On January 27, 2022, the California Supreme Court provided clarification in Lawson v. PPG Architectural Finishes, Inc. to lower California courts reviewing whistleblower retaliation claims. In what it calls an “unsurprising” decision, the California Supreme Court concluded that the framework prescribed by California Labor Code section 1102.6, rather than the McDonnell Douglas test, must be used in whistleblower claim evaluations. The impact of this decision is that employees will have a lower burden to meet to demonstrate that their alleged whistleblower activities resulted in an adverse employment action, while employers will have to meet a higher burden requiring them to demonstrate by clear and convincing evidence that they did not retaliate based on the employee’s activities.
California’s Private Attorneys General Act (PAGA) has so far evaded arbitration agreements. Now, the Supreme Court of the United States will take up Viking River Cruises, Inc. v. Moriana to determine whether the Federal Arbitration Act (FAA) “requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”
A recent ruling from a New Jersey federal district court gives ammunition to providers fighting to stop insurers from engaging in cross-plan offsetting, a common billing practice where health insurers attempt to claw back overpaid claim money from one patient by withholding payment from another patient in a different health plan.
The ruling—which found that the practice violates the Employee Retirement Income Security Act (ERISA)—could lead to more lawsuits and changes to plan documents. McDermott partner Judith Wethall said in a recent Bloomberg Law article the ruling was more significant than the U.S. Court of Appeals for the Eighth Circuit’s 2019 ruling in Peterson v. UnitedHealth Group, Inc.
Alison Nadel and Natalie Colvin wrote this bylined article about considerations for employers around gender identity and expression under Title VII.
The Supreme Court of the United States has agreed to resolve a circuit split about how courts should interpret collective bargaining agreements that provide for health insurance benefits for retired employees in M&G Polymers USA, LLC v. Tackett. The U.S. Court of Appeals for the Sixth Circuit says that such retiree health insurance benefits carry with them an inference that they are vested, or guaranteed to continue for life, while the majority of the other federal appellate courts require specific durational language to find that benefits are vested. Given the high cost of retiree health insurance on many employers’ balance sheets, M&G Polymers USA could represent a game changer for employers’ ability to modify retiree benefits going forward.
by Ira B. Mirsky, David E. Rogers and Ruth Wimer
The U.S. Court of Appeals for the Sixth Circuit recently held that certain dismissal payments were Supplemental Unemployment Compensation Benefits (SUB) exempt from FICA taxes—a clear split with the U.S. Court of Appeals for the Federal Circuit’s decision in line with an Internal Revenue Service (IRS) Revenue Ruling that significantly narrowed the criteria for determining whether certain separation payments qualify as SUB pay. For employers that have made significant reductions in force payments in open years, the Quality Stores decision could lead to significant refunds of FICA tax.
To read the full article, click here.
by Raymond Fernando, Michael Graham, Maureen O’Brien and Maggie McTigue
Recently, the Third Circuit held that withdrawal liability triggered after a bankruptcy filing date may be apportioned to pre- and post-petition service for the debtor, and that the withdrawal liability attributable to post-petition service may be entitled to priority over general unsecured claims under the Bankruptcy Code. Employers that participate in a multiemployer pension plan should determine the claims impact of withdrawal in light of this court decision and also assess whether filing for bankruptcy protection outside of the Third Circuit is appropriate.
Please click here for more information.
Subscribe
