On July 10, 2019, the Sixth Circuit considered vexing questions of statutory interpretation in an ERISA case. A dispute over whether a transaction bonus plan was an ERISA employee pension benefit plan hinged on the meaning of two terms common in federal statutes: “results in” and “extending to.” While the meaning of the statute was
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Ninth Circuit Opens the Door to Arbitration in ERISA Fiduciary Breach Claims
On August 20, 2019, the Ninth Circuit held in Dorman v. Charles Schwab Corp. that a 401(k) plan’s mandatory arbitration clause was enforceable in relation to a breach of fiduciary duty claim brought under ERISA § 502(a)(2). No. 18-15281 (9th Cir. Aug. 20, 2019). This is the first case in which the Ninth Circuit concluded…
Retirement Savings as a Political Cudgel in the Debate over FTTs
Our own Richard Shea and Jack Lund recently contributed a post to the RetireSecure Blog maintained by the Pension Research Council of the Wharton School at the University of Pennsylvania. The post discusses the competing rhetoric surrounding the impact of proposed financial transaction taxes on the American retirement system.
Hiring Employees vs. Independent Contractors: Navigating Classification Issues in a Drastically Altered California Legislative Landscape
Recently enacted California Assembly Bill 5 (“AB-5”) is a game changer for businesses that use independent contractors in California — and a warning shot for employers nationwide. Subject to exemptions for certain occupations and professions, AB-5 imposes a strict “ABC” test that appears to put a thumb on the scale of classifying workers as employees…
DOL Publishes Final Rule Expanding Overtime Protections
The U.S. Department of Labor (DOL) has announced a final rule that will increase access to overtime pay under the Fair Labor Standards Act (FLSA) for approximately 1.3 million workers. The final rule, which comes six months after DOL published a proposed rule in March, is the latest development in a years-long process by DOL,…
IRS Rules 23andMe’s Home DNA Kit Eligible for Partial FSA Reimbursement
In May, the IRS issued a private letter ruling to an individual taxpayer regarding the deductibility of 23andMe’s at-home DNA test kits under section 213(d) of the Code, which permits the deduction of medical expenses. In the ruling, the IRS determined that an allocable portion of the purchase price may be treated as a deductible…
California Bans Hairstyle Discrimination
Bolstering the state’s reputation for progressive employment legislation, California has become the first state to ban discrimination based on natural hair and protective hairstyles. On July 3, 2019, California Governor Gavin Newsom signed into law SB 188, which amends the California Fair Employment and Housing Act (FEHA), specifying that “hair discrimination targeting hairstyles associated…
DOL Labels Gig Economy Company’s Workers as Independent Contractors
On April 29, 2019, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued an opinion letter finding that “virtual marketplace company” workers (of an unnamed business) were independent contractors rather than employees. While not binding, the opinion signals that DOL is taking a less aggressive approach than in recent years to the hot-button…
DOL Publishes Proposal to Expand Overtime Protections
Following two years of anticipation, after a similar but more aggressive rule was proposed by President Obama’s administration and then squashed by federal courts in Texas, the Department of Labor (DOL) has issued the long-awaited Notice of Proposed Rulemaking that, if enacted, would expand access to overtime pay for certain employees under the Fair Labor…
Rulings Question the Enforceability of Employee Non-Solicitation Covenants in California
Over three decades ago, in Loral Corp. v. Moyes, a California Court of Appeal held that employee non-solicitation agreements, which bar former employees from soliciting the employer’s existing employees, could be enforceable. In 2008, the California Supreme Court in Edwards v. Arthur Andersen LLP held that non-competition agreements are unlawful restraints on trade and void…