July 13, 2020

Volume X, Number 195

July 13, 2020

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July 10, 2020

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The NLRB Unwraps Several Post-Election Surprises for Employers

As the New Year opens, employers should be aware of a series of National Labor Relations Board decisions in major cases that will impact both union and nonunion operations. Many have speculated that the NLRB held off on making several of these decisions until after the fall elections. The NLRB was also concerned about getting some of these out before the expiration of the term of Member Hayes at the end of the year. For those who are keeping count, Member Hayes was the last Republican on the NLRB, and as many of these decisions show, he was a more employer-friendly voice than others on the Board.

Click here to learn more about the recent NLRB decisions regarding social media, disclosure of witness statements, deduction of union dues, bargaining before discharging or disciplining employees, and the drafting of mandatory arbitration agreements.

In addition, we would like to bring your attention to an upcoming deadline to preserve any potential FICA refunds on severance pay. The Court of Appeals for the Sixth Circuit recently held that severance pay is not subject to FICA taxes, creating a split among the circuits on this issue. If the Supreme Court upholds the Sixth Circuit's decision, employers will be able to obtain refunds for FICA taxes paid on severance payments. Given this legal landscape, employers that have paid a substantial amount of severance in recent years should consider filing a protective claim with the IRS for a refund of FICA taxes paid. Such a filing will extend the period of time for which FICA contributions on severance could be recovered, should the Supreme Court eventually rule against the IRS. The deadline for filing a protective claim for severance paid in 2009 is April 15, 2013. For severance paid in 2010, the deadline for filing a protective claim is April 15, 2014.

© 2020 Vedder PriceNational Law Review, Volume III, Number 18


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Vedder Price is known as one a premier labor and employment law firms, representing private and public sector management clients of all sizes in all areas of employment law. The fact that over 50 of the firm’s attorneys concentrate in employment law assures ready availability of experienced labor counsel on short notice; constant backup for all ongoing client projects; continual training and review of newer attorneys’ work by seasoned employment law practitioners; and intra-area knowledge that small labor sections or boutique labor firms cannot provide. Clients routinely call upon Vedder...