P4 LGBT ISSUES IN THE WORKPLACE

P5 THE EEOC STANCE ON LGBT-

RELATED DISCRIMINATION

P6 DEPARTMENT OF LABOR

UPDATES GUIDANCE FOR FINDING

’MISSING PARTICIPANTS’

P8 HUGE GOP ELECTION WIN WILL

LIKELY BENEFIT BUSINESSES

P9 KEY BENEFIT PLAN LIMITS FOR 2015

P10 NEWS DIGESTS

P11 ATTORNEY LISTINGS

HUMAN RESOURCES NEWSLETTER WINTER 2014

HR Focus

EEOC Cracking Down on Workplace Wellness Programswith the ADA, the Genetic Information

Nondiscrimination Act, and other equal

employment opportunity laws. While it

remains to be seen exactly how these

lawsuits will play out in court, employers

should take note of the potentially shifting

regulatory landscape and design their

wellness programs accordingly.

Under the Patient Protection and

Affordable Care Act (PPACA), employers

are now permitted to vary group health

plan premiums by 30% when coupled

with a wellness program (and up to 50%

if the wellness program is designed

to reduce tobacco usage). This was a

significant jump from the previous 20%

limitation set forth under the HIPAA

nondiscrimination provisions applicable

to wellness programs.

Hearings by the EEOC on wellness

programs revealed that 94% of

employers with over 200 workers, and

APRIL A. GOFF616.752.2154agoff@wnj.com

The Equal Employment Opportunity

Commission (EEOC) recently brought three

federal lawsuits arguing that an employer’s

wellness program violates the Americans

with Disabilities Act (ADA). This is a notable

public nod regarding the EEOC’s position

on wellness programs and its interaction

2 | WINTER 2014 | WARNER NORCROSS & JUDD | WNJ.COM

...Workplace Wellness Programs

Just over a month later, the EEOC

brought a lawsuit against Flambeau, Inc., a

plastics manufacturing company, arguing

that the company’s wellness program

violated the ADA. (EEOC v. Flambeau,

Inc., [W.D. Wis. filed Sept. 30, 2014]).

Flambeau required employees to submit

to biometric testing and a “health risk

assessment” in exchange for the employer

paying 75% of the group health plan

premiums. Individuals who refused to

participate faced possible cancellation of

their medical coverage and unspecified

“disciplinary action” for failing to attend

the scheduled testing. In this case, a male

employee with congestive heart failure did

not participate in the testing as he was out

on medical leave. Consequently, his health

plan coverage was terminated and he was

offered COBRA continuation coverage.

The EEOC characterized the penalties

as “dire consequences”—yet they were

well within the statutorily approved range

under the HIPAA nondiscrimination

requirements applicable to wellness

programs, as modified by PPACA.

63% of employers with fewer workers, are

utilizing some form of a wellness program

to incentivize employees to lead healthier

lifestyles, according to Karen Pollitz of

the Kaiser Family Foundation. Given the

frequency in which employers are utilizing

these programs, one would assume that

the EEOC previously issued regulations

to guide employers in designing and

administering these programs. However,

no such guidance has been forthcoming.

THE TRIFECTA: THREE LAWSUITS IN

THREE MONTHS

In August 2014, the EEOC brought its

first formal legal challenge regarding a

wellness program against Orion Energy

Systems Inc., alleging the company’s

wellness program violated the ADA by

requiring employees to submit to medical

exams that were not voluntary, job-related

or consistent with business necessity.

(EEOC v. Orion Energy Systems, [E.D. Wis.

filed August 20, 2014]). The company’s

wellness program required employees

to self-disclose their health histories as

part of a Health Risk Assessment (HRA)

and to participate in an on-site medical

exam, which included a range of motion

assessment and a blood draw for certain

biometric screenings. Employees who

participated in the wellness program had

100% of their group health plan premiums

subsidized by the company. A female

employee declined to participate in the

program, and Orion required the employee

to pay the full cost of the health insurance

premium and charged her an additional

$50 per month for refusing to participate

in the range of motion assessment. She

complained and was subsequently fired.

Finally, in October, the EEOC

brought an action against Honeywell

International, Inc. requesting the court

to issue a temporary restraining order

and an injunction against the company

from the imposition of penalties in

connection with the company’s wellness

program. The EEOC claimed the

program violated the ADA and GINA.

