Legal Update for 2010
Wednesday, December 9th, 2009 1:39pm
At this must-attend briefing session, American Consulting Group will review new employment laws, key court decisions, and other important changes that affect the way you will do business and how you will manage your workforce. We will discuss what you should do to comply with these new requirements.
This seminar will offer important updates on major developments in employment laws. Jerry Murase, Vice President, American Consulting Group will conduct the seminar.
This Legal Update will cover recent developments in:
• New I-9 Form and changes in employment eligibility requirements
• E-Verify required for federal contractors
• FMLA Amendments
• Civil Air Patrol Leave
• Wage and hour
• Work schedule and pay reductionfor exempt employees
• Non-solicitation of an employer’scustomers by former employee
• Employee’s use of employer’s computer system
• Employee’s “errand” creates employer liability
• Disability accommodation and physical capabilities evaluation
• Discrimination, retaliation and harassment
• Post-termination liability due to employer’s statements to others
• COBRA subsidies
• Changes to federal and state job posters
• Other developments
Important Federal Legislation to Watch in 2010
• Employee Free Choice Act
• Healthy Families Act
• Emergency Influenza Containment Act
• FMLA Enhancement Act
• Domestic Violence Leave Act
ABOUT THE AMERICAN CONSULTING GROUP
ACG has been trusted advisors for over 30 years specializing in labor and employee relations, human resources, and workplace safety.
SEMINAR REGISTRATION:
Wednesday, January 27, 2010 8:30 a.m. to 12 Noon
Wyndham Hotel Orange County
3350 Avenue of the Arts
Costa Mesa, CA
Regular Fee: $95 per person
Early Registration: $75 per person
(If register by January 8, 2010)
Multiple Registrations: $65 per
person for 3 or more registrants
from same company
ACG Members: $45 per person
FAX AND MAIL ENROLLMENT WITH PAYMENT TO:
American Consulting Group
Attn: Seminar Coordinator
23361 Madero, Suite 220
Mission Viejo, CA 92691
Phone: 949-452-1840
Fax: 949-206-0972
Federal Stimulus Act
Monday, April 6th, 2009 4:18pm
Legal Alert: Federal Stimulus Act Requires Health Plans to Provide 65% Reimbursable COBRA Premium Subsidy - Beginning March 1, 2009
On February 17, the President signed the $787 billion stimulus package, known as the American Recovery and Reinvestment Act of 2009. This Act requires employers (or insurers) to subsidize 65% of the COBRA premiums otherwise charged to certain involuntarily terminated employees (and their covered dependents), beginning as soon as March 1, 2009.
The subsidy applies to employees who were involuntarily terminated during the period starting September 1, 2008, and ending December 31, 2009; and is available for up to nine months. The employer (or insurer if it pays the subsidy) may recoup the subsidy through tax credits against its employment taxes or other taxes, as provided in the Act. The new COBRA rules are highlighted below. To comply with the Act, employers and health plan administrators must take the following immediate actions:
1. Offer a "Second Chance" COBRA Election:
First, identify all former employees (and their covered dependents) who were entitled to elect COBRA continuation coverage for any reason during the period starting September 1, 2008, and ending February 17, 2009. If any of them did not elect COBRA coverage, or dropped it before it expired, they may be eligible for a "second chance" to elect COBRA coverage at the subsidized rate.
Plan administrators must prepare to give them a new type of COBRA notice, offering this "second chance" to elect coverage that would begin as soon as March 1, 2009, with their premium reduced by the 65% subsidy. However, they can make this election only if the former employee's employment was involuntarily terminated during the period starting September 1, 2008, and ending December 31, 2009. This notice must be given within 60 days after February 17, 2009. Please note that U.S. Department of Labor is required to publish a model notice for this purpose, within 30 days after February 17, 2009.
If an individual is eligible to make the new election, and the original period for the individual's COBRA coverage has not expired, the plan must accept the new COBRA election if it is made within 60 days after the individual receives the notice described above; and the individual pays the non-subsidized 35% of the COBRA premium. The new election provides coverage only for the remaining months of the original 18-month COBRA period that began when the individual lost coverage due to the employment termination.
If any of those individuals continued to receive COBRA coverage as of February 17, 2009, they must be given a new general notice about the COBRA premium subsidy within 60 days after that date. That notice is described below.
2. Notify COBRA Beneficiaries about COBRA Premium Subsidy:
Next, prepare to give a premium subsidy notice to all individuals who become entitled, during the period starting September 1, 2008, and ending December 31, 2009, to elect COBRA continuation coverage for any reason. This notice may be included with the usual COBRA notice and will describe the premium subsidy for any continuation coverage that results from an employee's involuntary termination of employment during the period starting September 1, 2008, and ending December 31, 2009. Please note that U.S. Department of Labor is required to publish a model notice for this purpose by March 19, 2009.
3. Change COBRA Payment Procedures:
Determine which entity involved with the group health plan will pay for the premium subsidy and be reimbursed by the federal payroll tax credit. This may be a self-insured employer or an insurer.
