Idaho Employment Law Blog

Welcome to the Idaho Employment Law Blog!



Whenever possible, we discuss recent developments in Idaho and Ninth Circuit employment law.  We also look elsewhere when we locate information that may be useful for our readers.  We hope that the information presented will allow you to stay current as the courts, agencies, and legislatures further define the employment landscape.  We welcome you to contact us directly using the contact information provided on the margin of the page.

EEOC Releases 2011 Charge Statistics

The EEOC has released statistics relating to charges filed with the agency in 2011. A complete table, including prior years, is available here. The total number of charges remains nearly unchanged from 2010 to 2011. Also significant is the fact that disability related charges remained steady from 2010 at 25,742 for 2011. This is compared to the roughly 25% increase in disability charges from 2009 to 2010.

New Year's Resolution: Be Prepared For 2012 W-2 Reporting Of Cost Of Employee Group Health Coverage

1/9/2012

The IRS has issued a New Year's gift in the form of new and improved guidance for employers preparing to gather 2012 data on the cost of employer-sponsored group health coverage for its employees. Most employers will be required to report the cost of group health plan coverage on 2012 Forms W-2 to be issued in January of 2013. Employers may choose to provide this information on a voluntary basis for 2011 reporting. There are some exemptions from this reporting requirement, most notably for employers filing fewer than 250 Forms W-2 in the previous year.

Now is the time to ensure that payroll systems are properly coded to gather the correct information for reporting. This new guidance, IRS Notice 2012-9 (which supersedes IRS Notice 2011-28) clarifies a few points with revisions to Q&As in the previous notice and the addition of new Q&As. Employers should carefully review Notice 2012-9 for information on who must comply, how to comply and clarification of the details of reporting on Form W-2.

Highlights of What's New

An employer is required to report the cost of an employee's group medical coverage on Form W-2. Revised Q&A-19 clarifies that this W-2 reporting requirement does not apply to the cost of coverage under a health flexible spending arrangement if contributions come only from employee salary reduction elections. Revised Q&A-20 clarifies that if a dental or vision plan satisfies the requirements for being excepted benefits for purposes of HIPAA, then its costs are not required to be included in the reported amount.

Eight new Q&As (#32 through 39) were added in Notice 2012-9. The new Q&As provide, among other things, guidance regarding the cost of coverage for wellness programs, employee assistance programs and on-site medical clinics; guidance for reporting the cost of coverage for a payroll period that includes December 31 but continues into the next year; and guidance regarding inclusion of the cost of coverage for a hospital indemnity or other fixed indemnity insurance, or the cost of coverage for a specific disease.

The new guidance should help resolve a few issues, but as is often the case, it might not answer all of your questions. Please contact any member of Holland & Hart's Benefits Law Group for questions regarding this, or any other benefits issue. Happy New Year!

Immigration Compliance For Employers

On Tuesday, November 1, our colleage Roger Tsai will be presenting in Boise.  The agenda is below.  Please contact one of us if you would like to attend. 

AGENDA - Tuesday, November 1, 2011:
11:30 a.m. – 12:00 p.m. Registration and Lunch
12:00 p.m. –   1:30 p.m. Presentation

In spring of 2010, U.S. Immigration and Customs Enforcement (ICE) put Idaho employers on notice with a federal grand jury indictment against an electronics manufacturer that employed illegal workers. If convicted, the owner could face up to five years imprisonment and a $250,000 fine. Nationally, ICE has initiated immigration audits on 2,338 employers in 2011, signaling continued focus on employers' employment verification practices. The agency has also criminally charged business owners, employers, managers, and supervisors for knowingly employing undocumented workers.

Please join us for a complimentary seminar in which we will discuss the patchwork of federal and state laws and how to limit your company’s potential liability. We’ll answer these commonly asked questions:

• How can I prepare for a federal immigration audit and investigation?
• Which industries are being targeted for immigration investigations?
• What are employers required to do to verify the immigration status of new hires?
• How should I respond to Social Security no-match letters?
• What is E-Verify and should I be using it?
• What are viable options to sponsor immigrant workers?

SPEAKERS CLICK NAME TO VIEW BIO
Roger Tsai, Immigration Attorney, Holland & Hart llp

U.S. Bank Plaza CLICK HERE FOR A MAP AND DIRECTIONS
101 South Capitol Blvd., Second Floor
Boise, ID 83702

CLE & HRCI CREDITS PENDING  

NLRB Postpones Posting Rule

Good news.  The NLRB (National Labor Relations Board) has postponed the effective date on the private business posting rule that informs workers about their right to form a union.  The Board indicated on Wednesday that there has been too much confusion over which business are covered under the rule.  For a good summary of the posting rule from my partner Jeff Johnson click on this link:  http://www.hollandhart.com/newsitem.cfm?ID=1873

via www.coloradoemploymentlawblog.com

Idaho Supreme Court Clarifies Law Regarding Employment Contracts

By Scott E. Randolph

Employment is at will in Idaho, unless the intention to modify that default rule is clearly communicated and understood by both parties to the transaction. That is the rule highlighted by the Idaho Supreme Court in its recent decision of Mackay v. Four Rivers Packing Co., Docket No. 35974. The employer in that case, Four Rivers Packing Co., appealed a jury verdict in favor of a former employee, Mackay, in an action alleging breach of a long-term employment contract. Four Rivers argued that that the contract was unenforceable and that the trial court had failed to properly instruct the jury regarding the statute of frauds and default Idaho rules regarding the employment relationship.