(EEOC v. Honeywell International,

Inc. [D. Minn., filed Oct. 27, 2014]).

Honeywell recently announced that

employees and their spouses or

domestic partners would be required

to be screened for various biometric

factors (but not required to actually

hit any specific target) including blood

pressure, cholesterol, blood-sugar

levels, waist circumference, and nicotine

usage as part of the open enrollment

process for the group health plan.

Employees would also be required to

self-report certain medical information

on an HRA. Failure to participate in

the screenings would result in up to

$2,500 in wellness program surcharges

Employers may vary group health plan premiums by 30 percent when coupled with a wellness program (and up to 50 percent if the wellness program is designed to reduce tobacco use)

Wellness programs must be voluntary and cannot compel participation by imposing significant penalties on employees

The EEOC brought its first legal challenge of a wellness program in August 2014

WELLNESS PROGRAM FAQs

94 percent of employers with over 200 workers have some form of a wellness program

63 percent of employers with fewer than 200 workers have some type of wellness program

PLANNING AHEAD

It seems unlikely, given the lawsuits

brought to date, that the EEOC would

spend finite resources attacking wellness

programs designed so that the premium

differential is not dependent on medical

examinations or completion of HRAs.

However, most employers have routinely

rejected such wellness programs as failing

to provide sufficient return on investment.

Will the EEOC continue to challenge more

typical wellness programs where failure to

participate only triggers penalties in the

30-50% range specifically permitted under

HIPAA and PPACA? Honeywell argued that

their wellness program fell within this range,

while the penalty in the other two lawsuits

was 100%. Is there a direct correlation

between the amount of the financial impact

to the employee and the risk of a lawsuit

being brought by the EEOC?

If an employee is offered a 30% premium

discount for participation in a wellness

program with required biometric

screenings, is that considered voluntary?

What if the program is designed as a

penalty—so that failure to participate costs

an extra 30% a month? Practically speaking,

while one program uses the amount as a

“carrot” and one a “stick,” it’s the same

and a loss of up to $1,500 in employer

contributions to the employee’s health

savings account. U.S. District Judge Ann

Montgomery denied the agency’s request

for the temporary restraining order or

injunction on November 3, 2014.

EEOC’S POSITION

EEOC regulations and Interpretive and

Enforcement Guidance have allowed

employers to conduct medical examinations

and obtain medical histories as part of

“voluntary” wellness programs. The EEOC’s

position has been that “(a) wellness program

is ‘voluntary’ as long as an employer

neither requires participation nor penalizes

employees who do not participate.”

However, the EEOC never took a formal

position on “whether and to what extent

a reward amounts to a requirement to

participate, or whether withholding of the

award from non-participants constitutes

a penalty, thus rendering the program

involuntary.” While the EEOC conducted

wellness program hearings in May 2014,

the agency has not issued any formal

regulations regarding the programs to date.

The EEOC’s position that wellness

programs must be voluntary in nature

has been clearly reiterated by the recent

lawsuits. Wellness programs cannot compel

participation by imposing significant

penalties, such as shifting 100 percent of

the premium cost of health benefits or

threatening adverse employment action,

without violating the ADA. But short of

a 100% premium differential, how are

employers supposed to foresee the EEOC’s

position on wellness programs absent a

crystal ball—or more helpful—substantive,

clear regulations on the subject?

financial impact to the employee. What

does it truly mean for an employee to

have a “choice” in participation in a

wellness program?

Notably, each of the three recent

lawsuits was brought by the EEOC’s

Chicago District Office, which is

responsible for Illinois, Wisconsin,

Minnesota, Iowa, and North and South

Dakota. Other district offices may

be less aggressive in bringing these

actions, or may follow suit and begin

investigating perceived violations in

their own geographic area.

Until these questions are answered

with any degree of certainty, employers

should consult with competent legal

counsel to design wellness programs

that are voluntary and compliant with

existing employment and benefits laws.

Employers should carefully weigh the

financial benefits of a more aggressive

wellness program with the significant

potential legal and social costs and

penalties involved in a lawsuit.

