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Will Senators Keep America’s Promises To Pensioners?

Sarah Bryan Fask provides insight on multi-employer pension plans. 

DCReport

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The Butch Lewis Emergency Pension Plan Relief Act of 2021 Becomes Law

On March 11, 2021, President Biden signed into law the $1.9 trillion American Rescue Plan Act of 2021, which includes the Butch Lewis Emergency Pension Plan Relief Act of 2021.  This law is designed to forestall the insolvency of approximately 100 multiemployer pension plans that were expected to run out of money necessary to pay vested benefits over the next 20 years.  Included among these funds is a particularly large fund that – absent congressional intervention – would have gone insolvent by 2025, leaving millions of retirees without their expected monthly pension. 




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Department of Labor Announces Non-Enforcement Policy and Intent to Revisit ESG, Proxy Rules

On March 10, 2021, the Department of Labor’s Employee Benefits Security Administration (EBSA) announced that it will not enforce or otherwise pursue enforcement actions with respect to two recently issued final rules amending the “investment duties” regulation under Title I of the Employee Retirement Income Security Act (ERISA).




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Pension Insurer Preps Guidance to Stem Exodus From Failing Plans

Sarah Bryan Fask shares her insight about the future of pension plans for unionized employees.

Bloomberg Law

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Punching In: Marty Walsh Weighs His ‘Influence’ as DOL Secretary

Sarah Bryan Fask explains the future of multi-employer pension reforms.

Bloomberg Law

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Disability Benefits Policy Language Warrants Arbitrary and Capricious Standard of Review Despite Enactment of Anti-Discretionary Statute

A federal court in New Jersey recently applied the arbitrary and capricious standard of review for a denial of benefits claim despite the enactment of an anti-discretionary statute in Minnesota, which governed the benefit plan policy. Hocheiser v. Liberty Mut. Ins. Co., 2021 U.S. Dist. LEXIS 32154 (D.N.J. Feb. 22, 2021).




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What Comes After 2051 Pension Relief Sunset? It Depends, Attorneys Say

Sarah Bryan Fask explains how the special financial assistance will affect union-brokered pensions.

Bloomberg Law

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Colorado Court Decides Issue of First Impression Regarding ERISA Preemption of State Divorce-Revocation Statute

The Colorado Court of Appeals recently decided an issue of first impression regarding the Employee Retirement Income Security Act’s (ERISA) preemptive power over Colorado’s divorce-revocation statute. The decision in Ragan v. Ragan, 2021 COA 75, settled an open question in Colorado regarding whether ERISA preempts “post-distribution” lawsuits under Colorado’s divorce-revocation statute. Specifically, the court held that ERISA preempts lawsuits against a former spouse to recover plan benefits that were distributed to the former spouse as the named beneficiary.




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Supreme Court Declines to Hear Appeal in ERISA Class Action Permitting Recalculation of Benefits as Available Relief

The U.S. Supreme Court declined to review the Second Circuit’s decision in Laurent v. PricewaterhouseCoopers LLP, which held that retirees could receive money damages in the form of recalculated benefits in a class action over how the company’s cash balance pension plan calculated lump-sum benefits.




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What Employers Need to Know About the PBGC’s Interim Final Rule About the Special Financial Assistance Program




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The U.S. Labor Shortage: Employer Responses, Employment Law Challenges




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Pension Insurer Rule Details Multiemployer Plan Financing

Sarah Bryan Fask talks about the federal government’s temporary rescue of more than 200 union-brokered pension plans.

Bloomberg Law

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Littler Named “Law Firm of the Year” and Earns Tier 1 Rankings on U.S. News – Best Lawyers® 2022 “Best Law Firms” List

(November 4, 2021) – Littler, the world’s largest employment and labor law practice representing management, has been named “Law Firm of the Year” in the category of Labor Law – Management on the 2022 U.S. News – Best Lawyers® “Best Law Firms” list. The firm also earned “National Tier 1” rankings for the 12th consecutive year in the following practice areas:




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Supreme Court Sends Case Involving ERISA Breach of Fiduciary Duty Pleading Standard Back to Seventh Circuit for Revised Analysis

On Monday, January 24, 2022, the U.S. Supreme Court issued an opinion in a case of critical interest to employers offering 401(k) or other defined-contribution retirement plans.  In Hughes v. Northwestern University, Case No. 19-1401, the Court voted unanimously to vacate a decision from the U.S. Court of Appeals for the Seventh Circuit, temporarily reinstating allegations by employees of Northwestern University that the fiduciaries of Northwestern’s retirement plans had violated the duty of prudence required by ERISA.




