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P4 LGBT ISSUES IN THE WORKPLACE
P5 THE EEOC STANCE ON LGBT-
RELATED DISCRIMINATION
P6 DEPARTMENT OF LABOR
UPDATES GUIDANCE FOR FINDING
’MISSING PARTICIPANTS’
P8 HUGE GOP ELECTION WIN WILL
LIKELY BENEFIT BUSINESSES
P9 KEY BENEFIT PLAN LIMITS FOR 2015
P10 NEWS DIGESTS
P11 ATTORNEY LISTINGS
HUMAN RESOURCES NEWSLETTER WINTER 2014
HR Focus
EEOC Cracking Down on Workplace Wellness Programswith the ADA, the Genetic Information
Nondiscrimination Act, and other equal
employment opportunity laws. While it
remains to be seen exactly how these
lawsuits will play out in court, employers
should take note of the potentially shifting
regulatory landscape and design their
wellness programs accordingly.
Under the Patient Protection and
Affordable Care Act (PPACA), employers
are now permitted to vary group health
plan premiums by 30% when coupled
with a wellness program (and up to 50%
if the wellness program is designed
to reduce tobacco usage). This was a
significant jump from the previous 20%
limitation set forth under the HIPAA
nondiscrimination provisions applicable
to wellness programs.
Hearings by the EEOC on wellness
programs revealed that 94% of
employers with over 200 workers, and
APRIL A. [email protected]
The Equal Employment Opportunity
Commission (EEOC) recently brought three
federal lawsuits arguing that an employer’s
wellness program violates the Americans
with Disabilities Act (ADA). This is a notable
public nod regarding the EEOC’s position
on wellness programs and its interaction
2 | WINTER 2014 | WARNER NORCROSS & JUDD | WNJ.COM
...Workplace Wellness Programs
Just over a month later, the EEOC
brought a lawsuit against Flambeau, Inc., a
plastics manufacturing company, arguing
that the company’s wellness program
violated the ADA. (EEOC v. Flambeau,
Inc., [W.D. Wis. filed Sept. 30, 2014]).
Flambeau required employees to submit
to biometric testing and a “health risk
assessment” in exchange for the employer
paying 75% of the group health plan
premiums. Individuals who refused to
participate faced possible cancellation of
their medical coverage and unspecified
“disciplinary action” for failing to attend
the scheduled testing. In this case, a male
employee with congestive heart failure did
not participate in the testing as he was out
on medical leave. Consequently, his health
plan coverage was terminated and he was
offered COBRA continuation coverage.
The EEOC characterized the penalties
as “dire consequences”—yet they were
well within the statutorily approved range
under the HIPAA nondiscrimination
requirements applicable to wellness
programs, as modified by PPACA.
63% of employers with fewer workers, are
utilizing some form of a wellness program
to incentivize employees to lead healthier
lifestyles, according to Karen Pollitz of
the Kaiser Family Foundation. Given the
frequency in which employers are utilizing
these programs, one would assume that
the EEOC previously issued regulations
to guide employers in designing and
administering these programs. However,
no such guidance has been forthcoming.
THE TRIFECTA: THREE LAWSUITS IN
THREE MONTHS
In August 2014, the EEOC brought its
first formal legal challenge regarding a
wellness program against Orion Energy
Systems Inc., alleging the company’s
wellness program violated the ADA by
requiring employees to submit to medical
exams that were not voluntary, job-related
or consistent with business necessity.
(EEOC v. Orion Energy Systems, [E.D. Wis.
filed August 20, 2014]). The company’s
wellness program required employees
to self-disclose their health histories as
part of a Health Risk Assessment (HRA)
and to participate in an on-site medical
exam, which included a range of motion
assessment and a blood draw for certain
biometric screenings. Employees who
participated in the wellness program had
100% of their group health plan premiums
subsidized by the company. A female
employee declined to participate in the
program, and Orion required the employee
to pay the full cost of the health insurance
premium and charged her an additional
$50 per month for refusing to participate
in the range of motion assessment. She
complained and was subsequently fired.
Finally, in October, the EEOC
brought an action against Honeywell
International, Inc. requesting the court
to issue a temporary restraining order
and an injunction against the company
from the imposition of penalties in
connection with the company’s wellness
program. The EEOC claimed the
program violated the ADA and GINA.
