Complete Guide to Human Resources and the Law, 2021 Edition

The Complete Guide to Human Resources and the Law

The Complete Guide to Human Resources and the Law will help you navigate complex and potentially costly Human Resources issues. You'll know what to do (and what not to do) to avoid costly mistakes or oversights, confront HR problems - legally and effectively - and understand the rules.

The Complete Guide to Human Resources and the Law offers fast, dependable, plain English legal guidance for HR-related situations from ADA accommodation, diversity training, and privacy issues to hiring and termination, employee benefit plans, compensation, and recordkeeping. It brings you the most up-to-date information as well as practical tips and checklists in a well-organized, easy-to-use resource.

The 2021 Edition provides new and expanded coverage of issues such as:

• At the end of 2019, Congress enacted the Setting Every Community Up for Retirement Enhancement (SECURE) Act. Although it does not produce overarching changes in employee benefits, the law does have an effect on numerous aspects of both pensions and health care, including automatic retirement enrollment, expanded 401(k)s for certain employees, a new fiduciary safe harbor, new requirements for benefit reports, changes to nondiscrimination testing, elimination of the Cadillac tax, and increases in the penalties for late or unfiled Form 5500s.
• A controversial issue that will reach the U.S. Supreme Court in the near future is the mandate of the Patient Protection and Affordable Care Act (PPACA) to cover contraceptives. Religious groups, led for now by the Little Sisters of the Poor, have been largely unsuccessful in arguing that the PPACA’s mandate infringes on religious freedom. In late 2019, the High Court agreed to hear two related cases that it has consolidated for purposes of oral argument. With Justices Gorsuch and Kavanaugh now on the Court, religious conservatives are hopeful of a favorable outcome.
• A Texas federal court’s decision on December 14, 2018 [Texas v. United States, No. 4:18-cv-00167-0, 2018 U.S. Dist. LEXIS 211547 (N.D. Tex. Dec. 14, 2018)] striking down the PPACA has continued to throw that law into disarray. On December 18, 2019, the Fifth Circuit affirmed the lower court’s decision that the individual mandate was unconstitutional, but it remanded for further analysis on whether the entire law was unconstitutional. [Texas v. United States, No. 19-10011, 2019 U.S. App. LEXIS 37567 (5th Cir. Dec. 18, 2019, rev. Jan. 9, 2020)] Although the law continues to be in effect, its proponents are concerned that insureds will lose the rights they acquired under the law, including the pre-existing conditions rule, the requirement that policies cover at least a designated set of health conditions, and the ban on lifetime caps.
• The Trump administration continues its other efforts to minimize the impact of the PPACA, even if it cannot eliminate it. One example is the administration’s push for Association Health Plans (AHPs), which allow business associations to offer alternative health plans that might appeal to small business owners. Efforts so far have been largely unsuccessful, with, for example, a District of Columbia Federal Court striking down two key provisions as an illegal end-run around the PPACA.
• The states are continuing to experiment in legislative areas where Congress has been reluctant to act, such as paid family leave, privacy, criminal background checks, overly broad non-compete agreements, drug testing (particularly in states where marijuana is now legal), equal pay, lactating employees, protections from discrimination (including for transgender employees), domestic violence leave, minimum wages, and rules for what health insurers cannot exclude from coverage.
• The #MeToo movement continues to play out across board rooms, workplaces, and courthouses, as states continue to extend sexual harassment protections to female employees.

Note: Online subscriptions are for three-month periods.

Previous Edition: Complete Guide to Human Resources and the Law, 2020 Edition, ISBN 9781454899945

1. PAY PLANNING

• Decision Factors in Setting Compensation
• Benefits as an Element of Compensation
• Avoiding Discrimination
• Variable Pay
• Wage and Hour Issues
• Minimum Wage
• Determining Who Is an "Employee"
• Staffing Arrangements
• Size of the Contingent Workforce
• Co-Employers
• Applicable Tests
• Benefits for Contingent Workers
• Work Scheduling
• Overtime and Overtime Planning
• Vacations and Vacation Pay
• Garnishments and Deductions for Support Orders
• USERRA

2. TAX ASPECTS OF PAY PLANNING

• The Compensation Deduction
• Income Tax Withholding
• FUTA Tax
• Trust Fund Tax Compliance and the 100% Penalty
• W-2s and Other Tax Forms
• Tax Deposits
• Transition to Electronic Filing
• Bankruptcy Issues
• The Interaction Between §§409A and 415

