HR and Benefits CLE & CPE

Restrictive covenants are enforced under the standards of reasonableness, recognizing the balance between protection and free competition.

The past two years have seen the undeniable growth of collective bargaining agreements (CBA) in both the public and private sector workplace.

Over the past years, multiple states have enacted and amended laws against unfair competition. However, the push to widen the scope of banning restrictive covenants and non-compete agreements raises concerns among employers, especially in protecting important company assets and trade secrets.

Employee Stock Ownership Plan (ESOP) may not always be a good move for every business because of the complex operating rules and high legal compliance costs that surround it. Many employees remain skeptical due to several issues including lack of diversification, cash flow difficulties, and share price dilution.

As the 2020 proxy season comes to a close, we reflect on the third year that CEO pay ratio disclosure under Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act and Item 402(u) of Regulation S-K has been required annual disclosure for public companies. Compliance should be easier for companies that have already made pay ratio disclosures in 2018, 2019 and 2020. However, companies that have been using the same median employee will need to dust off employee census data and identify a new median employee next year whose compensation will be the basis of comparison. The impact of COVID-19 on the corporate workforce may also necessitate identifying a new median employee for companies that have initiated a reduction in force. 

Supporting diversity in the workplace is an essential factor that organizations must consider to ensure their success. With an ample understanding of how to effectively manage diversity and inclusion, companies will have an upper hand when it comes to recruiting and hiring talents. However, it has also become a challenge for this generation's leadership to make their organization more diverse and inclusive.

Regulatory uptakes on anti-competitive restrictions in labor markets is expected to ramp up with the Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) in the lead. Recently, the DOJ filed Statement of Interest on several pending cases to provide courts with significant guidance on the analysis of “no-poach” agreements and clarified that alleged cases of “no-poach” agreements do not automatically warrant per se review.

Three significant Employee Retirement Income Security Act (ERISA) cases will be brought before the U.S. Supreme Court in its 2019-2020 term and ERISA attorneys are encouraged to gear up for an exciting year.

Diversity and Inclusion (D&I) is becoming an essential factor in workplace management. An inclusive corporate culture makes everyone feel valued, thus, boosting employee engagement and experience. D&I is also credited for improving corporate innovation and bottom line thru higher performing and more creative workforce.

Issues concerning employee misclassification continue to grow, as employers often misunderstand the legal distinctions between employees and independent contractors.   While many employers are tempted to hire and classify their workers as independent contractors, they often fail to appreciate both the legal requirements necessary to accomplish this, and the disastrous financial outcomes that can result from their mistake.  It is essential that employers understand and follow the complex and often confusing rules issued by state and federal agencies as well as the U.S. courts. 

The COVID-19 virus has posed unprecedented challenges for employers of all sizes. Agencies at the federal, state, and local levels are issuing a stream of guidance and orders that are updated on a daily basis. Relatedly, employers are trying to familiarize themselves with the obligations imposed and benefits conferred by a barrage of new legislation.

The fiscal year 2020 continues to be a dynamic year for employee retirement plans as changes and cases continue to shape the area. Primarily, the U.S. Supreme Court agreed to review three cases relating to the Employee Retirement Income Security Act (ERISA), which involves a range of significant issues. Whereas at the circuit court level, several high-profile lawsuits are emerging that could attract the attention of judges.

The Setting Every Family Up for Retirement (SECURE) Act was signed into law last December 2019 as part of the year-end spending bill. Comprising nearly 30 provisions, the SECURE Act implements various measures aimed at improving retirement savings security. It also includes significant requirements designed to increase access to tax-advantaged accounts, as well as easier avenues for small and medium-sized companies to participate in pension plans for their employees.

Class actions alleging labor law violations continue to hound employers throughout the country. As the volume of these cases increases, new court rulings also continue to emerge and reshape the litigation landscape. Anticipated court rulings which employers should follow in 2020 include Retirement Plans Committee Of IBM v. Jander, et al., Intel Corp. Investment Policy Committee v. Sulyma, et al., and Thole, et al. v. U.S. Bank, N.A.

Over the past years, radical changes have been continuously escalating in the pension investment and design landscape. With the continuous changes in the market and new pension legislation, defined benefit plan risk must be actively managed.