Prepare to track COBRA premium payments actually made by (or on behalf of) individuals eligible for the premium subsidy, and track the related monthly premium subsidy amounts to be credited against the paying entity's payroll taxes. COBRA premiums paid by the employer are not eligible for the subsidy.
Prepare new notices to advise eligible individuals when they reach the maximum time limit for the premium subsidy. ACG also recommends that you contact your insurance broker or insurance company to coordinate your plan of action.
For further information, go to the U.S. Dept. of Labor website: http://www.dol.gov/ebsa/html. Also, you may contact ACG at 1-800-747-8666.
LOCAL FUNDING AVAILABLE
Tuesday, March 24th, 2009 3:03pm
Statewide Program Provides Local Funding to
Purchase Green Engines, Equipment, and
Emission Reduction Technology
The Carl Moyer Program is a voluntary program that offers grants to owners of heavy duty vehicles and equipment. The program is a partnership between the California Air Resources Board (ARB) and the local air districts throughout the state. The purpose of the program is to reduce air pollution emissions from heavy-duty engines.
What kinds of equipment and projects are funded?
The program funds a variety of vehicle classes and types. Funds are used to help purchase new vehicles or new engines/repowers and for installation of retrofit units on older engines. New vehicles and engines must achieve a 30 percent reduction, and repowered vehicles and retrofits must achieve a 15% reduction of oxides of nitrogen (NOx) emissions compared to current emission standards. Projects reducing particulate matter (PM) and/or reactive organic gas (ROG) are also eligible for funding provided they are cost-effective. Alternative fuel engines, such as those using compressed natural gas, liquefied natural gas, propane and electricity will be given preference for funding. Cleaner diesel engines will be considered in the offroad category.
What kinds of projects are eligible?
To be eligible for Carl Moyer Program funds, projects must be in compliance with
California ARB Fleet Rules, meet the cost-effectiveness threshold of $16,000 per ton of total reduced emissions, and be completed and fully operational prior to May 2011. Grants cannot be used for projects that are required by law or by a contract or agreement; however, they can be applied to projects that comply at least three years in advance of state regulations. Application deadline is May 1, 2009.
How can American Consulting Group help employers access funding?
American Consulting Group will help you navigate through the simple but confusing application process and maximize your chances of receiving a Carl Moyer Program grant.
Where can I find more information about the program?
Further information is available from American Consulting Group. Please contact Eric Martin at (949) 452-1840 or emartin@american-consulting.com
THE AMERICAN CONSULTING GROUP
23361 MADERO, SUITE 220 MISSION VIEJO, CA 92691 TEL: (949) 452-1840
FAX: 949-206-0972 WWW.AMERICAN-CONSULTING.COM
Prepare for The EFCA
Friday, March 13th, 2009 12:21pm
1. The Employee Free Choice Act
The Employee Free Choice Act (EFCA) passed the House of Representatives in 2007, but in the face of a veto threat by President Bush, never reached final passage. With the election of President Obama and a larger Democrat majority in the Senate, the legislation is more likely to pass in the near future. The EFCA would require the National Labor Relations Board (NLRB) to certify a union as bargaining representative if a majority of employees sign authorization cards. Currently, unions cannot be certified based on signatures alone unless the employer voluntarily agrees. Consequently, most unions seek an NLRB conducted secret ballot election, which they can request with signatures from 30% or more of the employees.
The EFCA would effectively eliminate the need for secret ballot elections to determine union representation and certification. The cards would be sent directly to the NLRB with no requirement for a NLRB conducted election. The employer will not have any formal notice beforehand, and may end up with a union without ever having a chance to communicate its position to employees.
The EFCA would also impose fines of $20,000 for violations of the Act, which could make communicating with employees regarding unions much more risky. More significantly, the Act would impose mandatory contract arbitration if the employer and unions cannot agree on a first contract within 120 days. An arbitrator would then determine the terms and conditions of employment in a labor contract that would be binding for two years.
2. The Current Outlook on Passage of the EFCA
It is not clear at this time whether President Obama will pursue passage of the EFCA during the first 100 days of his administration. The countrys economic difficulties may push this legislation down the priority list, and the concept of abolishing the secret ballot election for union representation continues to consistently draw huge opposition in polling, even among Democrats.
Further complicating the legislations outlook is the lack of a filibuster proof majority for the Democrats in the Senate. While one or two Republicans might cross over to vote for the EFCA, there an equal number of moderate Democrats who might go the other way.
On the other hand, Labor is clearly expecting Obama and the congressional Democrats to deliver, and there will be huge pressure put on after the smoke clears on the economy.
We believe that the most likely scenario is for Congress to take up the legislation in the summer of 2009, when the spotlight wont be shining so brightly on the new administration and the population is less focused on politics. We also believe, based on a number of trial balloons that have been floated by Labor allies, that the card check provisions of the EFCA may be diluted or eliminated altogether.
