Workforce Bulletin

As featured in #WorkforceWednesday: This week, we’re breaking down the U.S. Supreme Court’s (SCOTUS’s) new workplace discrimination decision, the Equal Employment Opportunity Commission’s (EEOC’s) final rule on the Pregnant Workers Fairness Act (PWFA), and how recent artificial intelligence (AI) hiring tools have violated federal anti-bias laws.

As featured in #WorkforceWednesday: Efforts to address pay disparities have led to an increase in pay equity legislation that shows no signs of slowing down.

In this episode, Epstein Becker Green attorneys Kimberly Carter and Ann Knuckles Mahoney shed light on the dynamic shifts in pay equity laws across the nation.

From emerging trends to pivotal developments, discover how certain states are spearheading efforts to champion equal pay and enforce stringent pay data reporting requirements.

As featured in #WorkforceWednesday: The SECURE 2.0 Act revolutionized retirement planning by simplifying and expanding retirement and health plan benefits.

Over a year after the legislation became law, provisions are still rolling out. So, what’s new in 2024?

Epstein Becker Green attorneys Cassandra Labbees and Mason Gardner tell us more about the recent updates and guidance on the SECURE 2.0 Act.

Important changes are coming to the Massachusetts Paid Family and Medical Leave law (PFML),  which requires covered employers to provide eligible employees with paid time off for certain qualifying absences. First, the Massachusetts legislature recently adopted PFML amendments (HB 4053), which, effective November 1, 2023, permit employees to supplement their weekly PFML benefits with accrued paid leave, including vacation, sick time, and other paid time off (PTO). Second, the Massachusetts Department of Paid Family and Medical Leave (DFML) has released the new contribution ...

On July 28, 2023, Governor J.B. Pritzker signed into law House Bill No. 2068, “Transportation Benefits Program Act” (“Illinois Transit Law”), which requires employers to offer pre-tax transportation fringe benefits (“Transit Benefits”) to employees.

The Illinois Transit Law joins the growing trend of similar local and state pre-tax transportation fringe benefit laws already in effect in various cities and states, including New Jersey, New York City, Washington DC, San Francisco, and Seattle (See our previous blog post here and here).

Who is Subject to the ...

On September 5, 2023, the California legislature passed Senate Bill 403 (“SB-403”), paving the way for a state-wide ban on caste discrimination to be signed into law by Governor Gavin Newsom. 

SB-403 would amend the definition of “ancestry” under the California’s Unruh Civil Rights Act, Fair Employment and Housing Act, and certain provisions of the Education Code to include and define “caste.” According to the introductory language to the bill, rather than adding a new category of protected characteristics, the amendments “are declarative of and clarify ...

The time has come – New York employers are reminded that a statewide salary transparency law goes into effect on September 17, 2023. While many employers in New York City, Westchester County, the City of Ithaca and Albany County already contend with ordinances requiring disclosure of compensation information in job advertisements, Labor Law § 194-b (the “Law”) covers virtually all employers across the state. We previously reported on the approval of the Law here, and discussed details here and here.

What This Means

Employers throughout New York State ...

Section 603 of the SECURE 2.0 Act of 2022 (“Section 603”) implements changes to catch-up contributions and is applicable to employers who maintain a 401(k), 403(b), or 457(b) plan with participants who are age 50 and older and whose income from the prior year exceeded $145,000. Section 603 requires that catch-up contributions must be made as Roth contributions (i.e., after tax basis) for those earning more than $145,000. Originally, Section 603 was set to become effective starting in 2024. However, on August 25^th, 2023, in response to many industry groups urging for an ...

As we previously reported, on May 8, 2023, the New Jersey Department of Labor and Workforce Development (“NJDOL”) published a web page providing guidance in the form of Frequently Asked Questions (the “FAQs”) to assist employers in complying  with the provisions of the Temporary Workers’ Bill of Rights (the “Law”). Recently the NJDOL released proposed regulations to implement the Law (the “Proposed Regulations”) that elaborate on many of the Law’s provisions, including its pay equity requirement.  Public comment on the Proposed Regulations will be accepted until October 20, 2023.

In addition to the Proposed Regulations, the NJDOL has also updated its FAQs.

The nationwide growth of the “gig economy” has provoked the enactment of laws aimed at providing economic protection to freelance workers. In May 2023, the Columbus  City Council joined this national trend by amending the City’s “wage theft”  Ordinance to add obligations upon a “hiring party” that engages a “freelance worker.”  

The Ordinance broadly defines a “hiring party” to be “any person, including the City of Columbus, who retains a freelance worker to provide any service” and excludes only governmental entities other than Columbus. A “freelance worker” is an individual, whether or not the person has incorporated or is using a trade name.

As featured in #WorkforceWednesday:  This week, we break down the enforcement of the Pregnant Workers Fairness Act (PWFA), the U.S. Equal Employment Opportunity Commission’s (EEOC’s) EEO-1 report filing delay, and the U.S. Department of Labor’s (DOL’s) recent opinion on the Family and Medical Leave Act (FMLA).

