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Wednesday, December 22, 2010

BCS Championship Prediction from The Discovery Channel







To all my loyal Blog followers, one of the great things about having your own blog, is that you can put anything up on if you want to. For those of you who do not live in the United States, or on another planet, the BCS national championship NCAA football game is January 10, 2011 in Glendale Arizona. Cam Newton, the Heisman Trophy winner and quarterback of Auburn University, will hopefully continue his winning ways. War Eagle! Eat the Oregon Ducks! Tommy Eden

Tuesday, December 21, 2010

NLRB proposes rule to require posting of NLRA rights by all employers




Alabama@Work
By Tommy Eden


On December 21, 2010, the National Labor Relations Board (NLRB) has submitted to the Federal Register a Notice of Proposed Rulemaking, which provides for a 60-day comment period. The rule would require employers to notify employees of their rights under the National Labor Relations Act. Notices would be similar to those detailing rights under safety, wage and anti-discrimination laws

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

As the Notice states, the Board “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”Private-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily by email or other electronic means, the notice would be posted electronically as well. The notice would be available from the agency’s regional offices and could also be downloaded from the NLRB website.

The proposed notice is similar to one recently finalized by the U.S. Department of Labor in the spring for federal contractors. It states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

The NLRA applies to most private-sector workplaces. Employers of airline, railroad, and agricultural workers are not covered. Section 6 of the NLRA authorizes the Board to issue “such rules and regulations as may be necessary to carry out the provisions” of the statute.

One member of the NLRB Board, Member Brian Hayes, dissented from the issuance of the proposed rulemaking, stating his belief that “the Board lacks the statutory authority to promulgate or enforce the type of rule which the petitions contemplated and which the proposed rule makes explicit.”

Public comments are invited on all aspects of the proposed rule, including the issue of the Board’s authority raised by the dissent, and should be submitted within 60 days of publication in the Federal Register, either electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570.

A fact sheet and further information about the proposed rule is available here.

Common Sense Counsel: see my article Regulations Squelching Employer Free Speech. This is the Obama Administration continuing payback initiative to Big Labor by pushing through regulations that they could not otherwise have gotten through Congress. More to come as the rest of the Obama playbook is implemented through regulation rather than legislation.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Saturday, December 18, 2010

NHTSA Report is First Ever Analysis of Drug Involvement Among Deceased Drivers in Fatal Crashes













In a new report on drug use by drivers involved in America’s fatal crashes, the National Highway Traffic Safety Administration (NHTSA) reported on November 30, 2010 post-mortem testing results showing an increase in the level of drug involvement among fatally injured drivers over a five-year period from 2005 to 2009. Drug involvement does not mean the driver was impaired or that drug use was the cause of the crash.

According to data compiled by NHTSA, 63 percent of the 21,798 drivers who were killed in motor vehicle crashes in 2009 were tested for drugs. Of these, 3,952 tested positive for drug involvement, representing 18 percent of the total for that year. The report also showed drug use reported by the states among fatally injured drivers increasing from 13 percent in 2005, to 15 percent in 2006, 16 percent in 2007, and 18 percent in 2008. During 2009 in Alabama the report shows 610 fatalities; and of those only 33 were tested for drugs and 5% were positive.

The drug data released today was collected by NHTSA as part of its Fatality Analysis Reporting System (FARS) and included information collected from the states under three broad categories: whether the driver was tested, the type of test conducted, and the test results. The types of drugs recorded in FARS include narcotics, depressants, stimulants, hallucinogens, cannabinoids, phencyclidines (PCPs), anabolic steroids, and inhalants. The groups include illicit drugs, as well as legally prescribed drugs and over-the-counter medicines.

"Every driver on the road has a personal responsibility to operate his or her vehicle with full and uncompromised attention on the driving task," said NHTSA Administrator David Strickland. "Today’s report provides a warning signal that too many Americans are driving after having taken drugs, not realizing the potential for putting themselves and others on the highway at risk." Still drug test results are unavailable for a large portion of fatally injured drivers as there was a wide variance among states regarding the extent of drug testing conducted.

He added that state drug testing techniques and procedures are evolving and that currently states, as well as jurisdictions within a state, may test for different drugs, use different test types, and/or employ different concentration thresholds for determining whether a test was positive or not.

