Employer Law Report

Archives: Employee Benefits/ERISA

Subscribe to Employee Benefits/ERISA RSS Feed

Wage withholding in a remote working environment

Employers generally must withhold income taxes on behalf of employees based on where the employee works. Typically this determination is simplified by the location of the employer’s offices. The COVID-19 pandemic and corresponding stay-at-home orders have altered the working situations for most Americans. Only time will tell what things will look like moving forward. Employers must now consider the impact of employees working remotely and confirm that income tax withholding is properly executed given these unprecedented circumstances. My colleague Gary Schulte explains in this Employee Benefits blog post.…

Department of Labor releases Q&A regarding Families First Coronavirus Response Act and mandatory posters

On March 24, 2020, the U.S. Department of Labor (DOL) released a Q&A page to resolve some of the most pressing questions regarding emergency Family and Medical Leave Act (FMLA) leave and paid sick leave offered under the Families First Coronavirus Response Act (FFCRA) and its application to employers. Additionally, the DOL released the required poster regarding the Act which an employer must maintain in its workplace.

While the public awaits the DOL’s final regulations interpreting the FFCRA, the DOL’s Q&A provides some guidance as to where DOL enforcement of the FFCRA is heading ahead of the act’s effective date …

Navigating employment issues, help for small businesses and a delay in the tax deadline

There have been a number of helpful blogs over the past few days from our colleagues at Porter Wright aimed at helping businesses navigate the COVID-19 outbreak.

Navigating Employment Issues in the Wake of COVID-19 webinar

We have all felt the tremendous impacts to our workplaces and daily lives following the COVID-19 outbreak We’ve also watched the daily press conferences announcing new legislation and executive orders, but what happens next?

As your workplace adapts to growing restrictions, Porter Wright invites you to a live webinar on Monday, March 23, 3:00 – 4:00 pm with Porter Wright’s Leigh Ann Williams and …

President Trump signs HR 6201, the Families First Coronavirus Response Act, providing relief to some American workers

The U.S. Senate passed the Families First Coronavirus Response Act (“FFCRA”), and shortly after, President Donald Trump signed it into law. The Act will take effect no later than 15 days after its enactment. It will remain in effect until it expires under a sunset provision on December 31, 2020. This final version of the bill has some key differences from the one passed earlier in the U.S. House. But like the House bill, the final legislation does not apply to employers of 500 or more.

The FFCRA provides for expanded, paid FMLA as well as paid leave. Here are …

New Pittsburgh Paid Sick Days Act set to take effect in middle of coronavirus outbreak

Pittsburgh’s Paid Sick Days Act (PSDA) goes into effect on March 15, 2020, just as the number of coronavirus/COVID-19 infections has begun to increase in the U.S. The new law mandates a number of requirements for employers operating in the city of Pittsburgh, Pennsylvania. The following are some of the highlights of the law about which employers should be aware:…

Final association health plan regulations provide opportunity for small employers…maybe

In February, we reported that the Department of Labor (DOL) issued a proposed rule that could make it easier for small businesses to join together to purchase health insurance. That proposed rule sparked considerable debate on the general merits of association health plans (AHPs), as well as on the nuances of the proposed rule. Some commentators and experts remained skeptical of such arrangements, citing to the history of AHPs being used as a vehicle for fraud. Others were clearly in favor of any rule that might provide small employers with a new avenue to provide health coverage to their employees. …

Hurry up and wait: ERISA fiduciary rule delayed

While it took longer than many expected, the Department of Labor (DOL) issued a proposed rule that would provide a 60-day delay to the application of the new fiduciary rule and related prohibited transaction exemptions. As we reported in our previous blog, the rule was set to impose new fiduciary obligations on those who provide participant investment advice, which would have a trickle-down effect on the sponsors of qualified retirement plans in which those individuals participate. In anticipation of the original April 10, 2017 applicability date, many service providers and plan sponsors have already taken significant steps towards compliance.…

Seven employment law trends to keep your eyes on for 2016

2016 has arrived, marking the beginning of a year of political transition. While we cannot be certain what the upcoming Presidential election holds for 2017, we can expect to see at least seven employment law trends as we move through this year.

1. Increase in Fair Labor Standards Act (FLSA) initiatives and enforcement

The Department of Labor (DOL) has proposed changes to the thresholds for exempt status, which will increase the number of employees eligible for minimum wage and overtime payments. In addition, technology advances in the workplace are likely to collide with wage and hour laws with the increased …

U.S. Supreme Court decision on same-sex marriage – workplace implications

The United States Supreme Court decision in Obergefell v. Hodges  requiring that all states recognize same-sex marriages is one of the more significant constitutional law decisions from the Court in many years. The impact of the decision extends in some ways to the workplace and to the day-to-day responsibilities of human resource and benefits professionals.