3. BONUSES AND SEVERANCE PAY

4. BASIC PENSION CONCEPTS

• Extent of Coverage
• Effect of Demographics on Plans
• Investment Factors
• Defined Benefit/Defined Contribution
• Other Plan Types
• IRA/Qualified Plan Interface
• Incidental Benefits
• Structure of ERISA
• Required Provisions for All Qualified Plans
• Normal Retirement Age
• Normal Retirement Benefit
• Participation and Coverage
• Vesting
• Break-In-Service Rules
• Plan Limits
• Employee Contributions
• Plan Loans
• Employer's Deduction
• Reversions
• Forfeitures
• Discrimination Testing
• Leased Employees
• Communicating with Employees
• Fiduciary Duty
• Bankruptcy Effects
• Factors in Choosing a Plan Form

5. DEFINED BENEFIT PLANS

• Benefit Limits
• Benefit Forms for Defined Benefit Plans
• Mortality Tables
• Funding the Defined Benefit Plan
• Benefit Accruals
• Notices of Reduction of Benefit Accruals
• PBGC Compliance
• Reportable Events
• Special Rules for At-Risk Plans

6. DEFINED CONTRIBUTION AND 401(k) PLANS

• Defined Contribution Plans
• New Comparability Plans
• 401(k) Plans
• 401(k) Antidiscrimination Rules
• Distributions from the 401(k) Plan
• Administration of the 401(k) Plan
• Investment Advice for Participants
• 401(k) Plans Respond to the Economy

7. CASH BALANCE PLANS

• Cash Balance Plans: Pros and Cons
• "Whipsaw" and Financial Factors
• Case Law on Cash Balance Plans
• The Conversion Process
• December 2002 Regulations: Proposal and Withdrawal
• Cash Balance Plans Under the PPA and WRERA

8. NONQUALIFIED PLANS

• Taxation of Nonqualified Plans
• Prohibited Transactions and Corrections

9. EARLY RETIREMENT AND RETIREE HEALTH BENEFITS

• ADEA Issues of Early Retirement Incentives
• Disclosures to Employees
• EEOC Manual on Early Retirement Incentives
• ERISA Issues
• Phased Retirement
• Retiree Health Benefits: Introduction
• The Right to Alter or Terminate Retiree Health Benefits
• Tax Issues for Retiree Health Benefits
• MPDIMA and the Medicare Interface
• SOP 92-6 Reports
• Implications of the Employer's Bankruptcy
• 401(h) Plans

10. ADOPTING AND ADMINISTERING A PLAN

• Determination Letters
• Prototype and Master Plans
• Routine Tax Compliance
• ERISA Compliance Issues

11. COMMUNICATIONS WITH EMPLOYEES AND REGULATORS

• Summary Plan Description (SPD)
• Summary Annual Report (SAR)/Annual Funding Notice
• Individual Account Plan Disclosures
• Notices of Reduction of Benefit Accruals
• Other Notices and Disclosures
• Disclosure on Request
• Electronic Communications
• Disclosure of Documents to the DOL and PBGC
• Form 5500

12. PLAN DISTRIBUTIONS

• Cashout
• Lump Sums
• Anti-Alienation Rule
• QJSA/QOSA Payments
• Post-Death Payments
• The Required Beginning Date
• Divorce-Related Orders
• Reduction of Benefit Forms
• Rollovers
• Withholding
• Plan Loans as Deemed Distributions

13. PROCESSING AND REVIEWING CLAIMS AND APPEALS

• Third-Party Administrators (TPAs)
• Health Plan Claims
• HIPAA EDI Standards
• Case Law on Claims
• Glenn and the Standard of Review
• Case Law on Claims Procedural Issues

14. AMENDING A PLAN

• Flexibility Through Amendment
• Change in Plan Year
• Reduction in Forms of Distribution
• EGTRRA and PPA Conforming Amendments
• ERISA 204(h) Notice
• Amendments to a Bankrupt Sponsor's Plan
• Issues Highlighted by the IRS

