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HOT TOPICS AND ACTION ITEMS FOR 2013. What Will We Cover?. New laws and regulations Religious dress; social media; pregnancy; disability Old laws that take effect this year Health care Trends and developments National Labor Relations Board Discrimination. Action Items!.

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what will we cover
What Will We Cover?
  • New laws and regulations
    • Religious dress; social media; pregnancy; disability
  • Old laws that take effect this year
    • Health care
    • Trends and developments
    • National Labor Relations Board
    • Discrimination
new in ca religious dress grooming
New in CA: Religious Dress, Grooming
  • Protected by FEHA
    • Religious clothing
    • Jewelry
    • Facial hair
  • Segregation prohibited
    • Do not isolate protected employees from customers, public or coworkers
personal social media protected
Personal Social Media Protected
  • Cannot require:
    • Disclosure of user names, passwords
    • Personal social media access in front of manager
  • Exceptions
    • Request to current employee as part of investigation; reasonable belief access will result in relevant information
    • Electronic device issued by employer
pregnancy disability leave
Pregnancy Disability Leave

New regulations as of Dec. 30, 2012

Increased Eligibility

  • 4 months of PDLper pregnancy, not year
  • No discrimination against “perceived” pregnancy
  • Examples of pregnancy-related disabilities
    • Bed rest, gestational diabetes, loss of pregnancy


pdl regulations continued
PDL Regulations (continued)


  • In past, denial if holding job would undermine business
  • Now, refusal to reinstate ok only if employee would not have been employed in same position for legit business reason unrelated to pregnancy (e.g. layoff)
  • If job eliminated, provide notice of available jobs
  • “available” = open within 60 days of scheduled return
sex discrimination and breastfeeding
Sex Discrimination and Breastfeeding
  • “Sex” under FEHA includes breastfeeding and related medical conditions
  • Post updated Workplace Discrimination and Harassment poster (mandatory)
production of personnel records
Production of Personnel Records
  • Previously, employee could inspect most personnel records and obtain copies of signed documents
  • Now, employeeor the employee’s representative (with written authorization from employee) can obtain copies of personnel records

Production of Personnel Records (continued)

  • All requests to inspect/receive personnel records must now be in writing
  • Employer has 30 calendar days from date of receipt of written request; can be extended to 35 days by agreement
  • Employees under CBA that has provisions for inspection of personnel records cannot make 1198.5 requests
  • Penalty for noncompliance: $750
itemized wage statements
Itemized Wage Statements
  • Must retain exact copies of itemized statements provided to employees, or computer-generated records of all the same info, for at least 3 years
  • Penalty of up to $4,000 for incomplete or inaccurate wage statements
patient protection affordable care act
Patient Protection Affordable Care Act
  • January 1, 2013– Employers filing 250 or more W-2 forms must report the total cost of their group health benefit plan coverage on the W-2 forms
  • January 1, 2013 – $2,500 cap/employee on Flexible Spending Accounts (regardless of the number of individuals covered)
ppaca continued
PPACA (continued)
  • March 1, 2013 – Newly hired employees must be provided the Notice of Exchange, including:
  • existence of an Exchange + description of the services provided + how to contact the Exchange
  • if employer plan’s share of total benefit cost is less than 60%, employee may be eligible for a premium tax credit or a cost-sharing reduction through the Exchange
  • employee may lose any employer contribution toward the cost of coverage and all or a portion of employer contributions to coverage may be excluded from federal income tax
health care action items
Health Care Action Items
  • Ensure your 2012 W-2s include the total cost of their group health benefit plan coverage, if applicable
  • Ensure your Flexible Spending Accounts have a $2,500 cap per employee
  • Start preparing your Notice of Exchange information to be provided to employees hired on or after March 1, 2013 (be on the lookout for model notices)
  • Plan on attending the “Healthcare Reform Update” on February 21, 2013
national labor relations act
National Labor Relations Act
  • “Concerted activity”: Two or more employees acting together to improve their terms and conditionsof employment
  • Applies to both union and non-union employees
nlrb and social media
NLRB and Social Media
  • Social media websites = modern-day water coolers
  • Complaints about boss, wages, safety issues, etc. are protected
  • Ensure social media policy does not discourage protected concerted activity
nlrb and at will policies
NLRB and At-Will Policies
  • “I agree that the at-will relationship cannot be amended, modified, or altered in any way.”
  • Problem: Union contract might change at-will status
  • Solution: Employer can modify status
  • Review and revise at-will policy (handbook, offer letter, forms) regarding modification of at-will status, if necessary
nlrb and internal investigations
NLRB and Internal Investigations
  • Right to self-organize includes right to discuss discipline or disciplinary investigations
  • Need “legitimate and substantial business justification” for requiring confidentiality:
    • Witness needs protection
    • Evidence is in danger of being destroyed
    • Testimony may be fabricated
    • Need to prevent a cover up
  • Case by case
investigation action items
Investigation Action Items
  • Review and modify practices and policies regarding confidentiality instructions
trend unemployment discrimination laws
Trend: Unemployment Discrimination Laws
  • In 2011, the EEOC considered unemployment discrimination but did not issue an opinion
  • No Federal law or California law (Governor vetoed bill)
  • In 2012, 17 states considered bills prohibiting discrimination against the unemployed
  • NJ, OR, and the District of Columbia passed laws
u s supreme court shake up
U.S. Supreme Court Shake Up?
  • Four U.S. Supreme Court Justices (Scalia, Kennedy, Ginsburg, and Breyer) are in their seventies