ELECTION SEASON
2
Campaigns in the Workplace
CAMPAIGNING AND THE WORKPLACE
QBB AGENDA
‣ Voting Leave Requirements
‣ Campaigning and the Workplace – Some Legal Considerations
‣ Policy Considerations – Within the Workplace and Beyond
‣ Planning and implementation tips for open enrollment season 2021
‣ DOL’s new e-disclosure guidance for retirement plans
VOTING LEAVE REQUIREMENTS
WHAT IS YOUR RESPONSIBILITY AS AN EMPLOYER?
POLITICS AND WORKPLACE DISRUPTIONS
HOW COMMON IS IT?
42%
Employees who have had a
“political disagreement” in the workplace
Respondents stating that discussion of politics in the office has become more common since
56%
CAMPAIGNING AND THE WORKPLACE
WHY DO EMPLOYERS INSTITUTE LIMITATIONS?
‣ Distractions
‣ Decrease in productivity
‣ Disagreements among co-workers
‣ Offended customers
‣ Impact on an employer’s business or brand
CAMPAIGNING AND THE WORKPLACE
LIMITING POLITICAL SPEECH AT WORK: IS THE POLICY LAWFUL?
‣ Depends on:
‣
Whether the employer is public or private‣
Whether an employee is at-will or has an employment agreement‣
Where the employer is located‣
Whether the speech at issue relates to working conditionsCAMPAIGNING AND THE WORKPLACE
FEDERAL AND STATE LAWS AFFECTING EMPLOYER POLICIES
CAMPAIGNING AND THE WORKPLACE
LIMITING POLITICAL SPEECH AT WORK: NLRA SECTION 7 IMPLICATIONS
‣ NLRA Section 7 gives employees the right to unionize, to join together to advance employee interests, and to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
‣ NRLA Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with Section 7 rights.
‣ Is the speech you are restricting purely political or does it also involve working conditions, which is protected by
NLRA Section 7?
CAMPAIGNING AND THE WORKPLACE
‣ Hypothetical:
‣
An employee distributes flyers at work in support of a political candidate. The employee’s flyers encourage co-workers to vote for the candidate because this candidate will raise the minimum wage for everyone, thereby increasing the employees’ pay. Is this protected speech under NLRA Section 7?LIMITING POLITICAL SPEECH AT WORK: NLRA SECTION 7 IMPLICATIONS
CAMPAIGNING AND THE WORKPLACE
Eastex v. NLRB, 437 U.S. 556 (1978)
LIMITING POLITICAL SPEECH AT WORK: NLRA SECTION 7 IMPLICATIONS
CAMPAIGNING AND THE WORKPLACE
‣ Title VII of the Civil Rights Act of 1964, prohibits
employers from discriminating against employees and applicants for employment on the bases of race, color, religion, national origin, and sex.
‣ Political speech that constitutes animus towards other co- workers in a protected class or that creates a hostile work environment may require an employer to intervene to
avoid liability.
LIMITING POLITICAL SPEECH AT WORK: TITLE VII IMPLICATIONS
CAMPAIGNING AND THE WORKPLACE
‣ Hypothetical:
‣
Two employees are in thebreak room at work discussing political candidates. The two employees disagree and the conversation escalates. One employee begins to insult the other using discriminatory language. Can the employer discipline the employee for the discriminatory language?
LIMITING POLITICAL SPEECH AT WORK: TITLE VII IMPLICATIONS
CAMPAIGNING AND THE WORKPLACE
‣ Public-sector employees have a right against
retaliation for expression their political views under the First Amendment.
‣ This right does not extend to private sector employees unless a state or local law
LIMITING POLITICAL SPEECH AT WORK: 1ST AMENDMENT IMPLICATIONS
CAMPAIGNING AND THE WORKPLACE
LIMITING POLITICAL SPEECH AT WORK: S.C. LAW IMPLICATIONS
‣ S.C. Code Ann. § 16-17-560
‣
It is unlawful for an employer to fire a citizen from employment because of their political opinions, exercise of their political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States and laws of South Carolina. Political rights and privileges include political party affiliations, political campaign contributions and the right to vote.‣ Employers can still prohibit disruptive political speech, but
consistency is key!
