk about integrity.

OTHER EMPLOYMENT LAW HEADLINES

Flip-Flop, Flippity Flop
Yes, our own Massachusetts Supreme Judicial Court (“SJC”) is back in the news again.

MCAD’s “Each Day” Continuing Violation Theory Rejected By SJC
MCAD theory that “a new violation is deemed to occur each day [plaintiff] was unlawfully denied an accommodation" goes onto the trash heap.

ADA Interactive Process Does Not Include An Employee’s Attorney
Court rejects claim that an employer failed to engage in an interactive process because it did not agree to a meeting with the vocational therapist and plaintiff’s attorney.

“Honestly Held” Belief Of Decision-Maker Precluded Finding Of Pretext
Honest belief in plaintiff’s poor performance as basis for discharge, absent any contrary evidence, was enough to defeat plaintiff’s claim of pretext - the employee’s “subjective evaluation of [her] own relative performance” was irrelevant.

“Similarly Situated” Means Similarly Situated “In All Relevant Respects”
Alleged “similarly situated” employee had never had diabetes related blackout episodes, as had the plaintiff, who had driven a forklift.

Refusal Of Transfer For Purely Personal Reasons Not Discriminatory
Plaintiff took a job in New York, then wanted to transfer back home to Las Vegas - this is a classic case of an employee trying to leverage fictitious discrimination claims to get what she wants.

WAGE & HOUR DEVELOPMENTS

Required Counseling Sessions Were Compensable Under FLSA
If you require it, you have to pay for it.

Time Spent Donning And Doffing Specialized Protective Gear Is Compensable
Ditto, but not as to ordinary safety gear like goggles and hardhats.

LEGISLATIVE AND REGULATORY ACTION OF NOTE:

New COBRA Rule Finalized
The final rule and model notices are available for download from EBSA’s Web site at www.dol.gov/ebsa.

ON THE EMPLOYEE BENEFITS FRONT

Backpay Not A Remedy Under ERISA Section 510
Employer was liable under ERISA for closing a plant to save $24 million in pension costs, but backpay was not among the available remedies.

“Honest Belief” In Employee’s Misconduct Protects Employer In ERISA Section 510 Action
No “specific intent” to deprive employee of ERISA benefits where employer had honest belief that employee engaged in misconduct, even if termination may have seemed disproportionate to the level of misconduct.

Was Lawful Under ERISA To Condition Receipt Of Severance Benefits On Release
An employer may condition payment of severance benefits upon the signing of a release of other employment-related claims because an employer has no obligation to offer any benefits at all and therefore has the "right unilaterally to amend or eliminate a severance plan."

ON THE LABOR FRONT

Board Clarifies Access Rights Of Off-Site Employees
The organizational rights of employees under the National Labor Relations Act entitle them to access the outside, nonworking areas of the employer's property, even at a plant other than where they are employed, except where justified by business reasons.

Illustrating Again That The NLRA Can Surprise Non-Union Employers
Calling a state regulatory hotline was not “protected” activity under the Act because it did not implicate employee efforts “to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee‑employer relationship.”

Union Information Request For Employee Medical Records Rejected By Board
Union’s interest in employee’s medical records, in this case, was trumped by confidentiality concerns and lack of relevance.

Did You Know . . .

June is: Dairy Month, National Safety Month, Rose Month, Lane Courtesy Month, Turkey Lover’s Month, National Accordion Awareness Month;

That June 5 is Festival of Popular Delusions Day, June 10 is National Yo-Yo Day, June 13 is Kitchen Klutzes of America Day, June 15 is Smile Power Day, June 18 is National Panic Day, and June 30 is Meteor Day.

And that the Molecule of the Month is Flunitrazepam (Rohypnol).