It is time, again, to update your workplace posters. Coinciding with the effective date of the Pregnant Workers Fairness Act (“PWFA”), the U.S. Equal Employment Opportunity Commission (“EEOC”) released a revised “Know Your Rights” poster on June 27, 2023. The new poster replaces the one that was issued in late 2022, to add information regarding the PWFA.

The State of Texas infrequently regulates the workplace. This summer, however, Texas enacted two notable workplace laws about which employers should be aware.

Texas Regulatory Consistency Act

On June 13, 2023, Governor Greg Abbott signed House Bill 2127, the Texas Regulatory Consistency Act (the “Act” or “H.B. 2127”), which amends various Texas statutory codes, including the Labor Code, and preempts local lawmaking in various statutorily governed areas to assert Texas’s “sovereign regulatory powers.” Referred to by its opponents as the “Death Star Bill,” the Act is slated to take effect on September 1, 2023, and effectively prevents cities and counties from passing local ordinances beyond the scope of existing state laws in numerous fields of regulation, including labor and employment, agriculture, and finance.

Many employers commonly ignore requests from the New Jersey Division of Unemployment and Temporary Disability Insurance (“Division”) to provide the reason they terminated an employee’s employment.  With the recent amendments to the state’s Unemployment Compensation Law (UCL), effective July 31, 2023 (the Amendments), employers should rethink that practice.  This, among other changes to the UCL, should dramatically alter the way employers deal with New Jersey unemployment compensation claims.

Summarized below are key takeaways from the Amendments.

The first of the year brought with it new pay transparency obligations for employers in several states, including Rhode Island, California, and Washington.  Halfway through the year, this type of legislation remains a focus for legislators from coast to coast, including in jurisdictions like Colorado, where similar laws are already on the books. While these proposed laws are all generally rooted in pay equity principles, their substantive differences and sheer volume raise serious questions for employers looking to recruit, hire, and retain talented employees across the country.

As featured in #WorkforceWednesday:  This week, we’re recapping the last year of the Dobbs decision:

June 24, 2023, marks exactly one year since the widely controversial Dobbs v. Jackson Women’s Health Organization decision by the United States Supreme Court (SCOTUS).

Epstein Becker Green attorneys Susan Gross Sholinsky, Delia A. Deschaine, and Lucas Peterhans examine the impact this far-reaching SCOTUS decision has had on employee benefit plans and workplace policies, discrimination, and health care regulatory compliance.

Employers subject to the City of Chicago’s Sexual Harassment Ordinance must comply with the updated training requirements by June 30th or risk penalty.  As we previously advised, the amended Chicago Human Rights Ordinance requires all employers with at least one employee working within the geographical boundaries of the City of Chicago to provide the following annual training:

It’s time for covered employers to update their Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) posters.

The U.S. Department of Labor (DOL) has issued an updated FLSA Minimum Wage Poster to reflect covered employers’ new lactation accommodation obligations under the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.

As featured in #WorkforceWednesday:  May is Mental Health Awareness Month, and employers are taking the opportunity to examine their policies and procedures around employee mental health. 

Epstein Becker Green attorney Shira M. Blank tells us more about the role employers can play in promoting and supporting mental health in the workplace.

As featured in #WorkforceWednesday:  This week, we examine the decision of a Texas district court to strike down an Affordable Care Act (ACA) mandate on preventive medical services and look at the U.S. Department of Justice’s (DOJ’s) third trial loss in prosecuting wage-fixing and no-poach agreements. We also discuss the recent termination of the COVID-19 national emergency and the upcoming end of emergency benefits for employers on May 11, 2023.

The U.S. Department of Labor (DOL) recently published new resources regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). As we previously explained in detail, the PUMP Act amended the Fair Labor Standards Act (FLSA) to mandate that, unless an employer is specifically exempted under the law, the employer must provide reasonable break time to allow an employee to express breast milk, and must permit the employee to do so in a reasonably private location other than a bathroom.

As featured in #WorkforceWednesday:  The SECURE 2.0 Act of 2022 (“SECURE Act 2.0”) is a sweeping piece of retirement legislation with complex new provisions. This week, we highlight a few of the SECURE Act 2.0’s key changes for employer-sponsored 401(k) plans.

In the wake of the landmark decision in Dobbs v. Jackson Women's Health Organization, we have been closely monitoring legal developments across the country. In addition to well publicized “trigger laws” that were effectuated as a result of the U.S. Supreme Court’s order, states have taken up a variety of legislative actions in response to the ruling, which placed authority for the regulation of abortion with the states.

For more than two and a half years, employers across the country have navigated a nuanced web of legal requirements and guidance to safely operate during the global COVID-19 pandemic.  Recent updates to the legal landscape at the federal, state, and local level, however, have left many employers asking: is the COVID-19 pandemic finally over? For now, the answer remains “no.” This post discusses three key reasons why employers should continue to operate with the pandemic in mind.

With the final quarter of 2022 approaching, New York employers should be aware of the changes to the New York Paid Family Leave (“Paid Family Leave”) program set to take effect in 2023. Employers can expect an increase on the weekly benefits cap, as well as a decrease in the employee contribution rate.

