The IRS recently issued proposed rules that would make permanent and automatic the 30-day extension for furnishing reporting forms for the Affordable Care Act (“ACA”) to individuals. The IRS has also stated that the proposed relief is available for 2021 reporting. This should provide some relief for those Applicable Large Employers (“ALEs”) and health plan providers nervously preparing for the looming January 31, Read More
New Jersey Law on Vicarious Liability Protects Employers
The New Jersey Legislature has opened a two-year window for filing previously time-barred civil lawsuits based on allegations of sexual abuse. The legislature’s action has created an intense interest in New Jersey legal standards for vicarious liability. The primary significance of the new filing window for sexual abuse litigants in New Jersey relates to the law that determines the liability of employers for the Read More
What Plan Documents Must You Surrender if You Are Sued Under ERISA?
When a retirement plan participant files a lawsuit to recover damages from harm due to the plan sponsor’s alleged breach of fiduciary duty, employers and plan administrators must furnish certain plan documents on demand. While the Employee Retirement Income Security Act (“ERISA”) requires the production of relevant materials, employers and plan administrators are not required to undertake any extensive searches Read More
Northwestern ERISA Case Highlights Compliance Lessons
By Philip Koehler and Anne Hall (January 20, 2022) Litigation against Employee Retirement Income Security Act retirement and health plan sponsors and administrators has plagued workplace fiduciaries for the last two decades. Then, in 2020, ERISA lawsuits reached unprecedented levels and affected fiduciaries of ERISA retirement and health plans nationwide. Unwary 401(k) and 403(b) plan sponsors, fiduciaries and Read More
CEO’s Termination Referred to Arbitration
In early December 2021, a Pennsylvania federal judge referred a dispute over the termination of a biopharmaceutical and former medical cannabis company’s ex-CEO, Raza Bokhari, to arbitration in Canada. In July 2021, the company, FSD Pharma Inc.(“FSD”), announced that its board of directors had terminated Bokhari for cause. A special committee and international law firm claimed the company’s then CEO had engaged in Read More
The Department of Labor’s Reversal on ESG for ERISA Plan Fiduciary Investment Decision-making
There are many emerging issues for fiduciaries of 401(k) and 403(b) plans. These issues include the Department of Labor’s (“DOL”) regulation of ERISA investment duties and ESG considerations, as well as its recently re-proposed rule regarding the same. Compared to the prior rule enacted by the Trump administration at the end of 2020, the latest proposal represents a significant shift in the DOL’s attitude towards ESG Read More
Texas Justices Wrestle with Definition of “Employee”
In a coverage dispute between contractors, the Texas Supreme Court questioned how broadly the court should interpret the word "employee" under the Texas Anti-Indemnity Act (“TAIA”). One defendant, a crane company called Maxim Crane Works LPl, urged the court to adopt a definition that would result in Zurich American Insurance Co. paying $3.8 million in legal bills. The court pondered the definition of “employee” Read More
Interest Rate Smoothing and Disaster Relief Provisions Expanded Under the IIJA
On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act (the “IIJA”) into law. The President stated that the public would start seeing the infrastructure package’s effects within the next two to three months. A group of bipartisan Senators reached an agreement with the Biden Administration on an infrastructure package that contains various elements of the President’s American Jobs Read More
Department of Labor Proposes New Formula For H-2A Guest Worker Wages
As December began, the U.S. Department of Labor (“DOL”) proposed a modified formula for calculating minimum wages for agricultural guest workers on H-2A visas. The proposal was necessitated by a federal judge in California striking down a prior proposal in December 2020 for the DOL failing to provide sufficient justification for two fundamental changes. The new proposal mirrors most of the previous methodology but Read More
Department of Labor Focuses on Misuse of Plan Participant Data
The Department of Labor (“DOL”) has increased its focus on the cybersecurity practices of plan sponsors and their service providers. As a result, the DOL has started to ask comprehensive cybersecurity questions in plan audits. It seems apparent that the DOL is concerned with the misuse of confidential participant data, in addition to the theft of plan data or assets. The DOL has focused on the practice of some Read More