15. ENFORCEMENT AND COMPLIANCE ISSUES FOR QUALIFIED PLANS

• Who Is a Fiduciary?
• Fiduciary Duties
• Duties of the Trustee
• The Employer's Role
• Investment Managers
• Duty to Disclose
• Penalties for Fiduciary Breach
• ERISA § 502
• ERISA § 510
• Other Enforcement Issues
• Liability of Co-Fiduciaries
• Bonding
• Indemnification
• Prohibited Transactions
• Payment of Plan Expenses
• Service Providers
• ERISA Litigation
• Correction Programs

16. EFFECT OF CORPORATE TRANSITIONS ON PENSION AND BENEFIT PLANS

• Choice of Form
• The Anticutback Rule
• Notice of Reduction of Benefits
• The Minimum Participation Rule
• In-Service Distributions and Rehiring
• Tax Issues
• The PBGC Early Warning Program
• Stock Options

17.PLAN TERMINATION

• Termination Types
• The PBGC's Role
• Involuntary Termination
• Plan Reversions
• Effect on Benefits
• Reporting and Compliance
• Payment of Expenses

18. EMPLOYEE GROUP HEALTH PLANS (EGHPs)

• The Health Care Landscape
• Benefits Mandates
• Dental Plans
• Prescription Drug Coverage
• Domestic Partner Benefits, Civil Unions, and Same-Sex Marriage
• Tax Issues in EGHPS
• Health-Based Discrimination
• Health Savings Accounts (HSAs) and Archer MSAs
• Medical Expense Reimbursement Plans
• Flexible Spending Accounts (FSAs)
• EGHP Structures
• Managed Care
• Employer Liability for HMO Actions
• Labor Law Issues in the EGHP
• Qualified Medical Child Support Orders (QMCSOs)
• The Employer's Right of Subrogation
• Defined Contributions, CDHP, and HRA Plans

19. HEALTH INSURANCE CONTINUATION AND PORTABILITY (COBRA AND HIPAA)

• COBRA Continuation Coverage
• COBRA and the FMLA
• COBRA Notice
• Health Insurance Portability

20. DISABILITY PLANS

• Employment-Based Plans
• State Mandates
• Compliance Issues
• Case Law on "Total Disability"
• Effect of Plan Amendments
• Claims Procedures and the Standard of Review After Glenn
• Appeals of Claim Denials

21. INSURANCE FRINGE BENEFITS

• Life Insurance Fringe Benefits
• Long-Term Care Insurance Plans

22. OTHER FRINGE BENEFITS

• Stock Options
• Cafeteria Plans
• Education Assistance
• Employee Assistance Programs (EAPs)
• Miscellaneous Fringes
• Voluntary Employee Benefit Associations (VEBAs)
• Fringe Benefit Plans: Tax Compliance
• ERISA Regulation of Welfare Benefit Plans

23. HIRING AND RECRUITMENT

• Productive Hiring
• Analyzing Job Requirements
• Recruitment
• Search Firms
• Job Applications
• Establishing Terms and Conditions
• Reference Checks
• Nondiscriminatory Hiring
• Pre-Employment Testing
• Immigration Issues
• ADA Compliance in Hiring
• Credit Reporting in the Hiring Process

24. RECORDKEEPING

• OSHA Records
• Title VII Recordkeeping and Notice Requirements
• FMLA Records
• Immigration Records
• Employment Tax Records
• Unemployment Insurance Records
• Record-Retention Requirements

25. CORPORATE COMMUNICATIONS

• Employment Contracts
• Employee Handbooks
• Work Rules
• Systems of Progressive Discipline
• Employee Evaluations
• Mandatory Predispute Arbitration Provisions
• Defamation
• Privileged Statements
• Duty to Communicate
• Responses to Reference Checks
• Negotiated Resignations
• Releases
• Sarbanes-Oxley Notices

26. PRIVACY ISSUES

• Polygraph Testing
• Drug Use in the Workplace
• Criminal Record and Credit Checks
• Genetic Testing
• Searches and Surveillance
• HIPAA Privacy Rules

27. THE ROLE OF THE COMPUTER IN HR

• Internet Research
• Recruiting Via the Internet
• Benefits Management Online
• Legal Implications of E-Mail and Social Networking
• Federal Rules on Digital Communications

28. WORK-FAMILY ISSUES

• Employer-Provided Day Care
• Breast Feeding in the Workplace
• Adoption Assistance
• Corporate Elder Care Activities
• The Corporate Elder Care Role
• Dependent Care Assistance Plans

29. DIVERSITY IN THE WORKPLACE

• The Glass Ceiling
• Diversity Training
• Diversity Audits
• English-Only Rules
• Promoting Diversity