Beginning in 2018 and increasing in benefits over the past few years, the Paid Family Leave program provides eligible employees with up to 12 weeks of job-protected, partially-paid time off to bond with a new child, care for a family member with a serious health condition, or to provide assistance when a family member is deployed abroad on active military service. As we previously reported, New York expanded the program’s definition of “family member” to include “siblings,” which will take effect on January 1, 2023. “Sibling” includes biological or adopted siblings, half-siblings, and step-siblings.

On June 7, 2022, the District of Columbia Council approved the Fiscal Year 2023 Budget Support Act of 2022 (“Act”), which includes an increase to the number of weeks of paid leave available to eligible employees through the Universal Paid Leave Act (“UPLA”) (also known as “Paid Family Leave,” or “PFL”).  Generally, as we previously explained, PFL-eligible employees are those who spend at least 50 percent of their work time – whether full time or part time – in D.C.

Employment issues to consider while awaiting decision in Dobbs v Jackson Women’s Health Organization

The United States Supreme Court (“SCOTUS”) will imminently release its decision in Dobbs v Jackson Women’s Health Organization, and if the final ruling is consistent with the recently-leaked draft opinion (overturning Roe v Wade and Planned Parenthood v Casey), employers may soon need to contend with a variety of novel employment and benefits related issues. Some employers have already begun to consider and plan for a post-Roe workplace. Those who have not would be wise to do so now, to best ensure a well-coordinated and thoughtful approach.

For example, some employers have publicly announced plans to provide expanded healthcare benefits, travel, lodging and other benefits to employees who may seek abortion-related services in states where those medical services will be prohibited or limited.  These benefits raise complex legal issues applicable to employers’ group health plans and fringe benefit plans, including conflicts between federal and state law, federal ERISA preemption and potential employer civil and/or criminal liability for providing these benefits.

On May 25, 2022, the U.S. Department of Labor announced that the Wage and Hour Division (WHD) published new Family and Medical Leave Act (FMLA) Guidance. The newly issued Fact Sheet #280 explains when eligible employees may take FMLA leave to address mental health conditions, and new Frequently Asked Questions (FAQs) offer explanations on how to address various scenarios that employers and employees could face in which use of job-protected leave available under the FMLA would be appropriate.

Reviewing FMLA Basics

Although the FMLA covers public and private employers nationwide, only those private employers who have 50 or more employees for at least 20 workweeks in a year are required to provide their eligible employees with FMLA leave. FMLA leave is unpaid but job-protected, meaning that employees returning from FMLA leave must be restored to their original job or equivalent position. Employees are eligible once they have worked for a covered employer for at least 12 months and logged at least 1,250 hours of work during the period immediately preceding leave, which may be taken for an employee’s own serious health condition or to care for a spouse, child, or parent because of their serious health condition.

Due to a surplus in the Universal Paid Leave Fund (the “Fund”), D.C. employees who are covered by the District’s Paid Family Leave (PFL”) program will soon be eligible for the maximum amount of paid family leave benefits permitted under the law.

As discussed in our previous Insight, starting in 2022, under the Universal Paid Leave Emergency Amendment Act of 2021 (“PLEAA”), the District’s Chief Financial Officer (“CFO”) may modify the maximum duration of leave available under the PFL program annually depending upon the projected balance of the Universal Paid Leave Fund.  On March 1, 2022, the Acting CFO certified that the Fund has enough money to increase the potential maximum duration of qualifying paid leave available to D.C. employees as follows:

On March 29, 2022, the U.S. House of Representatives passed H.R. 2954, entitled “Securing a Strong Retirement Act” (“Secure 2.0”), which would, among other things, impose additional requirements on employers that sponsor 401(k) and 403(b) plans. Secure 2.0 has not yet been passed by the Senate, and is likely to undergo changes, if passed by the Senate.  Nevertheless, the following overview of some of the provisions included in the House version of Secure 2.0 provides a preview of the types of changes that retirement plans sponsors may be required (or permitted) to implement, as early as this year or in 2023:

On March 28, 2022, the New York City Commission on Human Rights released official guidance (Guidance) regarding the upcoming pay transparency law, Int. 1208-B (Law), which requires all advertisements for jobs, promotions, and transfer opportunities for positions performed in the City to include a minimum and maximum salary range.  As we previously reported, the City Council passed the Law on December 15, 2021, and it currently is expected to take effect on May 15, 2022.

In addition, amendments to the Law have recently been introduced in the New York City Council (T2022-5021 (Bill)) which, if passed, will modify the Law in important ways, including delaying its effective date and further clarifying its requirements.

As featured in #WorkforceWednesday:  This week, we look at how employers can make adjustments to their benefits policies to assist employees who want to offer help and support to Ukraine.

