A court case involving Wal-Mart that dates back to 2006 but is still making its way through appeals underscores the importance of the language — and promises — made in employee handbooks.

A Pennsylvania court awarded some 187,000 current and former Wal-Mart and Sam's Club employees in the state $187.6 million in back wages, liquidated damages and attorneys' fees because the Wal-Mart employee handbook explicitly promised paid break periods — 15 minutes for every three hours worked.

Wal-Mart argued, unsuccessfully, that its handbook clearly states that it does not represent any contractual obligations, but in the initial case and then on appeal, two Pennsylvania courts found that the language did indeed represent an obligation for paid break time. The only remaining issue still being settled on appeal is the amount for attorneys' compensation. The $78.5 million in compensatory damages and $62.2 million in liquidated damages have been affirmed (though, of course, further appeals could be made).

Employers, make sure your employee handbooks clearly represent what your policies are. You should review and update your handbooks each year to ensure their accuracy and to cover any new developments in employment law (for instance, including a clear social media policy).

A good place to craft your employee handbook for 2012 is Personnel Concepts' online Handbook Center, which will guide you through the process step by step and then have your finished employee handbook reviewed by a human resource specialist. You end up with a Microsoft Word document that you can further edit or stylize.

Health insurance premium increases in five states have been deemed “unreasonable” by the U.S. Department of Health and Human Services, HHS Secretary Kathleen Sebelius announced recently.

After independent expert review, HHS determined that Trustmark Life Insurance Company has proposed unreasonable health insurance premium increases in five states—Alabama, Arizona, Pennsylvania, Virginia, and Wyoming.  The excessive rate hikes would affect nearly 10,000 residents across these five states.

To make these determinations, HHS used its “rate review” authority from the Affordable Care Act (the health care law of 2010) to determine whether premium increases of over 10 percent are reasonable.

"Before the Affordable Care Act, consumers were in the dark about their health insurance premiums because there was no nationwide transparency or accountability," said Secretary Sebelius.  "Now, insurance companies are required to disclose rate increases over 10 percent and justify these increases.  It’s time for Trustmark to immediately rescind the rates, issue refunds to consumers or publicly explain their refusal to do so."

In these five states, Trustmark has raised rates by 13 percent.  For small businesses in Alabama and Arizona, when combined with other rate hikes made over the last 12 months, rates have increased by 27.2 percent and 18.1 percent, respectively.  These increases were reviewed by independent experts to determine whether they are reasonable.  In this case, HHS determined that the rate increases were unreasonable because the insurer would be spending a low percent of premium dollars on actual medical care and quality improvements, and because the justifications were based on unreasonable assumptions.

In addition to the review of rate increases, many states have the authority to reject unreasonable premium increases.  Since the passage of the health care reform law, the number of states with this authority increased from 30 to 37, with several states extending existing “prior authority” to new markets.

To keep your employees informed of their rights and obligations under the Patient Protection and Affordable Care Act (PPACA) of 2010, procure and display a copy of Personnel Concepts' Health Care Reform Employee Information Poster.

In a recent ruling, the National Labor Relations Board (NLRB), fresh with recess appointees who are being legally challenged, held that arbitration clauses in employment agreements violate the National Labor Relations Act (NLRA) in preventing class-action lawsuits (as opposed to individual lawsuits).

The decision examined one such agreement used by nationwide homebuilder D.R. Horton, under which employees waived their right to a judicial forum and agreed to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees.

The board found that the Horton agreement unlawfully barred employees from engaging in “concerted activity” protected by the NLRA.

Meanwhile, the National Right to Work Foundation (NRWF) has joined other business groups in legally challenging President Obama's recess appointments to the board made while the Senate was still technically in session holding pro forma meetings. The NRWF filed a motion before the U.S. District Court for the District of Columbia to overturn the appointments.

