New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

The Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act (“PPACA”), provides that group health plans existing as of March 23, 2010 (grandfathered plans) are not subject to certain provisions of PPACA, including the preventative care mandate, certain nondiscrimination requirements, mandatory internal and external appeal rules, and restrictions on pre-authorizations for OB/GYN, pediatric and emergency care services. On June 17, 2010, the Departments of Labor, Health and Human Services and Treasury (the “Departments”) issued interim final regulations addressing what constitutes a grandfathered plan and what changes to such a plan might result in the loss of grandfathered plan status. The interim final regulations generally provide that grandfathered plan status could be lost by a group health plan if the plan’s insurer is changed, benefits are eliminated, participant cost-sharing requirements are increased, participant co-payments and contribution requirements are increased by more than a permissible level, or annual limits are imposed on the dollar value of all benefits below specified amounts. Special grandfathering rules apply for collectively bargained plans. In addition to other PPACA mandates, a plan that loses grandfathered status is subject to the preventative care, external appeal and other mandates noted above.

Recently, the Departments amended the interim final regulation to provide that a change in a group health plan’s insurer, in and of itself, will not cause an otherwise grandfathered plan to lose grandfathered status if certain requirements are satisfied. Additionally, the Departments issued answers to frequently asked questions (“FAQs”) that, among other things, clarify the application of the grandfathered plan rules. The amendment to the interim final regulation and the FAQs are described below.
 

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Effective August 15, 2010, a person convicted of driving while intoxicated (DWI) in New York is required as a condition of his or her probation or conditional discharge to install and maintain an ignition interlock device on any vehicle he or she owns or operates. The ignition interlock is a breathalyzer designed to prevent the vehicle from starting if the driver registers an alcohol content level. The new statute (Vehicle & Traffic Law § 1198), which is a provision of Leandra’s Law, also specifically addresses the individual’s operation of an employer’s vehicle.

Employer Rights and Obligations Under Leandra’s Law

Under the statute, an employer is not required to allow the individual to drive its vehicles, or to install ignition interlock devices in its vehicles. Rather, the statute is intended to ensure the employer has notice of the restriction on the employee’s license, and to then provide the employer with the option to allow the employee to drive its vehicles without an ignition interlock. The employee has the burden to notify the employer and to request written permission from the employer to operate its vehicles. Such permission is limited to the operation of the vehicle in the course and scope of employment for business purposes, and only applies to an employer that is not owned or controlled, in whole or in part, by the employee. If the employer grants permission for the employee to drive its vehicles, the employee must notify the court and probation officer that the employer has granted permission, and the employee must carry the written permission while operating the employer’s vehicle.

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On October 22, 2010, the Occupational Safety and Health Administration (“OSHA”) announced that it has begun its 2010 Site-Specific Targeting (“SST”) Program, which will conduct comprehensive inspections of worksites across the country. It is incumbent upon employers to know how OSHA selects the worksites that will be inspected, and whether their worksites will be included in this targeted enforcement effort.

OSHA selects worksites to inspect based upon injury and illness data that is reported to OSHA. For the inspection year that has begun, OSHA’s selections depend upon injury and illness data for calendar year 2008 that was collected by OSHA in 2009. Thus, employers will be inspected over the next year, into 2011, based on data that was collected in 2008.
 

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The National Labor Relations Board (“NLRB”) recently filed a complaint against American Medical Response of Connecticut, Inc. (“AMR”), alleging that AMR violated the National Labor Relations Act (“NLRA”) by discharging an employee for posting comments on her Facebook page that were critical of her supervisor. In addition, the NLRB’s complaint alleges that AMR’s social networking policy constituted an unlawful restriction on employees’ rights to communicate with one another about their terms and conditions of employment and otherwise engage in protected concerted activity under the NLRA. A hearing before an Administrative Law Judge is scheduled with respect to the NLRB’s allegations on January 25, 2011.