4 | WINTER 2014 | WARNER NORCROSS & JUDD | WNJ.COM

It’s Not Just About Same-Sex Marriage:LGBT Issues in the Workplace

in one form or another, Michigan is one of

29 states without any specific state-wide

employment discrimination protection for

LGBT individuals.

A comprehensive bill introduced earlier

this year by State Rep. Sam Singh, D-East

Lansing, would have added “sexual

orientation and gender identity” to

the protections under Elliott-Larsen.

Representative Frank Foster, R-Petoskey,

introduced legislation that would amend

the law to prohibit discrimination on the

basis of sexual orientation only, without

mentioning transgender status or gender

identity or expression. House Speaker Jase

Bolger, R-Marshall, introduced a Michigan

version of the “Religious Freedom

Restoration Act,” calling it a “necessary

balance” to any modifications to Elliott-

Larsen. Bolger’s bill would allow business

owners to defend against a discrimination

claim based on a “sincerely held religious

belief.” Accordingly, there is a battle

brewing over whether an amended law will

add protections for transgender individuals

and whether there could be exceptions

based on religious beliefs.

Michigan Governor Rick Snyder has

indicated his desire for Michigan lawmakers

to amend Elliott-Larsen to include

protections based on sexual orientation

and gender identity. The Grand Rapids

Area Chamber of Commerce and the

Detroit Regional Chamber have added

their support for the change.

Since there appeared to be enough

support for inclusion of protections based

on sexual orientation but not gender

There has been significant activity and

publicity recently concerning the rights of

lesbian, gay, bi-sexual and transgender

(LGBT) individuals. For example, the U.S.

Court of Appeals for the Sixth Circuit

recently upheld Michigan’s constitutional

ban on same sex marriages. This is contrary

to the positions that other courts of appeals

have taken on the issue and dramatically

increases the likelihood that the U.S.

Supreme Court will address the issue of gay

marriage in the very near future.

Although much of the media focus has

been on the issue of same-sex marriage,

there also has been significant legislative

activity and litigation addressing the rights

of LGBT individuals in the workplace.

In Michigan, there presently are competing

bills pending in the Legislature to amend

the state’s Elliott-Larsen Civil Rights Act.

The current law prohibits employment

discrimination based on a variety of

characteristics including religion, race,

color, national origin, age and sex. It does

not, however, prohibit discrimination

based on sexual orientation, gender

identity or transgender status. And while

several local units of government have

ordinances addressing such discrimination

identity, the LGBT coalition decided

to oppose any legislation that did not

include gender identity. Consequently,

the legislation was expected to die

this session. On the other hand, the

Religious Freedom Restoration Act won

approval on a party line vote in the

House and was expected to pass prior

to the end of lame duck session.

At the federal level, President Obama

signed an Executive Order on July 21,

2014, barring LGBT discrimination by

federal contractors. Although the Equal

Employment Opportunity Commission

(EEOC) had historically refused to

accept LGBT charges of discrimination

against private employers (because

federal law does not explicitly address

this type of discrimination), the agency

has changed its practice. In the EEOC’s

view, discrimination against an individual

because they do not conform to a

“sexual stereotype” is a form of sex

discrimination in violation of Title VII of

the 1964 Civil Rights Act. Consistent with

this position, the EEOC filed a brief in a

case pending before the U.S. Court of

Appeals for the Seventh Circuit (which

hears appeals from federal district

courts in the states of Illinois, Indiana

and Wisconsin), taking the position

that discrimination based on sexual

orientation is a form of unlawful sex

stereotyping. The EEOC reports that, for

the first nine months of 2014, the agency

received 667 sexual orientation charges

and 161 gender identity charges.

Back in Michigan, a federal court

recently struck down a Michigan law

ROBERT A. DUBAULT231.727.2638rdubault@wnj.com

LOUIS C. RABAUT 616.752.2147lrabaut@wnj.com

would have included protections for

sexual orientation and gender identity.

The employer argued that the failure of

Congress to amend Title VII by passing

ENDA is proof that the current law does

not cover gender identity.

Undoubtedly, 2015 will bring more

developments – and perhaps some

clarity – on the rights of LGBT individuals

in the workplace. These developments

will likely come from the state

Legislature, the courts and administrative

agencies. Employers will need to be

mindful as the events play out.

federal court to dismiss the case, claiming

that Title VII of the Civil Rights Act of

1964 prohibits discrimination only on the

basis of a person’s biological, anatomical,

or physiological status, and not “gender

identity.”