The NHTSA Administrator added, "The results we are releasing indicate that drugs were found to be present in post-mortem examinations. Drug involvement does not necessarily imply impairment or indicate that drug use was the cause of the crash." He noted that while many years of real-world observations and empirical evidence have shown a strong relationship between alcohol concentration levels in the blood and impairment and crash correlation, the same evidence is not yet available for drugs.

"While it’s clear that science and state policies regarding drugs and driving are evolving, one fact is indisputable. If you are taking any drugs that might impair your ability to drive safely, then you need to put common sense and caution to the forefront, and give your keys to someone else. It doesn’t matter if its drugs or alcohol, if you’re impaired, don’t drive," Administrator Strickland warned.

The NHTSA Administrator added that NHTSA is continuing to conduct research to better understand the correlation between drug levels and their impact on crashes. Administrator Strickland also explained that, under NHTSA’s Drug Evaluation and Classification program, the agency has prepared nearly 1,000 instructors and trained more than 6,000 police officers in 46 states to recognize symptoms of driver impairment by drugs other than alcohol. Access the full report at http://www-nrd.nhtsa.dot.gov/Pubs/811415.pdf


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

House Resolution Extends Tax Cuts and Employee Benefit Provisions


















Merry Christmas!
House Resolution Extends Tax Cuts and Employee Benefit Provisions

Alabama@Work
By Tommy Eden


On Dec. 17, 2010 President Obama signed H.R. 4853 which is a 74 page document that extents the Bush tax cuts for all Americans and contains a multitude of business tax benefits. It will take accountants weeks to sift through the Resolution as it has many cross references. A quick evaluation reveals as follows: 1) extends current income tax rates for two years; 2) reduces employees' share of Social Security payroll taxes from 6.2 percent to 4.2 percent for one year; 3) extends unemployment benefits; 4) preserves the existing amounts that employers can provide their employees in tax-free parking and transportation subsidies; and 5) preserves existing employer provided adoption assistance.

Employee Transit Subsidies: employers can help cover employees' costs of tokens, vouchers, fare cards, and cash for riding buses, trains, subways, or streetcars to and from work. Employer provided transit subsidies can reduce commuting costs, reduce tardiness associated with driving to work and enhance recruitment efforts where commuting is expensive or transportation is not available to employees. Employers can provide up to $230 per month in transit subsidies and $20 in bicycle commuting allowance. Checkout IRS Publication 15-B for additional information at http://www.irs.gov/

Employer Adoption Assistance: Federal law sets a maximum annual limit on the amount of employer-provided adoption assistance that can be excluded from employees' income or that can be taken as a tax credit by employees ( I.R.C. § 137(a)) Internal Revenue Bulletin: 2010-42 provides some helpful information. If employers pay or reimburse employees more than the maximum adoption assistance amount, excess amounts must be included in employees' wages. For tax years beginning Jan. 1, 2011, until Dec. 31, 2012, the maximum adoption assistance amount that can be provided by employers and excluded from employees' income or that an employee can take as a tax credit is $13,360 ($12,170 in 2010). Adoption assistance amounts are phased out for employees who have modified adjusted gross incomes above $182,200 and are eliminated for employees who have incomes above $225,201. Check out IRS Rev. Proc. 2010-40 for additional information at http://www.irs.gov/

Employer Provided Tuition Assistance: Section 127, which allows employees to exclude up to $5,250 a year in employer-provided tuition assistance for undergraduate and graduate-level courses has been extended for two-year years. The advocacy group the Society for Human Resource Management (SHRM) supported a permanent extension of Section 127. I am proud to say that I was part of our local Chapter's support team with the Alabama Congressional Delegation.