CAMPAIGNING AND THE WORKPLACE
LIMITING POLITICAL SPEECH AT WORK: S.C. LAW IMPLICATIONS
CAMPAIGNING AND THE WORKPLACE
LIMITING POLITICAL SPEECH AT WORK: S.C. LAW IMPLICATIONS
‣ Employers can still prohibit disruptive political speech, but consistency is key!
‣ Is the political speech disruptive or just divisive?
‣
“2 Cheesecake Factory Employees Are Out After Comments About Customer's MAGA Hat”CAMPAIGNING AND THE WORKPLACE
LIMITING POLITICAL SPEECH AT WORK: N.C. LAW IMPLICATIONS
‣ N.C.G.S. § 163A-1388(a)(7)
‣
It is a class 2 misdemeanor for an employer to discharge or threaten to discharge an employee based on a voting decision.CAMPAIGNING AND THE WORKPLACE
LIMITING POLITICAL SPEECH AT WORK: NON-SOLICITATION POLICIES
‣ Requirements:
‣
In writing‣
Widely distributed to employees‣ Consistency is key when disciplining employees who are focusing on political
activities or disrupting co-
workers instead of performing
their jobs.
CAMPAIGNING AND THE WORKPLACE
LIMITING POLITICAL SPEECH AT WORK: DRESS CODE POLICIES
‣ An employer can
implement dress code policies prohibiting
political buttons and logos, provided this
policy is consistent with
prohibition of other non-
political speech and
CAMPAIGNING AND THE WORKPLACE
LIMITING POLITICAL SPEECH AT WORK: DRESS CODE POLICIES
CAMPAIGNING AND THE WORKPLACE
LIMITING POLITICAL SPEECH AT WORK: OTHER COMMUNICATION POLICIES
Newsworthy Policies
OPEN ENROLLMENT
23
Employee Benefits
EMPLOYEE BENEFITS
‣ Open Enrollment Season – 2021
‣
Providing required legal notices‣
Eligibility Audit‣
Reminding participants to consider and change beneficiaries, if appropriate‣ COVID and COBRA
‣
‣
Retirement and Welfare Plans‣
Summary of Material Modifications (SMM)‣
Summary Annual Report‣
Summary of Benefits and Coverage (SBC)‣
Employer CHIPRA Notice‣
Newborns’ Act Description of Rights‣
WHCRA Notice‣
Periodic Pension Benefit Statement‣
Qualified Default Investment alternative NoticeEMPLOYEE BENEFITS
ANNUAL NOTICES
‣
Time for an Eligibility Audit‣
All benefit offerings – not just health/medical‣
Full-time/Part-time‣
“Actively at Work” requirements‣
Think limited COVID waivers:‣
Risks of Noncompliance - $$EMPLOYEE BENEFITS
OPEN ENROLLMENT – 2021
‣
Beneficiary designations‣
Pursuing 100% response rate‣
Re-Soliciting designations‣
Maintaining documentation appropriately – electronic vs. paper‣
Resolving claim disputesEMPLOYEE BENEFITS
OPEN ENROLLMENT - 2021
‣
DOL/IRS joint guidance – extendingparticipants’ rights to health care coverage under COBRA
‣
Effective until 60 days after the end of the declared COVID-19 national emergency (projected mid-January 2021?)‣
BUT – no extension for 14-day deadline for plan administrators to furnish COBRA election noticesEMPLOYEE BENEFITS
COVID AND COBRA
‣
Examples of class action litigation – Amazon, Nestle, Best Buy‣
Issues revolve around suitability of COBRA notices‣
Not “written in a manner calculated to be understood by the average plan participant”‣
The notice fails to provide the name, address, and telephonenumber of the party responsible for administering the continuation of coverage benefits
‣
The notice fails to explain how to enroll in COBRA coverage,includes conflicting information about deadlines for enrolling, and/or does not include a physical election form
‣
The notice does not provide all of the required “explanatoryinformation” about coverage, including that a qualified beneficiary's decision on COBRA election will affect the future rights of qualified beneficiaries to portability of group health coverage, guaranteed access to individual health coverage, and special enrollment
‣
The notice does not explain the continuation coverage termination‣
dateEMPLOYEE BENEFITS
COBRA AND COVID - LITIGATION
Overview -- As an alternative to providing hard copy employee benefit plan documents and other plan disclosures, the administrator of an employee benefit plan may make required retirement plan disclosures by electronic access or delivery with respect to covered individuals and covered documents, provided that the administrator complies with the notice, access, and other requirements. The new regulatory safe harbor creates a "notice and access" structure where plans must provide a:
One-time initial notice about the new delivery structure on paper (Initial Notice of Default Electronic Delivery).
