Employment Law Update
December 18, 2015
Thank you to everyone who participated in this year's employment and labor law final exam. We hope it was challenging and informative. Congratulations to Marla Guenther of Hilton Head Hospital and Ruth Pastula of Georgetown County Water & Sewer District for being selected from the pool of perfect scores!
The 2015 exam can be found here.
Now for the answers:
1. Under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), qualified beneficiaries who lose coverage under a group health plan as the result of a "qualifying event" are entitled to elect continuation coverage. Which of the following events represents a qualifying event that would cause a covered employee to lose health coverage and qualify for COBRA continuation coverage:
Answer: "D" is correct. Qualifying events under COBRA vary depending on whether the affected individual is a covered employee, a covered employee's spouse, or a covered employee's dependent child. In the case of a covered employee, the two qualifying events are 1) voluntary or involuntary termination of employment for any reason other than gross misconduct; and 2) a reduction in the number of hours of employment.
2. Under the Fair Labor Standards Act (FLSA), an employer with no FLSA-related policies who improperly deducts pay from an exempt employee's salary can preserve the overtime exemption if the employer corrects the improper deduction and makes a good-faith effort to not make improper deductions in the future.
Answer: "False" is correct. The employer in this situation has taken only two of three required steps to take advantage of the FLSA's "safe harbor" provision, which allows employers to preserve an employee's exempt status following an improper pay deduction. To satisfy the safe harbor provision's requirements, an employer must 1) clearly communicate to employees a policy that prohibits improper deductions and provides a reporting mechanism for employees; 2) reimburse employees for improper deductions; and 3) make a good-faith commitment to comply with the FLSA to avoid making improper deductions in the future.
3. An employee who qualifies for Family and Medical Leave Act (FMLA) leave takes 10 weeks of leave in January following placement of a child for adoption by the employee and her husband. While the employee is out on FMLA leave, she learns she is pregnant and due in August. If the employer uses a "rolling leave year" to determine the applicable 12-month FMLA year, how much FMLA leave can the employee take in August when her baby is born?
Answer: "D" is correct. Under the FMLA, the employee will have two weeks of FMLA job-protected leave to use in August when the baby arrives. Because the employer uses the "rolling leave year" period to determine the FMLA year, the employee will not qualify for any additional FMLA leave until January of the following year on the anniversary date of the commencement of her prior year's FMLA leave. Of course, the employer may decide to handle this type of situation on a case-by-case basis and provide additional leave so long as the employer treats all similarly situated employees in a fair and non-discriminatory manner.
Answer "A" is incorrect because the FMLA does not limit the number of birth or placement occurrences that may qualify for FMLA leave in a given FMLA yera. Answer "B" is incorrect because the FMLA does not contain an exception for the situation described. Answer "C" is incorrect because the "rolling calendar year" method measures backward from the date an employee uses any FMLA leave, not forward.
4. Each of the primary federal anti-discrimination laws - including Title VII of the Civil Rights Act of 1964, and Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Non-Discrimination Act - covers employers with 15 or more employees.
Answer: "False" is correct. Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Genetic Information Non-Discrimination Act do cover employers with 15 or more employees. However, the Age Discrimination in Employment Act covers employers with 20 or more employees.
5. South Carolina and North Carolina are "right to work" states. This means that an employer may terminate a non-contractual employee at any time for any reason and without notice as long as the reason for termination does not violate the law.
Answer: "False" is correct. The terms "right to work" and "employment at will" are frequently and incorrectly used interchangeably. South Carolina and North Carolina are in fact right to work states. This means that 1) employees have a statutorily created right to choose to join or not join a union; and 2) employees who choose not to join a union cannot be forced to pay union dues even if the employees are part of a bargaining unit represented by the union.
On the other hand, South Carolina and North Carolina are also "at will employment" or "employment at will" states. This means that an employer may terminate a non-contractual employee at any time or for any reason or for no reason at all, and without notice. Both states do recognize a "public policy exception" to employment at will. This exception prohibits termination of an employee at will for a reason that violates the respective state's public policy.
We hope you have enjoyed this year's exam. To stay current on employment and labor law developments in 2016 and beyond, be sure to read our regular legal updates, attend our quarterly breakfast briefings in your area, and sign up for labor and employment webinar series.