Most employers are familiar by now of the many lawsuits (more than 100) filed against 401(k) and 403(b) plan sponsors and their employee fiduciaries responsible for selecting the plans’ record keepers and investment line-ups, alleging that they breached their fiduciary duty by allowing participants to pay excessive record keeping fees and invest in underperforming and …
Sixth Circuit Court of Appeals Rules that Retiree Health Benefits May be Terminated Based on Ordinary Contract Principles
In its latest case addressing retiree health benefits, the Sixth Circuit Court of Appeals has held that a collective bargaining agreement’s general durational clause controls when retiree healthcare benefits end. Zino v. Whirlpool Corp., 2019 BL 50961, 6th Cir. (2019). This is a new data point indicating that the Sixth Circuit has moved away from …
Employment Law Issues Continue to Evolve with Hairstyle, Sex Gossip, and Emotional Outburst Disability Protections
Employment law is constantly evolving and changing to keep up with the evolving workforce and work-related issues. For example, in the last year, we have seen a changing landscape focused on gender bias and discrimination with the Me Too and Times Up movements. While we will continue to see claims, charges, and lawsuits related to …
Avoiding Claims of Citizenship and National Origin Discrimination When Interviewing, Hiring, and Onboarding Foreign Workers
It is illegal to discriminate on the basis of citizenship or national origin in recruiting, hiring, onboarding, or employing workers. Title VII of the Civil Rights Act of 1964 (“Title VII”) as well as the Immigration Reform and Control Act (“IRCA”) impose penalties on employers engaging in discriminatory employment practices. While prohibitions against citizenship and …
Michigan Court of Appeals Holds That Medical Marihuana Act Does Not Prohibit Employers from Rescinding Offers of Employment After Positive Tests
On February 19, 2019, the Michigan Court of Appeals held that an employer does not violate Section 4 of the Michigan Medical Marihuana Act (“MMMA”) when it rescinds a conditional offer of employment based upon a positive drug test. In Eplee v City of Lansing, unpublished opinion per curiam of the Court of Appeals, issued …
The Top 5 Things to Know if You Are New to 401(k) Benefits Administration
As an advisor to many 401(k) plan sponsors, I have been asked occasionally what advice I would give to a person who is relatively new to retirement plan administration. While some aspects of administration may only be learned through experience, here are my top 5 things to understand about plan administration. 1. Identify the service …
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The IRS and the FICA, FUTA and Federal Income Tax Traps for Employers with Non-Resident Alien Employees
With all of the payroll complexities that employers face, it is no surprise that a special set of rules that applies to only a small category of employees is frequently overlooked. Often, to the surprise of payroll and human resources staff, special Federal Insurance Contributions Act (“FICA,” composed of Social Security and Medicare taxes), Federal …
The Sixth Circuit Declares Tennessee’s Punitive Damages Cap Unconstitutional
In December 2018, the U.S. Court of Appeals for the Sixth Circuit held that Tennessee’s cap on punitive damages was unconstitutional. This cap came into effect when Tennessee Governor Bill Haslam signed the Tennessee Civil Justice Act (the “Act”) which, among other things, capped the amount of punitive damages a plaintiff can recover in civil …
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Global Talent Stream: Fast-Track Work Permits to Fuel Canada’s Innovation Strategy
The Global Talent Stream is a two-year pilot program of Employment and Social Development Canada (ESDC) and Immigration, Refugees and Citizenship Canada (IRCC) that commenced on June 12, 2017. It allows skilled workers with arranged employment in recognized “in-demand” occupations, or who have been referred to the program by designated referral organizations, to obtain work …
NLRB Focuses on “Entrepreneurial Opportunity” to Return to Pre-Obama Board Independent Contractor Test
For those keeping track, there are a number of different (yet somewhat similar) tests agencies and courts use to determine whether a worker is an employee or an independent contractor. For example, there is the Right-to-Control Test that the Internal Revenue Service uses for federal tax purposes, which is not to be confused with the …