Since the United States Supreme Court issued its ruling in Students for Fair Admissions v. Harvard University and the University of North Carolina on June 29, 2023, striking down race-conscious admission processes in higher education, it has sent shock waves throughout the corporate community as business leaders consider the decision’s potential impact on their own diversity, equity & inclusion (DEI) initiatives.

Littler Principal Cindy-Ann Thomas and her guest, Littler Shareholder Kim Carter, explore:

This podcast discusses the critical considerations when evaluating whether and how to terminate employees in Asia. Trent Sutton (U.S. qualified lawyer), Soowon Hong (Korean qualified lawyer) and Shiau Sang Tee (Hong Kong and Malaysia qualified lawyer), members of Littler’s APAC Regional Office based in Singapore, set out the general three approaches to terminations across Asia. They explore what grounds are generally defensible (or not) and the variation in the usage of negotiated exits.
 

In continued celebration of Asian American, Native Hawaiian and Pacific Islander Heritage Month, Littler shareholder Alyesha Asghar speaks with associates Alan Persaud and Grace Waddell about their experience in the Leadership Council on Legal Diversity’s Pathfinders Program and the inclusive community of legal professionals they joined by participating.
  

On August 7, 2024, the City of Los Angeles unveiled its “Model Contract” under the Freelance Workers Protections Ordinance (FWPO). This ordinance, which took effect on July 1, 2023, was designed to bolster protections for freelance workers in Los Angeles.

Ensure Compliance with California Labor Code Section 2775 et seq.

This article was originally posted in International Employment Lawyer.

Ole Kristian Olsby and Nina Elisabeth Thjømøe explain Norway’s new Anti-discrimination Tribunal.

International Law Office (ILO)

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Erin Webber shares her experience of being a woman in the legal profession and how her firm, Littler, is a leader in gender diversity.

Law360 Pulse

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(March 22, 2021) – Littler, the world’s largest employment and labor law practice representing management, is pleased to announce new leadership for its ‘Ohana and Reunión affinity groups. Additionally, the firm’s Diversity & Inclusion (D&I) Council added six new members.

(March 23, 2021) – Littler, the world’s largest employment and labor law practice representing management, is pleased to announce that several of its attorneys have been selected for the 2021 Leadership Council on Legal Diversity (LCLD) Fellows and Pathfinders programs and the National Employment Law Council (NELC) Academy.

Jennifer Youpa and Nina Markey discuss the importance of advancing gender equity in the workplace, how access and representation are critical to creating opportunities for women, and how women can help each other achieve their professional goals.
  

An employer pays its managers an annual salary and in addition provides monthly advances based on an estimate of the incentive bonus the employee appears likely to have earned by the end of the year. However, if the employee's performance declines over time so that the earned bonus ends up being less than the amounts advanced over the course of the year, it seems obvious that the employer should be able to deduct the overpayments from future paychecks.

The recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") mandates, for publicly traded companies, shareholder advisory votes on compensation packages provided to top executives and on "golden parachute" packages payable in connection with corporate transactions.

Section 162(m) of the Internal Revenue Code (the "Code") generally limits the deductibility of compensation paid by a publicly traded corporation to its top executive officers (the "covered employees") to $1 million annually (the "Million Dollar Cap"). However, this limit will not apply to certain amounts that qualify as "performance-based compensation." Compensation attributable to stock options, stock appreciation rights ("SARs") and restricted stock grants may qualify as performance-based compensation if they meet certain requirements.

The Internal Revenue Service recently issued proposed regulations under Section 457 of the Internal Revenue Code (the “Code”) that prescribe rules regarding deferred compensation plans sponsored by state and local governments and tax-exempt organizations.  These regulations relate primarily to the taxes imposed (under Code Section 457(f)) on the organization at the time the individual’s right to compensation vests, without regard to actual time of payment. 

Update 2: On March 12, 2021, in Mikelsteins v.

As many employers are on the way to normalizing their business practices and re-engaging their employees, they should not overlook the many potential pitfalls in the administration of their retirement, health and welfare plans and their executive compensation arrangements. The risks of missteps are high, and include loss of tax-qualification of retirement plans, penalty taxes in connection with the Affordable Care Act’s (ACA) employer mandate rules, other IRS penalties, employee lawsuits and Department of Labor enforcement actions.

The current administration and multiple members of Congress seek to grant protections to H-2B non-agricultural temporary workers who are employed in the United States to fill temporary labor shortages in the U.S. market. Multiple bills have been introduced in both the Senate and House of Representatives calling for protection against exploitation and abuse, including for employer violations of wage and hour laws and retaliation.

Alexander Thomas MacDonald provides insight into the new regulations under theH-2A visa program. 

The Federalist Society

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Stephan Swinkels and Michael Lotito discuss the intersection of employment and geopolitics and offer key considerations for the C-suite of global companies. 

Chief Executive

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On June 20, 2024, USCIS extended the validity of certain work permits issued to Temporary Protected Status (TPS) beneficiaries under the TPS designations for El Salvador, Honduras, Nepal, Nicaragua, and Sudan. All impacted beneficiaries will receive Form I-797, Notice of Action, notifying them of the extension of their Employment Authorization Documents (EADs or “work permits”) through March 9, 2025.

