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Labor and Employment Law Newsletter for Employers  June 2015
U.S. Supreme Court Rules that Courts, Not EEOC, Decide Whether the EEOC Satisfied its Legal Obligation to Attempt to Resolve Alleged Unlawful Employment Practices Prior to Filing a Lawsuit
By: James B. Sherman, Esq.

On April 29 the Supreme Court ruled in  Mach Mining, LLC v. EEOC, that the Equal Employment Opportunity Commission (EEOC) cannot police its own compliance with statutory requirements that it "conciliate" its investigative findings before it can sue employers in court.   Mach Mining involved an employer's appeal of a very unfavorable ruling by the Seventh Circuit Court of Appeals in Chicago, which held essentially that the EEOC answers to no one in regards to whether it has satisfied its statutory obligation to explore informal resolution of claims with employers.  The Supreme Court's decision to review this matter created great anticipation among employment attorneys and employers alike, hoping for a more favorable outcome.  Employers unfortunate enough to have found themselves pursued by the EEOC routinely find that little effort is made to avoid litigation, especially in what the agency designates as "priority cases."  Ultimately, the Supreme Court reversed the appellate court and held that whether the EEOC has satisfied its mandate to conciliate before it litigates, is a matter for the courts and not the EEOC to decide.  While this was welcome news to employers and their legal counsel, it is tempered by the Court's conclusion that the EEOC's conciliation efforts are subject only to very limited review by the courts. 
Ryan M. Helgeson
When Must Employers File Amended Petitions for their H-1B Employees?
By: Ryan M. Helgeson, Esq.

 

On May 21, 2015, the U.S. Citizenship and Immigration Services ("USCIS") issued guidance on when employers must file amended petitions for their H-1B employees based upon the USCIS' Administrative Appeals Office decision in Matter of Simeio Solutions, LLC.  This decision held that employers must file amended H-1B petitions when a new Labor Condition Application is required due to a change in the H-1B worker's worksite location.  Specifically, the AAO stated:  
  • When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application ("LCA") to the Department of Homeland Security, this change may affect the employee's eligibility for H-1B status; it is therefore considered a "material change" under the federal regulations;
  • Where there is a "material change" in the terms and conditions of employment, the employer must file an amended or new H-1B petition with the corresponding LCA. 
Based on this decision, the USCIS now requires the employers to file an amended petition before placing an H-1B employee at a new worksite.   Once an employer has filed the amended petition with USCIS, the H-1B employee can begin work immediately at the new location.  You do not have to wait for a final decision on the amended petition to transfer the employee.   
ACA FAQ of the Month
What Is The Excise Tax on Cadillac Plans?
Peter E. Hansen
By: Peter E. Hansen, Esq.
 

The specter of excise taxes on so-called "Cadillac plans" has been present for several years now, but until recently, we had little more than guesses as to how it would work in practice. The IRS recently released preliminary guidance on this issue that, true to form, answers some questions while raising others.

The excise tax's general goal is to slow the growth of healthcare costs; it aims to accomplish this goal by applying a 40% nondeductible tax to "applicable coverage" exceeding certain thresholds. Those thresholds are:  $10,200 for individual coverage; $27,500 for family coverage; and, $27,500 for multiemployer plans. Significantly, "applicable coverage" includes the value of major medical coverage, HRAs, HSAs, and FSAs, but does not include dental or vision benefits. So, assuming that the IRS does not adjust its numbers, the taxes have the potential to impact a significant number of health plans.

Perhaps most importantly, the preliminary guidance reminds us that the IRS has not forgotten about the tax - and neither should we. In the meantime, employers should begin thinking of ways to lower the cost of health coverage.

Questions? Suggestion for a future ACA FAQ of the Month? Please contact WS Attorney Peter E. Hansen at (262) 560-9696, or email [email protected].  

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Walter J. Liszka
Employer's New Dilemma - Working With Others?
By: Walter J. Liszka, Esq.

There are a vast number of employers who have had to deal with employee issues related, in some way, to an "employee disability".  There are very few situations arising under a workman's comp scenario that do not require the employer to make "reasonable accommodation" to an individual who is returning to work from a workman's comp injury and needs "work hardening".  That is just one of the few issues that arises and exposes an employer to the breadth of the Americans with Disabilities Act (ADA).

As almost everyone is aware, in 2008, the ADA was amended with the intent of broadening the definition of "disability".  In point of fact, as Congress clearly stated, it was the intent of the Americans with Disabilities Amendment Act of 2008 to make it "easier" for people with disabilities to obtain protection under the ADA.  The regulation, specifically 29 C.F.R. Section 1630.1, clearly established that "the primary objective of the attention in cases brought under the ADA should be on whether the covered entities (i.e. employers) have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of a disability".  Simply stated, it was the intent of Congress, through the amendments, to establish that determining whether or not an individual's impairment was a disability cognizable under the ADA should not demand extensive analysis and not be in the basis to find "no coverage under ADA".  
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About the Client Alert
The attorneys of Wessels Sherman have the superior experience, knowledge and leadership to aggressively represent your business nationwide, including St. Charles, Chicago and Cook County, Illinois; Oconomowoc, Wisconsin; Minneapolis, Minnesota; Davenport, Iowa and the entire Quad Cities area.
  
Editors:
CLIENT ALERT Editor-in-Chief.....Walter J. Liszka
Minnesota........................................James B. Sherman
Wisconsin.........................................Alan E. Seneczko
Iowa..................................................Joseph H. Laverty
Illinois..............................................Nancy E. Joerg
  
WS Client Alert is a complimentary newsletter published periodically for clients and friends of Wessels Sherman. We reserve the right to limit distribution of our materials to representatives of management. The materials in this newsletter have been abridged from a variety of sources and are not necessarily applicable to a particular situation. The contents of this mailing should not be construed as legal advice. State laws vary. Readers should consult with legal counsel before taking any action on matters covered by this mailing.