The Supreme Court’s January 24, 2022 decision in Hughes v. Northwestern University, has caused alarm in some corners, with panicked predictions of a proliferation of ERISA suits alleging that defined contribution plans provided imprudent investment options.  However, Hughes should be more properly understood as rejecting an attempt by the U.S. Court of Appeals for the Seventh Circuit to impose a novel limit on excessive fee suits.  The Supreme Court instead emphasized the application of its existing precedent in Tibble v. Edison International, 575 U.S. 523 (2015).

The Seventh Circuit had dismissed a class action complaint alleging the trustees of Northwestern Universities’ retirement plans breached their fiduciary duties by including imprudent investments among the investment options offered under the plans.  The trustees offered more than 400 various investment options, several of which the plaintiffs asserted were imprudent and many of which were not.  The Seventh Circuit held that the plaintiffs’ allegations failed as a matter of law (that is, could be dismissed without discovery or trial) because plaintiff’s preferred investment options were available under the plan (albeit alongside the allegedly imprudent options).  Therefore, the Seventh Circuit considered the trustees to be blameless for any fiduciary breaches because the plaintiffs simply could have avoided the allegedly imprudent investments and chosen the prudent ones.

New York recently updated two significant aspects of its Paid Family Leave program: (1) expanding the definition of “family member” to include siblings and (2) increasing the cap on weekly benefits available.

Since its inception in 2018, Paid Family Leave has offered eligible employees the ability to take  job protected, partially-paid time off to bond with a new child, care for a family member with a serious illness, or provide assistance when a family member is deployed abroad on active military duty. In 2020, after years of gradual increases in the maximum amount of leave and benefits, eligible employees may use up to 12 weeks of Paid Family Leave per rolling 52-week period.

On November 19, 2021, the U.S. House of Representatives passed the Build Back Better Act (BBBA or the Act), [1] which, if enacted, would be the first federal enhancement of family and medical leave for private sector workers since the enactment of the Family and Medical Leave Act (FMLA) in 1993. While the BBBA does not go as far as initially proposed (12 weeks of paid leave), it would expand upon the FMLA’s current unpaid protections by providing up to four weeks of paid caregiving leave. Further, the BBBA would allow paid leave benefits for a broader group of eligible workers and for additional qualifying family members beyond those covered by the FMLA. If enacted, the paid family leave program would become effective January 2024.

As we previously reported, the Centers for Medicare and Medicaid Services’ (CMS) interim final rule (“the Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified providers and suppliers (i.e., the “vaccine mandate”) has been challenged in the U.S. District Courts for the Eastern District of Missouri (“the Missouri Court”) and the Western District of Louisiana, Monroe Division (“the Louisiana Court”).  As of the date of this writing, both Courts have granted preliminary injunctions placing the Rule on hold.

On November 29, 2021, the Missouri Court granted a preliminary injunction of the Rule, which applies to the coalition of ten states [1] that filed the challenge there. The following day, the Louisiana Court entered a similar injunction, which applies to the remaining forty states.

The Decisions

On October 5, 2021, New Jersey Governor Phil Murphy signed A681 (“Law”) into law, strengthening the state’s protections against age discrimination by amending the Law Against Discrimination (LAD) to:

• delete the provision that had allowed employers not to hire or to promote employees over age 70 because of their age;
• delete the provision that permitted higher education institutions to require tenured employees to retire at 70 years old; and
• provide that an employee may seek all remedies permitted by the LAD if required to retire because of age, instead of being limited to ...

As we previously reported, the American Rescue Plan Act of 2021 (ARPA) was signed into law on March 11, 2021, requiring, among other things, the Pension Benefit Guaranty Corporation (PBGC) to issue its implementing regulations by July 9, 2021. As promised, PBGC issued an interim final rule, 86 Fed. Reg. 36598 (July 12, 2021) (the IFR), on a major element of the rescue plan―the Special Financial Assistance Program (SFA)―intended to provide a one-time payment to the estimated 200 most financially troubled multiemployer pension plans to help them survive and pay pensions through ...

The recent Seventh Circuit decision in Halperin v. Richards provides a reminder to ERISA fiduciaries who are also corporate officers (frequently referred to as “dual-hat officers”) that they can be held liable under both ERISA and state tort law for the same underlying acts.

When paper company Appvion Inc. filed for bankruptcy in 2017, the liquidation plan granted Appvion’s creditors the right to pursue state law tort claims against former Appvion executives.  Halperin v. Richards concerned state law claims raised by certain creditors against former Appvion executives ...

On July 15, 2021, the Internal Revenue Service (“IRS”) updated its Employee Plans Compliance Resolution System (“EPCRS”) by issuing Revenue Procedure 2021-30 (PDF). The EPCRS changes and revisions, which generally became effective on July 16, 2021, are beneficial to plan sponsors, participants and the retirement plan community.

The IRS has long provided a basic structure for the EPCRS and its underlying programs consisting of: (a) the Self Correction Program (“SCP”) – which allows plan sponsors to self-correct certain failures using pre-approved methods ...

The Illinois Employee Sick Leave Act (“Act”) is what is known as a “kin care” law; i.e., it generally requires Illinois employers that provide paid or unpaid personal sick leave benefits to their employees to allow employees to use such leave to attend to a covered family member’s illness or injury, “on the same terms” as the employees would use their sick leave benefits for their own illness or injury. A “covered family member” means an employee's “child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild ...

