March 1, 2004, Monthly Labor, Employment, Benefits Update, Useful Cases And Updates For HR Professionals - Murphy, Hesse, Toomey & Lehane, LLP

MURPHY, HESSE, TOOMEY & LEHANE, LLP - Attorneys At Law

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MHTL Monthly Labor/Employment/Benefits Update
Useful Cases And Updates - March 1, 2004

MISTAKE OF THE MONTH
A Warning On Calculating Bonuses - A common but potentially expensive mistake.

EMPLOYERS AND CORPORATE GOVERNANCE
Sarbanes-Oxley And Non-Profits - Former Attorney General Scott Harshbarger advises that non-profits should pay attention to Sarbanes-Oxley, it is likely to be the new gold standard in governance.

DOL ALJ Rules Sarbanes-Oxley Whistleblower Protections Extend To Employees Of Non-Public Subsidiaries Of Public Companies - Sarbanes-Oxley whistleblower protections appear to be extended.

AT THE SUPREME COURT

Under ADEA, Employers Apparently May Favor Older Workers Over Younger - A divided Court rules younger (but over 40) workers can be denied benefits available to older workers.

OTHER EMPLOYMENT LAW HEADLINES

Alcoholism Not A "Disability" Under ADA - Plaintiff could work, thus his alcoholism did not "substantially limit" his major life function of working.

Inability To Work On SWAT Team Not "Substantial Limitation" - Similarly, an inability to perform only a particular aspect of a single particular job is not sufficient to satisfy the "substantially limit" requirement of the statute.

Reassignment Calling For Acquisition Of New Skills Not "Adverse Action" - Requiring an employee to develop new skills is not the kind of adversity that can support a prima facie case of retaliation.

"Obvious" Disability Appropriate Subject Of IME Request Under ADA - Because plaintiff had suffered an aneurysm with "obvious effects on speech," the defendant had a reasonable basis to doubt the plaintiff's ability to perform the essential functions of a reporter.

Investors Can Be The "Employer" Under The WARN Act - Plaintiffs had alleged sufficient interrelationships and decision-making on the part of the investors to permit WARN liability.

Similarly, A Successor Employer May Be Liable Under WARN Act - On a similar note, even lawyers can get into these fixes.

Connecticut High Court Rejects "Compelled Self-Defamation" Theory - Plaintiff claimed he felt "compelled" to tell prospective employers "over and over" about the former employer's defamatory statements.

WAGE & HOUR/FMLA DEVELOPMENTS

FLSA "Independent Judgment" Constrained By Highly Regulated Nuclear Power Plant Environment - A job description does not control exempt status, rather it is what the employee actually does.

Raising Poor Performance As A Reason For Termination After Suit Is Filed Is A Bad Idea - Performance issues raised for the first time after the employer was sued.

LEGISLATIVE AND REGULATORY ACTIONS OF NOTE
Fiduciary Guidance Issued By Federal Department Of Labor - A good overview of a fiduciary's responsibility generally.

IRS Website Adds Retirement Tax Scam Section - Information on abusive tax shelter schemes and transactions involving employee retirement plans.

H-1B Visa Allotment Filled For FY 200 - The fiscal year 2004 cap of 65,000 has been reached. Petitions for H-1B visas for fiscal year 2005 may not be filed until April 1, 2004, and that employee must have a start date of October 1, 2004 or later.

ON THE EMPLOYEE BENEFITS FRONT
Disability Plan Could Offset Retirement Benefits - Even nonforfeitable benefits can be reduced by other income under ERISA, and in any event the disability plan was reducing disability benefits, not retirement benefits.

IBM On Hook For Retroactive Relief In Cash Balance Conversion - As the Court wrote, "[a]ll that has changed is IBM's clever, but ineffectual, response to law that it finds too restrictive for its business model."

Retirement Incentive Not Under "Serious Consideration" When Employees Retired - Issue was whether or not the retirement incentive plan had been under "serious consideration" at the time the plaintiffs retired.

New Standard Of Review For Decisions Of Plan Administrators Who Have Conflict Of Interest - "Preponderance of evidence" is the new standard, at least in the 10 th Circuit.

ON THE LABOR FRONT

Batter Up! - Third Circuit affirms arbitration award ordering professional baseball to reinstate 9 of 22 umpires who previously had resigned in a labor dispute.

Company Ordered To Return Transferred Work And Rehire Laid Off Workers - Someone dropped the ball here.

"Intemperate" Language Was Protected Conduct Under the NLRA - Yes, according to the National Labor Relations Board ("Board"), calling your supervisor a "racist" and a "bastard red-neck son of a bitch" can be protected conduct under the National Labor Relations Act ("Act").