On December 19, 2009, President Obama signed a new law amending the COBRA subsidy provisions of the American Recovery and Reinvestment Act of 2009 (“ARRA”).  Under the ARRA, individuals who were involuntarily terminated during the coverage period from September 1, 2008 through December 31, 2009, and were eligible for continuation of health care benefits pursuant to COBRA, could have 65% of their COBRA premium subsidized by the federal government for up to nine months.  The Department of Defense Appropriations Act 2010 amends the ARRA to extend the coverage period during which a termination occurs by two months, through February 28, 2010.  In addition, the new law also extends the maximum period for receiving the subsidy by an additional six months, for a total of fifteen months.  Eligible individuals who had reached the end of the initial nine month COBRA subsidy period before amendment of the law will now have an extension of their grace period to pay the reduced COBRA premium.  To continue their coverage, the eligible individual would have to pay 35% of the premium by February 17, 2010, or, if later, within thirty days after notice of the extension is provided by the plan administrator.  Similarly, individuals who lost the COBRA subsidy and paid 100% of the premium in December 2009 can contact their plan administrator or employer to seek a credit applied against future months of COBRA payments or a reimbursement of the overpayment.

Plan administrators or employers sponsoring health plans will be required to provide the COBRA subsidy notices required by the ARRA.  Employers should determine whether the administrator of their health insurance plan or the employer is responsible for providing notices under the COBRA subsidy extension.  More information regarding the COBRA subsidy extension may be found at www.dol.gov/ebsa/cobra.html.

© 2009 Drinkwater Law Offices

Under both federal and state employment laws, employers are required to post specific employment materials for employees in a conspicuous area (such as a break or lunch room) and in a language employees understand. When there are changes to existing employment laws or new laws are enacted, the mandatory posting requirements also change. Accordingly, employers must be aware of and comply with changes in the mandatory posting requirements.

There have been several recent amendments to both state and federal employment laws and mandatory posting requirements. Effective November 21, 2009, employers with fifteen or more employees must post the updated “Equal Employment Opportunity is the Law” poster which includes information regarding the new Genetic Information Nondiscrimination Act (“GINA”) prohibiting discrimination against applicants and employees on the basis of genetic information.

In addition, following are several recent changes to state employment posting requirements: 1) Effective October 20, 2009, the Nevada Unemployment Insurance poster must include a new website address for filing an unemployment claim online; 2) The Nevada Minimum Wage poster was recently updated to reflect an amendment to exemptions that apply to retail or service workers and to reflect the recent increase in the state minimum wage.

We recommend that employers obtain the mandated employment posters from a provider that notifies employers of posting requirement changes and provides updated posters (e.g. www.postercompliance.com).

© 2009 Drinkwater Law Offices

Effective October 1, 2009 (It’s coming up fast!), the State of Nevada will recognize a new civil contract between unmarried individuals who meet the requirements of the Nevada Domestic Partnership Act and who properly file registration documents with the Nevada Secretary of State.  Domestic partners may be the same sex or opposite sex.

The new law grants registered domestic partners the same rights, protections, benefits, responsibilities, obligations and duties as those granted to married couples under the law whether imposed by statute, regulation, rule, government policy, common law, or any other source of law.  These rights and responsibilities extended to registered domestic partners include those provided under testamentary/probate law, employment and discrimination law, and all family law statutes including community property, spousal and child support, and adoption.

Although distinct from marriage under Nevada’s Constitution, domestic partners should, in most cases, be treated as the legal equivalent of spouses with the exception listed below.

OK, Fine!  So what are you supposed to do???

To comply with the Nevada Domestic Partnership Act, you should review your policies and procedures to determine if revisions need to be made to account for registered domestic partners.  Generally, any reference an employee’s spouse in your employee handbook or policies should be revised to refer to “spouse and/or domestic partner.”  In doing these revisions, however, you should be aware that certain benefits for spouses mandated by federal law, such as COBRA continuation health coverage and Family and Medical Leave Act leave, may not be available to domestic partners.

