On June 1, the Supreme Court of the United States decided Thole v. U.S. Bank, National Association, a case involving a breach of fiduciary duty claim under the Employee Retirement Income Security Act (ERISA). In affirming the Eighth Circuit’s decision, the Court determined that Article III of the U.S Constitution does not permit individual participants and beneficiaries to bring such claims against fiduciaries responsible for the investment of assets for defined benefit pension plans.
A little more than one year ago, Taking Care of Business wrote about California’s adoption of a law, Senate Bill No. 826 (the California Statute), requiring gender-based diversity in the board room. A year later, the California Statute has been met with both enthusiasm and some criticism, including other states taking steps to enact, as well as enacting, similar laws and at least two lawsuits being filed in California opposing the California Statute.
Under the current U.S. Department of Labor (DOL) regulations, if certain conditions are met, an employer may pay an employee who works fluctuating hours a fixed salary for all hours worked and then an additional half-time for all hours over 40–a number that decreases as the number of hours increases. Uncertainty regarding this fluctuating workweek method has resulted in many employers opting not to use it. However, on November 5, 2019, the DOL announced a proposed rule that seeks to clarify that employers may provide additional pay such as bonuses or premiums to employees subject to the method, even when the additional pay is tied to the number of hours worked, without jeopardizing the use of the method. (more…)
By: Stephen Bowers
Employers subject to the Affordable Care Act’s employer mandate (generally, those with 50 or more full-time equivalents) are required to offer qualifying, affordable health insurance coverage to substantially all full-time employees in order to avoid significant penalties. Note that “full-time equivalents” include both full-time employees, as well as part-time or temporary employees, if the total number of hours worked is sufficient. It is also important to note that the number of employees is determined on a “controlled group” basis, meaning that even employers with a sufficient level of common ownership are counted together, even if their business operations are unrelated. (more…)
On June 13, 2019, the U.S. Departments of Health and Human Services, Labor and the Treasury issued final rules that will expand the use of health reimbursement arrangements (HRAs), which are a type of account-based health plan that employers can use to reimburse employees for their medical care expenses. The unpublished final rule is scheduled to be published on June 20, 2019, after which it can be found at the Federal Register. (more…)
By: Stephen Bowers
Recently, the IRS updated the Employee Plans Compliance Resolution System (EPCRS), a voluntary compliance program that allows employer sponsors of qualified plans, such as 401(k) and 403(b) plans, to correct administrative or operational errors for a reduced user fee or, in some circumstances, without any fee or fine paid to the IRS. The updated program significantly expands the availability and utility of EPCRS. (more…)
New Amendment to NJ Law Against Discrimination Renders Common Employment Agreement Provisions Unenforceable
New Jersey employers should take note of a newly enacted amendment to the New Jersey Law Against Discrimination (LAD) that directly impacts employment agreements and settlement agreements of discrimination claims. The amendment was signed by Governor Phil Murphy on March 18, 2019 and is effective immediately.
The Wage and Hour Division of the U.S. Department of Labor (DOL) recently issued an opinion letter that addresses whether employees must be compensated for the time they spend participating in an employer-sponsored community service program outside of normal working hours. The specific program reviewed by the DOL did not require employees to participate, did not direct or control the volunteer activities and also provided a reward to the group of employees with the greatest community impact. The winning group’s supervisor then maintained the discretion on how to distribute the award/bonus to each employee in the group based on multiple factors, including, but not limited to, how many hours each employee volunteered during the year.
By: Lori Smith
The other day I had a client ask me to review some form documents that another party wanted to use in connection with the client’s website. The basis of the request was that he thought I had prepared, or at least reviewed, these documents when they were originally created – over 10 years ago (coincidentally I had reviewed them, but had been somewhat critical, in part, at that time as off-market). This got me thinking about how many companies (and lawyers) rely on templates or precedential deal documents collected over many years, without thinking about the specific facts and circumstances of the deal they are doing or the passage of time and how that might implicate the need for updates and revisions.
By: Jeremy Miller
California Governor Jerry Brown recently signed legislation requiring all publicly-held domestic corporations and publicly-held foreign corporations headquartered within the state to comply with certain minimum gender-based requirements related to the composition of their board of directors. The new law could be viewed as a step in the right direction to advance gender equality at the highest levels of management, but is not without both proponents and opponents. (more…)
- Businesses Should Strike the Proper Balance Between Their Desire for Management Autonomy With Sensitivity to Social Justice Issues
- Cannabis Reform Introduced as a Response to the COVID-19 Crisis
- Supreme Court Limits Fiduciary Actions Under ERISA
- From Both Sides Now: Looking at Contracts Through a Post-Pandemic Lens
- Southern District of New York Reaffirms That Syndicated Bank Loans Are Not Securities