Responding to an Assessment of Withdrawal Liability from a Multiemployer Pension Plan

By: Mark M. Trapp

CaptureNearly nine years ago, in 2014, Mark M. Trapp authoredPractical Law “Practice Note” titled “Responding to an Assessment of Withdrawal Liability from a Multiemployer Pension Plan.” Trapp is a Partner in Conn Maciel Carey’s Labor and Employment Practice Group. Practical Law, a division of West Publishing Corporation, is a well-known legal publishing company.

Periodically during the ensuing years, Trapp has revised and updated the practice note to reflect changes to the law and to keep it current. The latest update was recently published by Practical Law in January 2023.

As its name implies, the practice note addresses key procedural issues in an employer’s response to an assessment of withdrawal liability from a multiemployer pension plan under the Multiemployer Pension Plan Amendments Act of 1980. Specifically, the published article guides an employer in responding to an assessment and covers: Continue reading

Join CMC’s Coalition to Combat the FTC’s Ban of Noncompete Agreements

Earlier this month, the Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking for its proposed rule that would essentially prohibit employers from entering into noncompete agreements with any employee, as well as with independent contractors, interns, volunteers, and other types of workers. The proposed rule would require employers to withdraw any existing noncompete agreements and inform employees that noncompete agreements no longer apply. The proposed rule would also make it unlawful for an employer to enter into a noncompete agreement with an employee, to attempt to enter into such an agreement with an employee, or to suggest that an employee is bound by a noncompete agreement when the employee is not.

While the FTC may justify this proposed rule as necessary to allow workers to move freely without restrictions, we believe that this rule, if passed, would severely compromise a company’s ability protect its trade secrets and other confidential information, and could negate a company’s significant investment in valuable investments in its employees, including employee training.  Indeed, there are countless reasons why a narrowly tailored noncompete agreement is a necessary tool that has been, and should continue to be, in an employer’s arsenal to protect its significant investment in its employees and the information to which they are privy.

The rule is currently open for comment.  To that end, Conn Maciel Carey LLP is organizing a new fee-based coalition of employers and trade groups to advocate for the most reasonable FTC rule possiblewith the goal of helping to shape any rule that the FTC ultimately promulgates in such a way that the rule is palatable to employers. We would be honored to partner with your organization in this endeavor. Continue reading

The EEOC’s Request for Information and Comment on its Draft Strategic Enforcement Plan

While the Supreme Court is weighing the legality of universities’ race-conscious admissions processes, the Equal Employment Opportunity Commission (“EEOC”) views acts like the tragic killing of Black and brown people and high-profile incidents of bias and violence based on protected categories, like race, outside the workplace as a “painful reminder of systemic racism.” Within the workplace, the disproportionate economic impact of the COVID-19 pandemic on people of color and other vulnerable workers magnifies continued inequalities. It is against this backdrop that on January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) published a request for comment in the Federal Register on the EEOC’s Strategic Enforcement Plan for 2023—2027.

The EEOC’s Strategic Enforcement Plan:

The EEOC adopted its first Strategic Enforcement Plan (“SEP”) for FY 2013—2016. The enforcement subject matter priorities, addressed in greater detail below, for SEP for 2023—2027 are meant to ensure that the agency’s resources have strategic impact to prevent and remedy discrimination and advance equal opportunity employment.

  1. Eliminating Barriers in Recruitment and Hiring

The request for comments, notes there is a lack of diversity in certain industries such as construction and high tech. To achieve the EEOC’s purpose of advancing equal employment opportunities, the EEOC will focus on recruitment and hiring practices including: Continue reading

[Webinar] California Employment Law Update

On Thursday, January 19, 2023 at 1 p.m. EST / 10 a.m. PST, join Andrew J. SommerMegan S. Shaked, and Samuel S. Rose for a webinar regarding a California Employment Law Update.

2023 brings changes for California employers to a range of topics touching on pay equity and marijuana use, as well as wage and hour compliance. This webinar will review compliance obligations for companies doing business in California, as well as discuss the practical impact of these new laws and best practices for avoiding potential employment-related claims.

Participants in this webinar will learn: Continue reading

FTC Moves to Ban the Use of Noncompete Agreements by All Employers

By Kara M. Maciel and Samuel S. Rose

The Federal Trade Commission (FTC) has issued a Notice of Proposed Rulemaking for its proposed rule that would essentially prohibit employers from entering into noncompete agreements with any employee, independent contractors, interns, volunteers, and other types of workers. The FTC’s self-described mission is “protecting the public from deceptive or unfair business practices and from unfair methods of competition through law enforcement, advocacy, research, and education.” This proposed rule is the latest example of the FTC, under the direction of Chair Lina Khan, attempting to control corporate power and influence. Since Khan took over control of the agency in June 2021, the FTC has challenged the Microsoft-Activision merger, worked with the Justice Department to force Epic Games Inc., developer of the popular video game Fortnite, to agree to massive privacy law violation penalties, and filed a lawsuit to block Meta from buying a virtual reality start-up.