Common Sense Counsel: an employer would be wise to use the services of a CPA or tax attorney to sift through the various employer provided tax benefits and employee benefit extensions. It is definitely a Resolution worth reading.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Thursday, December 16, 2010

Sixth Circuit Rejects ADA Claims on Prescription Drug Use

















Alabama@Work
By Tommy Eden

In Bates v. Dura Automotive Systems, Inc., the 6th Circuit Court of Appeals (Kentucky, Michigan, Ohio, and Tennessee) on November 3, 2010 ruled that only persons with disabilities can pursue claims under the Americans with Disabilities Act’s provisions on qualification tests and standards. Seven employees at the Lawrenceburg, Tennessee auto-parts manufacturing plant had been dismissed for testing positive for prescription-drug use. The plant had a high accident rate, as compared to similar manufacturing plants, and in response had adopted a 12-panel drug-test program in which banned substances impairing effect prescription drugs which created a safety risks. The employees who tested positive for banned prescription drugs were given the option of switching to other drugs not containing the banned substances, and it was only after the seven employees tested positive again for the banned substances were they terminated.

Other Circuits have held, including the 11th Circuit, that some provisions of the ADA generally have been interpreted to cover non-disabled individuals who are discriminated against as perception disabled. The EEOC sued Dura directly on this issue claiming the testing violated the ADA. Dura won out in the end on the argument that the plaintiffs, as non-disabled persons, had no standing to sue under the statute.

Common Sense Counsel: Having a state law legally compliant drug-free workplace program, with legally compliant pre-duty disclosure requirements with regards to impairing affect medication language, and training supervisors on reasonable suspicion are the foundational steps of a good risk reduction program. The State of Alabama offers a 5% workers compensation premium for adopting a program in compliance with the Alabama Drug-Free Workplace Act; similar to discounts offered in 14 other states.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Tuesday, December 14, 2010

Health Plans Waivers on Annual Dollar Limits Available for Employers from HHS


















Alabama@Work
By: Tommy Eden, Attorney

The Department of Health and Human Services (HHS) on Dec. 8, 2010 released instructions for obtaining waivers, and a day later released guidance with model language needed to satisfy the notice requirement. The Patient Protection and Affordable Care Act bans annual dollar limits beginning in 2014. Until then, annual limits are limited under HHS regulations published in June 2010. For plan years starting between September 23, 2010 and September 22, 2011, plans may not limit annual coverage of essential benefits such as hospital, physician and pharmacy benefits to less than $750,000. The restricted annual limit will be $1.25 million for plan years starting on or after September 23, 2011, and $2 million for plan years starting between September 23, 2012 and January 1, 2014. For plans issued or renewed beginning January 1, 2014, all annual dollar limits on coverage of essential health benefits will be prohibited.

A class of group health plans and health insurance coverage, generally known as “limited benefit” plans or “mini med” plans, often has annual limits well below the restricted annual limits set out in the interim final regulations. Because this is often the only type of private insurance available to some workers, the Department of Health and Human Services (HHS) has issued temporary waivers to allow workers to keep their insurance. These “annual dollar limit” waivers only last for one year and are only available if the plan certifies that waiver is necessary to prevent either a significant increase in premiums or decrease in access to coverage. Additionally, health plans that receive waivers must tell consumers if their health care coverage is subject to an annual dollar limit lower than what is required under the law.

This article contains guidance related to the annual limit waiver process, including the waiver application form and instructions.


OCIIO Supplemental Guidance on Consumer Notices on Waivers of the Annual Limits Requirements (12/9/2010)

OCIIO Supplemental Guidance on Sale of New Business by Issuers Receiving Waivers (12/9/2010)

Fact sheet on Supplemental Guidance on Consumer Notices and Sale of New Business (12/9/2010)

News release on Supplemental Guidance on Consumer Notices and Sale of New Business (12/9/2010)

Letter to Consumer Groups on Supplemental Guidance on Consumer Notices and Sale of New Business (12/9/2010)

Annual Limit Waiver Application Form (XLS - 5.8MB) (12/8/2010)

Annual Limit Waiver Application Instructions (PDF - 44KB) (12/8/2010)

OCIIO Supplemental Guidance on Waivers of the Annual Limits Requirements

OCIIO Sub-Regulatory Guidance: Process for Obtaining Waivers of the Annual Limits Requirements of PHS Act Section 2711

Approved Applications for Waiver of the Annual Limits Requirements of the PHS Act Section 2711


Common Sense Counsel: these HHS waivers allow Health Plans to keep lower benefit limits. Employers with group health plans offering limited coverage can avoid this federal mandate prohibiting annual caps of less than $750,000 on essential health benefits if they obtain a temporary waiver and notify plan participants. If you wish to apply now is the time.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Health Care Law Ruled Unconstitutional