Notice of internet availability for each covered document (Notice of Internet Availability).
EMPLOYEE BENEFITS
DOL’S NEW E-DISCLOSURE REGULATIONS
‣
Who is a covered individual?‣
Participant‣
beneficiary‣
other individual entitled to covered documents who provides an electronic address at which the covered individual may receive a written notice of internet availability, or an email.Note: if the employer assigns an electronic address to an employee for employment-related purposes, the employee is treated as if he or she provided the electronic address.
EMPLOYEE BENEFITS
DOL’S NEW E-DISCLOSURE REGULATIONS
EMPLOYEE BENEFITS
DOL’S NEW E-DISCLOSURE REGULATIONS
Initial Notice of Default Electronic Delivery -- Before a plan administrator may rely on the new regulatory safe harbor, it must provide an initial, one-time initial notification of default electronic delivery to each
individual.
‣
The hard-copy notice must provide:‣
That covered documents will be provided electronically‣
The email address or number that will be used for the individual‣
Any instructions for accessing the covered documents‣
A cautionary statement that a covered document is not required to be available on the website indefinitely.‣
The individual's right to request and obtain a paper version of a covered document, free of charge‣
The individual's right to opt out of receiving covered documents electronically and an explanation of how to exercise these rightsEMPLOYEE BENEFITS
DOL’S NEW E-DISCLOSURE REGULATIONS
Notice of internet availability -- The administrator must furnish to each covered individual a notice of internet availability for each covered document. The notice must be furnished at the time the covered document is made available and, as an annual notice no more than 14
months following the date the prior plan year’s notice was furnished.
EMPLOYEE BENEFITS
DOL’S NEW E-DISCLOSURE REGULATIONS
‣
Content of notice of internet availability.‣ A prominent “title” or “subject line” statement that reads: “Disclosure About Your Retirement Plan”
‣ A statement that reads: “Important information about your retirement plan is now available. Please review this information.”
‣ An identification of the covered document by name
‣ The internet website address, or a hyperlink to such address, where the covered document is available and the link must be “direct” to the
covered document.
‣ A statement of the right and how to request and obtain a paper version of the covered document, free of charge
EMPLOYEE BENEFITS
DOL’S NEW E-DISCLOSURE REGULATIONS
‣
Content of notice of internet availability (con’d).‣ A statement of the right, free of charge, to opt out of electronic delivery and receive only paper versions of covered documents, and an
explanation of how to exercise this right
‣ A cautionary statement that the covered document is not required to be available on the website for more than one year or, if later, after it is superseded by a subsequent version of the covered document
‣ A telephone number to contact the designated plan representative
‣ The notice of internet availability furnished may contain a statement as to whether action by the covered individual is invited or required in response to the covered document and how to take such action, or that
EMPLOYEE BENEFITS
DOL’S NEW E-DISCLOSURE REGULATIONS
‣
Internet Website Standards:‣ The covered document is available on the website no later than the due date
‣ The covered document remains available on the website for a year or, if later, the date it is superseded by a subsequent version of the covered document
‣ The covered document is presented on the website in a manner calculated to be understood by the average plan participant
‣ The covered document is presented on the website in a widely-available format or formats that are suitable to be both read online and printed clearly on paper
‣ The covered document can be searched electronically by numbers, letters, or words
‣ The covered document is presented on the website in a widely-available
EMPLOYEE BENEFITS
DOL’S NEW E-DISCLOSURE REGULATIONS
‣
Other issues and considerations:‣
Email Attachment Method Alternative‣
Severance from EmploymentEMPLOYEE BENEFITS
DOL’S NEW E-DISCLOSURE REGULATIONS
Bridget A. Blinn-Spears
Special Counsel
Raleigh, North Carolina 919.678.7593
QUESTIONS?
Jim Rourke
Member Columbia, SC 803.540.2030