As featured in #WorkforceWednesday: This week, our special podcast series, Employers and the New Administration, concludes with a look at how President Biden’s landmark American Rescue Plan impacts employers.

As President Biden’s first 100 days come to a close, his $1.9 trillion American Rescue Plan Act of 2021 (ARPA) is having a big impact on employers. The plan, one of the largest stimulus bills in history, attempts to provide relief to constituents affected by the COVID-19 pandemic through several ways, among those ways are changes to employee benefits and compensation.

In ...

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (“ARPA”).  ARPA is the latest COVID-19-related stimulus legislation passed by Congress, but, unlike prior legislation, ARPA provides expansive funding rule changes and significant financial assistance to deeply underfunded multiemployer pension plans, including a one-time payment to certain plans from the Pension Benefit Guaranty Corporation (“PBGC”) without any repayment obligations.

ARPA’s provisions regarding multiemployer pension plans focus primarily on the plans ...

Preparing the terms of employee compensation can be a resource-intensive task requiring input from stakeholders across numerous departments, including human resources, finance, and legal. However, as the Massachusetts Appeals Court’s recent decision in Alfieri v. Merrimack Pharmaceuticals, Inc. demonstrates, investing those resources to complete the task will pay dividends when an employer is faced with a potentially costly claim for unpaid wages.

Background

In May 2014, Merrimack Pharmaceuticals, Inc. sent Michael Alfieri a letter offering him the position of ...

As part of the American Rescue Plan Act of 2021 ("ARPA"), signed into law on March 11, 2021, employers will be required to provide, on a tax-free basis, a subsidy to employees and their qualified beneficiaries to pay 100% of the COBRA continuation premium for group health plan coverage. This subsidy applies only to “assistance eligible individuals,” who are eligible for COBRA as a result of an involuntary termination of employment or a reduction in hours and who are, or could have been, eligible for COBRA during the period of April 1, 2021 through September 30, 2021 (the "Subsidy ...

One of the changes included in the American Rescue Plan Act of 2021 (the “Act”) is a temporary increase to the annual limit on pre-tax contributions to a dependent care flexible spending account (“DCFSA”) that can be excluded from income. For single taxpayers and married couples filing jointly, the limit increases to $10,500 (from $5,000) and for married individuals filing separately, the limit increases to $5,250 (from $2,500).  This change is effective for plan years beginning after December 31, 2020 and before January 1, 2022.

Employers who intend to amend their DCFSAs to ...

As featured in #WorkforceWednesday:  In this episode, hear from EEOC Commissioner Keith Sonderling. As a sitting commissioner, Mr. Sonderling has a unique perspective on priorities, new initiatives, and the outlook for what employers can expect from the agency in 2021. Attorney David Garland leads the conversation.

Employers and the New Administration is a special podcast series from Employment Law This Week®, with analysis of the first 100 days of the Biden administration. Special podcast episodes air every other #WorkforceWednesday.

If you’d like to hear ...

The Westchester County Human Rights Commission (the “Commission”) has announced that the county’s Earned Sick Leave Law, which went into effect on April 10, 2019, has been preempted by New York’s Paid Sick Leave Law (“Law” or “PSLL”), which took effect on September 30, 2020. Westchester County’s law had required that eligible employees accrue one hour of sick time for every 30 hours worked, up to a maximum of 40 hours per year.

As we previously covered, the PSLL applies to all private employers and employees in New York State, and requires employers to provide up to 40 ...

As we previously reported, the Massachusetts Department of Family and Medical Leave (“DFML” or the “Department”) continues to provide guidance as it rolls out the state’s Paid Family and Medical Leave program (“PFML” or the “law”), which provides eligible workers with partial income replacement benefits for qualifying reasons.  As a reminder, beginning January 1, 2021, workers may take paid family leave to: (i) bond with a newborn, newly adopted child, or new foster child; (ii) manage family affairs for a family member who is on active military duty in a ...

In 2019, the Connecticut legislature passed sweeping changes to the state’s existing Family and Medical Leave Act, about which we previously reported here.  One of the most significant changes is that beginning in 2022, eligible employees will be entitled to paid family and medical leave.  Although the paid leave requirement does not take effect until next year, there are a number of 2021 deadlines about which employers should be aware.

Website and Mandatory Employer Registration

The 2019 amendments to the PFMLA created the Connecticut Paid Leave Authority (the ...

On December 21, 2020, Congress passed the Consolidated Appropriations Act of 2021 (CAA) which modifies or extends to March 14, 2021 many of the relief programs first created in March 2020 by the Coronavirus Aid, Relief and Economic Security Act (CARES Act), including three expanded unemployment insurance benefits programs (which we previously blogged about here) and a new benefit program for “mixed earners”.  We provide here a summary of the updates to those programs.

Federal Pandemic Unemployment Compensation

The CAA includes a modified version of the Federal Pandemic ...