Generally, noncompete agreements prevent an employee from joining a competitor or starting a competitive business for a specified period of time. Often, noncompete agreements are limited to a geographic area.  Many states regulate noncompete agreements in a variety of ways, including through income levels and notice requirements, but this new federal rule would supersede any state or local law that expressly allows for such restrictions.

The FTC estimates that approximately 30 million people are bound by noncompete agreements. Continue reading

Conn Maciel Carey LLP Elevates Daniel Deacon to Partner

Conn Maciel Carey LLP (CMC), a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, is pleased to announce that Daniel Deacon has been elevated to Partner.

Mr. Deacon, based in the Washington, DC office, advises and represents employers on a wide range of employment-related issues, including handling wage and hour disputes, claims of discrimination, harassment and retaliation, compliance with the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), trade secret matters, as well as inspections, investigations and enforcement actions by OSHA, MSHA, and state OSH agencies.

Mr. Deacon joined the firm in 2015, one year after CMC was founded. “With the exception of a judicial clerkship for the 18th Judicial Circuit of Virginia, Dan has been with our team since he was a summer associate, so in a very real sense, he is one of the founders of this firm and has always been an important part of our success,” says Eric Conn, a co-founding partner and Chair of the firm’s national OSHA Practice. “It has been such a joy to watch Dan grow as an attorney into one of the rising stars of the OSHA defense bar.”

“I am so proud to have witnessed Dan advance from a Continue reading

Happy Holidays and Happy New Year from Conn Maciel Carey!

From all of us here in the national Labor & Employment Practice Group at Conn Maciel Carey, to all of you, happy holidays and happy New Year.  We wish you a joyful and safe holiday season.

Please enjoy this holiday greeting from the CMC family to your family:

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We have so much to be thankful for at Conn Maciel Carey, but most of all, we thank you all for continuing to turn to us for counsel and legal services.  Please contact us if you have questions about any of the topics we have covered here on the Employer Defense Report blog, or if you have ideas for other subjects we should be covering.  And of course, contact any of us if there is ever anything our national Labor & Employment Practice Group at Conn Maciel Carey can do to help you or your company with Labor & Employment law issues.

Announcing Conn Maciel Carey LLP’s 2023 Labor and Employment Webinar Series

Announcing Conn Maciel Carey LLP’s

2023 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 3 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  

Conn Maciel Carey’s complimentary 2023 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examine past trends and look ahead at the issues most likely to arise.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2023 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past eight years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.

California Employment Law Update

Thursday, January 19, 2023

Remote Work Challenges

Wednesday, February 22, 2023

Whistleblower/Retaliation Issues

Tuesday, March 21, 2023

Pay Transparency & Non-Compete Laws

Wednesday, April 20, 2023

Managing Internal Investigations

Thursday, May 11, 2023

Hot Topics in Wage and Hour Law

Tuesday, June 20, 2023

Marijuana and Drug Testing

Tuesday, July 18, 2023

Privacy Issues in the Workplace

Wednesday, September 20, 2023

ADA Reasonable Accommodations

Wednesday, October 18, 2023

Artificial Intelligence in the Workplace

Tuesday, November 21, 2023

NLRB Issues and Joint Employer Update

Thursday, December 14, 2023

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.


Continue reading

Recap of Year Two of the Biden Administration [Webinar Recording]

On Wednesday, December 7, 2022, Kara M. Maciel and Aaron R. Gelb presented a webinar regarding a Recap of Year Two of the Biden Administration.

As we approach the midway point of the Biden Administration, we will take stock of the lay of the land at Biden’s DOL, reviewing the initiatives the Department and its agencies have focused on in Year 2 and evaluating how they have fared in driving change at DOL, EEOC, NLRB, and OSHA. We will also assess those agencies’ rulemaking, policymaking, and enforcement efforts; make predictions about what employers can expect from the Biden Administration’s DOL in the second half of President Biden’s presidential term; and assess the impact of the mid-term elections.

Participants in this webinar learned about: Continue reading

California Rings in 2023 with New Employment Laws

By Andrew J. Sommer, Fred Walter, Megan S. Shaked, and Samuel S. Rose

This year, Governor Newsom has signed into law employment bills on disparate subjects such as pay equity, cannabis use, and leaves of absence.  These new laws also concern industry-specific mandates for wage and hour compliance and human trafficking avoidance. These new laws take effect on January 1, 2023, unless otherwise noted.

New Pay Equity Law Requiring Disclosure of Employee Pay Scales

Senate Bill (SB) 1162 amends the existing requirement for private employers with 100 or more employees to submit pay data reports to the California Civil Rights Department. The employer pay data reports are now due by the second Wednesday of May 2023, and the second Wednesday of May for each year thereafter. SB 1162 also requires private employers with 100 or more employees hired through labor contractors to submit, by the second Wednesday of May, a separate pay data report to the Civil Rights Department for those employees.

These pay data reports must now include the median and mean hourly rate for each combination of race, ethnicity, and sex within each enumerated job category (for example, executive/senior level officials/managers, professionals, administrative support workers, service workers, etc.). Employers with multiple establishments need not submit a consolidated report, as previously required. Importantly, employers can no longer submit an EEO-1 in lieu of a pay data report.

This law also adds a requirement that Continue reading