In Noel Canning v. NLRB, the Supreme Court issued a labor law decision most surprising because of its unanimity. The Supreme Court held on June 26, 2014, that President Obama’s controversial January 2012 appointments of three members to the National Labor Relations Board (Sharon Block, Terence F. Flynn, and Richard Griffin) were invalid exercises of his office under the Constitution. The NLRB in that case had ruled against an employer in an unfair labor practice charge. The employer appealed, asserting that because three of the nation’s five Board members had been placed on the Board by the President as “recess …
Good News For State-Fund Employers – Prospective Billing Is On The Way!
You have likely received word from the Ohio Bureau of Workers’ Compensation of a major change coming in the manner in which it establishes workers’ compensation premiums. In July of 2015, the retrospective billing system for state-fund employers will be a thing of the past, as the Bureau moves to a prospective system. Most importantly, though, be advised that as a result of that transition, and to avoid a situation where employers are paying premiums twice during the overlap, the Bureau of Workers’ Compensation is actually granting an eight month premium credit for all private state-fund employers in July of …
The Supreme Court Narrows Affordable Care Act Contraception Mandate
The Affordable Care Act requires health plans to cover “preventive services” at no cost to participants. The federal government has identified 20 forms of contraception that are required to be included as part of preventive services. Various “for-profit” companies have challenged ACA’s birth control coverage requirement in about 50 lawsuits now pending across the country. Many of these employers are family owned, closely held or controlled companies whose owners object to the provision of contraceptive coverage on faith-based grounds. On June 30th, the last day of its 2013-2014 term, the Supreme Court issued a 5-4 decision in Burwell v. Hobby …
Ohio Energy Law to Be Signed by Governor Kasich
Over the past two years, Ohio’s industries, businesses and lawmakers have fiercely debated whether the state’s utility requirements for renewable energy and energy efficiency have been harmful or beneficial to the state’s economy. Efforts to roll back legislation, thereby dismantling clean energy mandates in the state, appear to have been successful. Governor John Kasich plans on signing the legislation that will freeze Ohio’s renewable energy laws for a minimum of two years. Currently, around 30 states have renewable energy standards. Ohio’s renewable energy law was enacted in 2008 and includes the following provisions: 25 percent of electricity sold by each …
NLRB Rules that Cursing Out The Boss Is Protected Activity
Who knew an employee could dress down the owner of the company with profanity (while angrily pushing aside a chair, no less) and get away with it? The National Labor Relations Board – that’s who! Last week, on remand from the Ninth Circuit, the NLRB in Plaza Auto Center, Inc., 360 NLRB No. 117 (2014), again found that an employer violated the National Labor Relations Act by terminating an employee for a tirade during which the employee cursed at the owner, called him profanity-laced names, and, within the confines of a small enclosed office, pushed a chair aside to underscore …
U.S. Supreme Court holds that severance payments are subject to FICA
In a case decided earlier this year, United States v. Quality Stores, Inc., the U.S. Supreme Court resolved a split among the circuits and held that severance payments that are not linked to the receipt of state unemployment benefits are “wages” subject to FICA withholding. This decision overturned the Court of Appeals for the Sixth Circuit which had concluded that the taxpayer, Quality Stores, Inc., was entitled to a refund of FICA taxes paid with respect to severance payments. While not a favorable decision for the taxpayer, it does offer employers some certainty that severance payments, not linked to the …
8th District Court of Appeals Agrees with Common Pleas Court that BWC Group Rating is Unconstitutional
We had previously reported, back in late 2012, that the Cuyahoga County Court of Common Pleas determined that the Bureau of Workers’ Compensation’s group rating programs were illegal. That decision was appealed to the 8th District Court of Appeals, which issued its decision/analysis of the situation on May 15, 2014. The 8th District has agreed with the Common Pleas Court that the group rating programs are unconstitutional and, as a result, state-fund employers in Ohio may be entitled to hundreds of millions of dollars in premium rebates. The gist of the 8th District’s very lengthy opinion is that the group …
Validity of 2012-13 NLRB Decisions Hanging in the Balance
In what is more than likely to be one of the most momentous legal controversies of 2014, the U.S. Supreme Court is poised to render a decision that reaches the very foundations of the Republic – and could potentially invalidate hundreds of official actions of the National Labor Relations Board and an even greater number of rules and quasi-judicial determinations by a host of other presidential appointees. On January 13, 2014, the U.S. Supreme Court heard oral arguments in National Labor Relations Board v. Noel Canning. The case involves an employer’s challenge to a determination of the National Labor Relations …
Limiting Real Estate Liability With an LLC or Corporation
As a real estate and corporate attorney, I often work with clients who own investment or rental property. A common question often arises: Should a client hold title to real estate in the client’s individual name, or would the client be better served by holding the property in a limited liability company (i.e., an LLC) or a corporation. Of course, the answer depends on the specific circumstances of the client’s situation, but there are often advantages to holding property in an entity owned by the client. The primary advantage of holding property in an LLC or corporation is limitation of …
No Decision on Union Election Agreements
Although it is not the normal response by management, there are some circumstances when employers are not opposed to the unionization of their workers. This has certainly not been our experience, but some executives feel the union apparatus could decrease their burdens in handling personnel matters. Others may survey the situation and, seeing union certification as inevitable, opt to try forming a working relationship with the union as early as possible rather than fighting an uphill campaign against it. This leads some employers to actually enter into agreements with unions to facilitate the election and certification process. However, employers who …