Alabama@Work

By: Tommy Eden, Attorney

On December 13, 2010, a key coverage mandate imposed under the Federal Patient Protection and Affordable Care Act was found unconstitutional by a federal district judge in the Eastern District of Virginia in the case of Virginia v. Sebelius This key section requires individuals to maintain a minimum level of health care coverage starting in 2014 or face tax penalties. The Court found that Congress lacked the authority to compel individuals to purchase health insurance. However the Court did not rule that any other provisions are unconstitutional. Today the Department of Justice announced that it was appealing the Judge's ruling to the 4th Circuit Court of Appeals. Expect the Obama administration to quickly appeal then maybe off to the U.S. Supreme Court where the Act is expected to receive a chilly spring reception?

Common Sense Counsel: Virginia Attorney General Ken Cuccinelli and Federal Judge Henry Hudson are my new heros for all Alabama employers!


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Thursday, December 9, 2010

Woman Sues Wayne State, Salvation Army For Discrimination - Video - WDIV Detroit

Woman Sues Wayne State, Salvation Army For Discrimination - Video - WDIV Detroit
Woman Sues, Claiming She Was Called 'Beached Whale'
Salvation Army, Wayne State University Targeted

Insensitive Words Can Get You Sued

Tina Varlesi, who was 7 months pregnant was enrolled in Wayne State's social work master's degree program when she was placed with the Salvation Army for an internship program where she was called a "beached whale" by Salvation Army workers. According to the lawsuit, supervisors told Varlesi she failed 53 out of 54 categories for her internship evaluation.


Common Sense Counsel: under Title VII of the Civil Rights Act, under certain circumstances, an employer can be held liable for the discriminatory comments of its employees. Certainly referring to a pregnant female as a "beached whale" would seem to qualify as discrimination, or harrassment, based upon pregnancy in even the most conservative of courts. Having an effective harassment prevention program is the key to avoiding this type of situation.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com
ion.

Update on Public Safety Employer-Employee Cooperation Act- Senate Bill 3991














Alabama@Work
By: Tommy Eden, Attorney

Today in the United States Senate the public safety officers collective bargaining bill (S. 3991) failed to win cloture (60 votes are needed) by a 55-43 vote (view the voting list), with three Democrats joining Republicans in blocking a vote on the bill. The three democrats are Sen. Michael Bennett (D-Colo.), Sen. Kay Hagan (D-N.C.) and Sen. Mark Warner (D-Va.). Both Alabama Senators Shelby and Sessions voted with the Republicans in blocking the vote. The bill, if enacted, would have required mandatory collective bargaining by firefighters, police officers and EMT personnel. This should end the bill’s chances of passing for this year, and because of the make-up of the new Congress, probably for years to come.

Common Sense Counsel: because of the overwhelming messages received by the Senators opposing this bill in the past few weeks, Harry Reid has now lost in his attempt to pass the Paycheck Fairness Act and the Mandatory Collective Bargaining for Police, Fire and EMTs. It might be a good time to communicate with some of the Senators and say thanks, or at least put them on your Christmas card list. I can guarantee you it will not be the last time employers will need these Senators to stand in the gap for common sense legislation. You can send them an e-mail at www.senate.gov


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Arizona Law Requiring E-Verify at Supreme Court

















Alabama@Work
By Tommy Eden, Attorney
On December 8 in the case of Chamber of Commerce v. Whiting, U.S., No. 09-115, the U.S. Supreme Court heard oral argument on whether federal law preempts an Arizona statute aimed at preventing the employment of illegal immigrants. Reading the oral argument transcript will give you insight into the Justices’ concerns. http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-115.pdf
In accordance with the Legal Arizona Workers Act, the State of Arizona can revoke the business licenses of employers that knowingly hire illegal immigrants. Employers in the State of Arizona are required to use E-Verify, the federal government's free Internet-based program for verifying employment eligibility. The fear is that state and local governments would be able to impose a patchwork of conflicting enforcement regimes if the Arizona statue is allowed to stand. The State of Alabama is considering some type of immigration law change in the next legislative session. Waiting until the United States Supreme Court issues its decision in this case may save the State a lot of unnecessary litigation