Instead, Labor may accept keeping secret ballot elections, but requiring they be held five days after the union petitions for an election (as opposed to 42 days currently). This may be more politically acceptable to the Obama administration and avoid a filibuster. The mandatory contract arbitration provisions may also be eliminated, due to the likelihood that these provisions would be found unconstitutional. Labor will likely fight to maintain the EFCAs increase in penalties on employers for unfair labor practices, and as a trade off for giving up card check, they may demand additional concessions, such as access to employees at their place of work.
3. Preventative Measures
No matter whether the card check portions survive or the EFCA is modified to require quick elections, companies should prepare to take preventative measures prior to passage of the legislation. The following are suggestions for preventative steps to be implemented before this legislation becomes law:
Upgrade managerial skills
The first critical step is to provide managers and supervisors with training to develop their basic labor relations knowledge the essentials of the organizing process, how unions work, and what they can and cannot communicate to employees regarding unions. Whether EFCA passes or not, supervisors are the first line of defense, and they need to be able to effectively communicate and explain union issues to employees.
Many times, however, supervisors are uncomfortable or reluctant to put their knowledge into action with employee discussions. The only way for them to develop these skills prior to talking with employees is to practice through role playing, with evaluation and coaching on how to address union issues. We have conducted these sessions for other clients, and have found it does empower the supervisors to be more proactive in discussing union issues. One advantage to role playing is it allows review of the labor relations concepts theyve already learned, without being repetitive.
Educate employees
Unions are most successful when they can capitalize on employees lack of knowledge about how the process works. It is much easier for organizers to use misinformation or false promises to get employee signatures on authorization cards when employees are uninformed. It is therefore critical that employees are provided with information in advance on union authorization cards and the effect of signing under the current system and the effect of the EFCA, since signing a card will have much more impact if it passes.
After a round of educational meetings on card signing and the EFCA, there should be ongoing education on union topics. Essentially, a union campaign would be run over the course of a few months, so that if a union starts approaching employees to get cards signed, a campaign to stop the card signing would consist of reinforcing themes that have already been communicated.
Ongoing employee sensing
Continued sensing thorough small group employee meetings to surface issues and evaluate morale will be critical if EFCA passes. If issues and concerns are headed off before morale is damaged, it will be much harder for a union to get signatures. Human Resources can conduct these meetings and formalize a process of recording issues raised, developing action plans for addressing any issues, and reporting back to employees to close the loop.
Problem Resolution Procedures
Unions have found some success convincing employees that they need a contract for protection, particularly with at-will employment statements that imply employees are at risk of being fired any moment. One tool employers have utilized to combat this inducement is by implementing a problem resolution procedure that allows employees to grieve disciplinary actions, all the way to arbitration if the employee chooses, essentially mirroring a grievance and arbitration procedure typically found in a union contract.
Employers who fail to take the preventative steps of empowering managers, educating employees and improving employee relations will undoubtedly fall victim to card check organizing under the EFCA. The American Consulting Group (ACG) has solutions to protect your business, such as cost effective preventing training and education programs. For over thirty years, ACG has been providing professional guidance to Employers who wish to remain union free. To take advantage of our expertise, contact The American Consulting Group at (949) 452-1840.
New Forklift Emission Sta
Thursday, March 12th, 2009 4:33pm
California Air Resources Board Enforces New
Emission Standards and Fleet Requirements for
Forklifts
The California Air Resources Board (ARB) announced new regulations to reduce
emissions from existing forklift fleets. The new rules, known as the Large Spark-Ignition
(LSI) Regulation, went into effect January 1, 2009. ARB plans to begin enforcement
April 1, 2009 and will seek a penalty of $500 per forklift per day for noncompliance.
Who must comply with these regulations?
Any person, business, municipal or government agency that owns or operates
gasoline-, propane-, or compressed natural gas-fueled forklift fleets in California is
subject to the regulation.
What does the regulation require of forklift fleets?
The regulation establishes fleet average emission level requirements (fleet
average) for medium and large fleets that become more stringent with time. Forklift
fleets must meet the grams per kilowatt-hour (or grams per brake
horsepower-hour) fleet average emission level requirements in the table below.
Fleet Type Number of Units Fleet Average Emission Level
1/1/2009 1/1/2011 1/1/2013
Large forklift fleet 26+ 3.2 (2.4) 2.3 (1.7) 1.5 (1.1)
Mid‐size forklift fleet 4‐25 3.5 (2.6) 2.7 (2.0) 1.9 (1.4)
How can American Consulting Group help you meet these requirements?
American Consulting Group will help bring your fleet into compliance by conducting an
on-site audit to identify what the emission level is for each forklift, what your initial fleet
average is, what fleet averages youll have to meet by the 2009, 2011, and 2013
compliance dates, what your fleet turnover rate is, and how zero- and near
zero-emission equipment can help reduce your fleet average.
Can employers access funding to assist compliance?
Yes. California has the largest clean air incentive program in the nation, the Carl Moyer
Program, with up to $140 million available each year primarily through the local air
districts. American Consulting Group will help you obtain access to Carl Moyer Program
funds. Application deadline is May 1, 2009.
Where can I find more information about the regulation?
Further information is available from American Consulting Group. Please contact Eric
Martin at (949) 452-1840 or emartin@american-consulting.com