Of course, the immediate impact is the legalization of same-sex marriages in all states, regardless of where the marriage was performed. That means that all spousal privileges associated with employment must be extended to same-sex married couples. Examples include:

  • FMLA: Time off to care for

EEOC issues proposed rule on ADA application to employer wellness programs

On April 16, 2015, the EEOC released its long-anticipated proposed rule on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs that are employee health programs. For the most part, the rule reflects the EEOC’s efforts to make the ADA’s requirements consistent with the requirements for employer wellness programs that are already found in HIPAA’s non-discrimination provisions, as amended by the Affordable Care Act (“ACA”), but there are some key differences and the EEOC’s proposed rule leaves open some questions that hopefully will be addressed when the final rule is …

ERISA damages—two bites off the same apple are impermissible

Rich McHugh, editor of our sister blog – Employee Benefits Law Report – published a blog earlier today on a recent en banc decision by the United States Court of Appeals for the Sixth Circuit that may be of interest to our readers. On March 5, 2015, the United States Court of Appeals for the Sixth Circuit issued an en banc decision in Rochow v. Life Insurance Company of North America that deals with the ability of a participant in a plan covered by ERISA to recover benefits due from that plan while simultaneously pursuing “other appropriate equitable relief” based …

The Supreme Court unanimously says changes to retiree medical coverage a matter of contract analysis—but with a mild twist

In what perhaps can be best described as a win for traditional contract analysis, the United States Supreme Court (the “Court”) issued an opinion on January 25, 2015 in M&G Polymers USA, LLC, et al. v. Tackett et al, that may permit M&G Polymers USA, a chemical company, to force its retirees to help pay for the cost of retiree medical coverage. While technically a unanimous decision, the Court’s opinion , which was authored by Justice Clarence Thomas, seems to prefer a stricter standard for this sort of contract analysis than what is set forth in a concurring opinion …

The Obamacare see-saw — an opposing decision on subsidies

Some days are just more fun that others!

Just hours after the D.C. Circuit Court of Appeals issued its opinion in Halbig v. Burwell, which held that tax subsidies made available under the Affordable Care Act (“ACA”) to lower income individuals to help defray the cost of health care coverage may not be extended to individuals who reside in states that have elected not to establish their own health care exchanges, the 4th Circuit Court of Appeals today issued a unanimous decision today in King v. Burwell that upholds entitlement to tax subsidies available under the ACA for all …

Obamacare takes an unexpected hit!

A federal Court of Appeals panel in Washington, D.C. today released a decision that, if upheld, would strike down one of the main pillars of the Affordable Care Act (“ACA”) and in the minds of many observers lead to unpredictable consequences. In a 2-1 decision in Halbig v. Burwell, the three-judge federal appeals panel reversed a decision by a lower District Court judge and held that tax subsidies made available under the ACA (often referred to as Obamacare, with or without derision) to lower income individuals–generally individuals making less than $46,075 annually–to help defray the cost of health care …

Corporations get religion — and maybe lose contraception coverage

Editor’s Note:  This blog was originally published on our sister blog – Employee Benefits Law Report – last week and we wanted to share it with our blog readers here as well.

The United States Supreme Court held in a 5-4 decision issued on Monday, June 30 that regulations issued under the Affordable Care Act (the “ACA”) that compel closely held corporations to provide contraception coverage for their employees violated the Religious Freedom Restoration Act of 1993 (the “RFRA”). Two cases actually are involved in this opinion, including Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius (referred …

Sixth Circuit finds all anti-retaliation provisions are not created equal, but they are legal landmines. Watch your step.

Generally speaking, employment-related retaliation laws prohibit employers from taking adverse actions against employees who engage in protected conduct, like complaining about discrimination or harassment, or for participating in a governmental investigation.

There is no doubt anti-retaliation laws serve a good purpose, but did you know there are at least 40 different federal anti-retaliation laws? This does not even include the various state anti-retaliation laws. The scope of these laws is vast. There are anti-retaliation provisions in the federal employment laws, the Clean Air Act, the International Safe Container Act, and many more, but what is even more surprising is that …

ERISA Section 510: wanting to be a participant, versus being a participant

Editor’s Note:  This blog first appeared last Thursday on our sister blog – Employee Benefits Law Report.