Practical Counsel:
• Enroll in E-Verify at https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES

• E-Verify is an employer’s only get out of jail card with Immigration Compliance and Enforcement (ICE);

• Schedule I-9 Supervisor Training because the E-Verify system is only as good as the information collected on your I-9 forms;

• Put an E-Verify policy in your employee handbook; and

• Make sure you are using the latest version of Form 1-9.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Title VII Retaliation Protection Case Argued at Supreme Court














Alabama@Work
By Tommy Eden, Attorney

On Tuesday December 7, the U.S. Supreme Court heard oral arguments (http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-291.pdf) in Thompson v. North Am. Stainless LP, U.S., No. 09-291 on the issue “if employees suffer retaliation because of their close relationship with a person who files a discrimination charge, can they sue under Title VII of the 1964 Civil Rights Act?” Eric Thompson was fired after his fiancĂ©e filed a sex bias charge against their mutual employer North Am. Stainless. (They now have a lovely 2-year-old daughter according the oral argument transcript). North Am. Stainless’ attorney argued that Title VII's anti-retaliation clause only applies to individuals who engage in protected activity by either opposing suspected discrimination or participating in an investigation or other charge-related proceedings. The lower courts agreed. There is currently an increasing volume of retaliation charges at the EEOC. An adverse ruling against North Am. Stainless would most likely cause that volume to rise even higher.

Common Sense Counsel: I do not believe that the United States Supreme Court would have accepted this case for review if it did not plan on making a change to the existing state of the law. The broad range of behavior that may be deemed “protected activity” under the anti-retaliation provision of Title VII of the 1964 Civil Rights Act has widened considerably over the past few years. To the degree conduct (even disruptive conduct) could reasonably be perceived as intertwined and interrelated with alleged harassment, an employer should not use that conduct as the basis for an employee discharge. See the EEOC Website for detailed guidance on the subject of unlawful retaliation http://www.eeoc.gov/laws/types/facts-retal.cfm.

Every employer in East Alabama's to do list should include: 1) adopting an effective and legally defensible policy against unlawful retaliation; 2) ensuring that your employees have received a copy of the policy and signed an acknowledgment; 3) training supervisors in unlawful retaliation; 4) removing discharge authority from front-line supervisors; 5) conducting a thorough investigation of the facts and circumstances - including allowing the employee to tell their side of the events - before making the final discharge decision; 6) conducting exit interviews where you specifically question the employee as to whether they have any unresolved claims against the company and having them acknowledge on the exit interview form their answer; and 7) following systematic steps to ensure that each of your discharge decisions are legal and defensible.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Tuesday, December 7, 2010

Health Care Tax Credit for Small Employers








Alabama@Work
By: Tommy Eden, Attorney

The Internal Revenue Service released on Dec. 2 forms on a new health care tax credit for small employers for the 2010 tax year. Created by the federal Patient Protection and Affordable Care Act, the health care tax credit is generally available if employers have 25 or fewer full-time equivalent employees, their employees' average annual compensation is less than $50,000, and the employers pay at least 50 percent of health care premium costs. See IRS Announcement below:

IRS Helps Small Employers Claim New Health Care Tax Credit; Forms and Additional Guidance Now Available on Small Business Health Care Tax Credit
IR-2010-117, Dec. 2, 2010