30. LABOR LAW

• Sources of Labor Law
• Employee Status
• Elections, Certification, and Recognition
• The Appropriate Bargaining Unit
• Union Security
• The Collective Bargaining Process
• Elections After Certification
• Strikes
• The WARN Act
• Labor Law Issues of Shared Liability
• Employer Domination
• NLRB Jurisdiction
• Labor Law Implications of Bankruptcy Filings

31. OCCUPATIONAL SAFETY AND HEALTH

• OSHA Powers
• OSHA Regulations
• Controlling Physical Hazards
• Controlling Exposure to Hazardous Conditions
• Ergonomics
• Variances
• Division of Responsibility
• OSHA Enforcement
• OSHA Citations
• OSHA Appeals
• Abatement
• OSHA Consultation
• Voluntary Programs

32. UNEMPLOYMENT INSURANCE

• Eligibility for Benefits
• Calculation of Benefits
• Experience Rating
• Administration and Appeals
• FUTA Compliance

33. WORKER'S COMPENSATION

• Classification of Benefits
• WC Exclusivity
• Alternatives for Insuring WC
• Setting the WC Premium
• Ban on Retaliation
• Administration of WC
• WC in Relation to Other Systems
• Techniques for Lowering Comp Costs

34. TITLE VII

• Treatment/Impact
• Title VII Coverage
• Exceptions to Title VII Coverage
• Racial Discrimination
• Sex Discrimination
• Religious Discrimination and Reasonable Accommodation
• Retaliation

35. SEXUAL HARASSMENT

• The Employer's Burden
• Appropriate Employer Responses
• Hostile Work Environment Harassment
• Same-Sex Harassment
• Orientation and Perceived Orientation
• Wrongful Discharge Claims
• Damage Issues
• Liability of Individuals
• Interaction with Other Statutes

36. AMERICANS WITH DISABILITIES ACT (ADA)

• Reach and Range of ADA Title I
• Forbidden Discrimination
• Defining “Disability”
• Reasonable Accommodation
• Defenses
• "Regarded As" Liability
• Disability and the Benefit Plan
• Questions and Medical Tests
• Interaction with Other Statutes
• ADA Enforcement
• The ADA Prima Facie Case
• Damages
• Arbitration of ADA Claims

37. AGE DISCRIMINATION IN EMPLOYMENT ACT

• ADEA Exceptions
• Forbidden Practices
• Implications for BenefitPlans
• Health Benefits
• Proving the ADEA Case
• Waivers of ADEA Rights

38. THE FAMILY AND MEDICAL LEAVE ACT (FMLA)

• FMLA Eligibility Issues
• When Leave Is Available
• The Employer's Obligation
• Intermittent Leave
• Relating FMLA Leave to Other Leave
• Notifying the Employer
• Certification of Health Care Leave
• Disclosure to Employees
• Administrative Requirements
• FMLA Enforcement

39. WRONGFUL TERMINATION AND AT-WILL EMPLOYMENT

• Employee Tenure
• Promissory Estoppel
• Public Policy
• Preemption Arguments

40. ARBITRATION AND ADR

• Grievances and Discipline
• Mediation
• Arbitration vs. Litigation
• Labor Arbitration
• Arbitration of Employment Discrimination Claims
• Mandatory Predispute Arbitration Clauses
• Factors That Promote ADR Success

41. EEOC AND STATE ENFORCEMENT OF ANTIDISCRIMINATION LAWS

• EEOC ADR
• Title VII Enforcement
• EEOC Investigation
• ADEA Enforcement
• The Federal-State Relationship

42. DISCRIMINATION SUITS BY EMPLOYEES: PROCEDURAL ISSUES

• Causes of Action
• Statistics About Charges and Results
• Title VII Procedure
• Timing Requirements
• Class Actions
• The Discrimination Complaint
• Meeting Burdens
• Retaliation Charges
• Title VII Litigation
• ADEA Suits
• Title VII Remedies
• Settlement of a Discrimination Suit

43. INSURANCE COVERAGE FOR CLAIMS AGAINST THE EMPLOYER

• Commercial General Liability
• Occurrences and the Problem of Intention
• Employment Practices Liability Insurance
• Other Insurance
• Duty of the Insurance Contract
• Questions of Timing
• Fiduciary Liability Insurance