(EEOC v. Honeywell International,
Inc. [D. Minn., filed Oct. 27, 2014]).
Honeywell recently announced that
employees and their spouses or
domestic partners would be required
to be screened for various biometric
factors (but not required to actually
hit any specific target) including blood
pressure, cholesterol, blood-sugar
levels, waist circumference, and nicotine
usage as part of the open enrollment
process for the group health plan.
Employees would also be required to
self-report certain medical information
on an HRA. Failure to participate in
the screenings would result in up to
$2,500 in wellness program surcharges
Employers may vary group health plan premiums by 30 percent when coupled with a wellness program (and up to 50 percent if the wellness program is designed to reduce tobacco use)
Wellness programs must be voluntary and cannot compel participation by imposing significant penalties on employees
The EEOC brought its first legal challenge of a wellness program in August 2014
WELLNESS PROGRAM FAQs
94 percent of employers with over 200 workers have some form of a wellness program
63 percent of employers with fewer than 200 workers have some type of wellness program
PLANNING AHEAD
It seems unlikely, given the lawsuits
brought to date, that the EEOC would
spend finite resources attacking wellness
programs designed so that the premium
differential is not dependent on medical
examinations or completion of HRAs.
However, most employers have routinely
rejected such wellness programs as failing
to provide sufficient return on investment.
Will the EEOC continue to challenge more
typical wellness programs where failure to
participate only triggers penalties in the
30-50% range specifically permitted under
HIPAA and PPACA? Honeywell argued that
their wellness program fell within this range,
while the penalty in the other two lawsuits
was 100%. Is there a direct correlation
between the amount of the financial impact
to the employee and the risk of a lawsuit
being brought by the EEOC?
If an employee is offered a 30% premium
discount for participation in a wellness
program with required biometric
screenings, is that considered voluntary?
What if the program is designed as a
penalty—so that failure to participate costs
an extra 30% a month? Practically speaking,
while one program uses the amount as a
“carrot” and one a “stick,” it’s the same
and a loss of up to $1,500 in employer
contributions to the employee’s health
savings account. U.S. District Judge Ann
Montgomery denied the agency’s request
for the temporary restraining order or
injunction on November 3, 2014.
EEOC’S POSITION
EEOC regulations and Interpretive and
Enforcement Guidance have allowed
employers to conduct medical examinations
and obtain medical histories as part of
“voluntary” wellness programs. The EEOC’s
position has been that “(a) wellness program
is ‘voluntary’ as long as an employer
neither requires participation nor penalizes
employees who do not participate.”
However, the EEOC never took a formal
position on “whether and to what extent
a reward amounts to a requirement to
participate, or whether withholding of the
award from non-participants constitutes
a penalty, thus rendering the program
involuntary.” While the EEOC conducted
wellness program hearings in May 2014,
the agency has not issued any formal
regulations regarding the programs to date.
The EEOC’s position that wellness
programs must be voluntary in nature
has been clearly reiterated by the recent
lawsuits. Wellness programs cannot compel
participation by imposing significant
penalties, such as shifting 100 percent of
the premium cost of health benefits or
threatening adverse employment action,
without violating the ADA. But short of
a 100% premium differential, how are
employers supposed to foresee the EEOC’s
position on wellness programs absent a
crystal ball—or more helpful—substantive,
clear regulations on the subject?
financial impact to the employee. What
does it truly mean for an employee to
have a “choice” in participation in a
wellness program?
Notably, each of the three recent
lawsuits was brought by the EEOC’s
Chicago District Office, which is
responsible for Illinois, Wisconsin,
Minnesota, Iowa, and North and South
Dakota. Other district offices may
be less aggressive in bringing these
actions, or may follow suit and begin
investigating perceived violations in
their own geographic area.
Until these questions are answered
with any degree of certainty, employers
should consult with competent legal
counsel to design wellness programs
that are voluntary and compliant with
existing employment and benefits laws.
Employers should carefully weigh the
financial benefits of a more aggressive
wellness program with the significant
potential legal and social costs and
penalties involved in a lawsuit.