WASHINGTON — The Internal Revenue Service today released final guidance for small employers eligible to claim the new small business health care tax credit for the 2010 tax year. Today’s release includes a one-page form and instructions small employers will use to claim the credit for the 2010 tax year.
New Form 8941, Credit for Small Employer Health Insurance Premiums, and newly revised Form 990-T are now available on IRS.gov. The IRS also posted on its website the instructions to Form 8941 and Notice 2010-82 , both of which are designed to help small employers correctly figure and claim the credit.
Included in the Affordable Care Act enacted in March, the small business health care tax credit is designed to encourage both small businesses and small tax-exempt organizations to offer health insurance coverage to their employees for the first time or maintain coverage they already have.
The new guidance addresses small business questions about which firms qualify for the credit by clarifying that a broad range of employers meet the eligibility requirements, including religious institutions that provide coverage through denominational organizations, small employers that cover their workers through insured multiemployer health and welfare plans, and employers that subsidize their employees’ health care costs through a broad range of contribution arrangements.
In general, the credit is available to small employers that pay at least half of the premiums for single health insurance coverage for their employees. It is specifically targeted to help small businesses and tax-exempt organizations that primarily employ moderate- and lower-income workers.
Small businesses can claim the credit for 2010 through 2013 and for any two years after that. For tax years 2010 to 2013, the maximum credit is 35 percent of premiums paid by eligible small businesses and 25 percent of premiums paid by eligible tax-exempt organizations. Beginning in 2014, the maximum tax credit will increase to 50 percent of premiums paid by eligible small business employers and 35 percent of premiums paid by eligible tax-exempt organizations.
The maximum credit goes to smaller employers –– those with 10 or fewer full-time equivalent (FTE) employees –– paying annual average wages of $25,000 or less. The credit is completely phased out for employers that have 25 or more FTEs or that pay average wages of $50,000 or more per year. Because the eligibility rules are based in part on the number of FTEs, not the number of employees, employers that use part-time workers may qualify even if they employ more than 25 individuals.
Eligible small businesses will first use Form 8941 to figure the credit and then include the amount of the credit as part of the general business credit on its income tax return.
Tax-exempt organizations will first use Form 8941 to figure their refundable credit, and then claim the credit on Line 44f of Form 990-T. Though primarily filed by those organizations liable for the tax on unrelated business income, Form 990-T will also be used by any eligible tax-exempt organization to claim the credit, regardless of whether they are subject to this tax.
More information about the credit, including a step-by-step guide to claiming the credit and answers to frequently asked questions, is available on the Affordable Care Act page on www.IRS.gov.
Common Sense Counsel: get this information in the hands of your tax preparer today if you think your company may qualify.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

IRS Mileage Reimbursement Rate Rises in 2011











IRS Mileage Reimbursement Rate Rises in 2011
Alabama@Work
By: Tommy Eden, Attorney
Effective Jan. 1, 2011, the standard mileage rate employers can use to reimburse employees who drive their owned or leased automobiles for business purposes is 51 cents per mile. This is up from a standard mileage reimbursement rate of 50 cents per mile for 2010. By using the standard mileage rate, employers can eliminate the need for employees to record actual mileage expenses. IRS Announcement below:

IRS Announces 2011 Standard Mileage Rates

IR-2010-119, Dec. 3, 2010
WASHINGTON — The Internal Revenue Service today issued the 2011 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.
Beginning on Jan. 1, 2011, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:
  • 51 cents per mile for business miles driven
  • 19 cents per mile driven for medical or moving purposes
  • 14 cents per mile driven in service of charitable organizations
The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The rate for medical and moving purposes is based on the variable costs as determined by the same study. Independent contractor Runzheimer International conducted the study.
A taxpayer may not use the business standard mileage rate for a vehicle after using any depreciation method under the Modified Accelerated Cost Recovery System (MACRS) or after claiming a Section 179 deduction for that vehicle. In addition, the business standard mileage rate cannot be used for any vehicle used for hire or for more than four vehicles used simultaneously.
Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.
Revenue Procedure 2010-51 contains additional details regarding the standard mileage rates.
Common Sense Counsel: following the IRS standard mileage guidance is a much less risky alternative that creating your own reimbursement system that could result in an adverse impact to the employee and employer.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Monday, December 6, 2010