Also, think about your company’s forms.  If you have a new hire packet that includes information about a spouse, change that to say “Spouse/Domestic Partner.”

YOU HAVE A CHOICE REGARDING HEALTH CARE BENEFITS!

The major exception to the rights extended to registered domestic partners is required employer health care benefits.  Public and private employers in Nevada are not required to provide health care benefits under their applicable plan to registered domestic partners, but they may choose to do so.

If you wish to extend insurance benefits to domestic partners, we suggest that you call your insurance provider to discuss whether you can and/or will offer benefits to domestic partners of your employees.  Under this new law, employers who offer benefits to their employees and spouses will need to carefully evaluate each benefit and determine if they are required, or if they elect, to include domestic partners.

Please keep in mind that under federal law, neither same-sex spouses nor domestic partners are generally recognized as spouses for whom favorable tax benefits apply. This would usually mean that certain tax-favored benefits (like pretax cafeteria plan or flexible spending account benefits) cannot be provided to employees who add domestic partners to group health plan coverage.

The conditions that must be met to register a domestic partnership can be found in Senate Bill 283 in the 2009 session information on the Nevada Legislature’s website:  www.leg.state.nv.us

For more information on how to register a domestic partnership with the Nevada Secretary of State, go to:   www.nvsos.gov/licensing/securities/domesticpartnership.asp

© 2009 Drinkwater Law Offices

Effective August 15, 2009 in the State of Nevada, if you are an employer with fifty (50) or more employees (for each working day in each of twenty (20) or more calendar weeks in the current calendar year), you must comply with the new parental leave for school activities law.

This law requires you to provide an employee who is a parent, guardian, or custodian of a child enrolled in a public or private school four (4) hours of unpaid leave per school year per child to:

• Attend parent-teacher conferences;
• Attend school-related activities during regular school hours;
• Volunteer or otherwise be involved at the school in which the child is enrolled during regular school hours; and
• Attend school-sponsored events.

You may place the following restrictions on an employee’s use of the parental leave:

• The leave must be taken in increments of at least one (1) hour;
• The leave must be taken at a time mutually agreeable to both the employer and the employee;
• The employer may require the employee to request the leave in writing at least five (5) school days in advance of the leave; and
• The employer may require an employee to provide documentation indicating that the employee attended or participated in the school-related function for which the leave was granted.

What changes should I make to my employee handbook?

You should prepare and distribute a new (or updated) policy which sets forth who is eligible for the leave, the amount of leave, the activities for which leave will be granted, and the procedure an employee must follow to request the leave.  The policy should also contain a provision indicating that the company will not terminate, demote, suspend or otherwise discriminate against an employee, or threaten to take such action against an employee, who utilizes the leave benefits provided by the new law.

Do I need to do training?

The employer should also train their supervisors and managers regarding the provisions of the new law to avoid discrimination against employees who take parental leave.  There are provisions in the law itself that make it an unlawful employment practice for an employer to terminate, demote, suspend, discriminate against, or to otherwise threaten to assert such action against an employee who:  (1) takes the parental leave granted by the statute; (2) attends a conference requested by an administrator of the child’s school; or (3) is notified during work hours by a school employee of an emergency regarding the employee’s child.

What happens if I don’t comply?

The provisions of the new statute provide specific remedies for a violation.  If you terminate, demote, suspend, discriminate against, or threaten to take such action against an employee in violation of the new law, you may be guilty of a misdemeanor.  There is a procedure for an aggrieved employee to file a complaint with the Labor Commissioner.  You then have an affirmative duty to provide the employee “who is discharged from employment or who is demoted, suspended or otherwise discriminated against with all the forms necessary” to file a complaint with the Labor Commissioner.  If the Labor Commissioner finds in favor of the employee, the Labor Commissioner may award, in addition to any remedies provided in NRS Chapters 607 and 608, the following:  (1) lost wages and benefits as a result of the violation; (2) an order reinstating the employee to their position without loss of seniority, pay or benefits; and (3) damages in the amount of the lost wages and benefits.

© 2009 Drinkwater Law Offices