The EEOC claims that the employer illegally

fired an employee who notified the employer

that she was transitioning from male to

female and would begin to dress differently.

One argument the employer made to the

court was that Congress failed to enact

the Employment Non-Discrimination Act

(ENDA). The ENDA, if it had become law,

that prohibited all institutions that receive

state tax dollars (in other words, the State

of Michigan and all public employers)

from extending health insurance benefits

to “non-related adults living in the same

home as a state employee.” U.S. District

Court Judge David Lawson determined

the Public Employee Domestic Partner

Benefit Restriction Act violated the U.S.

Constitution’s promise of equal protection

and due process.

In another Michigan case, a funeral home

has been sued by the EEOC for alleged

discrimination against a transgender

employee. The employer has asked the

The EEOC Stance On LGBT-Related Discrimination The EEOC recently published a “What You Should Know” document about the agency’s enforcement of existing anti-discrimination protections for LGBT workers, citing recent developments that have piqued interest on the topic. The EEOC also published a companion fact sheet on EEOC litigation developments on Title VII’s coverage of LGBT-related discrimination and a list of federal-sector cases involving transgender persons. Use the QR codes to download the EEOC documents or visit www.eeoc.gov.

From January through September 2013, the EEOC received 667 charges raising allegations of sex discrimination related to sexual orientation and 161 charges alleging sex discrimination based on gender identity/transgender status, according to government data. From October 2013 through June of 2014, the agency received 663 charges alleging sex discrimination related to sexual orientation and 140 charges alleging sex discrimination on the basis of gender identity/transgender status. The new EEOC publications reveal the agency is committed to pursuing charges that allege discrimination based on transgender status, as well as those filed by lesbian, gay and bisexual individuals that allege sexual-orientation discrimination. Here is a summary of what businesses should expect from the EEOC, according to independent analyses of the agency’s new

publications. According to the EEOC:

• Federal anti-discrimination laws the agency enforces “protect all workers, regardless of sexual orientation or gender identity.” • Discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex

discrimination in employment.• The agency’s district, field and area offices have been instructed “to take and investigate (where appropriate) charges from

individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).”

• Lesbian, gay and bisexual individuals may bring valid Title VII sex discrimination claims, and that charges alleging sexual orientation-related discrimination should be accepted. “These allegations might include, for example, claims of sexual harassment or other kinds of sex discrimination, such as adverse actions taken because of the person’s failure to conform to sex-stereotypes,” the EEOC wrote.

Scan to view LGBT Litigation

Scan to view LGBT Rules

6 | WINTER 2014 | WARNER NORCROSS & JUDD | WNJ.COM

Did You Miss Me? U.S. Department of Labor Updates Guidance for Finding ‘Missing Participants’

JUSTIN STEMPLE616.752.2375jstemple@wnj.com

retirement plan distribution. Unfortunately,

in some cases participants fail to update

their contact information and plan fiduciaries

can be stuck in the position of a plan

holding assets for someone who cannot

be found to make that election. The DOL

guidance provides an updated perspective

on what steps the department requires plan

fiduciaries to take to locate participants in

a terminating plan and, by extension, what

steps the government considers prudent to

find missing participants in any situation.

SEARCH STEPS

A minimum of four steps are required

before abandoning efforts to find a missing

participant:

The U.S. Department of Labor (DOL) has

provided updated guidance for retirement

plan fiduciaries who are attempting to find

participants to distribute plan assets from

a terminating plan. Although the guidance

technically only applies in the context of a

terminating plan, the principles described

below are also helpful to plan fiduciaries

searching for participants in active plans.

Participants in a retirement plan are

generally required to affirmatively elect a

1. Use certified mail.

2. Check related plan and employer

records.

3. Check with the designated

beneficiary, if any.

4. Use free electronic search tools,

which is a new requirement. The

DOL guidance refers to Internet

search engines, public record

databases, obituaries and social

media. The constantly evolving state

of the Internet means this standard

should be applied to whatever new

technologies or applications are

available to the plan fiduciaries.

