SubscribeAn employer group says the federal government erred in arguing that a Seattle benefits mandate for hotel workers doesn’t conflict with federal law. According to this Law360 article, the ERISA Industry Committee (ERIC) asked the US Supreme Court to review a US Court of Appeals for the Ninth Circuit decision that backed the Seattle ordinance despite arguments from the US Department of Labor that the law doesn’t contradict the Employee Retirement Income Security Act. McDermott’s Michael B. Kimberly, Sarah P. Hogarth and Andrew C. Liazos represent ERIC.
US Department of Labor
Return to Work | Managing Your Workforce During Periods of Uncertainty
How can employers manage their workforces during periods of economic uncertainty? In this McDermott webinar, Lindsay Ditlow, Cristell Fortune, Abigail Kagan and Marjorie Soto Garcia offer perspective on the following topics:
- Communicating the transition
- The impact on contractual and other obligations
- WARN Act, furloughs, layoffs and salary reductions
- Strategies for unionized workforces
Departments Issue Final Rule Implementing Certain No Surprises Act Provisions
On August 19, 2022, the US Departments of Health and Human Services (HHS), Labor and Treasury posted a final rule revising portions of the federal No Surprises Act (NSA). Generally, the rule finalizes three aspects of the two-part interim final rule that the Departments published along with the Office of Personnel Management in 2021. First, the final rule expands the information about the qualifying payment amount (QPA) that plans and issuers (collectively, payers) must disclose to providers and facilities (collectively, providers). Second, it reinterprets the provisions of the NSA that govern the determination of the appropriate out-of-network rate through the federal independent dispute resolution (IDR) process, and prescribes how certified IDR entities are to weigh the QPA and other considerations when selecting one of the parties’ offers. The certified IDR entity must now consider the QPA first, and then give weight to other considerations only if those other considerations are not accounted for in the QPA. Third, the final rule expands the information that a certified IDR entity must provide in its written payment determination to include a statement explaining why the QPA did not already account for other considerations weighed by the IDR entity.
Responsible Financial Innovation Act: Proposed Tax and Reporting for Digital Assets
On June 7, 2022, Senators Cynthia Lummis (R-WY) and Kirsten Gillibrand (D-NY) introduced the highly anticipated Responsible Financial Innovation Act (the bill), which sets out to create the first complete regulatory and bipartisan framework for digital assets. The bill is intended to establish some legal clarity for regulators and the industry and to protect consumers by providing a range of disclosures and clarifying settlement conditions and rights over digital ownership. The bill would also treat all digital assets that are not treated as securities as commodities regulated by the Commodity Futures Trading Commission. This article discusses key tax considerations raised by the bill concerning taxation and reporting requirements for participants in the digital asset industry.
How Does the FMLA Apply to a Remote Workforce?
The Family and Medical Leave Act (FMLA) was enacted in 1993, a year when the idea of working a corporate job from a living room was rare. When the law was passed, the FMLA didn’t contemplate a remote workforce. Now, and especially post-pandemic, many companies are embracing a fully remote workforce (e.g., sales representatives, healthcare medical device technicians and software engineers). While employees’ needs for a leave of absence have always been around, remote employment and its effects on the applicability of the FMLA requirements has not. For well over two years, many employees have been working from home. Some report to a manager at the headquarters or worksite. Plenty of remote employees, however, report to an individual who also works remotely. The new remote landscape is making what used to be an easy application of FMLA eligibility into a difficult analysis. This article examines the FMLA regulatory framework for remote employees, a recent Texas federal court decision on the issue and the practical options that employers have moving forward.
When Are Cryptocurrencies Appropriate Investments for Retirement Plans and IRAs?
The US Department of Labor (DOL) recently issued guidance for the first time on the investment of retirement plan assets in cryptocurrencies. Compliance Assistance Release No. 2022-01 cautions 401(k) plan fiduciaries to “exercise extreme care” before allowing participants to invest plan assets in cryptocurrencies because cryptocurrencies “present significant risks and challenges to participants’ retirement accounts, including significant risks of fraud, theft, and loss.” In this Intellectual Property & Technology Law Journal article, McDermott Partners Andrea S. Kramer and Brian J. Tiemann outline what retirement plan fiduciaries need to know about cryptocurrency investments in the current market.
ERISA Litigation: What Have We Learned?
Earlier this spring, McDermott Partner Erin Turley delivered a presentation about the impacts of recent Employee Retirement Income Security Act of 1974 (ERISA) litigation. Lawsuits now target both large and small employee benefit plans; plan sponsors are being sued and dragged into complex and lengthy litigation, thus changing the basic economics of the provision of fiduciary liability insurance. In response to these lawsuits, plan sponsors are looking to outsource as much of this fiduciary responsibility and potential liability and exposure as possible.
The Fiduciary Duties of 457(b) Plans and How to Mitigate Potential Risks
Fiduciaries of 403(b), 401(a) and 457(b) retirement plans have come under increased scrutiny in recent years, in part due to participant lawsuits filed against plan sponsors and the resulting media attention. In this presentation with the 457 Consulting Group, McDermott Partner Todd Solomon discusses the fiduciary duties of plan sponsors and how to mitigate potential risks. The content in these slides applies to governmental 457(b) plans.
Safe Harbor Issued for Reporting Healthcare Prices Under Transparency Rules
The US Departments of Labor, Health and Human Services, and the Treasury recently released Frequently Asked Questions (FAQs) regarding the implementation of certain reporting provisions of the Affordable Care Act (ACA). The FAQs were released to provide clarity on the required drug price disclosures identified in the Transparency in Coverage final rule (the Rule) issued on October 29, 2020. As described in this SHRM article, employers are responsible for making sure that these disclosures are ready and available.
ERIC Files Amicus Brief Rebutting DOL Attempt to Create New Regulations in Lawsuit
McDermott Will & Emery’s Andrew C. Liazos, Michael B. Kimberly and Charlie Seidell recently filed an amicus brief in the US Court of Appeals for the 10th Circuit on behalf of the ERISA Industry Committee (ERIC). McDermott filed the brief in response to a US Department of Labor (DOL) amicus brief that advanced a novel interpretation of its regulations which, if adopted through litigation, would change longstanding procedures for benefit determinations under self-funded medical plans sponsored by large employers. The amicus brief focuses on key arguments against the DOL’s attempted regulatory reinterpretation, including that:
- DOL may not rewrite its regulations outside of notice-and-comment rulemaking;
- DOL’s interpretation of its own regulations is inconsistent with the plain text of the regulations;
- There are good policy reasons underlying differential treatment of healthcare and disability benefits determinations; and
- DOL’s interpretation of the regulations in its amicus brief is not entitled to deference under the Supreme Court decision in Kisor.