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Second Circuit Finds No Successor Liability for ERISA Withdrawal Where Employer Did Not Acquire Unionized Facility or Employees

On January 27, 2022, in New York State Teamsters Conference Pension and Retirement Fund v. C&S Wholesale Grocers, Inc., the Second Circuit joined the Third, Seventh, and Ninth Circuits in applying the doctrine of successor liability to claims for withdrawal liability under the Employee Retirement Income Security Act (ERISA). The court did not, however, find successor liability in this case because the acquiring company specifically did not acquire the facility or employees that triggered the liability.




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DOL Issues Guidance on Use of Cryptocurrency in 401(k) Plans

On March 10, 2022, the Department of Labor issued guidance on the use of cryptocurrency in plans governed by ERISA.  The announcement applies to cryptocurrencies as well as digital assets, which include “tokens,” “coins,” “crypto assets” and any derivates thereof.




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Abortion Outlook Rapidly Changing in States

Anne Sanchez LaWer advises employers to evaluate the extent to which state laws restricting abortion may impact their healthcare plans, privacy practices, leave accommodations, company culture and other employment policies.

SHRM Online

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D.C. Circuit Holds Withdrawal Liability Interest Rate Must Reflect Plan’s Investment Policy

On Friday, July 8, 2022, the U.S. Court of Appeals for the D.C. Circuit issued its decision in United Mine Workers of America 1974 Pension Plan v. Energy West Mining Company, joining the Sixth Circuit in holding that the assumptions used by a multiemployer defined benefit pension plan in calculating the amount of withdrawal liability owed by an exiting employer must reflect the actual and projected experience of the plan.




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PBGC Issues Proposed Rule on Withdrawal Liability Actuarial Interest Rate Assumptions

On October 14, 2022, the Pension Benefit Guaranty Corporation (PBGC), the federal agency that insures and regulates private-sector defined benefit pension plans under Title IV of the Employee Retirement Income Security Act of 1974 (ERISA), published a proposed rule governing employer withdrawal liability.




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PBGC Looks To Clarify Withdrawal Liability Methodology

Sarah Bryan Fask explains why attorneys are critical of Pension Benefit Guaranty Corp.’s proposed rule to use interest rate assumptions to determine a withdrawing employer's liability to a multiemployer pension plan.

Law360

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Littler Earns “Law Firm of the Year” and Receives Tier 1 Rankings on U.S. News – Best Lawyers® 2023 “Best Law Firms” List

(November 3, 2022) – Littler, the world’s largest employment and labor law practice representing management, has earned “Law Firm of the Year” status in the category of Employment Law – Management on the 2023 U.S. News – Best Lawyers® “Best Law Firms” list. The firm also received “National Tier 1” rankings for the 13th consecutive year in the following practice areas:




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Hot Topics and New Employment Laws: Everything Employers in the DMV Need to Know to Hit the Ground Running in 2023




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DOL Issues Final Rule for ERISA Fiduciaries Considering Socially Conscious Investments

Employers offering 401(k) and similar retirement plans should familiarize themselves with a new rule published by the Employee Benefits Security Administration of the U.S. Department of Labor, Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights, which takes effect on January 30, 2023.




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First Circuit Creates New Fiduciary Duty Under ERISA for Insurers Accepting Group Premiums from Employers

  • First Circuit held that an insurer has a fiduciary duty under ERISA to verify individual employee eligibility for group benefit plan coverage at or near the time of enrollment.
  • Insurers can shift the duty of eligibility verification to employers through the plan’s language.




