Labor & Employment Law Update

Many employer sponsored defined contribution (DC) plans qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”) maintain employer stock funds. Many such stock funds long antedate the Employee Retirement Income Security Act of 1974, as amended (ERISA).

In the wake of the Great Recession, plaintiffs’ counsel successfully prosecuted numerous ERISA fiduciary stock drop cases. The allegation was that fiduciaries breached their duties under ERISA by maintaining employer stock in a plan when they should have sold it.

Four years after a ...

Technology is great. I can use my smartphone to change a million TV channels without getting up (of course, there’s still nothing to watch until Game of Thrones returns).

Employers, too, are reaping the benefits of technology for the most routine areas of employee and facilities management – including timekeeping and building security. But with the transitions from handwritten and manually punched time cards to fingerprint scanner timeclocks, and mechanical keys to retinal scanners, employers face significant risk under privacy laws.

As a result, many states are beginning ...

Every employer offering a 401(k) plan is faced with decisions about what investment options to make available to participants. Investment options carry different risks as well as different costs. In designing available investment options, most plan sponsors rely on a third-party advisor. Industry estimates indicate that approximately 90% of these financial advisors are brokers, i.e., commissioned-based sales consultants.

Third-party financial advisors may or may not maintain fiduciary status in regards to the 401(k) plan (this depends on the specific terms of each ...

In an unprecedented fashion, an arbitrator recently issued an award limiting the scope of Public Act 095-0490, otherwise known as the Substitutes Act. In doing so, the City of Mattoon successfully fought, through Amundsen Davis attorneys Julie Proscia and Carlos Arévalo, and won the right to close their ambulance service. So why is this award important? This award now serves as a basis for municipalities to be able to have the autonomy to review their scope of services and determine which services are best for their community as opposed to the scope of services being dictated by ...

The U.S. Supreme Court ruled this morning that employers can enforce class action waivers included in employment-related arbitration agreements. An arbitration agreement is a contract through which an employee and an employer agree in advance to resolve any disputes that may arise through binding arbitration rather than in court. The issue before the Supreme Court was whether an employer could enforce an arbitration agreement provision requiring each employee to arbitrate his or her disputes individually rather than collectively or as part of a class action. The Court ruled ...

Last month, the United States Court of Appeals for the Fifth Circuit issued an opinion that provides a helpful reminder about the extent to which an employer may ask an employee to work during a leave taken under the Family Medical Leave Act (FMLA). In D’Onofrio v. Vacation Publications, Inc., a sales representative requested FMLA leave to care for her husband, who had suffered a major back injury. Her employer gave her two options – she could either go on unpaid leave or she could log on remotely a few times per week during her leave in order to service her existing accounts and keep her ...

At age 58, Dale Kleber was an out of work experienced attorney searching for full-time employment. He applied for a position as a “Senior Counsel, Procedural Solutions” that required the ability to assume complex business projects. The position description also stated that applicants must have at least 3 years but no more than 7 years of relevant legal experience. Kleber had more than 7 years of experience and he was not selected for the position. The employer filled the position with a 29-year-old applicant.

Kleber sued under the Age Discrimination in Employment Act (ADEA ...

YouTube’s experience on April 3, 2018, in which a non-employee with no direct link to the company entered the workplace and started shooting a firearm at employees, highlighted concern for an “active shooter” scenario in the workplace.

As a result of increased gun violence, state legislatures have been pushing gun control legislation, including laws that would ban bump stocks and high capacity magazines, raise the minimum age to buy a gun to 21, or even ban people from carrying, keeping, bearing, transporting or possessing an assault weapon. Some proposed legislation is not ...

On April 12, 2018, the Department of Labor (DOL) issued an opinion letter addressing the intersection between the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) when an employee needs multiple rest breaks throughout the day due to an FMLA covered serious health condition.

Background

The FLSA generally requires employers to compensate employees for all time spent working. Although the Act does not require employers to provide rest or meal breaks, it does regulate whether such breaks—if provided by the employer—must be paid as compensable ...

Unless we have been living under a rock for the last few weeks, it is likely that we may have wondered if former FBI Director James Comey could sue President Trump for defamation. Indeed, President Obama’s former Ethics Chief, Norm Eisen, recently tweeted that the president’s “false, malicious accusation of criminal conduct is libel [published defamation] per se by Trump. @Comey could sue-& might win…”  Without weighing in on the viability of such a claim, however, it is prudent to review a few defamation principles to keep in mind.

Acknowledging that laws vary from ...