NLRB Issues Final Notice Posting Rule

by Jeff Johnson The National Labor Relations Board (NLRB) has issued a final rule requiring most private employers to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a notice. The rule will take effect November 14, 2011, which is 75 days after August 30, 2011, when the rule is scheduled to be published in the Federal Register. The 11-by-17 inch notice is similar in content and design to the notice of NLRA rights that must be posted by federal contractors under the Department of Labor's rule. Copies of the notice will be available on the NLRB website (www.nlrb.gov) and from NLRB regional offices by November 1.

Supreme Court Rules That Co-Workers Can Now Bring Retaliation Claims Based on Discrimination to a Fellow Employee

by Pam S. Howland

In Thompson v. North American Stainless, the Supreme Court considered whether third parties can bring claims under Title VII.  In that case, the employer, North American Stainless ("NAS"), terminated an employee named Miriam Regalado.  Regalado subsequently filed a gender discrimination complaint with the EEOC alleging that she had been terminated on the basis of her gender in violation of Title VII.  Several weeks later, NAS terminated her fiance, Eric Thompson, as well.  Thompson filed a discrimination charge with the EEOC alleging that his termination was retaliatory.

The employer moved for summary judgment against Thompson, claiming that he had no standing to bring a claim under Title VII because his charge was premised solely upon the alleged discrimination suffered by someone else, his fiance.  Two lower courts agreed.  This Supreme Court decision followed.  On appeal, the Supreme Court framed the two issues before it as: 1) Did NAS's firing of Thompson constitute unlawful retaliation and 2) If so, does Title VII grant Thompson a cause of action?  It ultimately answered "yes" to both questions.

EEOC files suit against retailer alleging retaliation

The EEOC announced last Thursday that it was filing suit against a large retailer under Title VII. The EEOC complained that retailer retaliated against an employee when she heeded mandatory evacuation warnings. According to the EEOC, the retailer terminated the employee for "excessive absenteeism." The case will now proceed in federal court. Whether or not the EEOC can prevail in its suit remains to be seen.

The lesson for employers is that the EEOC is paying close attention to claims of retaliation by employees and is filing suit when it believes that employers have retaliated against employees for engaging in protected activity. Employers should tread carefully in this area, as the costs of defending a suit can be significant, as can the negative publicity that can result from an EEOC enforcement action. In recent days, the EEOC has announced settlements of retaliation claims totaling thousands of dollars. In addition, some of the settlements have involved mandatory training for all company personnel and other policy changes. Employers are well advised to train their management team on these issues to ensure that all key personnel understand the importance of disconnecting complaints about protected activity from employment decisions about that individual.

Recent Supreme Court Decision Expands Scope of Employee Retaliation Claims

by Pam S. Howland

In a Supreme Court decision issued in late March, Kasten v. Saint-Gobain Performance Plastics Corporation, 2011 WL 977061 (U.S.), the Court continued its pro-employee expansion of causes of action stemming from workplace conduct.  At issue in this case is the Fair Labor Standards Act of 1938, an Act which provides minimum wage, maximum hour, and overtime pay rules.  This Act contains anti-retaliation language prohibiting employers from discharging an employee who has filed a complaint. 

Kevin Kasten, the plaintiff, had complained that his employer’s placement of timeclocks prevented workers from receiving credit for time spent getting into and out of protective gear.  Kasten claimed that his employer located timeclocks between the area where he and other workers put on and took off their work-related protective gear and the area where they carried out their assigned tasks.  In a separate lawsuit, a court agreed with Kasten, finding that Saint-Gobain’s practice violated the Act.  

EEOC Releases Final ADA Amendment Act (“ADAAA”) Regulations Implementing Requirements of ADAAA

by Scott E. Randolph

Over two years after the Americans with Disabilities Act Amendments (“ADAAA”) became effective, the United States Equal Employment Opportunity Commission (“EEOC”) released its final regulations implementing the ADAAA.  The final regulations are available here and will become effective on May 24, 2011.  The final regulations contain interpretive guidance that should prove helpful for employers attempting to decipher the impact of the new regulations on their businesses.