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The Occupational Safety and Health Administration’s (“OSHA”) Outreach Training Program courses are taught by independent trainers and focus on construction or general industry safety and health hazard recognition and prevention. Over the past three years, over 1.6 million students have received training through this voluntary program. In an October 27, 2010 News Release, OSHA announced that it has revised its policy for all Outreach Training Programs to limit the number of hours each day a student may spend in OSHA 10 and 30-hour training classes.  Effective immediately, OSHA now requires trainers to limit classes to a maximum of 7 ½ hours per day. The 10-hour courses must be conducted over a minimum of two days and the 30-hour courses must be conducted over at least four days.
 

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The courts have begun to address the question of whether an employee’s social network profile and postings, including sections only accessible to “friends,” are “private.” Most recently, the New York State Supreme Court for Suffolk County decided that the non-public portions of a plaintiff’s social networking sites are discoverable in litigation when they may contain information relevant to the plaintiff’s claims for damages for loss of enjoyment of life, Romano v. Steelcase Inc.

Ms. Romano sued her employer for, among other things, injuries she sustained that she alleged rendered her permanently disabled. According to the Court’s opinion, the publicly accessible parts of Ms. Romano’s Facebook and MySpace pages contained information which her employer “believed to be inconsistent with her claims” of permanent disability, “especially her claims for loss of enjoyment of life.” For example, publicly accessible photographs showed that Ms. Romano had an “active lifestyle” and traveled from New York to Florida and Pennsylvania during the time she was allegedly home and bed bound due to her injuries. The defendant employer made a discovery demand for access to all of her “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information”—both the publicly accessible parts of such pages and those parts which Ms. Romano had marked as “private” and made accessible to only her social networking “friends.”
 

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After much anticipation regarding what the reconstituted National Labor Relations Board’s agenda would be, the past month has revealed that one of the Board’s and the Acting General Counsel’s priorities is revamping a number of the Board’s policies on remedies. Those changes are discussed below.

Interest Awards

In late October, the Board issued a decision that changes a long-standing remedial policy on how interest on monetary awards is calculated. In Kentucky River Medical Center, 356 NLRB No. 8, the Board unanimously held that interest on backpay and all other monetary awards will be compounded on a daily basis. This is a break from its previous policy that interest was calculated on a simple basis.

The Board concluded that “compound interest better effectuates the remedial policies of the Act than does the Board’s traditional practice of ordering only simple interest and that, for the same reasons, interest should be compounded on a daily basis, rather than annually or quarterly.” The Board justified its change in policy by pointing to the “norms” in private lending practices, as well as the IRS’ policies regarding compound interest. This case applies retroactively to all pending cases, no matter what stage they are in, unless doing so would be manifestly unjust.
 

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On October 28, 2010, the Internal Revenue Service announced that the dollar limitations for pension plans and other items, beginning January 1, 2011, would remain generally unchanged from the limits in effect in 2010.  Section 415 of the Internal Revenue Code provides for dollar limitations on benefits and contributions under qualified retirement plans. These limitations usually are adjusted annually to reflect cost-of-living increases. Many other limitations applicable to retirement plans are adjusted at the same time and in the same manner as the Section 415 limit. Some of the limits to be applied in 2011 are listed below.
 

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Immigration and Customs Enforcement (“ICE”), the enforcement unit of the U.S. Immigration Service, is continuing its vigorous efforts to police the Immigration Reform and Control Act (“IRCA”), with a particular emphasis on employer audits and enforcement actions. IRCA prohibits employers from knowingly hiring or employing unauthorized workers, and requires employers to verify the work authorization of employees through the Form I-9 employment verification process at the time of initial employment.  Under the current Administration, ICE has dramatically ramped up I-9 audits and enforcement actions. In the fiscal year ending September 30, 2010, ICE conducted over 2,000 employer audits, compared to only 250 just three years ago. The dollar value of penalties assessed and the number of debarments of federal contractors for IRCA violations has also significantly increased.

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