Many employers have established wellness programs to promote employee health and, in doing so, help counter the ever increasing costs associated with employer-sponsored health benefit plans. Often employers want to establish programs that provide employees with incentives to achieve certain health outcomes, such as smoking cessation or weight loss. Employers must exercise caution in creating such health-contingent wellness programs, which necessarily require employees to disclose health information, because the Americans with Disabilities Act (“ADA”) and the ...

On January 14, 2021, President-elect Joe Biden released his $1.9 trillion emergency stimulus plan, designed primarily to guide the country through the next medical and economic stages of the COVID-19 pandemic.  The American Rescue Plan (“ARP”) also includes non-COVID-19 related proposals, such as a mandatory $15 per hour minimum wage and funding to improve cybersecurity.

The following is a non-comprehensive overview of the ARP, which will require Congressional legislative passage.

As featured in #WorkforceWednesday:  With President-Elect Biden's inauguration next week, and the Democrats taking a narrow majority in both houses of Congress, we’re likely to see shifts in policy at the agencies that regulate employment. Attorney Robert O'Hara discusses what we're likely to see coming out of the EEOC in the near term, and how the change in party control could affect the agency moving forward.

Video: YouTube, Vimeo.

As featured in #WorkforceWednesday:  President-Elect Biden has chosen Marty Walsh to serve as Labor Secretary in his administration. Walsh is Boston’s mayor and a former top union leader. Attorney David Garland tells us more.

Video: YouTube, Vimeo, Instagram.

On October 30, 2020, the Department of Labor (DOL) adopted the Final Rule amending the Investment Duties DOL Regulation, §2550.404a-1, which governs the obligations of ERISA fiduciaries when selecting investments for ERISA plans.  The Final Rule made several changes to the June 2020 Proposed Rule, which proposed to define the duties of fiduciaries when considering investments that promote environmental, social, and corporate governance goals (ESG investments).  As reported here, DOL received extensive and largely negative comments to the Proposed Rule and most of the ...

The Families First Coronavirus Response Act (“FFCRA” or the “Act”) paid leave mandates are set to expire on December 31, 2020.  As explained in our March 20, 2020 Act Now Advisory, the FFCRA requires employers with fewer than 500 employees to provide up to 80 hours of Emergency Paid Sick Leave and up to 12 weeks of Public Health Emergency Leave due to COVID-19-related reasons.  The FFRCA also provides employers with a payroll tax credit equal to 100 percent of the cost of the paid leave taken by employees in accordance with the Act.

With COVID-19 continuing to surge across the ...

Proposed Paid Sick Leave Law Regulations

As we previously reported, New York State’s Paid Sick Leave Law (“PSLL”) went into effect on September 30, 2020. The PSLL requires all New York private employers to provide paid sick leave, which employees may begin using as of January 1, 2021. The amount of sick leave that employers must provide their employees annually depends on the employer’s size and income. On December 9, 2020, the NY Department of Labor published proposed regulations clarifying a number of issues relating to the PSLL as summarized below.

Definitions

• Defines ...

As featured in #WorkforceWednesday:  California voters passed Proposition 22, which will exempt app-based transportation and delivery network companies from the state’s AB5 worker classification law. Attorneys Amy Ramsey and Kevin Sullivan tell us what this means for CA employers and the gig economy more broadly. You can read more here.

Video: YouTube, Vimeo, MP4, Instagram.

Although cannabis (marijuana) remains an illegal substance under federal law, companies in the cannabis industry are not exempt from complying with federal laws in general. A recent flurry of complaints filed in federal courts and with federal administrative agencies have highlighted the obligation of companies in the cannabis industry to comply with Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (the “ADEA”), and the Americans with Disabilities Act (the “ADA”). These employers must also remain compliant ...

On September 17, 2020, California Governor Gavin Newsom signed Senate Bill 1383 (“SB 1383“), expanding job-protected family leave for employees of companies with five or more employees. Previously, only employees of companies with 20 or more employees were entitled to these protections. According to the Governor’s office, this law, which becomes effective January 1, 2021, will expand job-protected family leave to nearly six million additional Californians.

Existing Law

The California Family Rights Act (“CFRA”) currently makes it any an unlawful employment ...

On September 9, 2020, California Governor Gavin Newsom signed Assembly Bill 1867 (“AB 1867”), mandating supplemental paid sick leave for employees of companies with 500 or more employees. AB 1867 fills gaps left open by the federal Families First Coronavirus Response Act (“FFCRA”) (previously discussed here) and the Executive Order signed by Newson on April 22, 2020, which only applied to essential food workers (previously discussed here).

The sick leave portions of the law are effective immediately and covered employers must make the leave available no later than ...

As we approach the last quarter of 2020 and the business community begins to plan ahead for 2021, New York employers should be aware of the changes coming to the New York Paid Family Leave (“NYPFL”) program. On January 1, 2021, the amount of employee contributions, the number of weeks of leave and benefits, and the amount of weekly benefits granted under the program are scheduled to increase. This will be the last of three annual increases in weekly benefits.

