On September 22, 2020, US President Donald Trump issued an Executive Order, which prohibits federal contractors and recipients of federal grants from conducting certain workplace training on race and sex stereotyping. This Executive Order is likely to be challenged on various grounds, including First Amendment grounds, but all employers may wish to review their workplace training materials in anticipation of future Equal Opportunity Commission (EEOC) action for reverse discrimination.
Employers must use reasonable diligence in tracking nonexempt telecommuters’ work hours and may do this by providing a reporting procedure for unscheduled time, the US Department of Labor (DOL) stated in August 24 guidance. The workers then must be compensated for all reported work hours, even those not requested by the employer.
In a recent article by the Society of Human Resource Management, McDermott partner Ellen Bronchetti explained that employers should have policies that prohibit working off the clock. “If an employer has an expectation that an employee was working from 8:00 am to 4:00 pm and the employee works later at night responding to emails, that could lead to wage and hour liability.”
On August 3, 2020, the US District Court for the Southern District of New York struck down four parts of the US Department of Labor’s (DOL) Final Rule implementing the Families First Coronavirus Response Act (FFCRA). A copy of the court’s ruling is available here. The FFCRA provides COVID-19-related sick leave and family leave to employees of businesses with fewer than 500 employees.
The most obvious potential conflict of interest for advisers setting up or serving pooled employer plans is if their practice is affiliated with the investments being selected—but there are other potential pitfalls to acknowledge.
In a recent article, Erin Turley, a partner with McDermott Will & Emery, said a potential conflict of interest for advisers to PEPs would be if they were acting as either a 3(21) or 3(38) fiduciary to help select investments and were paid from plan assets.
Plan Sponsor Council of America hosted a webinar to discuss the new electronic disclosure rule for retirement plans from the US Department of Labor (DOL), which took effect July 26, 2020. The rule allows employers to deliver disclosures to plan participants primarily electronically, which the DOL says will reduce printing, mailing, and related plan costs by an estimated $3.2 billion over the next decade. Speakers included McDermott’s Andrew Liazos, and the topics discussed included:
New Safe Harbors, Effective Date and Scope of Rules
Notice and Access Safe Harbor
E-Disclosure Rule Q & A
Under the recently published final rule issued by the US Department of Labor, retirement plan administrators can choose to deliver required disclosures electronically by complying with the conditions of a new safe harbor. The final rule represents an opportunity for retirement plans to save costs and enhance participant access to disclosure documents.
The federal Pandemic Unemployment Assistance program extends relief to workers and employees who don’t have access to state benefits, but it will almost certainly put pressure on gig economy companies to start paying into state unemployment insurance funds as government resources continue to diminish due to COVID-19, attorneys say.
Michelle S. Strowhiro, partner at McDermott Will & Emery, said, “To the extent that, post-COVID, we want to maintain unemployment benefits for those traditionally not eligible, … we’d have to contemplate a way that additional funding could be accessed for the long term.”
The Families First Coronavirus Response Act (Families First) is now law and becomes effective April 2, 2020. For employers with less than 500 employees, and in certain situations for employees affected by coronavirus, Families First requires that employers provide two weeks of paid sick leave in certain situations and provide subsidized leave under the Family and Medical Leave Act. Tax credits will help to subsidize these requirements for affected employers. An outline of the legislation is provided.
For 2020, legislation enacted in December of 2019 dramatically increases penalties imposed by the Internal Revenue Code (the Code) for late filing of certain employee benefit plan notices and reports. In addition, a final rule published by the Department of Labor (DOL) makes inflation adjustments to a wide range of penalties. Learn the penalty amounts that apply beginning in 2020.
Certain employers might prefer to avoid hiring nicotine users: smokers, dippers and vapers alike. U-Haul International Inc. is doing so, with a policy that went into effect on February 1. Thus, this is an opportune moment to examine why employers might consider doing likewise, the legal ramifications of such policies and the alternatives for encouraging healthier workforces.
McDermott’s Jacob M. Mattinson, Aaron Sayers and Erin Steele contribute to a Law360 article exploring the practical and legal considerations related to a workplace nicotine ban, the impact on healthcare costs, whether employers can use health plan information to fire nicotine users once hired, and how other employers are addressing the costs of nicotine usage in their workforces.
Originally published on Law360, January 2020
Subscribe