4 | WINTER 2014 | WARNER NORCROSS & JUDD | WNJ.COM
It’s Not Just About Same-Sex Marriage:LGBT Issues in the Workplace
in one form or another, Michigan is one of
29 states without any specific state-wide
employment discrimination protection for
LGBT individuals.
A comprehensive bill introduced earlier
this year by State Rep. Sam Singh, D-East
Lansing, would have added “sexual
orientation and gender identity” to
the protections under Elliott-Larsen.
Representative Frank Foster, R-Petoskey,
introduced legislation that would amend
the law to prohibit discrimination on the
basis of sexual orientation only, without
mentioning transgender status or gender
identity or expression. House Speaker Jase
Bolger, R-Marshall, introduced a Michigan
version of the “Religious Freedom
Restoration Act,” calling it a “necessary
balance” to any modifications to Elliott-
Larsen. Bolger’s bill would allow business
owners to defend against a discrimination
claim based on a “sincerely held religious
belief.” Accordingly, there is a battle
brewing over whether an amended law will
add protections for transgender individuals
and whether there could be exceptions
based on religious beliefs.
Michigan Governor Rick Snyder has
indicated his desire for Michigan lawmakers
to amend Elliott-Larsen to include
protections based on sexual orientation
and gender identity. The Grand Rapids
Area Chamber of Commerce and the
Detroit Regional Chamber have added
their support for the change.
Since there appeared to be enough
support for inclusion of protections based
on sexual orientation but not gender
There has been significant activity and
publicity recently concerning the rights of
lesbian, gay, bi-sexual and transgender
(LGBT) individuals. For example, the U.S.
Court of Appeals for the Sixth Circuit
recently upheld Michigan’s constitutional
ban on same sex marriages. This is contrary
to the positions that other courts of appeals
have taken on the issue and dramatically
increases the likelihood that the U.S.
Supreme Court will address the issue of gay
marriage in the very near future.
Although much of the media focus has
been on the issue of same-sex marriage,
there also has been significant legislative
activity and litigation addressing the rights
of LGBT individuals in the workplace.
In Michigan, there presently are competing
bills pending in the Legislature to amend
the state’s Elliott-Larsen Civil Rights Act.
The current law prohibits employment
discrimination based on a variety of
characteristics including religion, race,
color, national origin, age and sex. It does
not, however, prohibit discrimination
based on sexual orientation, gender
identity or transgender status. And while
several local units of government have
ordinances addressing such discrimination
identity, the LGBT coalition decided
to oppose any legislation that did not
include gender identity. Consequently,
the legislation was expected to die
this session. On the other hand, the
Religious Freedom Restoration Act won
approval on a party line vote in the
House and was expected to pass prior
to the end of lame duck session.
At the federal level, President Obama
signed an Executive Order on July 21,
2014, barring LGBT discrimination by
federal contractors. Although the Equal
Employment Opportunity Commission
(EEOC) had historically refused to
accept LGBT charges of discrimination
against private employers (because
federal law does not explicitly address
this type of discrimination), the agency
has changed its practice. In the EEOC’s
view, discrimination against an individual
because they do not conform to a
“sexual stereotype” is a form of sex
discrimination in violation of Title VII of
the 1964 Civil Rights Act. Consistent with
this position, the EEOC filed a brief in a
case pending before the U.S. Court of
Appeals for the Seventh Circuit (which
hears appeals from federal district
courts in the states of Illinois, Indiana
and Wisconsin), taking the position
that discrimination based on sexual
orientation is a form of unlawful sex
stereotyping. The EEOC reports that, for
the first nine months of 2014, the agency
received 667 sexual orientation charges
and 161 gender identity charges.
Back in Michigan, a federal court
recently struck down a Michigan law
ROBERT A. [email protected]
LOUIS C. RABAUT [email protected]
would have included protections for
sexual orientation and gender identity.
The employer argued that the failure of
Congress to amend Title VII by passing
ENDA is proof that the current law does
not cover gender identity.
Undoubtedly, 2015 will bring more
developments – and perhaps some
clarity – on the rights of LGBT individuals
in the workplace. These developments
will likely come from the state
Legislature, the courts and administrative
agencies. Employers will need to be
mindful as the events play out.
federal court to dismiss the case, claiming
that Title VII of the Civil Rights Act of
1964 prohibits discrimination only on the
basis of a person’s biological, anatomical,
or physiological status, and not “gender
identity.”
