The U.S. Equal Employment Opportunity Commission (EEOC) released its proposed Strategic Enforcement Plan for fiscal years 2023 - 2027 and is working to finalize that plan based on comments it has received from employers. Among the EEOC’s priorities in 2023 are sexual harassment, pay discrimination, and artificial intelligence. Sexual Harassment The EEOC plans to issue updated guidance for employers concerning Read More
NLRB Decision Places Limits on Non Disparagement Provisions in Severance Agreements
A recent decision from the National Labor Relations Board (NLRB) now prohibits employers from using broad prohibitions in severance agreements to prohibit former employees from talking about or criticizing their former employers. In addition, overbroad non disparagement provisions that require employees to relinquish their rights under the National Labor Relations Act (NLRA) are unlawful. By using these provisions, Read More
DOL Launches Awareness and Enforcement Campaign for New PUMP Act for Breastfeeding Workers
The U.S. Department of Labor (DOL) has launched a campaign to raise awareness among workers about the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, which became effective on January 1, 2023. The PUMP Act amends the Fair Labor Standards Act (FLSA). It requires employers with fifty or more employees to provide reasonable break time to all employees, including salaried employees, to express Read More
DOL Fiduciary Rulemaking in Jeopardy Amidst Recent Court Rulings
Two recent federal court decisions, one in Florida and one in New York, have cast significant doubt on the ability of the U.S. Department of Labor (DOL) to issue and enforce formal regulations defining who qualifies as a fiduciary under federal benefits law. In its latest regulatory agenda, the DOL’s Employee Benefits Security Administration (EBSA) indicated that it intended to issue a new proposed rule explaining Read More
Breaking Down SECURE Act 2.0: Plan Sponsor Considerations to Avoid a Long-Term Part-Time Mess
By Philip Koehler and Anne Tyler Hall* Expanding access to retirement plans for the American workforce has been a recurring policy objective of federal pension reform at least as far back as the enactment of the Employee Retirement Income Security Act of 1974, as amended (‘‘ERISA’’). The legislative history of ERISA and its progeny has laid down an historical record of the challenges Congress faced to ensure that Read More
HHS Suspends, Restarts Surprise Medical Billing IDR Payment Determinations Following Agency Updates
After a Texas federal court vacated a portion of the final regulations on the surprise billing independent dispute resolution (IDR) process, the Centers for Medicare & Medicaid Services (CMS) of the U.S. Department of Health and Human Services (HHS) ordered certified IDR entities to stop issuing new IDR payment determination pending further agency guidance. In addition, as per the Court's order, CMS also recalled Read More
Ninth Circuit Appears Skeptical of DOL Arguments in Atty Fee Battle
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit recently heard oral arguments in an architecture firm’s appeal of a district court judge’s order denying its attorney fees. Bowers + Kubota Consulting Inc. sought attorney fees against the U.S. Department of Labor (DOL) in an ERISA suit in which it prevailed. The case is Martin Walsh v. Brian Bowers et al., case number 22-15378, U.S. Court of Read More
Supreme Court Rules Highly Compensated Executive Entitled to Overtime Pay Under FLSA
The U.S. Supreme Court recently issued a 6-3 ruling in Helix Energy Solutions Group v. Hewitt. In its decision, the Court found that highly compensated employees were eligible for overtime pay if an employer paid them daily. Unless the employer pays an employee a salary as defined under the Fair Labor Standards Act (FLSA), even a highly compensated employee is not exempt from receiving overtime pay. The Court’s Read More
Federal Court Partially Invalidates DOL’s ERISA Guidance
A Florida federal district court judge partially granted a securities industry group’s motion for summary judgment, in which it sought to invalidate certain ERISA guidance from the U.S. Department of Labor (DOL). The case is American Securities Association v. U.S. Department of Labor et al., case number 8:22-cv-00330, U.S. District Court for the Middle District of Florida. In her ruling, the judge found that FAQ 7 Read More
Federal Transparency Legislation Leads to Systemic Health Care Changes in 2023
The 2020 Consolidated Appropriations Act (CAA) laid out new transparency responsibilities for hospitals and payers, including removing all gag clauses limiting data access and utilization. Benefits advisors should prepare, plan, and take all steps necessary to ready their plan sponsor clients for these major changes in the healthcare landscape. The newly available hospital and payer transparency (HPT) will allow plan Read More