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2023 Texas Webinar Series - Session 1




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Long-Awaited Fall Regulatory Agenda Provides Glimpse of Administration’s Regulatory Goals

  • Federal agencies released their regulatory agenda for the coming months.
  • Final rules expected to be issued in 2023 include the NLRB’s on joint employment and revised election procedures; the DOL’s on independent contractors Act and “persuader” reporting; and OSHA’s on injury and illness recordkeeping and occupational exposure to COVID-19 in healthcare settings.




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5 ERISA Cases To Keep An Eye On In 2023

Sarah Bryan Fask comments on the Pension Benefit Guaranty Corp.’s proposed rules that would govern interest rate assumptions for calculating withdrawal liability in a pension fund and how they will affect cases like Energy West.

Law360

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Proposed Overtime Rule Scheduled to Be Published in May

Shannon Meade examines the key labor and employment regulatory actions included in the Biden administration’s long-awaited Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions.

SHRM Online

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Update in ERISA Litigation Involving Breaches of Fiduciary Duty Claims

  • Several appellate courts over the past year have applied Supreme Court precedent to determine whether complaints properly allege a breach of fiduciary duty under ERISA to warrant relief.
  • Trends useful for employers defending such lawsuits have emerged.

Lawsuits against employers offering retirement benefit plans have been on the rise.  Recent suits, discussed in this update, have provided some guidance for employers. 




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Seventh Circuit Case Confirms that “Full and Fair Review” of Disability Claims Requires Disclosure of New Evidence Before Denying Appeals

A recent federal appeals court case clarifies that, under ERISA, the regulations governing disability plans’ claims review procedures apply to claims that predate the 2018 changes to the regulations. The decision also serves as a reminder for plan administrators to review their claims review procedures to ensure compliance with the current requirements for a “full and fair review” benefits appeal process.

The Claims Review Regulations




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Federal Court Dismisses Case Alleging Breach of ERISA Fiduciary Duties in 401(k) Class Action

Fiduciaries of retirement plans continue to be plagued by class actions brought under the Employee Retirement Income Security Act (ERISA) challenging their fiduciary management of investment options and participant fees. A recent federal court decision, however, shows that fiduciaries of ERISA retirement plans may be able to attack and defeat complaints alleging breaches of ERISA fiduciary duties at the pleading stage if the right arguments are made and if certain fact patterns are present. 




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Littler Lightbulb – July Employment Appellate Roundup

This Littler Lightbulb highlights some of the more significant employment law developments at the U.S. Supreme Court and federal courts of appeal in the last month.

At the Supreme Court




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Fourth Circuit Establishes New Standards for Plaintiffs Seeking Unjust Enrichment as an Equitable Remedy under ERISA

  • The Fourth Circuit weighed in on the complex area of equitable relief under ERISA § 502(a)(3), holding that recovery under an unjust enrichment theory may provide claimants with an alternate path to monetary relief under the statute.




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Michigan Court Dismisses ERISA Class Action

  • Class action lawsuits continue to target ERISA fiduciaries for their decisions about investment options and fees.
  • However, even class action complaints that seem supported by citations to comparator plans or investment funds can be vulnerable to attack at the pleading stage.




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Littler Recognized as “Law Firm of the Year” and Earns Tier 1 Rankings in the 2024 Edition of Best Lawyers® “Best Law Firms®” List

Littler, the world’s largest employment and labor law practice representing management, was named “Law Firm of the Year” for Labor Law - Management in the 14th edition of Best Law Firms®, ranked by Best Lawyers®. The firm also earned “National Tier 1” rankings for the 14th consecutive year in the following practice areas:




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D.C. Circuit Breaks from Second Circuit, Finds Pension Fund May Retroactively Change Its Interest Rate Assumptions

On February 9, 2024, the U.S. Court of Appeals for the D.C. Circuit issued its decision in Trustees of IAM Nat'l Pension Fund v. M & K Emp. Sols., LLC, No. 22-7157 (D.C. Cir. Feb. 9, 2024), affirming the district court’s decision to vacate an arbitration award for the employer in a pension fund withdrawal liability case.  The D.C.