Supreme Court Accepts Landmark Wal-Mart Discrimination Case















Supreme Court Accepts Landmark Wal-Mart Discrimination Case

Alabama@Work
By Tommy Eden, Attorney
On Monday December 6, 2010 the U.S. Supreme Court agreed to hear arguments in one of the largest job bias class in history.
In Wal-Mart Stores v. Dukes the justices directed the parties to brief and argue two questions involving the certification of a class of about 1.5 million past and present female Wal-Mart employees. Six women, serving as class representatives, accuse the nation’s largest private employer of discriminating against female workers in pay and promotions. Interestingly the merits of the case are not before the justices. Rather, the Court will focus on whether the class was properly certified. The U.S. District Court for the Northern District of California granted class certification in June 2004, and the 9th Circuit affirmed.
Wal-Mart contends that the class was improperly certified as to its size and type and argues that the plaintiffs, who are seeking back pay, were certified under Federal Rule of Civil Procedure 23(b)(2), used for classes seeking injunctive relief. Wal-Mart contends that the Plaintiffs should have been required to meet the tougher standards for classes seeking damages. As part of its grant of review, the justices ask the parties to address whether claims for money damages can be certified under 23(b)(2) as well as whether certification under that rule was consistent with the certification requirements of Rule 23(a).
Also look to see if the justices raise the case of Hertz Corporation v. Melinda Friend (United States Supreme Court February 24, 2010) where the high court, in a rare unanimous decision, settled 51 years of splits in the federal circuits and held that a corporation's "principal place of business" for purposes of federal jurisdiction is its "nerve center," typically where its headquarters is located. The Nerve Center for Wal-Mart is Bentonville, AK, not Northern California.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, December 3, 2010

EEOC Issues GINA Final Regulations: Law Prohibits Using Genetic Information to Make Employment Decisions

















Alabama@Work
By: Tommy Eden, Attorney

On November 11, 2010 the U.S. Equal Employment Opportunity Commission (EEOC) issued the long awaited employment provisions (Title II) of the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information. The final regulations do not differ substantially from the ones proposed by the agency nearly two years ago and can be reviewed at http://federalregister.gov/a/2010-28011

Congress enacted GINA in 2008, in response to concerns that patients would decline to take advantage of the increasing availability of genetic testing out of concern that they could lose their jobs or health insurance if such tests revealed adverse information. Title II of GINA prohibits employment discrimination based on genetic information, and restricts the acquisition and disclosure of genetic information. Genetic information includes information about individuals’ genetic tests and the tests of their family members; family medical history; requests for and receipt of genetic services by an individual or a family member; and genetic information about a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology.

The EEOC also issued a question-and-answer document aimed at helping small businesses comply at: http://www.eeoc.gov/laws/regulations/gina_qanda_smallbus.cfm

Some Q&A subjects of high interest are as follows:

Safe Harbor Language for Medical Inquiries: The regulations provide specific “safe harbor” language employers can use in medical inquiry forms, such as pre- and post-offer medical exams and fitness-for-duty exams. By using this language, employers can avoid liability under GINA should they receive protected genetic information in response to those inquiries. If a medical provider discloses genetic information to the employer in spite of that warning, the disclosure will be deemed inadvertent and not in violation of GINA. Language to be used:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Social Media Searches: Employers that obtain such information though social network inquires inadvertently most likely do not violate GINA if:

  • an HR manager who learns protected information about employees or applicants by doing a simple Google search of their name; and

  • learning genetic information from employees’ Facebook or other social media site if they have given you permission to access their information on that site (i.e., they have accepted you as their Facebook friend or LinkedIn contact).
However, an employer is not allowed to perform a search or ask questions on a social media site that are “likely to result in uncovering genetic info.”

Wellness Programs Incentives: Employers may not offer a financial inducement for employees to provide genetic information, but may offer financial inducements for employees to complete a health risk assessment that includes questions about family medical history or other genetic information if:
  • the assessment specifically identifies which questions request genetic information; and
  • you make clear, in language that is reasonably likely to be understood by those completing the health risk assessment, that the questions are optional and the financial reward will be provided to employees whether they complete that portion of the assessment or not.
The GINA Regulations are effective January 10, 2011.
Common Sense Counsel: GINA is far reaching and vastly complicated. Rule 1 - If you think you need to ask about an employee’s family medical history for any reason - don’t. Rule 2 - do not subject your employees to any genetic testing. Rule 3 – read the GINA Regulations and Q&As and include the safe harbor language above when prudent on your request that may go to the employee’s doctor.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com


Employee Driving Intoxicated: Wrongful Death Suit against Employer for Millions Going to Jury in Michigan













Alabama@Work
By Tommy Eden

A federal jury in Detroit Michigan is hearing a wrongful death lawsuit arising out of a traffic accident that killed a mother and her two children when an SUV driven at 70 miles an hour by a sales executive for UGS (now Siemens) plowed into the back of their car. At the time of the afternoon accident, the sales executive had a blood-alcohol level of 0.43; the legal limit in Michigan is 0.08.

