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On May 31, 2019, in Stein v. Blankfein, et. al., the Delaware Court of Chancery reaffirmed the Delaware Supreme Court’s holding in In re: Investors Bancorp, Inc. Stockholder Litigation (more information here) that the “entire fairness” standard applies with regard to director approval of director compensation. The Stein case builds on the precedent set in Investors Bancorp and provides additional insights.
The Bubbler

The Bubbler - June 2019

June 13, 2019 | Blog | By Brie Kluytenaar

Welcome to June! As we head into the summer, the employment law world continues to heat up! We have rounded up the most recent developments impacting employers for your summer reading pleasure here.
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What’s New In Westchester County

June 13, 2019 | Blog | By Brie Kluytenaar

In New York v. United States Dep’t of Labor [link to case], CV 18-1714 (D.D.C. Mar. 28, 2019), the U.S. District Court for the District of Columbia invalidated final regulations issued by the U.S. Department Labor (DOL) on the subject of association health plans (AHPs). Entitled Definition of “Employer” under Section 3(5) of ERISA – Association Health Plans, the disputed regulations were issued in response to an Executive Order directing the DOL to expand AHP access by small employers and self-employed individuals. Among other things the regulations sought to allow small employers and self-employed individuals to gain access to group health plan coverage and benefits heretofore generally available only to large groups.
This post summarizes the requirements of MAPFML and outlines the requirements of the private plan exemptions.  We also explain some of the obstacles employers who hope to take advantage of the exemption are likely to encounter. 
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.
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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.
On May 1, 2019, the Massachusetts Department of Family and Medical Leave (the “Department”) issued guidance (the “May 1 Guidance”) extending two key deadlines applicable to the Massachusetts Paid Family and Medical Leave Law (MAPMFL).
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?  
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.
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.
Viewpoint General

The Bubbler

April 12, 2019 | Blog | By Natalie Young

Viewpoint General
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. 
The battle over Association Health Plans (AHPs) is indisputably political, but it is being waged on legal terrain. On July 26, 2018, 11 states (New York, Massachusetts, California, Delaware, Kentucky, Maryland, New Jersey, Oregon, Pennsylvania, Virginia, and Washington) and the District of Columbia filed a complaint in the U.S. Federal District Court for the District of Columbia seeking to invalidate a June 2018 U.S. Department of Labor (DOL) final regulation (the “Final Regulation”). The Final Regulation’s purpose is to expand access by small employers and self-employed individuals to AHPs by amending the definition of “employer” in Section 3(5) of ERISA. (We describe the prior law governing AHPs and explain the details of the Final Regulation in an article published by Bloomberg Tax, available here.) In New York v. United States Dep’t of Labor, CV 18-1714 (D.D.C. Mar. 28, 2019), United States District Judge John D. Bates sided with the States, concluding that the Final Regulation is an unreasonable interpretation of ERISA. This post explains the decision and explores its implications.

Interim Guidance Under §4960: Excise Taxes and Parachute Payments

April 5, 2019 | | By Alden Bianchi, Alexander Song

Mintz attorneys Alden Bianchi and Alexander Song recently published an article in the Bloomberg Tax - Compensation Planning Journal explaining the nuances of recent guidance from the IRS regarding Section 4960 of the tax code.  Section 4960 was enacted in December 2017 and imposes an excise tax on the amount of remuneration in excess of $1 million, plus any excess parachute payment paid by an applicable tax-exempt organization to certain covered employees. 
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Employers Beware: Judge Greenlights Employee’s Privacy Lawsuit Over Dropbox Access

March 28, 2019 | Blog | By Katharine Beattie, Cynthia Larose, Jennifer Budoff

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.
The Massachusetts Department of Family and Medical Leave, who oversees the Commonwealth’s Paid Family and Medical Leave (PFML) program, posted its Employer and Employee Toolkits online.  The Toolkits are available here, and are helpful to be read in conjunction with our earlier blog post on PFML.

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