My assistant informed me that my patience is shot and I need to do something about that, so I am channeling my energy into one issue. Since health care reform was enacted, I have been hearing about how we should anticipate a flood of ERISA Section 510 (29 U.S.C. Section 1140) discrimination cases from people who are not participants under the plan terms, but want to be participants. I don’t get it.

ERISA Section 510 provides, “[i]t shall be unlawful for any …

One More Example Of Why Employers Should Be Careful In Implementing Arbitration Agreements

When you are before the Sixth Circuit Court of Appeals asking it to vacate an arbitrator’s award, and the court’s opinion begins with “[t]he arbitrator’s decision would doubtless be reversed if it were a decision under the precedent of this court,” you probably think you have won the case. You would be wrong. Here is what happened in Schafer v. Multiband Corporation and what it means for arbitration agreements in the Sixth Circuit.

The Case

In Schafer, Bernard Schafer and Henry Block served as trustees of a company’s two employee stock ownership plans (ESOPs). At one point Schafer and …

Health Care Reform Surprise: Obama Administration Delays Enforcement of Employer Mandate For One Year

Editors Note:  With the Obama administration’s recent surprise delay regarding the enforcement of the employer mandate under the Affordable Care Act, our colleagues at Employee Benefits Law Report have written this summary below.

In a surprising but generally welcome move, the Obama administration has moved to delay the enforcement of the employer mandate to provide health care coverage under the Affordable Care Act (the “ACA”), which otherwise was scheduled to go into effect in 2014. This delay in enforcement formally was announced in a statement released July 2, 2013 by Mark J. Mazur, Assistant Secretary for Tax Policy at …

U.S. Supreme Court decision: U.S. Airways, Inc. v. McCutchen

The United States Supreme Court issued an opinion earlier this week in an ERISA case regarding the breadth of Section 502(a)(3) relief, and the common-fund doctrine. While the decision was unanimous on the primary issues, the Court surprised us with a 5-to-4 split on a secondary issue. Overall, the decision in U.S. Airways, Inc. v. McCutchen is favorable for employers sponsoring health care plans. The decision is also favorable for health care plan participants in the aggregate because it allows for control of plan costs, and premiums, at a critical time when plans are gearing up for 2014 health care …

Sixth Circuit Decision Reminds Employers: Get Your Ducks in a Row at the EEOC Charge Stage and, for Goodness Sake, Know Your Own Policies

Gaglioti v. Levin Group, Inc. (6th Cir. Dec. 13, 2012), serves as a good reminder to employers to pin down their reasoning for terminating an employee at the start, and stick to it. In addition, all reasons for terminating an employee should be included in the termination meeting with the employee, or at the very least, at the EEOC charge stage, even if it might bruise the employee’s ego. Any change or supplementation to the original reason can make put the entire termination decision seem made up and send the employer to trial. It is also imperative that employers know …

Health Care Reform Survives Supreme Court Scrutiny – But Not Entirely Intact

Health care reform just got a clean bill of health from the United States Supreme Court. The Court today ruled on the constitutionality of the Patient Protection and Affordable Care Act ("PPACA"), and generally upheld the legislation in a 5-4 decision written by Chief Justice John G. Roberts. Roberts was joined in his opinion by the four justices who had been appointed to the Court by Democratic presidents. In an expected development, certain individual justices wrote and/or joined concurring and dissenting opinions as well. The Court upheld the individual mandate to purchase health coverage, concluding that the mandate is permissible …

The Fiduciary Exception to the Attorney-Client Privilege — “Document Everything” is a Best Practice, Except When It Isn’t

 The following was posted by our associate Seth Hanft on our sister blog Employee Benefits Law Report last Friday. It provides a great reminder to in-house counsel addressing employee benefit claims that their communications with their benefits personnel regarding employee benefits claims may not be protected by the attorney-client privilege. Keep in mind that both counsel and benefits managers often wear fiduciary and non-fiduciary hats when addressing benefits plans issues and it is not always clear which hat they are wearing when. Therefore, to avoid potential spill over of this fiduciary exception to their other areas of responsibility, in house

Porter Wright Launches Employee Benefits Blog

Employer Law Report is pleased to share with you the launching of Porter Wright’s latest blog – Employee Benefits Law Report – which we have created as a resource to help guide employers of all sizes through the complex administrative and legal challenges facing their employee benefit plans.

This blog – edited by my partners Ann Caresani and Rich Helmreich – will provide the latest information in a wide range of areas related to Employee Benefits including:

  • ERISA and employee benefits litigation
  • Health care reform
  • Retirement plans
  • Audits and correction
  • Benefits issues related to mergers and acquisitions
  • Employee Stock Ownership
LexBlog