The EEOC claims that the employer illegally
fired an employee who notified the employer
that she was transitioning from male to
female and would begin to dress differently.
One argument the employer made to the
court was that Congress failed to enact
the Employment Non-Discrimination Act
(ENDA). The ENDA, if it had become law,
that prohibited all institutions that receive
state tax dollars (in other words, the State
of Michigan and all public employers)
from extending health insurance benefits
to “non-related adults living in the same
home as a state employee.” U.S. District
Court Judge David Lawson determined
the Public Employee Domestic Partner
Benefit Restriction Act violated the U.S.
Constitution’s promise of equal protection
and due process.
In another Michigan case, a funeral home
has been sued by the EEOC for alleged
discrimination against a transgender
employee. The employer has asked the
The EEOC Stance On LGBT-Related Discrimination The EEOC recently published a “What You Should Know” document about the agency’s enforcement of existing anti-discrimination protections for LGBT workers, citing recent developments that have piqued interest on the topic. The EEOC also published a companion fact sheet on EEOC litigation developments on Title VII’s coverage of LGBT-related discrimination and a list of federal-sector cases involving transgender persons. Use the QR codes to download the EEOC documents or visit www.eeoc.gov.
From January through September 2013, the EEOC received 667 charges raising allegations of sex discrimination related to sexual orientation and 161 charges alleging sex discrimination based on gender identity/transgender status, according to government data. From October 2013 through June of 2014, the agency received 663 charges alleging sex discrimination related to sexual orientation and 140 charges alleging sex discrimination on the basis of gender identity/transgender status. The new EEOC publications reveal the agency is committed to pursuing charges that allege discrimination based on transgender status, as well as those filed by lesbian, gay and bisexual individuals that allege sexual-orientation discrimination. Here is a summary of what businesses should expect from the EEOC, according to independent analyses of the agency’s new
publications. According to the EEOC:
• Federal anti-discrimination laws the agency enforces “protect all workers, regardless of sexual orientation or gender identity.” • Discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex
discrimination in employment.• The agency’s district, field and area offices have been instructed “to take and investigate (where appropriate) charges from
individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).”
• Lesbian, gay and bisexual individuals may bring valid Title VII sex discrimination claims, and that charges alleging sexual orientation-related discrimination should be accepted. “These allegations might include, for example, claims of sexual harassment or other kinds of sex discrimination, such as adverse actions taken because of the person’s failure to conform to sex-stereotypes,” the EEOC wrote.
Scan to view LGBT Litigation
Scan to view LGBT Rules
6 | WINTER 2014 | WARNER NORCROSS & JUDD | WNJ.COM
Did You Miss Me? U.S. Department of Labor Updates Guidance for Finding ‘Missing Participants’
JUSTIN [email protected]
retirement plan distribution. Unfortunately,
in some cases participants fail to update
their contact information and plan fiduciaries
can be stuck in the position of a plan
holding assets for someone who cannot
be found to make that election. The DOL
guidance provides an updated perspective
on what steps the department requires plan
fiduciaries to take to locate participants in
a terminating plan and, by extension, what
steps the government considers prudent to
find missing participants in any situation.
SEARCH STEPS
A minimum of four steps are required
before abandoning efforts to find a missing
participant:
The U.S. Department of Labor (DOL) has
provided updated guidance for retirement
plan fiduciaries who are attempting to find
participants to distribute plan assets from
a terminating plan. Although the guidance
technically only applies in the context of a
terminating plan, the principles described
below are also helpful to plan fiduciaries
searching for participants in active plans.
Participants in a retirement plan are
generally required to affirmatively elect a
1. Use certified mail.
2. Check related plan and employer
records.
3. Check with the designated
beneficiary, if any.
4. Use free electronic search tools,
which is a new requirement. The
DOL guidance refers to Internet
search engines, public record
databases, obituaries and social
media. The constantly evolving state
of the Internet means this standard
should be applied to whatever new
technologies or applications are
available to the plan fiduciaries.