The NYPFL program, which took effect in 2018, provides partially-paid, job-protected leave for bonding with a new baby, caring ...

On August 13, 2020, 11 years after the enactment of the Fair Work Act 2009 (Cth) (the “FW Act”), Australian employers received guidance from the High Court regarding how to count the entitlement to “10 days” of personal leave per year of employment, as required under Section 96 of the FW Act.

The High Court determined that employees’ leave entitlement is equivalent to the average of employees’ “ordinary hours” of work over the course of a two-week period (i.e., 1/26^th of the ordinary hours of work in a year) and not 10 “working days” of paid leave per year. This ...

The beginning of the school year has added to a mire of uncertainty of how to manage work and family in our current COVID-19 world. Some schools have reopened to full-time in-person classes, while others have adopted full-time remote learning; still others have opted a hybrid model that mixes the two, and some give parent the choice of whether to send their children to school or have them login. Added to this, decisions once made are subject to reversal, if new COVID-19 cases enter the picture.  So now, on top of everything else that the COVID-19 crisis has affected, working parents must try ...

On July 24, 2020, Connecticut Governor Lamont issued Executive Order JJJ (“E.O. JJJ”), which creates a presumption that employees who contracted COVID-19 in the early days of the pandemic contracted it at work and are eligible for workers’ compensation benefits.

Pursuant to E.O. JJJ, there shall be a “rebuttable presumption” that an employee, who makes a claim for benefits under the Workers’ Compensation Act, and who missed one or more days of work between March 10, 2020 and May 20, 2020, inclusive, due to a diagnosis of COVID-19 or symptoms that were diagnosed as ...

While the country remains focused on the COVID-19 pandemic, U.S. employers cannot ignore the ongoing opioid epidemic or how it may affect their workforces.  On August 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) released new guidance addressing the rights of opioid users in the workplace under the Americans with Disabilities Act (“ADA”).[1]  The two question-and-answer documents clarify that while current illegal drug use is not protected, employees who “are using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not ...

Employers that are fiduciaries of participant-directed individual account plans (such as 401(k) plans) subject to the Employee Retirement Income Security Act of 1974, as amended (‘Plans” and “ERISA”, respectively) should be pleased with the position taken by the Department of Labor (“DOL”) in an information letter dated June 3, 2020 (the “Letter”) addressing the use of private equity investments in designated investment alternatives offered in Plans.  The DOL states that, subject to the standards and considerations set forth in the Letter (and summarized ...

On June 15, 2020, and June 24, 2020, New York Governor Andrew Cuomo issued two Executive Orders (“EO”) numbers 202.45 and 205, which address COVID-19 travel-related restrictions. EO 202.45 temporarily modifies New York State’s pandemic-related Sick Leave Law to prohibit employees from receiving paid sick leave benefits if, as of June 25, 2020, they travel to a “restricted state” for non-work related reasons and contract COVID-19. EO 205 (the “Travel Advisory”) imposes a 14-day quarantine requirement on travelers from a “restricted state” entering New York ...

In a recent 5-4 decision, the Supreme Court, in Thole v. U.S. Bank N.A., 590 U.S. __ (2020), held that participants in defined benefit pension plans lack standing to sue plan fiduciaries for allegedly imprudent plan investments where the participants continue to receive their full benefits and no imminent risk that they will cease receiving their full benefits appears.

Defined benefit plans—once the staple of employer-sponsored retirement plans but now a diminishing share of that group—guarantee a monthly payment in retirement using a formula based on years of service and ...

In EBSA Disaster Relief Notice 2020-01, “Guidance and Relief for employee Benefit Plans Due to COVID-19 (Novel Coronavirus) Outbreak” ( “Notice”), the DOL provided sponsors of defined contribution plans subject to ERISA relief from DOL enforcement action for failure to timely forward participant contributions and loan repayments to the plan during the period from March 1, 2020, and to the 60th day following the announced end of the National Emergency.   This DOL relief, however, appears to be limited to ERISA violations and does not appear to provide protection from the ...

Plan participants and their beneficiaries may now have extra time to exercise some of their rights under the employee benefit plans in which they participate.  On April 28, 2020, the Department of Labor, the Internal Revenue Service, and the Department of the Treasury issued a joint notice extending certain timeframes applicable to employee benefit plans. The joint notice was published as a final rule in the Federal Register on May 4, 2020 (“Final Rule”), issued pursuant to Section 518 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), as recently ...

As the COVID-19 state of emergency continues, businesses are implementing and considering a variety of employee-related measures to manage the impact of the crisis. While some businesses may avail themselves of payroll protection programs and loans to maintain the status quo, others may be faced with having to implement reductions-in-force (RIFs), furloughs and layoffs.  Added to this, employers may be faced with larger numbers of leaves of absence both because of COVID-19-related health and family care reasons, but also when certain workers have been called to duty.  The ...

During this global health emergency, many employers are facing the necessity of curtailing operations and imposing temporary layoffs or furloughs with their workforce.  As a critical consideration, employers have been asking whether and to what extent they may permit group health care coverage to continue during a period of temporary layoff or furlough.

