Workforce Bulletin

Strategic ERISA (Employee Retirement Income Security Act) plan design and administration require more than just technical compliance—they call for foresight into how plans will hold up under legal scrutiny.

In this one-on-one interview, Epstein Becker Green attorney Jeb Gerth, an experienced litigator in ERISA cases, joins George Whipple to explore the critical role a litigator plays in reinforcing plan integrity. Jeb explains how incorporating a litigation perspective into the planning and administration process acts as a "stress test," helping to identify areas that might attract legal challenges or class action claims. He also discusses key vulnerabilities in ERISA plans, such as discretionary decision-making and inadequate documentation, and how addressing them proactively can reduce the risk of costly disputes.

With class actions often resulting in significant judgments and additional exposure through fee-shifting structures, Jeb provides practical, real-world guidance on preparing plans to withstand these challenges. From uncovering hidden risks during early plan administration to enhancing fairness and clarity in plan documents for both participants and courts, this conversation offers essential strategies for leaders looking to protect their organizations from potential litigation while fostering trust and compliance.

As featured in #WorkforceWednesday®: This week, we are focused on the immediate impact employers face from the rush of Trump administration executive orders, memos, and proclamations.

On January 20, 2025, President Trump began his second term. On his first day back, he signed a record-breaking number of executive orders, many of which have a direct impact on both public- and private-sector employers.

In this week’s episode, we turn to Epstein Becker Green attorney Paul DeCamp to help clients make sense of this flurry of activity. Tune in as Paul outlines what employers can anticipate from Trump 2.0 in the months ahead.

On January 20, 2025, a new administration took control of the Executive Branch of the federal government, and it has signaled that it will make aggressive use of executive orders.  This would be a good time to review the scope of executive orders and how they may affect employers and health care organizations.

Executive orders are not mentioned in the Constitution, but they have been around since the time of George Washington. Executive orders are signed, written, and published orders from the President of the United States that manage and direct the Executive Branch and are binding on Executive Branch agencies.  Executive orders can be used to implement or clarify existing federal law or policies and can direct and manage the way federal agencies interact with private entities.   However, executive orders are not a substitute for either statutes or regulations.

The current procedure for implementing executive orders was set out in a 1962 executive order that requires that all such orders must be published in the Federal Register, the same publication where executive agencies publish proposed and final rules. Once published, any executive order can be revoked or modified simply by issuing a new executive order.  In addition, Congress can ratify an existing executive order in cases where the authority may be ambiguous.

As the Southern California wildfires rage on with devastating consequences, employers may be grappling to formulate an appropriate response. Employers may have specific legal obligations as well as optional ways to provide assistance to affected employees. This publication addresses applicable employment laws that implicate pay, leaves, and other aspects of employment that may be impacted by the wildfires. Employers should also review our publication on special benefits they may wish to provide.

Employer Obligations

Notice Requirement for New Hires

California law requires employers to provide non-exempt employees with a wage theft notice upon hire. Among other requirements, employers must notify employees if there is a state or federal emergency or disaster declaration applicable to the county or counties where the employee will work issued within 30 days before the employee’s first day of employment that may affect their health and safety. Accordingly, employers in Los Angeles and Ventura counties will need to notify non-exempt employees starting employment within thirty days after January 7, 2025 that the Governor issued an Emergency Proclamation related to the wildfires if the emergency may affect their health and safety during their employment.

The wildfires moving through Southern California have destroyed communities and displaced countless individuals. While the nation’s first responders are tirelessly working to contain and neutralize the devastation, many employers are grappling with how best to provide support for their affected employees.

