United States: Employment, Labor & Benefits Update - December 2017

Open Enrollment: Do Not Forget to Update Beneficiary Designations

By Frank Del Barto

While reviewing and electing your group medical and dental plan options for next year, please be sure to review and update (if needed) your group life insurance and 401(k) plan beneficiary designations. This is particularly important to do after experiencing a major life event such as a marriage, divorce, or other significant family change. Over the last year, more than one current spouse and/or child(ren) has been surprised to learn that their deceased loved one never updated his or her beneficiary designation(s). As a result, a former spouse or some other individual remained the actual named beneficiary. After being informed of the named beneficiary, the person who expected to be the beneficiary often argues that his or her loved one "would have wanted" or "intended" for him or her to receive the plan proceeds. However, because the plan sponsor must follow the last beneficiary designation form on file along with the plan terms, the "intended" argument is not supportable.

In short, beneficiary forms should be reviewed during every annual enrollment period regardless of a company's size. To the extent that benefit enrollment systems can be set up to flag certain life events and provide a beneficiary update reminder notice, plan sponsors can limit the awkward conversation that informs the new spouse or child(ren) that he or she is not the named beneficiary.

Masuda Funai's Anti-Harassment Toolsettm

By Alan M. Kaplan

The disgusting and disquieting disclosures of sexual harassment should cause all employers to audit, assess and avoid the legal and employee relations liabilities of harassment. As many commentators have written, we, as a country, are in a special moment.

Title VII of the Civil Rights Act and state fair employment laws prohibit harassment based upon sex as well as the other protected classifications, such as race, color, national origin, age and disability. Moreover, harassment suits have been filed under the Civil Rights Act of 1866 and state torts of harassment, assault and battery as well as intentional infliction of emotional distress. Although Title VII has a statutory cap on damages at $300,000, there are no damages caps under state laws. Besides the costs of lawsuits, companies incur costs in recruitment, retention, lack of succession planning, productivity and efficiency. Therefore, every employer needs to implement Masuda Funai's Anti-Harassment Toolset."

The Toolset includes the following:

  • Assessment of potential harassment, by identifying the protected classifications of employees, the prior complaints of harassment as well as current rumors and a review of web-based evaluators, such as Glassdoor;
  • The C-Suite's Commitment of a corporate culture free of harassment, bullying, fear and inappropriate, non-business related comments and conduct by (a) providing information about the risks and costs, (b) obtaining, distributing and implementing a Statement of Values issued by the board of directors, (c) having members of the C-suite present at training programs and issuing statements confirming the company's values, and (d) holding all levels of supervision accountable for preventing violations of the company's culture and policies;
  • Anti-harassment policy, including (a) a prohibition of all types of harassment and retaliation for making complaints and participating in investigations, (b) trusted and accessible procedures for making and investigating complaints, (c) an assurance of confidentiality to the extent necessary, and (d) a clear statement that the company will hold violators accountable;
  • Investigation procedures developed and implemented by human resource professionals, including creating and implementing the proper techniques for (a) conducting investigations, (b) making and implementing management's decision whether a violation of the policy occurred, and (c) documenting the complaints, investigations, decision-making and implementation of remedial action; and
  • Training, including (a) highlighting and obtaining a new employee's sign-off on the policy during orientation, (b) providing yearly training programs current employees and special programs for supervisors and human resource professional implementing the policy and investigating complaints, and (c) including within the training realistic, company-specific, interactive examples of harassment based upon sex and other protected classification.

By implementing Masuda Funai's Anti-Harassment Toolset", companies may effectively address the moment.

New General Counsel Outlines Agenda

By Nancy E. Sasamoto

On December 1, 2017, newly appointed General Counsel of the National Labor Relations Board ("NLRB"), Peter Robb, issued his first Memorandum, outlining the agenda of the NLRB under the Trump Administration. (Memorandum GC 18-02) In keeping with past practice after a change in administration from one party to the other, Mr. Robb rescinded seven (7) memoranda issued by prior General Counsels, including GC 15-04, the memorandum that provided guidelines concerning employee rules and policies.

As you may recall from past updates, the NLRB under President Obama reviewed common personnel policies, such as confidentiality and employee conduct provisions, with an eye toward whether such rules would inhibit employees from engaging in activities protected by the National Labor Relations Act. In GC 15-04, then General Counsel Richard Griffin, Jr., provided examples of rules that did and did not violate the Act causing employers much consternation.

While Mr. Robb has rescinded GC 15-04, that does not mean that the NLRB will not be concerned with employee policies. He identifies cases involving issues relating to common employer handbook rules, including rules prohibiting "disrespectful" conduct, use of employer trademarks and logos, and confidentiality, as cases that must be submitted to the NLRB's Division of Advice. However, while decisions will be based on existing law, Mr. Robb has noted that in these areas "we also might want to provide the Board with an alternative analysis."

Mr. Robb also rescinded GC 17-01 which stated that college football players at private universities are employees under the Act, and, therefore, they are entitled to seek pay for their contributions and to request improved working conditions.

Employers certainly have reason to believe that future NLRB decisions will be generally pro-management with the new General Counsel and Board in place.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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