NLRB Rules that Cursing Out The Boss Is Protected Activity

In Business Law, General by Coolidge Wall

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 Business Law, General, Tax by Coolidge Wall

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

In Business Law, Employment Law by Coolidge Wall

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 Business Law, Employment Law by Coolidge Wall

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

In Business Law, Real Estate by Coolidge Wall

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

In Business Law, Employment Law by Coolidge Wall

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 …

NLRB Reignites Efforts on “Ambush Elections Rule”

In Business Law, Employment Law by Coolidge Wall

Union elections are a disruptive time for any company. While employers do have an opportunity to campaign against union certification prior to the union certification votes, many managers and human resources professionals would argue that the entire process is skewed in favor of unions. This is why it was particularly troubling in February 2014 when the National Labor Relations Board (NLRB) signaled its intent to once again consider the expedited elections procedures it previously attempted to enact in 2011. On February 5, 2014, the NLRB announced its intent to issue a Notice of Proposed Rulemaking setting forth an amended version …

Updating Your Employee Handbook in 2014

In Business Law, Employment Law by Coolidge Wall

Has it been more than a year or two since you reviewed and revised your company’s employee handbook? If so, now may be a good time to do so. The following are a few policies on which you may want to concentrate in light of recent employment law developments: Healthcare and benefit policies. Given the U.S. Supreme Court’s recent decision in U.S. v. Windsor and subsequent guidance from the IRS and the U.S. Department of Labor (“DOL”), employers need to update their retirement and healthcare plans even if the employers are located in a state whose laws do not permit …

When Settlement Isn’t the End: the EEOC’s War on Certainty in Severance Agreements

In Business Law, Litigation by Coolidge Wall

Imagine this scenario faced by many employers with exiting employees: the employer gives the exiting employee the option to contractually waive any future right to sue the employer in exchange for a lump sum, a golden (or silver) parachute. The employee has signed the severance agreement, cashed the check, and that chapter of the company’s life is closed. Or is it? Recently, the Equal Employment Opportunity Commission (“EEOC”) has sued national pharmacy chain CVS for provisions CVS included in severance agreements with employees. The EEOC claims that the severance agreements condition severance benefits on a variety of “fine print” clauses …

Fleischauer testifies before Ohio House Judiciary Committee

In Business Law, Employment Law by Coolidge Wall

Employment attorney Marc Fleischauer testified before the Ohio House Judiciary Committee on January 22, 2014, regarding the impact and legal history of HB 376, the proposed Ohio Religious Freedom Restoration Act. The bill purports to set uniform standards by which Ohio courts would evaluate governmental actions that burden individual religious freedoms. Several states are adopting such standards, in accordance with the United States Supreme Court’s ruling in City of Boerne v. Flores, 521 U.S. 507 (1997). The Flores case held that similar standards under a similar federal statute could not be imposed on the states, absent state legislative action. Mr. …