A Proper Search

Retirement plan administrators must take at least four steps before abandoning efforts to find a missing plan participant.

They must:

1. Send the missing person a letter using certified mail;

2. Check related plan and employer records;

3. Check with the designated beneficiary, if any; and

4. Use free electronic search tools, such as Internet search engines, public record databases, obituaries and social media.

pre-tax status of the accounts. The DOL

concludes that these options generally

would not be prudent if an individual

retirement plan rollover distribution is

available. The DOL also reiterated its

prior guidance that 100 percent tax

withholding is not an acceptable option

to address missing participants.

The updated DOL guidance is helpful

both for terminating retirement plans and

for the administration of ongoing plans.

As always, documentation is critical to

prove a fiduciary acted prudently—

plan records should include notes

regarding the search steps taken and the

distribution option that was implemented

for those missing participants who

could not be found. Note also that your

retirement plan may need to be updated

if it refers to the prior DOL guidance,

which may include requiring the use of

the IRS or Social Security Administration

letter-forwarding programs.

be fully liquidated and terminated. The

distribution method is also a fiduciary

decision. If the company sponsors another

defined contribution plan which can

hold the assets, that would be the first

alternative. Assuming the company does

not have any other defined contribution

plan, the DOL guidance reiterates its

preference for those accounts to be

distributed to an individual retirement plan

in accordance with the DOL’s regulatory

safe harbor for rollover distributions

to an individual retirement plan from a

terminating defined contribution plan.

If no individual retirement plan provider

will accept the direct rollover, the DOL

identifies two other options:

1. Open an interest-bearing, federally

insured bank account to hold the funds.

2. Transfer the funds to a state unclaimed

property fund.

The fiduciary must conclude that those

options are prudent despite the loss of

The DOL eliminated the prior requirement

that a plan fiduciary use the IRS or Social

Security Administration letter-forwarding

programs because those programs are no

longer available.

Note that these four steps are the

minimum. Additional steps may be

required by the circumstances, such as

using a paid commercial locator service,

credit reporting agencies, information

brokers, investigation databases, etc. Some

state government agencies also have

low-cost locator services available. A plan

fiduciary should consider the size of the

account balance and the cost of search

efforts in determining what additional steps

to take.

DISTRIBUTION OPTIONS

For participants who can’t be found using

the methods described above, the plan

fiduciary will have to make a decision on

how to handle the missing participants’

accounts so the terminating plan can

applicability. Enactment of such a

law could allow closely held family

owned businesses the ability to deny

services or employment to others

in much the same way and for the

same reasons as the owners of the

Hobby Lobby stores are allowed

to deny coverage for contraceptive

care. Hobby Lobby’s denial of such

coverage was upheld in a ruling

issued last June by the U.S. Supreme

Court.

• Conscientious Objection: A

Senate bill (SB 136) that would have

created the “Religious Liberty and

Conscience Protection Act” was

introduced this session. Among its

many provisions, the bill would: allow

a health care payer to decline to

offer a contract, policy, or product

that paid for a health care service

that violated the payer’s conscience;

require an employer that employed

or granted privileges to a health care

provider to adopt and implement a

policy to address situations in which

the provider had an objection as a

matter of conscience; prohibit an

employer from asking a prospective

health care provider about his/

her objection to participating in a

health care service; and prohibit an

employer from penalizing a health

care provider for expressing a

conscientious objection to a health

care service. SB 136 will die at the

end of this legislative session, but

look for an aggressive push toward

enactment next session with an even

more conservative Legislature.

appointees and perhaps for the

successor to Attorney General Eric

Holder.

• Taxation: A lowering of the corporate

tax rate is high on the GOP agenda

along with corresponding spending

cuts.

• Government Shutdown: A government

shutdown is unlikely, assuming the

House Speaker and new Senate Majority

Leader have control of their Caucuses

and the antipathy toward the President

is not at fever pitch due to such issues

as immigration reform.

• Minimum Wage, Sick Time and Leave

Time: These issues are not likely to be

addressed by Congress. Earlier this year,

the Republican Michigan Legislature

circumvented a ballot initiative and

voted to increase the minimum wage.