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More Changes to Minnesota’s Employment Laws are Imminent

  • Minnesota enacted an omnibus bill that includes a host of new labor and employment law changes.
  • Provisions of the bill address pay transparency, earned sick and safe time and paid family leave, independent contractor classification, pregnancy leave rights, drug testing, non-solicitation agreements, minimum wage and tip laws, among others.




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In Advance of July 1 Compliance Deadlines, Chicago Agency Posts Updated Guidance and Notices for the City’s Minimum Wages, Paid Leave, Fair Workweek Thresholds, and Required Notices

The Chicago Department of Business Affairs and Consumer Protection (BACP) Office of Labor Standards (COLS) recently posted updates to its website regarding minimum wage obligations, paid leave and paid sick and safe leave, new fair work week thresholds, and updated required labor notices. The compliance deadline for these obligations is July 1, 2024.




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Doesn’t the Pregnant Workers Fairness Act just require employers to treat pregnant employees just like they treat employees with disabilities?




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New York Now Requires Paid Lactation Breaks

Effective June 19, 2024, New York employers will be required to provide up to 30 minutes of paid lactation breaks to employees each time an employee has a reasonable need to express breast milk at work. This change to New York Labor Law Section 206-c is set forth in Bill No. A08806C, part of the New York State budget bill, which Governor Kathy Hochul signed into law on April 19, 2024. Specifically, amended Section 206-c provides:




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Innovative Approaches to Paid Leave

Jeff Nowak says it is better for companies to add flexibility to employees’ existing leave, rather than create standalone categories and risk creating an atmosphere of exclusion for some employees with different life situations.

SHRM Online

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UK Election News: Labour – All “Change” for Employment Law

  • UK’s general election will take place on July 4, 2024.
  • This Insight highlights key labor and employment proposals set forth by the Labour Party, which is the current political frontrunner.




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More than one million fit notes issued for mental ill-health last year – what can HR do to help?

Sophie Vanhegan says employers must continue to shift culture and workplace dynamics to encourage greater awareness of and support for mental health matters. 

People Management

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Legal-Ease: Your Lawyer as Your Business Consultant

Kristy Peters shares her legal insight on recent changes in labor and employment laws.

Greater Phoenix In Business Magazine

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Innovative Approaches to Paid Leave

Jeff Nowak says it may be better for companies to add flexibility to existing leave of absence and disability accommodations for employees, rather than create standalone categories.

SHRM

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2024 Summer Olympics Series: United States




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2024 Summer Olympics Series: Japan




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Untangling the Oregon Leave Quagmire – Answers to Common Compliance Questions in Light of Recent Legislative Changes

If you have employees working in Oregon, chances are you have heard about Oregon’s Paid Family and Medical Leave Insurance Program also known as Paid Leave Oregon (“PLO”). In addition to PLO, eligible Oregon employees may be entitled to leave under the Oregon Family Medical Leave Act (“OFLA”), Oregon Sick Time law (“OSTL”), and the federal Family Medical Leave Act (“FMLA”).




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Michigan Supreme Court Voids Existing Minimum (Cash) Wage and Paid Sick Leave Laws and Revives Old Laws

UPDATE: On August 21, 2024, the Attorney General and State of Michigan asked the Michigan Supreme Court to clarify – no later than September 15, 2024 – various rulings in its July 31, 2024 decision, e.g.: 1) How the state should calculate CPI adjustments for the preset minimum wage rates in 2025 through 2028; 2) Whether, aside from in 2025, future minimum wage rates will take effect on February 21 or January 1; and 3) Whether the court intended to have the minimum cash wage increase from 80% (2028) to 100% (2029) rather than 80% (2028), 90%




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UK: The King’s Speech and What it Means for Employment Law

  • The King’s Speech was delivered on July 17, setting forth the UK Government’s legislative agenda for the next Parliamentary Session.  
  • Highlights include the introduction of an Employment Rights Bill within the first 100 days, publication of a Draft Equality (Race and Disability) Bill, and a living wage that accounts for the current cost of living and eliminates age bands.