Understanding the NLRB Memo on "Stay or Pay"

On October 7, 2024, the Office of the General Counsel issued a new memorandum, GC 25-01, expanding her prosecutorial agenda to remedy what she sees as the harmful effects of non-compete agreements and so-called “stay-or-pay” provisions that violate the National Labor Relations Act (NLRA).

This latest memo further details the General Counsel’s plan to not only prosecute employers who require that their employees sign non-compete and “stay-or-pay” provisions, but to, as fully as possible, remedy the monetary harms employees may experience as a result of these provisions.

This article outlines the steps employers can take to cure unlawful “stay-or-pay” provisions within the short 60-day window the GC has set to make necessary adjustments as well as the remedies the GC plans to seek in response to agreements she deems unlawful.

What Happens If Employers Do Not Comply?

If Employers fail to cure these defects within the 60-day window (by December 6th), the General Counsel intends to prosecute preexisting “stay-or-pay” arrangements that fail the outlined test and seek retroactive application, absent extenuating circumstances.

Read the Husch Blackwell article HERE

The Risks of Collecting Biometric Data

Biometric data refers to an individual’s unique physical and genetic characteristics, including facial geometry, iris scans, fingerprints and voiceprints, gait rhythms, behavioral patterns and certain types of DNA. In recent years, a growing number of organizations have begun collecting stakeholders’ biometric data to help enhance account authentication measures, deploy stricter access controls, create personalized marketing materials, and monitor employees’ workplace attendance and activities.

While biometric data can allow organizations to maintain greater operational visibility and provide stakeholders with more individualized experiences, it also carries risks related to data privacy and personal security. Further, the regulatory landscape for biometric data collection is constantly evolving, paving the way for potential compliance issues and subsequent legal penalties and litigation. As such, it’s imperative for organizations that collect biometric data to review these exposures and take steps to combat them. This article provides more information on the risks of collecting biometric data, explains the current regulatory landscape for such collection and offers related risk management tips.

Read the Article HERE

Employee Benefit

Plan Limits for 2025

Many employee benefits are subject to annual dollar limits that are adjusted for inflation by the IRS each year. The following commonly offered employee benefits are subject to these limits:

High deductible health plans (HDHPs) and health savings accounts (HSAs);
Health flexible spending accounts (FSAs)
401(k) plans; and
Transportation fringe benefit plans.

The IRS typically announces the dollar limits that will apply for the next calendar year before the beginning of that year. This gives employers time to update their plan designs and make sure their plan administration is consistent with the new limits.

This Compliance Overview includes a chart of the inflation-adjusted limits for 2025. It also includes the 2024 limits for comparison purposes.

Read more HERE

Deadline for Submitting Gag Clause Attestation

Effective in 2020, the Consolidated Appropriations Act, 2021 (CAA) prohibits health plans and health insurance issuers from entering into contracts with health care providers, third-party administrators (TPAs) or other service providers that contain gag clauses (i.e., clauses restricting the plan or issuer from providing, accessing or sharing certain information about provider price and quality and de-identified claims).

Plans and issuers must annual submit an attestation of compliance with the CAA's gag clause prohibition to the Departments of Labor, Health and Human Services, and the Treasury (Departments). The first attestation was due on Dec. 31, 2023. The next attestation is due Dec. 31, 2024, covering the period since the last attestation.

Employers should review their contracts with issuers, TPAs or other health plan service providers to confirm they do not contain prohibited gag clauses.

To learn more read HERE

Supreme Court Reverse Discrimination Case

The Supreme Court of the United States has agreed to hear a case in which a female heterosexual employee claimed an Ohio state agency discriminated against her in favor of employees who identify as LGBTQ+. The case, Ames v. Ohio Department of Youth Services, may shed light on what constitutes illegal bias against a majority group.

Specifically, the Supreme Court is likely to decide whether an employee must meet the “background circumstances” rule in cases alleging reverse discrimination, or if an employee may rely on the evidence surrounding his or her own employment circumstances to prove discrimination.

Quick Hits

The Supreme Court recently agreed to hear a case brought by a heterosexual woman who claimed discrimination based on her sexual orientation after she was demoted.
The federal law banning sex discrimination also bars discrimination based on a person’s sexual orientation and gender identity.
It is anticipated that the Supreme Court will resolve the circuit split on whether a heightened evidentiary burden, highlighted in the background circumstances rule, can be applied to reverse discrimination cases.

Employers may wish to consistently apply workplace policies and promotion standards to prevent discrimination lawsuits. Employers also may wish to review their workplace policies, practices, and training materials to ensure that they reflect how the law protects both straight and LGBTQ+ employees from discrimination and harassment.

Read the Ogletree Deakins article HERE

Key Considerations When Handling Reductions in Force

Despite some recent positive signs for the U.S. economy, many companies still face the prospect of reductions in force (RIFs), which can be challenging and involve complex processes that require careful planning and compliance with a myriad of laws and regulations.

Quick Hits

Documenting both the business reasons for a RIF and the objective criteria used to select employees for termination is crucial to mitigating the risk of discrimination claims and other legal challenges.
Employers may want to note the various federal and state legal requirements, such as the WARN Act and any applicable mini-WARN acts when planning and executing a RIF.

Employers undertaking RIFs may want to note the various federal and state legal requirements which are outlined in the article below.

Ogletree Deakins article is HERE

Strategies to Engage Employees in Open Enrollment

Open enrollment is a critical time when employees make important decisions about their health care, retirement and other benefits that will affect them for the rest of the year. However, confusion about benefits is a widespread issue among employees of all generations; in fact, a recent survey by Business Solver found that 86% of employees are confused about their benefits offerings.

Dedicating more time to the open enrollment process can help employees understand their benefits options and feel confident in their decisions. It may also lead to increased employee satisfaction and a more engaged workforce overall.