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The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Editor, Richard R. Burns, rrb@hanftlaw.com or 218.529.2433.
Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
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THIS MONTH'S TOPICS:
- SAVE THE DATE! ANNUAL EMPLOYMENT LAW SEMINAR
- EMPLOYEE SNOW JOBS
- RESPECT FOR DECISION BY PLAN ADMINISTRATOR
- PLAN DOCUMENT FOR HEALTH/WELFARE PLANS
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SAVE THE DATE!
13th ANNUAL EMPLOYMENT AND LABOR LAW SEMINAR
MARCH 21, 2007
HOLIDAY INN DOWNTOWN, DULUTH
We are planning another interesting and informative day for seminar attendees in March. Contact Debi Lehna, dal@hanftlaw.com or 218.722.4766 with questions.
Some of the issues that will be covered at this year's seminar include:
- Pre-employment screening and background checks
- Defining "disability" under the ADA and MHRA
- Unlawful Employer Retaliation
- Electronic Discovery under the New Federal Rules
- Unemployment Compensation
- Illegal Immigrants in the Workplace
- Independent Contractors vs. Employees
Schedule and registration materials will be mailed in February.
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EMPLOYEE SNOW JOBS
There is no doubt that many employees look at snow days like we did when we were children, as an extra vacation day, and many employers pay employees, at least, for those days where the employer closes their business. Recent pronouncements by the Department of Labor provide some clarity to employers in treating both hourly and exempt employees.
Hourly employees, of course, do not need to be paid when they do not show up for work, because of inclement weather or even when the employer closes the business early during inclement weather, such as a snowstorm. Exempt salaried employees, however, cannot be docked pay for partial days missed or full days missed when you close your business. The new pronouncements, however, make it clear that, if you provide personal days or vacation, you, in fact, may require a salaried employee to apply vacation or other paid time off. For example, if you close your office after two hours on one day and remain closed the next day, you could require a salaried employee to deduct 14 hours of vacation or paid time off. To the extent a salaried employee has used all of their vacation or paid time off, you need to pay them without any deduction. On the other hand, if he/she simply does not show up, because he/she feels, for example, "snowed in", this could be considered an absence for personal reasons, and you can deduct a full day of pay. However, if a salaried employee simply decides to leave early to make sure that they get home safely, your only alternative is to use paid time off or vacation, as you cannot dock for partial days without risking loss of exempt status.
Obviously, there are safety reasons to be considered so you would not want employees to report in many instances, and good employee relations may dictate not making any or only partial deductions. However, these pronouncements do give you some options, if you desire to use them. Finally, the pronouncement reminds employers to have a written policy against improper salary deductions so that an occasional correction of a mistake in pay calculations does not result in a loss of exempt status.
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RESPECT FOR DECISIONS BY PLAN ADMINISTRATOR
Under the Employment Retirement Income Security Act (ERISA) a plan participant in a pension or welfare plan is entitled to a reasonable and timely appeal of a claim for benefits. In Smith vs. United Television (now FOX/KMSP), a former employee's eligibility for benefits under a severance plan was at issue. The Federal Circuit Court of Appeals for the Eighth Circuit, which includes Minnesota, acknowledged it may have come to a different decision, but that the plan administrator's decision is reviewed only for an abuse of discretion. The abuse of discretion standard is whether the plan administrator's decision was reasonable. It is reasonable, if a reasonable person could have, based upon the same evidence, reached a similar decision. In other words, a lower court cannot overrule a plan decision simply because it disagrees with it. This decision certainly supports the idea that the decisions of administrative committees are to be given great deference.
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PLAN DOCUMENT FOR HEALTH/WELFARE PLANS
The previous listing speaks to the protection an employer may enjoy with an appropriate claims and claims appeals procedure. Most employers are required under ERISA, in addition to providing summary plan descriptions for each welfare plan, which includes such things as medical, disability, and dental plans, to have a plan document. The plan document is often a wrap or consolidated document (meaning it may wrap around several welfare plans), which will also avoid having to file separate Forms 5500 for each welfare plan. The plan documents would, among other things, include provisions on who are the named fiduciaries, a funding policy, including who pays the cost of benefits, and would designate the party with the right to amend and terminate each benefit. It can incorporate the actual plan documents for the separate welfare plans, but your plan documents or summary plan descriptions provided by your insurers likely will not suffice for all these purpose. The wrap document also will make reference to relevant Federal and state laws, such as HIPAA and COBRA.
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Hanft Fride's business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth Minnesota. Visit our website at www.hanftlaw.com. In addition to general information on the firm and our attorneys, you can find past issues of this newsletter. Keep checking back for new information, and let us know if there is anything you would like to see added to the site that would help you and your organization. Our employments lawyers include Richard Burns, Tom Torgerson and Rob Merritt.
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The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E-letter.
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To subscribe or unsubscribe to Employer E-Letter, e-mail your request to Richard R. Burns, rrb@hanftlaw.com or call 218.529.2433.
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Copyright 2007 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; fax 218.529.2401.
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