A Proper Search
Retirement plan administrators must take at least four steps before abandoning efforts to find a missing plan participant.
They must:
1. Send the missing person a letter using certified mail;
2. Check related plan and employer records;
3. Check with the designated beneficiary, if any; and
4. Use free electronic search tools, such as Internet search engines, public record databases, obituaries and social media.
pre-tax status of the accounts. The DOL
concludes that these options generally
would not be prudent if an individual
retirement plan rollover distribution is
available. The DOL also reiterated its
prior guidance that 100 percent tax
withholding is not an acceptable option
to address missing participants.
The updated DOL guidance is helpful
both for terminating retirement plans and
for the administration of ongoing plans.
As always, documentation is critical to
prove a fiduciary acted prudently—
plan records should include notes
regarding the search steps taken and the
distribution option that was implemented
for those missing participants who
could not be found. Note also that your
retirement plan may need to be updated
if it refers to the prior DOL guidance,
which may include requiring the use of
the IRS or Social Security Administration
letter-forwarding programs.
be fully liquidated and terminated. The
distribution method is also a fiduciary
decision. If the company sponsors another
defined contribution plan which can
hold the assets, that would be the first
alternative. Assuming the company does
not have any other defined contribution
plan, the DOL guidance reiterates its
preference for those accounts to be
distributed to an individual retirement plan
in accordance with the DOL’s regulatory
safe harbor for rollover distributions
to an individual retirement plan from a
terminating defined contribution plan.
If no individual retirement plan provider
will accept the direct rollover, the DOL
identifies two other options:
1. Open an interest-bearing, federally
insured bank account to hold the funds.
2. Transfer the funds to a state unclaimed
property fund.
The fiduciary must conclude that those
options are prudent despite the loss of
The DOL eliminated the prior requirement
that a plan fiduciary use the IRS or Social
Security Administration letter-forwarding
programs because those programs are no
longer available.
Note that these four steps are the
minimum. Additional steps may be
required by the circumstances, such as
using a paid commercial locator service,
credit reporting agencies, information
brokers, investigation databases, etc. Some
state government agencies also have
low-cost locator services available. A plan
fiduciary should consider the size of the
account balance and the cost of search
efforts in determining what additional steps
to take.
DISTRIBUTION OPTIONS
For participants who can’t be found using
the methods described above, the plan
fiduciary will have to make a decision on
how to handle the missing participants’
accounts so the terminating plan can
applicability. Enactment of such a
law could allow closely held family
owned businesses the ability to deny
services or employment to others
in much the same way and for the
same reasons as the owners of the
Hobby Lobby stores are allowed
to deny coverage for contraceptive
care. Hobby Lobby’s denial of such
coverage was upheld in a ruling
issued last June by the U.S. Supreme
Court.
• Conscientious Objection: A
Senate bill (SB 136) that would have
created the “Religious Liberty and
Conscience Protection Act” was
introduced this session. Among its
many provisions, the bill would: allow
a health care payer to decline to
offer a contract, policy, or product
that paid for a health care service
that violated the payer’s conscience;
require an employer that employed
or granted privileges to a health care
provider to adopt and implement a
policy to address situations in which
the provider had an objection as a
matter of conscience; prohibit an
employer from asking a prospective
health care provider about his/
her objection to participating in a
health care service; and prohibit an
employer from penalizing a health
care provider for expressing a
conscientious objection to a health
care service. SB 136 will die at the
end of this legislative session, but
look for an aggressive push toward
enactment next session with an even
more conservative Legislature.
appointees and perhaps for the
successor to Attorney General Eric
Holder.
• Taxation: A lowering of the corporate
tax rate is high on the GOP agenda
along with corresponding spending
cuts.
• Government Shutdown: A government
shutdown is unlikely, assuming the
House Speaker and new Senate Majority
Leader have control of their Caucuses
and the antipathy toward the President
is not at fever pitch due to such issues
as immigration reform.
• Minimum Wage, Sick Time and Leave
Time: These issues are not likely to be
addressed by Congress. Earlier this year,
the Republican Michigan Legislature
circumvented a ballot initiative and
voted to increase the minimum wage.
