In a recent decision, the United States Supreme Court ruled that a lateral job transfer can – in certain circumstances – be an illegal adverse action and support a claim for a lawsuit for unlawful discrimination. This decision will increase the type of job actions for which employers can be sued and will lead to greater risk for employers in making challenging employment decisions. On April 17, in the closely-watched case Muldrow v. City of St. Louis, Missouri (Docket No. 22-193), the Supreme Court held that a job transfer, even if there is no loss of pay and benefits, can be an adverse job ac ..read more

For healthcare provider companies, a critical question about the FTC’s decision is whether it applies to nonprofit entities. I recently analyzed the impact on the healthcare industry of the vote by the Federal Trade Commission (FTC) to move forward with a final rule banning non-compete agreements for an article in Modern Healthcare. The statute that created the FTC says an entity must be “organized to carry on business for its own profit or that of its members” to fall under the FTC’s jurisdiction. The impact of how applicable the non-compete ban is to nonprofit entities is particularly import ..read more

The U.S. Department of Labor (DOL) announced a Final Rule increasing the salary threshold for Fair Labor Standards Act (FLSA) overtime exemptions, a move which the DOL anticipates will result in around four million additional workers becoming eligible for overtime pay.  Currently, the minimum salary requirement for the “white collar” exemptions (executive, administrative, and professional) is no less than $684 per week ($35,568 per year).  Under the DOL’s new Final Rule, this amount will increase to: $844 per week ($43,888 per year) on July 1, 2024 $1,128 per week ($58,656 per year ..read more

The U.S. Department of Labor issued final regulations on April 23, expanding the definition of “fiduciary” under ERISA. The final regulations alter the definition of “investment advice fiduciary” for purposes of Title I and Title II of ERISA to impose fiduciary duties on individuals or entities that make compensated recommendations related to the use of retirement assets to participants, beneficiaries and owners of qualified retirement plans and IRAs. One hotly debated change brought about by the new regulations includes subjecting to ERISA fiduciary standards most recommendations related to r ..read more

The Background The Pregnant Workers Fairness Act (PWFA) became effective on June 27, 2023. On August 11, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued its proposed regulations on the PWFA. After receiving over 100,000 public comments on its Notice of Proposed Rulemaking, the EEOC issued its final rule and interpretive guidance to implement the PWFA on April 15, 2024 (Final Rule). The Final Rule was published in the Federal Register on April 19, 2024, and will become effective 60 days later. Highlights of the PWFA The PWFA requires most employers with 15 or more employees ..read more

Join us on May 14 for a deep dive into top legal trends that general counsel should prioritize as they continue to navigate 2024’s evolving regulatory landscape related to labor and employment issues and developments. Our presenters will discuss various topics, including challenges related to DEI initiatives and disclosures and the SEC’s focus on separation and severance agreements. They will also revisit the FTC’s non-compete ban and provide relevant updates. To register for the webinar, please click here. Time 11:00 a.m. – 12:30 p.m. CT Who Should Attend? In-house legal counsel. Compl ..read more

The Federal Trade Commission (FTC) has announced that on April 23 it will vote on publishing and then adopting a finalized new rule that will prohibit employers from enforcing non-competes against workers. Under the originally proposed rule, non-compete agreements that bar any worker from accepting competing employment or starting a competing business would be prohibited with some exceptions for a limited category of transactions. Whatever the contents of the final rule, it is likely to have far-reaching implications for businesses operating in the United States. With several organizations vo ..read more

As mentioned in our recent blog post, the recently filed class action lawsuit against Johnson & Johnson (Lewandowski v. Johnson & Johnson et. al., D.N.J., No. 1:24-cv-00671 (Feb. 5, 2024)) over alleged excessive prescription drug costs takes a new approach with respect to familiar claims of breach of fiduciary duty for failure to monitor plan costs. Instead of targeting retirement plan fiduciaries, who have been a common target of excessive fee litigation over the last several years, the Lewandowski plaintiffs take aim at the actions of welfare plan fiduciaries. Division BB of the Cons ..read more

While the sweltering roil of temporary regulatory changes related to the COVID-19 pandemic may have cooled and the initial burst of SECURE 2.0 steam begins to dissipate, sponsors of employee benefit plans should keep their eyes on several hot button issues during the remainder of 2024 as these issues continue to percolate. 1. SECURE 2.0 Optional Provisions & Additional Regulatory Guidance Due to the graded nature of effective dates for many SECURE 2.0 provisions, plan sponsors must continue to watch the proverbial pot of retirement plan regulations boil as more and more provisions are adde ..read more

On April 1, the Occupational Safety and Health Administration (OSHA) published its Worker Walkaround Representative Designation Process Rule, which is set to take effect 30 days after its publication in the Federal Register on May 31, 2024. The new rule broadens workers’ rights to choose who represents them during safety inspections, overwriting an old standard that required the representative to be a fellow employee and opening the door for outside representatives such as those from unions. The OSHA Act and its implementing regulation, 29 CFR § 1903.8, allows a representative of both an emplo ..read more