Earlier this month, President Biden released his COVID-19 Action Plan, Path Out of the Pandemic (Plan) with the stated goal of getting more people vaccinated.¹ As part of the Plan, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (Order).

Update: The vaccination deadline for covered federal contractors has been extended until January 18, 2022.

The federal government’s complicated multi-pronged approach to implementing COVID-19 safeguards related to federal contractors has left many confused.  We offer this brief guide to help contractors understand their obligations and the timelines for implementation.

On September 9, 2021, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“Order”), which directed the executive agencies to begin amending federal contracts to require federal contractors to take specific actions to combat COVID-19 and to, in turn, require covered subcontractors to take the same actions (the federal contractor COVID-19 workplace

The White House on November 4 announced that the deadline for employers covered by the federal contractor vaccine requirement to comply with the vaccine mandate will be extended from December 8, 2021 to January 4, 2022.

On August 18, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued a revised version of its Directive 2022-01 - Advancing Pay Equity Through Compensation Analysis, which was originally issued on March 15, 2022.

On June 5, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2023 Construction Corporate Scheduling Announcement List (CSAL). The CSAL includes 250 employers that OFCCP has identified as federal or federally assisted construction contractors.

On August 24, 2023, the Office of Management and Budget approved a request from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to revise the “Itemized Listing” that OFCCP uses to collect information from federal contractors that are selected for supply or service audits. Among the changes that have been approved is a new requirement that audited contractors:

On December 14, 2023, the U.S. Department of Labor issued final regulations requiring the so-called “nondisplacement” of workers performing work on contracts for the federal government under the Service Contract Act (SCA). These regulations implement Executive Order 14055, “Nondisplacement of Qualified Workers Under Service Contracts,” President Biden signed on November 18, 2021.

On March 29, 2024, the Office of Management and Budget (OMB) published revisions to Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (SPD 15). These changes will impact how companies collect the race and ethnicity data for their federal reporting. 

Michael Lotito says the Supreme Court’s decision to curb the SEC’s in-house courts may result in challenges for state labor agencies that use a similarly modeled in-house enforcement and appeals process.

Bloomberg Law

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Alex MacDonald says that federal agencies will have to look for new ways to advance their policy positions in the wake of SCOTUS overturning Chevron. 

Corporate Compliance Insights

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On June 3, 2024, the U.S. Court of Appeals for the Eleventh Circuit granted a preliminary injunction prohibiting a venture capital fund from awarding grants based on race and gender. In reversal of the district court, the majority found the grant contest “substantially likely to violate” 42 USC Section 1981, a federal statute enacted as part of the Civil Rights Act of 1866 prohibiting private parties from racial discrimination in contracts.

Andrea M. Kirshenbaum discusses the 2023-24 SCOTUS opinions that promise to reshape administrative law in the United States for decades to come.

The Legal Intelligencer

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On August 22, 2024, the U.S. Court of Appeals for the Ninth Circuit issued its decision in Synoracki v. Alaska Airlines, Inc., reviving a class action under the Uniformed Services Employment and Reemployment Rights Act (USERRA).¹ The case was brought by pilots who served in the Air Force Reserves who were seeking from their civilian employer sick leave and vacation accruals during periods of military leave.

Stephen T. Melnick talks about a new bill that proposes to give a tax credit to businesses in Massachusetts that join a pilot program to explore the possible benefits of a shorter workweek.

WorldatWork

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The Supreme Court has ruled that transgender people are protected under the Civil Rights Act, and so Joycelyn Stevenson and Sarah Belchic say employers need to ensure that their health care plans are inclusive.

The Tennessean

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Joy Rosenquist talks about the impact of an executive order banning the use of salary history in hiring by federal agencies and contractors.

WorldatWork

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Erin Webber explains how a remote environment requires more leadership responsibility, skills and choices.

The American Lawyer

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When Congress overrode President Trump’s veto of the National Defense Authorization Act on January 1, 2021, it enacted the Anti-Money Laundering Act (AMLA), which was part of the defense authorization bill.  In doing so, Congress implemented the most sweeping anti-money-laundering statute since the USA PATRIOT Act.  In addition to a number of regulatory reforms and new disclosure requirements, the AMLA has put into place new whistleblower protections, adding to the range of statutes that have effectively created anti-retaliation provisions for virtually every activity regulated by federal

The recently enacted Anti-Money Laundering Act significantly increases the potential value of awards for whistleblowers under the Bank Secrecy Act. The challenge for a financial services employer is to establish that discipline against an employee in a compliance role is supported by evidence that the decision was based on the employee's incompetence or other inappropriate behavior, and that any whistleblowing activity he or she engaged in was not a consideration. Philip M. Berkowitz explores the issues in this edition of his Employment Issues column.

On December 29, 2022, President Biden signed a new whistleblower law that significantly increases the risk and cost of whistleblower claims for domestic and overseas financial services institutions that must be cognizant of anti-money laundering (AML) laws and regulations. This covers 26 categories of institutions, including banks, branches and agencies of foreign banks, broker-dealers, insurance companies, operators of credit card systems, mutual funds, certain casinos, and travel agencies.

The latest binge watch for many of us at GQ|Littler was the Netflix hit, “America’s Sweethearts: Dallas Cowboys Cheerleaders,” which follows a year in the life of NFL’s Dallas Cowboys cheerleading team.