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HR Matters
HR Matters - March 2007 - Volume XI, Issue 119
March 30, 2007
LABOR & EMPLOYMENT NEWSOhio Supreme Court Bars Nonlawyers from Drafting Collective Bargaining Agreements. The Ohio Supreme Court has issued an important decision regarding the unauthorized practice of law and labor negotiations/preparation of collective bargaining agreements. The Court ruled that it is the unauthorized practice of law for a nonlawyer to draft or write a contract or other legal instrument (i.e. a collective bargaining contract) that is intended to create a legally binding relationship between an employer and a union.
While nonlawyers may participate in labor negotiations, when it comes to legal advice involved in negotiating or drafting the collective bargaining agreement, it may be unlawful for a nonlawyer to do that. Since legal advice permeates the collective bargaining process, the Ohio Supreme Court’s decision will mean that employers (as well as unions) will need to avoid unauthorized “do-it-yourself” legal practice. Please contact a GH&R Labor & Employment attorney for more information or assistance in this area. (OSBA v. Burdzinski)
Restricting Use of Company Bulletin Boards During Organizing Campaign Ruled Illegal. The National Labor Relations Act (NLRA) gives employees, among other things, the right to engage in activities on behalf of unions and forbids employers from interfering with this right. Recently, a federal court of appeals ruled that a company violated the NLRA by removing a pro-union flyer from a company bulletin board located in the employees’ cafeteria. Although the company had a formal rule that prohibited employees from using the bulletin boards, the court found that the company selectively enforced that rule. The company often allowed employees to post personal advertisements and notices on the boards, but immediately removed the pro-union flyer. (DynCorp Inc. v. NLRB)
WORKPLACE HEALTH & SAFETY NEWS
Owning a Small Business Ruled No Bar to Temporary Total Disability Benefits. Injured employees cannot receive temporary total disability benefits if they are working for pay or medically capable of returning to work. An automobile manufacturer filed a motion to terminate temporary total disability benefits for an assembly-line worker who was observed visiting a family-operated scrapbook shop that she owned. Surveillance of the employee revealed that she only visited her shop five times in a three-month period and that her activities were not inconsistent with her physical restrictions. Also, the worker produced payroll records from her accountant that demonstrated that she received no compensation for her activities at the shop. Therefore, the Ohio Supreme Court upheld the decisions of the court of appeals and Industrial Commission that denied the company’s motion to terminate temporary total disability benefits. (Honda of Am. Mfg. Co. v. Indus. Comm’n)
EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION
401(k) Plan Compliance Checklist. The IRS recently issued Publication 4531 which highlights the top 10 compliance issues for 401(k) plans. This checklist is a good starting point for conducting a self-audit. Examples of items on the checklist include: have you notified the people who service your plan of any changes?; has your plan document been updated recently to reflect changes in the law?; have you timely deposited employee deferrals each pay period?; and are elective deferrals limited to the amounts under Code Section 402(g) for the calendar year? For a complete list go to: http://www.irs.gov/pub/irs-tege/pub4531.pdf.
EB Question of the Month: Can we still file our Form 5500 in paper form? Yes, you can still file the Form 5500 in paper form for plan years beginning prior to 2008. The Department of Labor (DOL) is requiring that plan sponsors electronically file their Form 5500s for plan years beginning on or after January 1, 2008. The filing deadline is the seventh month after the plan year ends. Therefore, calendar year plans generally have until the July 31, 2009 deadline to transition to mandatory electronic filing. However, terminating plans or other plans with short plan years in 2008 may have to file electronically earlier.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.