STATE
• Prevailing Wage: Straight in the sights
of the new Republican Senate Majority
Leader is Michigan’s Prevailing Wage
Law. He led the effort to enact Right to
Work legislation and it is anticipated
that repeal of the prevailing wage is
high on the agenda.
• Religious Freedom: Look for efforts to
enact a “Michigan Religious Freedom
Restoration Act” if a pending bill
doesn’t pass this year. In essence, this
legislation prohibits government from
placing a “substantial burden” on a
person’s exercise of religion, even if
the burden is from a law of general
Congress and the Michigan Legislature will
be more business friendly—in theory, if
not in practice—following the Republican
landslide in the Nov. 4 election. With
the GOP’s big victory, Republicans now
control both Houses of the U.S. Congress
and increased their majorities in the
Michigan Legislature. In fact, the GOP,
for the second four-year election cycle in
a row, will control all three branches of
government in Michigan. Here’s how the
November election could affect businesses:
CONGRESS
• Affordable Care Act (ACA) Revision:
Polling has consistently shown that the
ACA is a “raw meat” issue for the GOP
base, and many independents are deeply
concerned about it as well. Outright
repeal is highly unlikely because the
Senate Republicans do not have enough
members to thwart a filibuster (60 votes)
and President Obama still has his veto
pen ready. However, look for a series of
symbolic votes initially at repeal and then
legislation to rein in the law’s effects.
• Immigration Reform: A major fight is
brewing here with the President poised
to take significant executive action over
Republican objections. The ripple effect
of this rift will be seen in other areas.
• Judicial and Executive Appointees:
It will be difficult for the President
to obtain approval for his judicial
JAMES G. [email protected]
Huge GOP Election Win Will Likely Benefit Businesses
8 | WINTER 2014 | WARNER NORCROSS & JUDD | WNJ.COM
Key Benefit Plan Limits For 2015
The IRS recently released its 2015 employee benefits limitations for retirement plans. The following chart lists common limitations
relevant for many employers.
2015 2014 2013401(k), 403(b), 457(b), Pension, etc.
Annual Compensation $265,000 $260,000 $255,000Elective Deferrals 18,000 17,500 17,500Catch-up Contributions 6,000 5,500 5,500Defined Contribution Limits 53,000 52,000 51,000Defined Benefit Limits 210,000 210,000 205,000HCE Threshold 120,000 115,000 115,000Key Employee 170,000 170,000 165,000ESOP Limits 1,070,000 1,050,000 1,035,000 210,000 210,000 205,000
IRA
IRA Contribution Limit $5,500 $5,500 $5,500IRA Catch-up Contributions $1,000 1,000 1,000
IRA AGI Deduction Phase-Out Starting at
Joint Return $98,000 $96,000 $95,000Single or Head of Household 61,000 60,000 59,000
SEP
SEP Minimum Compensation $600 $550 $550SEP Maximum Contribution 53,000 52,000 51,000SEP Maximum Compensation 265,000 260,000 255,000
SIMPLE Plans
SIMPLE Maximum Contributions $12,500 $12,000 $12,000Catch-up Contributions 3,000 2,500 2,500
Other
457 Elective Deferrals $18,000 $17,500 $17,500Control Employee (board member or officer) 105,000 105,000 100,000Control Employee (compensation-based) 215,000 210,000 205,000Taxable Wage Base 118,500 117,000 113,700
Health Plans
Out-of-Pocket Maximums (Self-Only)*± $6,600 $6,350 N/AOut-of-Pocket Maximums (Other than Self-Only)*± 13,200 12,700 N/ATransitional Reinsurance Fee (per Covered Life)§ 44 63 N/AHealth FSA Salary Reduction Cap# 2,550 2,500 2,500Employer Shared Responsibility – 4980H(a) Failure to Offer Coverage¤€ 2,080 (Est.)† 2,000 N/AEmployer Shared Responsibility – 4980H(b) Failure to Offer Affordable, Minimum Value Coverage¤€
* These limits do not apply to grandfathered or retiree-only plans. ± These amounts are indexed to increase based on the average per capita premium for U.S. health insurance coverage from the prior calendar year. § These fees apply on a calendar year basis.# These fees apply on a plan year basis and are indexed for CPI-U.¤ These fees apply on a calendar year basis and are assessed monthly at 1/12 of the annual amount. † The 2015 assessment amounts have not been released. These numbers are estimates only based on increase in average per capita premium for U.S. health insurance coverage in 2014 as determined by HHS.