In other NLRB actions, unless overturned by a legal challenge, almost all private businesses in the United States must, by April 30, 2012, display the recently mandated NLRA Employee Rights Poster. Get yours today and be prepared.

The Supreme Court has ruled that the First Amendment shields religious organizations from federal anti-discrimination employment laws and also allows religious groups to define employees as ministers as they see fit.

The ruling stems from a case being fought by the Equal Employment Opportunity Commission (EEOC) on behalf of a teacher who was fired from a religious school and who claimed it was an act of retaliation for her threatening to file suit under the Americans with Disabilities Act (ADA).

The teacher, Cindy Perich, suffered from narcolepsy and hoped to find a reasonable accommodation so she could continue teaching for the Hosanna-Tabor Lutheran Church's school. Instead, the church fired her for insubordination and failure to follow dispute resolution policies. When the EEOC filed suit on Perich's behalf, the church claimed a "ministerial exception" under the Constitution. Both the EEOC and Perich claimed that she was not a minister but solely a teacher.

In its Jan. 11 ruling on Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission, a unanimous Supreme Court ruled that religious groups are free to label employees ministers as they wish and are thus shielded from anti-discrimination employment laws.

Interestingly, in so ruling the court rejected as non-applicable its 1990 interpretation that the U.S. is free to apply "neutral and general" laws to religious groups. (In that case, the issue was the smoking of peyote by Native American religious groups.)

For the vast majority of U.S. businesses, there are no exceptions. To understand and comply with the employment laws of the land, please visit our Harassment and Discrimination section on the Personnel Concepts Web site for a variety of guides and manuals.

The Employee Benefits Security Administration (EBSA) is still hoping to redefine what constitutes a fiduciary and also set limits (or eliminate) compensation for those in different fiduciary advisory capacities.

The agency calls the redefinition of fiduciary under the Employee Retirement Income Security Act (ERISA) one of its "most important regulatory projects," which it hopes to conclude in "the first half of 2012."

In late 2011, under financial services industry pressure, EBSA withdrew its first effort at a new definition. Then, on Dec. 15, 2011, the administration sent out letters to industry trade groups seeking "voluntary assistance" in the task. Specifically, the letter sought input on applying a fiduciary standard to IRAs (Individual Retirement Accounts).

“We are working to complete our cost-benefit analysis and re-issue the rule as soon as possible,” a spokesperson said. “We want to take the time to get this rule right, and we are working diligently to do exactly that.”

In the recent budget authorized by Congress for the Department of Labor (DOL), of which EBSA is part, language therein made it clear that DOL was not to spend any money on redefining fiduciary. What effect this will have on EBSA and its effort is not clear.

The Department of Labor’s Wage and Hour Division (WHD) has issued three new fact sheets on unlawful retaliation under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Fact Sheet number 77A, Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), briefly discusses the prohibitions, coverage and enforcement issues related to section 15(a)(3) of the FLSA, which makes it a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” The fact sheet explains that covered complaints may be made orally or in writing, and that most courts have concluded that the FLSA’s retaliation protections extend to complaints as well.

In addition, the fact sheet states that all employees of an employer are protected by the FLSA’s retaliation provisions, including those instances in which the employee’s work and the employer are not covered by the act. Moreover, the section 15(a)(3) protections extend to employees who are no longer in an employment relationship with the employer. With respect to enforcement, the fact sheet explains that an aggrieved individual may file a complaint with the agency or pursue a private cause of action in court.

Protection for Individuals under the FMLA outlines Section 105 of the FMLA and section 825.220 of the FMLA regulations, which prohibit employers from retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA, and provides examples of prohibited conduct. The fact sheet points out that the FMLA applies to, among other entities, private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. Retaliation complaints under section 105 can be raised within two years of the date of violation.

Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) discusses the protections and enforcement procedures under the retaliation provisions of the MSPA, which establishes employment standards related to wages, housing, transportation, disclosures, and recordkeeping requirements for migrant and seasonal agricultural workers, and mandates that farm labor contractors register with the U.S. Department of Labor.

