The PBGC Acts to Level Withdrawal Liability’s Procedural Playing Field

shutterstock_pensionThe recent action by the Pension Benefit Guaranty Corporation (“PBGC”) to rein in run-away filing fees imposed by the American Arbitration Association (“AAA”) brings to mind Homer Simpson’s declaration that alcohol was “the cause of, and solution to, all of life’s problems.” In a like manner, the PBGC can be seen as the cause of, and now (happily) the solution to, the very steep filing fees previously imposed by the AAA on withdrawn employers.

By way of background, for many years, employers assessed withdrawal liability faced a Hobson’s choice: either pay the fees demanded by the AAA to initiate arbitration, or forego any chance to challenge the assessment. Of course, by failing to initiate arbitration, the amounts demanded by the pension fund become, in the words of the statute, “due and owing on the schedule set forth by the plan sponsor.”

This unpleasant situation for employers – pay up, or else – was set in motion by a PBGC regulation that allows pension funds to impose the AAA rules (and the required filing fees) on withdrawn employers. That regulation purports to allow Continue reading

How Employers Can Respond to the 2019 Novel Coronavirus Outbreak

By:  Kara M. Maciel and Beeta B. Lashkari

Medical ExamThe 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers.  This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.

The Coronavirus Outbreak

First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread.  However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring.  At this time, it is unclear how easily the virus is spreading between people.  Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell.  The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. Continue reading

Challenges to New California Independent Contractor Law and Ban on Mandatory Arbitration Agreements Wind Through the Courts

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As expected, there have been a number of legal challenges to California Assembly Bills 5 and 51, both of which were signed into law by California Governor Gavin Newsom and set to go into effect on January 1 of this year.

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DC Paid Family Leave: February 1st Posting/Notice Requirement and More

As of July 1, 2020, eligible employees in the District of Columbia (“DC”) will be entitled to paid leave up to a designated period depending on the qualifying leave event.DC Flag for Blog  Covered employers should have begun making paid family leave contributions beginning July 1, 2019.  Specifically, covered employers must contribute a quarterly payroll tax of 0.62% of covered employees’ total gross wages from the immediate past quarter.  In addition to paying the required quarterly payroll tax, there are several other aspects of the law of which employers should be aware.  Here, we review and highlight important aspects of DC’s Paid Family Leave law, including the February 1st posting/notice deadline.  For additional discussion on the DC Paid Family Leave law and frequently asked questions, please also see our prior post.

Covered Events and Applicable Leave Periods

As you may know, the DC Paid Family Leave law provides leave benefits to eligible employees for three types of leave: (1) parental leave; (2) family leave; and (3) medical leave.  “Parental leave” includes events associated with the birth of a child, placement of a child with the employee for adoption or foster care, and placement of a child with an employee who legally assumes and fulfills parental responsibility for the child.  “Family leave” is leave taken to care for a family member with a diagnosis or occurrence of a serious health condition.  And “medical leave” is leave taken to attend to one’s own diagnosis or occurrence of a serious health condition. Continue reading

DOL Releases Final Rule for Determining Joint Employer Status

Department of LaborEarlier this week, on January 12, 2020, the U.S. Department of Labor (DOL) announced the release of its final rule revising and updating its regulations interpreting joint employer status under the Fair Labor Standards Act (FLSA).  According to DOL, “The final rule provides updated guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity, including guidance on the identification of certain factors that are not relevant when determining joint employer status.”  The DOL published its Notice of Proposed Rulemaking (NPRM) on April 9, 2019, and received over 12,000 comments within the 30-day comment period.  The final rule becomes effective on March 16, 2020, 60 days after publication in the Federal Register today, January 16, 2020.

As a threshold matter, under the FLSA, an employee working for one company may be found to be the joint employee of a second, independent company, depending on the nature and extent of control over the employee’s work.  Joint employer status is important for numerous reasons, including the fact that a joint employer can be held joint and severally liable for FLSA wage and hour obligations.  In 1958, DOL published an interpretive regulation, 29 C.F.R. § 791, explaining that joint employer status depends on whether multiple persons are “not completely disassociated” or “acting entirely independently of each other” with respect to the employee’s employment. 

Specifically, the regulation provided three situations where two or more employers are generally considered joint employers: (1) where there is an arrangement between the employers to share the employee’s services (e.g., to interchange employees); (2) where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.  The DOL issued its NPRM out of concern that Continue reading

Court Stresses the Need for a Business to Provide an Accessibility Statement on its Website

In 2018 and 2019, there were approximately 5,000 federal lawsuits filed against hotels, restaurants, stores, and other places of public accommodation alleging that their shutterstock_web accessibilitywebsites violated Title III of the Americans with Disabilities Act (“ADA”).  In all likelihood this number of lawsuits will increase in 2020 now that the U.S. Supreme Court has declined to review a Ninth Circuit Court of Appeals decision against Domino’s Pizza that essentially gave the green light for individuals with visual impairments to file suit against places of public accommodation if their websites are not fully compatible with screen reader software or otherwise not accessible.  You can read more about the Supreme Court’s decision here.

Despite the Supreme Court’s recent denial of Domino’s petition for Writ of Certiorari, business owners and operators have at least some room for optimism.  Indeed, as we explained in a prior blog post, there were two rulings from the Southern District of New York in the Spring of 2019 that ruled in favor of businesses when: (1) the business had already fixed the website which mooted the case; and (2) the plaintiff had failed to identify any concrete or particularized injuries she suffered, including which sections of the website she tried to access, the date on which she visited the website, and what goods or services she was unable to purchase.  Thus, it is comforting to know that at least some defenses are available and can succeed on a motion to dismiss.

Then, in November 2019, another business prevailed on a website accessibility case, this time in a case arising out of the Eastern District of New York.  See Castillo v. The John Gore Organization, Inc., Case No. 1:19-cv-00388-ARR-PK (E.D.N.Y. Nov. 14, 2019).  This case arose out of a theater’s stated policy on its website Continue reading

[Webinar] California Employment Law Update for 2020

On Wednesday, January 15, 2020 at 10:00 AM Pacific (1:00 PM Eastern), Andrew J. Sommer and Megan S. Shaked will present a complimentary webinar regarding “California Employment Law Update for 2020: New Legal Requirements and Practical Compliance Strategies Every HR Professional and Manager Should Know.”

2020 brings significant changes for California employers, from a new test for shutterstock_378771547.jpgdetermining independent contractor status to a ban on no rehire agreements and revamped reporting standard for serious workplace injuries. 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 will learn about the following: Continue reading