The following questions and answers provide some general guidelines and legal issues to consider in deciding whether to extend group health coverage during a temporary layoff or furlough.

What do we mean by temporary layoffs or ...

Fiduciaries of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) that appoint investment managers (“Appointing Fiduciaries”) will be interested in the opinion of the U.S. District Court for the Western District of Pennsylvania in Scalia v. WPN Corporation, et al (“WPN”) regarding their duty to monitor investment fiduciaries.  Given the potential risk related to a breach this fiduciary duty, the WPN opinion is likely to be an important one for Appointing Fiduciaries.

In WPN, the Department of Labor alleged ...

Our colleagues Jeff Landes, Jeff Ruzal, and Adriana Kosovych are featured on Employment Law This Week - Predictive Scheduling Laws, the New Normal? - Deep Dive Episode speaking on predictive scheduling laws and the impact on business. Taking the guesswork out of scheduling for wage workers is an attractive proposition for regulators. Laws that require employers to publish employee work schedules a certain amount of time in advance so that employees (especially those in the hospitality and retail industries) can have greater flexibility and work-time predictability to deal ...

Financial institutions and advisers that manage retirement plan assets and are subject to the regulations of the Department of Labor (“DOL”) under the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”) regarding fiduciary duties (the “Fiduciary Rule”) may also be subject to state law violations for failure to comply with the Fiduciary Rule. The Enforcement Section of the Massachusetts Division of the Office of the Secretary of the Commonwealth (the “Massachusetts Enforcement Section”) filed an administrative complaint (the ...

On November 2, 2017, three Republican Representatives, Mimi Walters (R-CA), Elise Stefanik (R-NY), and Cathy McMorris Rodgers (R-WA), introduced a federal paid leave bill that would give employers the option of providing their employees a minimum number of paid leave hours per year and instituting a flexible workplace arrangement. The bill would amend the Employee Retirement Income Security Act (“ERISA”) and use the statute’s existing pre-emption mechanism to offer employers a safe harbor from the hodgepodge of state and local paid sick leave laws. Currently eight ...

In Prince v. Sears Holding Corp., the United States Court of Appeals for the Fourth Circuit (the “Fourth Circuit” or the “court”) sets forth a test that should assist sponsors of employee benefit plans covered by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) in identifying when participants’ state law claims may be removed to the federal courts.  The Fourth Circuit offers a clear explanation of complete preemption under Section 502(a) of ERISA and the test to determine if Section 502(a) completely preempts a state law claim.

Summary of the ...

Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the conflict of interest rule released by the DOL in April 2016 (the “Rule”) on their plans. Even though it is widely expected that the Trump administration will delay implementation of the Rule, in mid-January 2017, the DOL released its “Conflict of Interest FAQs (Part II – Rule)”, which addresses topics relevant ...

Our colleague Sharon L. Lippett, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the technology industry: “New DOL FAQs Provide Additional Guidance (and Comfort) for Plan Sponsors.”

Following is an excerpt:

Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the ...

Our colleague Sharon L. Lippett, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the retail industry: “New DOL FAQs Provide Additional Guidance (and Comfort) for Plan Sponsors.”

Following is an excerpt:

Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the conflict of ...

Advisers and financial institutions that are compensated based on a fixed percentage of the value of assets under management may want to reconsider that compensation methodology as it could require compliance with a prohibited transaction exemption, such as the Best Interests Contract Exemption (the “BIC Exemption”), which is a component of the fiduciary rule issued by the Department of Labor (the “DOL”) in April 2016 (the “Final Rule”).  While stating in the recently published “Conflict of Interest FAQs” (the “FAQs”) that the ongoing receipt of a fixed ...

By Michelle Capezza (Member of the Firm, Epstein Becker Green) and Howard Gerver (President, ACA Managed Services)

As employers prepare the Affordable Care Act information reporting filings for the 2016 year that will be due in 2017 (notably the 1094/1095 B&C), the good faith standard of compliance, and the potential for inaccuracies, is no longer available.  In order to seek a waiver of penalties for the 2016 filings made in 2017, an employer will need to meet a standard of reasonable cause and no willful neglect.  With this standard, an employer must show that there are significant ...

Today, Law360 published our article “Considering Best Data Practices for ERISA Fiduciaries.” (Download the full article in PDF format.)

In this article, we outline steps that ERISA plan fiduciaries can take to develop a policy concerning protection of plan data and prudent selection and monitoring of plan service providers who handle PII.  Benefit plan service providers, including technology-based outsourcing companies, should also consider these important guidelines and implement the appropriate safeguards to protect against infringement of plan and participant ...

By: Anna Kolontyrsky and Jeffrey Landes

As summer internship season approaches, financial service employers should confirm that their internship programs comply with all relevant laws, including the requirements of the Fair Labor Standards Act (“FLSA”) and applicable state laws.  Ascribing the term “intern” to a college or postgraduate student working for an employer for a short duration during the summer months does not automatically exempt the employer from federal and state minimum wage and overtime requirements. Unless the position meets certain statutory and ...