Employment, Labor & Benefits

This post explains how to set up and monitor a retirement plan fiduciary committee in a manner that insulates the plan sponsor’s board and senior management from unnecessary fiduciary exposure.

Our colleague Gil Samberg offers analysis of the U.S. Supreme Court’s recent decision in Lamps Plus, Inc. v. Varela, which held that neither silence nor ambiguity in an arbitration agreement about whether it permits class arbitration enables a court to find that the parties agreed to allow class arbitration.  If the parties wish to permit class arbitration, they must expressly memorialize that understanding within the four corners of an agreement to arbitrate.

Yesterday, the United States Supreme Court decided that it will hear three cases in its next term, which, taken together, will test the textual boundaries of Title VII with respect to the meaning of sex discrimination. In this trio of cases, advocates for LGBT employment rights ask the Court to find that Title VII’s prohibition against sex discrimination includes both claims of sexual orientation discrimination and gender identity discrimination – a logical extension, they say, in light of the Court’s jurisprudence on gender-based discrimination and an evolution of understanding about gender.

We recently provided DC employers with information about the imminent Universal Paid Leave tax. Since that post, we have received word from the DC Office of Employment Services (DOES) that the first quarterly tax will be based on the wages you will have paid your employees during the current quarter (April 1, 2019 through June 30, 2019.) That means your first quarterly tax payment and wage report must be submitted to DOES no later than July 31, 2019, which is the last day of the first month following the quarter. You will be able to submit the quarterly tax payment and wage reports beginning July 1, 2019, including through the DOES online employer portal.

In a recent post, we discussed the U.S. Department of Labor’s (DOL) proposed rule increasing the salary threshold to qualify for a white collar exemption under federal law.  In response, many employers are evaluating whether to reclassify employees as non-exempt instead of raising salaries to maintain the exemption.  Along with this analysis, employers often struggle with two related issues: (1) how to calculate the regular rate of pay of non-exempt employees in order to calculate the proper overtime rate and (2) who is considered an “employer” and thus responsible for employee wages?  

District employers, get on your marks! We told you way back in 2017 that Universal Paid Leave (UPL) would be coming to the District, and here it is. Under the DC Universal Paid Leave Act (the Act) and its implementing regulations, beginning on July 1, you will be liable for a 0.62% tax on your employees’ gross wages. That means you should contact your payroll administrator now, to make sure you’re ready to comply. In this post, we outline the key details about the new payroll tax, including how to pay it, and refresh your memory on the other significant provisions of the Act.

In our last blog post on Massachusetts Paid Family and Medical Leave (“MAPFML”), we reviewed the Department of Family and Medical Leave’s (the “Department”) draft regulations published in January 2019 and outlined some of the questions left unanswered by the then-current regulations.  Since January, the Department has held a number of listening sessions throughout the Commonwealth soliciting comments and feedback on the draft regulations.  On March 29, 2019, the Department published revised draft regulations for public comment and hearing.  The regulations are set to be finalized on July 1, 2019, which is also the effective date of MAPFML and the commencement date for payroll deductions from employee paychecks. 

Many employers maintain policies limiting their employees’ expectation of privacy in the workplace, including policies that eliminate any expectation of privacy when using company-issued electronic devices. While employers may think that having such a policy would protect them from invasion of privacy claims under the Fourth Amendment or state law, a recent federal court decision may cause employers to think otherwise. This post examines this decision and provides best practices for avoiding issues with employees’ privacy interests.

On February 25, 2019 the Department of Labor, Department of Health and Human Services, Treasury Department and the Internal Revenue Service (the “Departments”) published a request for information (the “ROI”) on grandfathered plans, signaling that a relaxation of the grandfathering rules may be forthcoming.  This post gives a brief history of grandfathered plans and describes the information requested in the ROI (for which responses are due March 27, 2019).

When the Affordable Care Act (ACA) was signed some nine years ago, many employers wondered what would become of COBRA (aka, the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985). COBRA seems as strong as ever. Not surprisingly, however, the COBRA rules are complex, and we frequently field questions from employers who are facing employee terminations and just want to get things right.  Here are some of the more common questions we receive from our employer clients. 

The Department of Labor (DOL) has issued a Notice of Proposed Rulemaking (NPRM) that it estimates would convert more than one million now overtime-exempt workers to non-exempt, overtime-eligible employees.  Currently, the so-called “white collar” exemptions under the Fair Labor Standards Act (FLSA) provide that employees who are paid a salary of at least $455 per week ($23,660 per year) and primarily perform executive, administrative, or professional duties (the “job duties test”) need not be paid overtime. The NPRM would change this, by increasing the salary threshold. If adopted, the proposed rule would make other changes, too.

On April 30, 2019, Mintz will be hosting its Fifth Annual Employment Law Summit at the Princeton Club in New York City.

January ushered in many new developments across many employment law compliance categories. We hope this summary will help you keep track of the changes most relevant for you.

Employers must provide applicants and employees with separate federal and state Fair Credit Reporting Act (FCRA) disclosure forms, said the 9th Circuit in an important decision released last week.

Last month, the Massachusetts Department of Family and Medical Leave (the “Department”), issued answers to a handful of frequently asked questions for both employers and employees, and published draft regulations for the implementation of Massachusetts Paid Family Leave (“MAPFL”).  Although the benefits under this new law are not available to employees until 2021, employers’ obligations begin in just a few months. This post delves into some of the key guidance issued by the Department thus far and explores some of the open questions posed at the first listening session in Boston on January 30, 2019.

The District of Columbia Council recently repealed a law approved by voters in a June 2018 referendum that would have fundamentally changed the way tipped workers in the District are paid.  Embedded in the repeal legislation, which passed in October 2018 and took effect on December 13, 2018, are provisions that place new and potentially substantial requirements on employers of tipped workers in the District. These new requirements are ostensibly designed to prevent abuse of tipped workers.  Because the repeal and its new requirements are now in effect, employers of tipped workers such as restaurants, bars, and other service establishments should immediately take note and plan for compliance. 

Our sister Privacy & Cybersecurity blog discusses a recent Illinois Supreme Court ruling on the collection of Biometric Data. This decision will significantly impact litigation under the state’s unique Biometric Information Privacy Act, creating a potential boon for plaintiffs.

The Affordable Care Act (the “ACA”) requires most health plans to provide first dollar coverage of FDA-approved contraception methods. Nearly nine years after the ACA’s enactment, this contraception mandate continues to be one of the most embattled provisions of the ACA. This post covers recent rulemaking and court decisions impacting the contraception mandate.

          As 2018 came to a close, a pair of federal court decisions provide much needed guidance on two thorny wage and hour issues that are being increasingly litigated nationwide under the Fair Labor Standards Act (FLSA).  In one decision, the court held that an employee who was paid all owed wages shortly after filing a lawsuit was not a “prevailing party” for fee-shifting purposes.  In another decision, a federal appeals court confirmed that FLSA minimum wage violations are measured based on the workweek.