STATE

• Prevailing Wage: Straight in the sights

of the new Republican Senate Majority

Leader is Michigan’s Prevailing Wage

Law. He led the effort to enact Right to

Work legislation and it is anticipated

that repeal of the prevailing wage is

high on the agenda.

• Religious Freedom: Look for efforts to

enact a “Michigan Religious Freedom

Restoration Act” if a pending bill

doesn’t pass this year. In essence, this

legislation prohibits government from

placing a “substantial burden” on a

person’s exercise of religion, even if

the burden is from a law of general

Congress and the Michigan Legislature will

be more business friendly—in theory, if

not in practice—following the Republican

landslide in the Nov. 4 election. With

the GOP’s big victory, Republicans now

control both Houses of the U.S. Congress

and increased their majorities in the

Michigan Legislature. In fact, the GOP,

for the second four-year election cycle in

a row, will control all three branches of

government in Michigan. Here’s how the

November election could affect businesses:

CONGRESS

• Affordable Care Act (ACA) Revision:

Polling has consistently shown that the

ACA is a “raw meat” issue for the GOP

base, and many independents are deeply

concerned about it as well. Outright

repeal is highly unlikely because the

Senate Republicans do not have enough

members to thwart a filibuster (60 votes)

and President Obama still has his veto

pen ready. However, look for a series of

symbolic votes initially at repeal and then

legislation to rein in the law’s effects.

• Immigration Reform: A major fight is

brewing here with the President poised

to take significant executive action over

Republican objections. The ripple effect

of this rift will be seen in other areas.

• Judicial and Executive Appointees:

It will be difficult for the President

to obtain approval for his judicial

JAMES G. CAVANAGH517.679.7410jcavanagh@wnj.com

Huge GOP Election Win Will Likely Benefit Businesses

8 | WINTER 2014 | WARNER NORCROSS & JUDD | WNJ.COM

Key Benefit Plan Limits For 2015

The IRS recently released its 2015 employee benefits limitations for retirement plans. The following chart lists common limitations

relevant for many employers.

2015 2014 2013401(k), 403(b), 457(b), Pension, etc.

Annual Compensation $265,000 $260,000 $255,000Elective Deferrals 18,000 17,500 17,500Catch-up Contributions 6,000 5,500 5,500Defined Contribution Limits 53,000 52,000 51,000Defined Benefit Limits 210,000 210,000 205,000HCE Threshold 120,000 115,000 115,000Key Employee 170,000 170,000 165,000ESOP Limits 1,070,000 1,050,000 1,035,000 210,000 210,000 205,000

IRA

IRA Contribution Limit $5,500 $5,500 $5,500IRA Catch-up Contributions $1,000 1,000 1,000

IRA AGI Deduction Phase-Out Starting at

Joint Return $98,000 $96,000 $95,000Single or Head of Household 61,000 60,000 59,000

SEP

SEP Minimum Compensation $600 $550 $550SEP Maximum Contribution 53,000 52,000 51,000SEP Maximum Compensation 265,000 260,000 255,000

SIMPLE Plans

SIMPLE Maximum Contributions $12,500 $12,000 $12,000Catch-up Contributions 3,000 2,500 2,500

Other

457 Elective Deferrals $18,000 $17,500 $17,500Control Employee (board member or officer) 105,000 105,000 100,000Control Employee (compensation-based) 215,000 210,000 205,000Taxable Wage Base 118,500 117,000 113,700

Health Plans

Out-of-Pocket Maximums (Self-Only)*± $6,600 $6,350 N/AOut-of-Pocket Maximums (Other than Self-Only)*± 13,200 12,700 N/ATransitional Reinsurance Fee (per Covered Life)§ 44 63 N/AHealth FSA Salary Reduction Cap# 2,550 2,500 2,500Employer Shared Responsibility – 4980H(a) Failure to Offer Coverage¤€ 2,080 (Est.)† 2,000 N/AEmployer Shared Responsibility – 4980H(b) Failure to Offer Affordable, Minimum Value Coverage¤€

* These limits do not apply to grandfathered or retiree-only plans. ± These amounts are indexed to increase based on the average per capita premium for U.S. health insurance coverage from the prior calendar year. § These fees apply on a calendar year basis.# These fees apply on a plan year basis and are indexed for CPI-U.¤ These fees apply on a calendar year basis and are assessed monthly at 1/12 of the annual amount. † The 2015 assessment amounts have not been released. These numbers are estimates only based on increase in average per capita premium for U.S. health insurance coverage in 2014 as determined by HHS.

