The U.S. Department of Labor (DOL) has issued a proposed rule to clarify the distinction between employees and independent contractors under the Fair Labor Standards Act (FLSA). The new rule would replace a 2021 rule in which two factors, i.e., control over the individual's work and the worker's opportunity for profit or loss, carried greater weight than other factors in making this distinction. Under the standard in Read More
CA Joins Other States with Paid Leave Laws
California has joined a steadily increasing list of eleven states and the District of Columbia in expanding paid leave programs for employees. Another five states have widened the range of paid time off by expanding paid sick leave policies. In addition, while select states allow paid time off for employees to care for family members, a growing number of states, including California, have extended paid leave Read More
DOL, HHS, and Treasury Issue FAQs on Affordable Care Act and CAA 2021
On December 23, 2022, the U.S. Department of Labor (DOL), the U.S. Department of Health and Human Services (HHS), and the U.S. Department of the Treasury (collectively, “the Departments”) issued joint FAQs concerning certain provisions of the Consolidated Appropriations Act 2021 (CAA). The FAQS relate to the implementation of Title II (Transparency) of Division BB of the CAA, which addresses the mandatory reporting Read More
NLRB Ruling Eases Unions’ Ability to Get Representation Elections
The National Labor Relations Board (NLRB) has issued a new ruling that modifies the language used to determine whether a group is an appropriate collective bargaining unit. The change will make it easier for unions to get representation elections, especially regarding smaller bargaining units. In the American Steel Construction case, which the NLRB issued on December 14, 2022, the agency returns to the so-called Read More
Landmark Court Rulings of 2022 for Employers and Benefits Plan Administrators
2022 was a busy year for federal benefits litigation. Here are seven landmark court rulings of 2022 for employers and benefits plan administrators. Dobbs et al. v. Jackson Women's Health Organization et al., Case Number 19-1392, U.S. Supreme Court The U.S. Supreme Court issued a bombshell decision on June 24, 2022, that overturned its 1973 decision in Roe v. Wade and women's constitutional right to abortion. Read More
DOL’s EBSA Proposes Changes to VFCP, Adds Self-Correction Mechanism for Plan Officials
The U.S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) has issued proposed updates to its Voluntary Fiduciary Correction Program (VFCP). Notice of the proposed updates allows 60 days for public comments, expiring on January 20, 2023. The existing features of the VFCP will remain in place until EBSA publishes final revisions to the VFCP in the Federal Register. EBSA’s VFCP originated Read More
How EPT Laws Affect PERM Recruitment Practices
Frequently, employers file Permanent Labor Certification (“PERM”) applications for foreign workers they intend to sponsor for legal permanent residency. Many states now have enacted equal pay transparency (EPT) laws that could significantly affect the recruitment portion of the PERM application process. U.S. Department of Labor (DOL) regulations concerning PERM applications require that they publish employment Read More
Employees’ 401(k) Fee Suit Against Capital One Tossed
Capital One won a recent dismissal in one of the many Employee Retirement Income Security Act (ERISA) suits, filed by workers, concerning the low-performing BlackRock target-date-funds (TDFs). On the same day that he dismissed a similar suit against Booz Allen Hamilton, Judge Michael S. Nachmanoff dismissed the Capital One employee suit. Still, as in the Booz Allen case, he gave the employees 14 days to amend their Read More
7th Circuit Poised to Revive Northwestern ERISA Suit
The U.S. Court of Appeals for the Seventh Circuit appeared receptive to reviving an ERISA class action suit against Northwestern University, claiming mismanagement of the workers’ 403(b) plan, albeit on a limited scale. The employees alleged that Northwestern breached their fiduciary duties under ERISA by allowing too many investment options, causing them to pay excessive fees. In addition, they claimed that Read More
U.S. Supreme Court Set to Hear Five Major Cases This Term
The conservative supermajority of the U.S. Supreme Court is set to hear arguments on some of the most contentious issues in America this term. These issues include the potential end of affirmative action and whether refusing to serve same-sex wedding clients amounts to illegal discrimination or freedom of speech. The high Court also will address a legal theory that could give state lawmakers virtually unfettered Read More
