Presenters at the “Beyond the Headlines” seminar, all from Rhoades McKee’s Labor and Employment Law Group were, left to right, Bruce A. Courtade, John M. Lichtenberg, Peter J. Lozicki, Zoe S. Martinez, Mary Ann Cartwright, who chairs the group, and Mark R. Smith.
LEGAL NEWS PHOTO BY CYNTHIA PRICE
By Cynthia Price
Legal News
It is not all they covered, but health care and health-related discrimination issues have been so often in the news that attorneys presenting at Rhoades McKee’s “Beyond the Headlines” seminar on recent changes in employment law could hardly avoid the subjects.
The one-hour informational session, held at the J.W. Marriott next to the firm’s new offices, attracted mostly Human Resources professionals, about 50 of them.
One of the most prominent headline stories has been the Supreme Court decision in the Hobby Lobby case — Burwell v. Hobby Lobby — and Mary Ann Cartwright, chair of Rhoades McKee’s Labor and Employment Law Group, addressed that head-on.
What she said was likely to comfort those who have to deal with the Affordable Care Act, in that she strongly emphasized that SCOTUS’s majority opinion was applicable only very narrowly, deliberately.
“As you probably know,” Cartwright told the audience, “the Hobby Lobby decision applies only to closely held corporations and then only to those who hold religious beliefs. And it only applies to three forms of contraception, the ‘morning after pill’ and two IUDs [Intra-Uterine Devices] that actually prevent implementation of a fertilized egg. It was just a very limited ruling.”
In response to a later question about what a closely-held company would have to do to demonstrate that it fell under the ruling, Cartwright replied, “You would have to show that you run your business according to your core religious principles. For example, are you closed on Sunday, do you have policies to allow your employees time off based on their religious practices — do you adhere to your religious beliefs in how you operate the business?”
When asked afterwards if she had seen anything that broadened that decision coming out of SCOTUS since then, Cartwright said no.
Of course, that does not mean that there will not be further ramifications of the decision coming down the line. And that was thematic in the day’s presentations, as it often is in labor and employment discussions: it is almost impossible to achieve any certainty.
Or as Rhoades attorney Mark Smith put it when discussing pregnancy discrimination law, “We all thought we knew the answer, and we’re finding we don’t.”
Smith and Cartwright agreed that there are likely to be conflicts coming, and more court cases, to reconcile differences between the Hobby Lobby decision and the provisions of both the Pregnancy Discrimination Act, which amended Title VII of the Civil Rights Act, and square it with the Affordable Care Act (ACA).
Earlier, Zoe Martinez and Peter Lozicki updated attendees on the latest in the ACA, itself a headline-grabber, and still a work in progress.
Though there have been many delays in the implementation of the act, final regulations were issued in Feb. 2014. They did not contain a lot of surprises, but added some very detailed guidance on specific jobs, such as adjunct professor.
The attorneys reported that for the year 2015, employers in the 50-99- employee category can “certify out” of coverage, and that penalties have been reduced in some areas for those with 100 or more employees.
There is also now a draft of the Employer-Provided Health Insurance Offer and Coverage reporting document, though employers will not have to use it for reporting until 2016 for the 2015 coverage year.
The Pregnancy Discrimination Act has been in the news because the EEOC (U.S. Equal Employment Opportunity Commission) has updated its guidance for the first time since 1983.
Unfortunately, that guidance came after a controversy erupted in the federal appeals courts.
The controversy surrounds the act’s provision which states “Women affected by pregnancy, childbirth or related medical conditions shall be treated the same... as other persons not so affected by similar in their ability or inability to work.” The Sixth Circuit ruled that this?means that all those who are offered work accommodations, including people with work-related injuries, are in the pool of “comparables” to determine discrimination. The Fourth Circuit has held that it is acceptable for companies to separate out accommodations to those with work-related injuries. Other circuit courts have ruled similarly to the Fourth.
The U.S. Supreme Court has accepted a case to determine which will prevail.
Mark Smith, who has a case at the trial court level touching on such issues, said that SCOTUS had asked the U.S. Solicitor General’s office for an opinion. “They told the Supreme Court that only the Sixth Circuit has it right, but said, ‘We don’t think you should accept this case because when the EEOC?guidance comes out it will be clear.’ But the Supreme Court did anyway.”
When the guidance was released in mid-July, it did indeed agree with the Sixth Circuit, but the Supreme Court will have the final word. So again, there is little certainty at this time.
Cartwright also cautioned that the EEOC and the courts are looking very closely at employee waivers, and urged caution in developing them.
A non-health-related issue also in the news, the Obama recess appointments to the National Labor Relations Board, are likely to be “Much Ado About Nothing,” according to John Lichtenberg.
After those Jan. 2012 appointments were ruled unconstitutional in NLRB v. Noel Canning, new Senate-approved appointees basically just ratified all the decisions made by the previous board, including the appointments of regional directors. There are, of course, legal questions remaining about the limits on retroactive ratification.
But Lichtenberg said that the local regional director was not appointed at that time, so those decisions will stand.
Lichtenberg’s presentation on the NLRB was peppered with quotes from the Bard, including the assessment that the Noel Canning case may tour out to be a “Tale/told by an idiot, full of sound and fury/signifying nothing.”
As Bruce Courtade stepped up to talk about non-compete and non-solicitation clauses, he joked that one of the best indications of the diversity of approaches among Rhoades McKee attorneys is that Lichtenberg quoted Shakespeare while Courtade himself quotes Arnold Schwarzenegger — as the Terminator.
Courtade said that one advantage of business courts, now mandated throughout the state, is that the opinions are published, so it is possible to get an advance idea on how judges like Kent County’s Judge Christopher Yates will rule.
The hard-working Judge Yates has issued dozens of opinions on non-compete and non-solicitation clauses since taking on the business court docket, and Courtade said Yates tends to make his decision based on the reasonableness of the non-compete restraints. He advised that provisions should be specifically tailored to the position, but that this at least offers some certainty on the issue.
Nonethless, the seminar underscored the need for HR personnel to consult with a lawyer to address constant change and ambiguity.
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