Disaster Assistance to Employees

Employers may consider offering the following disaster assistance directly to employees:

• Qualified Disaster Relief Payments: Under Section 139 of the Internal Revenue Code of 1986, as amended (the “Code”), employers operating in states such as California, receiving FEMA assistance can make tax-free qualified disaster relief payments directly to impacted employees. The payments can be made for reasonable and necessary personal, family, or living expenses as a result of a qualified disaster. Funeral expenses as a result of a qualified disaster will also qualify under these payments. However, employers should be aware that these payments do not cover income replacement payments or expenses reimbursed through insurance of FEMA grants.
• Charitable Emergency Funds: Employers may provide tax-free emergency funds to employees through related 501(c)(3) charities and foundations. The specific rules and requirements for these 501(c)(3) entities, including whether and to what extent contributions are deductible, differ depending on whether the entity is an employer-sponsored public charity, an employer-sponsored private foundation, an employer-sponsored donor advised fund, or an unrelated public charity.

As featured in #WorkforceWednesday: This week, on our Spilling Secrets podcast series, our panelists discuss how to navigate “group lift-outs,” in which one company hires multiple employees from another company at or about the same time.

Group lift-outs are among the most challenging circumstances to navigate in the trade secrets and non-compete space. While possible in virtually every industry, they have become increasingly common in industries such as financial services, insurance, technology, and even design and apparel.

In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer, A. Millie Warner, Alexander C.B. Barnard, and Haley Morrison explain the myriad of complications that can arise in these scenarios, ranging from trade secret and non-compete violations to work-related emotional and abandonment issues.

As we enter 2025, the rapid growth of artificial intelligence (AI) presents both transformative opportunities and pressing legal challenges, particularly in the workplace. Employers must navigate an increasingly complex regulatory landscape to ensure compliance and avoid liability.  With several states proposing AI regulations that would impact hiring practices and other employment decisions, it is critical for employers to stay ahead of these developments.

New York      

New York’s proposed legislation, which if passed would become effective January 1, 2027, provides guardrails to New York employers implementing AI to assist in hiring, promoting, or making other decisions pertaining to employment opportunities.  Unlike New York City Local Law 144, which covers only certain employment decisions, the New York Artificial Intelligence Consumer Protection Act (“NY AICPA”), A 768, takes a risk-based approach to AI regulation, much like that of Colorado’s SB 24-205.  The NY AICPA would specifically regulate all “consequential decisions” made by AI, including those having a “material legal or similarly significant effect” on any “employment or employment opportunity.” The bill imposes compliance obligations on “developers” and “deployers” of high-risk AI decision systems. 

As featured in #WorkforceWednesday®: This week, while recognizing that it’s far from “business as usual” in California and keeping our friends and clients in mind, we look at a new ruling in California regarding Private Attorneys General Act (PAGA) arbitrations.

We also examine a federal appeals court decision limiting the authority of the National Labor Relations Board (NLRB) and the flurry of new employment laws taking effect in 2025.

Don’t finalize your 2025 handbooks just yet! On January 2, 2025, the United States Court of Appeals for the Second Circuit vacated a permanent injunction, which had blocked a requirement that New York employers with employee handbooks include a notice against discrimination based on reproductive health care choices. As a result, handbooks covering New York employees must again include such notices.

The notice requirement originates from a series of legislation intended to protect reproductive health rights enacted on November 8, 2019. As we previously reported, one of the bills (A584/S660) added Section 203-e to the New York labor law, which prohibits employers from discriminating against employees based on an employee’s or their dependents’ sexual and reproductive health choices, including their choice to use or access a particular drug, device, or medical service. The law also prohibits employers from accessing such information without prior consent, and directed New York employers with employee handbooks to include a notice of employee rights and remedies. Although the law took effect immediately upon passage, a second bill (S4413) delayed the effective date of the notice requirement until January 2020.

As featured in #WorkforceWednesday®: This week, a few of our labor and employment attorneys share their insights on the key issues and emerging trends shaping the employment law landscape as we move into 2025.

Employment Law in 2025: A Look Ahead

Happy New Year! As we kick off 2025, we’re exploring key legal trends for employers, with a focus on the implications of the incoming Trump administration.

In this episode, attorneys from Epstein Becker Green's Employment, Labor & Workforce Management practice discuss their predictions on how these changes could shape the employment law landscape in the year ahead.