The UGS employee was the Executive Director for global sales in charge of a sales team. UGS enrolled the executive in an abbreviated five -- day rehabilitation program approximately 5 months before the accident based upon suspicion that he had a serious drinking problem. The trial testimony thus far is that he continued to exhibit signs of alcohol abuse and it was obvious to numerous UGS employees that he continued to have a serious drinking problem. The executive was on his way from work at the direction of his boss to see a psychiatrist's about his drinking problem and to report back with the doctor's recommendations for treating his alcohol problems. The allegation is that the company knew or should have known that he was intoxicated while at work the day of the accident when he left it 2:30 pm; a blood sample was taken at 5:15 PM that same day showing a blood-alcohol level of 0.43. USG says that it has no liability for its employee's conduct and that the executive alone is to blame.

Video: Testimony in Case on Company Knowledge
http://www.clickondetroit.com/video/25977130/

The UGS executive was sentenced in April 2006 to 19 to 30 years after pleading guilty to second-degree murder in the deaths of the family members. The jury will decide whether UGS knew or should have known that the executive was drunk at the time he left the company office and should have take steps to detect such and stop him. The company has denied any responsibility.

Common Sense Counsel: this case speaks volumes for both the human and economic tragedy caused by workplace drug and alcohol abuse. Having a legally compliant drug-free workplace program and training supervisors on reasonable suspicion are the foundational steps of a good risk reduction program; and taking effective and defensible action is critical to avoiding these types of claims. Whatever the verdict in this case, the costs for both sides are too high; including the high profile adverse media coverage. The State of Alabama offers a 5% workers compensation premium for adopting a program in compliance with the Alabama Drug-Free Workplace Act; similar to discounts offered in 14 other states. I recommend again my article dated June 2009 on Drug-Free Lee County -- Consider the Savings which includes a mention of the Shoveling Up II: The Impact of Substance Abuse on Federal, State and Local Budgets where 13% of Alabama's budget is "to shovel up the consequences and human wreckage of substance abuse and addiction.” www.alabamahrlw.com


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Mandatory Collective Bargaining for Police, Fire and EMTs on Senate Menu after Thanksgiving












Alabama@Work
By: Tommy Eden, Attorney

Senate Majority Leader Harry Reid (D-NV) has announced that he will take up the Public Safety Employer-Employee Cooperation Act (Senate Bill 3194) before adjournment and possibly the week of November 29.

If enacted, states and local governments across the entire United States would be required to engage in collective bargaining with their police, fire, and emergency medical services personnel. The Federal Labor Relations Authority (FLRA) would be given responsibility for determining which states are in compliance with the federal law. The FLRA would have the power to adopt regulations defining the scope of collective bargaining. This bill would provide authority for federal interference by the FLRA in employer-employee relationships in state and local governments as follows:

(1) granting public safety employees the right to form and join a labor organization which excludes management and supervisory employees, and which is, or seeks to be, recognized as the exclusive bargaining agent for such employees; and

(2) requiring public safety employers to recognize and agree to bargain with the employees; labor organization. Requires the FLRA to issue regulations establishing rights and responsibilities for public safety employers and employees in states that do not substantially provide for such public safety employee rights and responsibilities. Directs the FLRA in such cases to:

· determine the appropriateness of units for labor organization representation;

· supervise or conduct elections to determine whether a labor organization has been selected as an exclusive representative by a voting majority of the employees in an appropriate unit;

· resolve issues relating to the duty to bargain in good faith;

· conduct hearings and resolve complaints of unfair labor practices; and

· resolve exceptions to arbitrator awards.

If the Senate passes the bill, the House of Representatives is expected to take it up in the lame duck session. The House in July passed the bill as an amendment to a supplemental spending bill with a vote in favor of 239-182. Congress will be in recess next week for the Thanksgiving Day holiday.

Common Sense Counsel: contact your Senators and let them know your views at www.senate.gov Earlier this week Harry Reid lost in his attempt to pass the Paycheck Fairness Act. Fight now or collectively bargain later.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com