For a further discussion of employers' and employees' duties, rights and responsibilities under the FLSA, please obtain a copy of Personnel Concepts' FLSA Compliance Program.

In two recent cases, the Equal Employment Opportunity Commission (EEOC) has run paid advertisements in local newspapers to inform employees of ongoing investigations and asking them to come forth with their grievances.

One such case is against the Texas Roadhouse, and the other is against Bass Pro Shops. In the latter case involving alleged employment discrimination, the EEOC is seeking people who interviewed for a Bass Pro Shops job and who felt they were rejected because of race or national origin.

Personnel Concepts' comprehensive EEO Compliance Program will help businesses set up policies and training programs to avert discrimination and harassment. Protect yourself by getting a copy today.

Even though the Occupational Safety and Health Administration (OSHA) top dog thinks they're still too low, fines for serious violations by the agency in 2011 shot up to $2,132 from $1,053 a year earlier, thanks to a legislative tweak that reduced the number of penalty reductions available to employers for factors such as the number of workers, safety records and other considerations.

Of the increase, OSHA administrator David Michaels said, "It's still quite low," adding, "We give out citations associated with fatalities for a few thousand dollars.”

At the same time, the number of OSHA inspections ticked downward slightly from 40,993 in 2010 to 38,667, due to a shift in focus that emphasizes more health inspections.

“Health inspections take longer than safety inspections, and we're doing more health inspections," Michaels explained. "Inspections that involve recordkeeping also take great deal longer.”

One statistic that stayed the same was the rate at which employers appeal citations. That rate remained consistent from 2010 to 2011 at 8 percent.

Personnel Concepts offers a variety of guides and tools to help employers stay in compliance with OSHA regulations. Check out our OSHA Programs and Kits section.

When member Craig Becker's appointment expired this past Dec. 31, the National Labor Relations Board (NLRB) was reduced to two members and thus, according to a Supreme Court ruling, unable to issue rulings. With the U.S. Senate in recess, President Obama used his powers yesterday to make temporary appointments, securing seats for Sharon Block (Democrat), Terence Flynn (Republican), and Richard Griffin (Democrat).

Business groups quickly vowed legal challenges, and unless one or more of those is successful, the appointees will hold their seats until the end of 2013.

The NLRB is now back up to full strength at five members, as the three recess appointees join Chairman Mark Pearce (Democrat) and Brian Hayes (Republican). The board is typically comprised of three members of the party holding the White House and two members of the opposition party, which is exactly the way it currently stands.

The president used another recess appointment to name Richard Cordray as administrator of the new Consumer Financial Protection Bureau.

Before the end of Becker's term, the NLRB issued new guidelines on union elections and also delayed, at a judge's urging, the imposition of the National Labor Relations Act (NLRA) Employee Rights Poster mandate, which is now set for April 30.

According to the provisions of the Paperwork Reduction Act of 1995, the Office of Management and Budget (OMB) must approve all federal government forms and assign them expiration dates. Thus the Family and Medical Leave Act (FMLA) forms issued by the Department of Labor (DOL) in 2008 (when new regulations were issued) on Dec. 31, 2011, met their three-year duty date on and have expired.

The DOL has submitted the forms to the OMB for re-approval and notes on its Web site that " [a]ccording to law [5 CFR 1320.10(e)(2)], the agency may continue to use the form while its renewal is pending at OMB."

Use of DOL forms WH-380-E, WH-380-F, WH-381, WH-382, WH-384 and WH-385–all dealing with FMLA leave and certification–is not required, and businesses are free to develop their own forms so long as the information gathered thereon meets or exceeds the standards set on the DOL forms.

For more information on managing your FMLA program at work, please consider obtaining a copy of Personnel Concepts' informative and easy-to-use FMLA Regulatory Updates Compliance Kit.