In addition, the Affordable Care Act (ACA) imposes a fee to help fund the Patient Centered Outcomes Research Institute (PCORI). For plans with years ending on or before Sept. 30, 2014, the fee is $2.00 per covered life. If the plan year ends between Oct. 1, 2014 and Dec. 31, 2014 (including calendar year plans), the fee is $2.08 per covered life. These fee amounts are increased based on national health expenditures.
If you have any questions about the key benefit plan limits for 2015, please contact Mary Jo Larson, Amy Fredrickson, April Goff or any other member of the Warner Norcross & Judd LLP Employee Benefits/Executive Compensation Practice Group.
3,120 (Est.)† 3,000 N/A
News Digests:
OSHA Changes Reporting/Recordkeeping Requirements On Sept. 11, 2014, the U.S. Occupational Safety and Health Administration (OSHA) announced new requirements for reporting severe injuries. Currently, employers are only required to report within eight hours if a worker has been killed or three or more workers are hospitalized. Under the revised standard, an employer must report all fatalities within eight hours. An employer must report hospitalizations of one or more workers, amputations or loss of an eye within 24 hours. In addition, the revised standard also expands the number of industries required to keep illness and injury records. A list of the 25 new industries covered by the revised standard can be found at http://1.usa.gov/1yymiZj. These new requirements are effective in federal OSHA states on Jan. 1, 2015. The Michigan Occupational Safety and Health Administration (MiOSHA) has six months from the date the rules were published to promulgate standards that are at least as effective as the federal standard. MiOSHA has indicated that it intends to adopt the new federal rules by reference. By Karen VanderWerff
State Will Debut Scheduling Order for Workers’ Compensation Litigation Michigan continues to see changes in the workers’ compensation litigation process. The latest change, with implementation likely in February 2015, introduces a formal scheduling order. The form must be completed by the parties and presiding magistrate and will list deadlines for activities, such as independent medical examinations, medical depositions and case facilitation. By Geri Drozdowski
Case Highlights the Importance of Documenting Employee Performance Employers can at times find themselves between the proverbial rock and a hard place when an employee’s poor performance warrants discharge, but the employee then engages in legally protected activity that raises the specter of a retaliation claim if they are fired. A recent decision from the Michigan Court of Appeals highlights the importance of documenting performance issues so that the employer can discharge a poor performer when necessary and successfully defend any lawsuit that follows. In Larue v. Gary P. Mullnix, DDS, PLLC, the plaintiff was injured at work and filed a worker’s compensation claim. Within a month her employment was terminated, and she then sued claiming she was wrongfully terminated in retaliation for seeking worker’s compensation benefits. But the trial court dismissed her claim, and the Court of Appeals affirmed that dismissal. The courts held that the mere fact that she was terminated shortly after seeking benefits did not prove that exercising this right was the reason she was terminated. Instead, the courts found that the employer, a dental practice, properly documented performance deficiencies that justified her discharge – primarily poor teeth cleaning results documented in patient records and reviewed by the dentist prior to the decision to fire the plaintiff. The case serves as a reminder of the risks involved in terminating an employee who has engaged in protected activity, but also of the employer’s ability to take appropriate disciplinary action when performance or behavior issues warrant it so long as they are careful to properly document those issues. By Dean Pacific
Partisan Gridlock Could Affect Upcoming NLRB RulingsWe presently have a fully-constituted National Labor Relations Board, consisting of five members (three Democrats and two Republicans). The term of one of the Democratic members, Nancy Schiffer, expired in mid-December. Although President Obama has nominated a replacement for Schiffer, it is far from clear whether that nominee will be confirmed. If he/she is not, the board could be looking at a 2-2 partisan deadlock. Thus, we very likely may see several significant decisions come out of the NLRB in the next few weeks. Chief among these is the board’s new election rules, but we may also see significant case decisions dealing with employer e-mail policies and whether temporary employees can be included in a bargaining unit with regular employees.By Robert Dubault
10 | WINTER 2014 | WARNER NORCROSS & JUDD | WNJ.COM
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