In addition, the Affordable Care Act (ACA) imposes a fee to help fund the Patient Centered Outcomes Research Institute (PCORI). For plans with years ending on or before Sept. 30, 2014, the fee is $2.00 per covered life. If the plan year ends between Oct. 1, 2014 and Dec. 31, 2014 (including calendar year plans), the fee is $2.08 per covered life. These fee amounts are increased based on national health expenditures.

If you have any questions about the key benefit plan limits for 2015, please contact Mary Jo Larson, Amy Fredrickson, April Goff or any other member of the Warner Norcross & Judd LLP Employee Benefits/Executive Compensation Practice Group.

3,120 (Est.)† 3,000 N/A

News Digests:

OSHA Changes Reporting/Recordkeeping Requirements On Sept. 11, 2014, the U.S. Occupational Safety and Health Administration (OSHA) announced new requirements for reporting severe injuries. Currently, employers are only required to report within eight hours if a worker has been killed or three or more workers are hospitalized. Under the revised standard, an employer must report all fatalities within eight hours. An employer must report hospitalizations of one or more workers, amputations or loss of an eye within 24 hours. In addition, the revised standard also expands the number of industries required to keep illness and injury records. A list of the 25 new industries covered by the revised standard can be found at http://1.usa.gov/1yymiZj. These new requirements are effective in federal OSHA states on Jan. 1, 2015. The Michigan Occupational Safety and Health Administration (MiOSHA) has six months from the date the rules were published to promulgate standards that are at least as effective as the federal standard. MiOSHA has indicated that it intends to adopt the new federal rules by reference. By Karen VanderWerff

State Will Debut Scheduling Order for Workers’ Compensation Litigation Michigan continues to see changes in the workers’ compensation litigation process. The latest change, with implementation likely in February 2015, introduces a formal scheduling order. The form must be completed by the parties and presiding magistrate and will list deadlines for activities, such as independent medical examinations, medical depositions and case facilitation. By Geri Drozdowski

Case Highlights the Importance of Documenting Employee Performance Employers can at times find themselves between the proverbial rock and a hard place when an employee’s poor performance warrants discharge, but the employee then engages in legally protected activity that raises the specter of a retaliation claim if they are fired. A recent decision from the Michigan Court of Appeals highlights the importance of documenting performance issues so that the employer can discharge a poor performer when necessary and successfully defend any lawsuit that follows. In Larue v. Gary P. Mullnix, DDS, PLLC, the plaintiff was injured at work and filed a worker’s compensation claim. Within a month her employment was terminated, and she then sued claiming she was wrongfully terminated in retaliation for seeking worker’s compensation benefits. But the trial court dismissed her claim, and the Court of Appeals affirmed that dismissal. The courts held that the mere fact that she was terminated shortly after seeking benefits did not prove that exercising this right was the reason she was terminated. Instead, the courts found that the employer, a dental practice, properly documented performance deficiencies that justified her discharge – primarily poor teeth cleaning results documented in patient records and reviewed by the dentist prior to the decision to fire the plaintiff. The case serves as a reminder of the risks involved in terminating an employee who has engaged in protected activity, but also of the employer’s ability to take appropriate disciplinary action when performance or behavior issues warrant it so long as they are careful to properly document those issues. By Dean Pacific

Partisan Gridlock Could Affect Upcoming NLRB RulingsWe presently have a fully-constituted National Labor Relations Board, consisting of five members (three Democrats and two Republicans). The term of one of the Democratic members, Nancy Schiffer, expired in mid-December. Although President Obama has nominated a replacement for Schiffer, it is far from clear whether that nominee will be confirmed. If he/she is not, the board could be looking at a 2-2 partisan deadlock. Thus, we very likely may see several significant decisions come out of the NLRB in the next few weeks. Chief among these is the board’s new election rules, but we may also see significant case decisions dealing with employer e-mail policies and whether temporary employees can be included in a bargaining unit with regular employees.By Robert Dubault

10 | WINTER 2014 | WARNER NORCROSS & JUDD | WNJ.COM

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