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The ERISA Litigation Newsletter - August 2016

Editor's Overview - This month’s newsletter features an article on the DOL’s recently published interim final rule that increases penalties for notice and disclosure violations, which generally became effective on...more

Penalties Increased for Employee Benefit Plan Violations

Recently-enacted legislation has increased many penalty amounts for certain employee benefit plan violations. The new penalties – some of which are more than double previous amounts – were adjusted to catch up with inflation...more

Your daily dose of financial news - The Brief – 8.18.16

A SDNY jury has found former JPMorgan banker Sean Stewart guilty of insider trading based on allegations that Stewart was leaking confidential information about health care company mergers to his dad....more

Employee Benefits Developments - July 2016

Section 409A of the Internal Revenue Code (“Section 409A”) generally provides that, if a plan providing for deferred compensation fails to comply with Section 409A, either in form or in operation, then all amounts deferred...more

Department of Labor Increases Penalties for Certain ERISA Violations

The U.S. Department of Labor (DOL) published on July 1, 2016, an interim final rule adjusting the civil monetary penalties that it can enforce. These adjustments are the result of the Federal Civil Penalties Inflation...more

DOL Rule Imposes Significant Increases in Penalties for Employee Benefit Plan Violations

On June 30, 2016, the U.S. Department of Labor (“DOL”) issued an interim final rule that significantly increases various penalties under the Employee Retirement Income Security Act of 1974 (“ERISA”). The interim rule is the...more

Compensation and Benefits Insights – June 2016

Final Summary of Benefits and Coverage (SBC) Guidance Issued - The Departments of Labor, Health and Human Services and Treasury (the “Departments”) recently issued final changes to the Summary of Benefits and Coverage...more

Why Should Hospitals with “Church Plans” Be Concerned Now? - Hospital Industry Viewpoint

Religiously affiliated hospitals and health systems have recently come under attack by private litigants for exercising the right to remain exempt from ERISA requirements. Such hospitals and health systems should assess their...more

Employment Law This Week: Record Whistleblower Award, Union Election Rules, Wellness Program Rewards, Mixed-Guard Units

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that...more

Health Care E-Note - May 2016

On April 6, 2016 the Department of Labor's Employee Benefits Security Administration ("EBSA") issued its long awaited final rule redefining a fiduciary investment advisor (also known as the "conflict of interest rule"), greatly expanding who will be considered a fiduciary when providing "investment advice" to retirement plans. This is important to the health care community because most providers sponsor retirement plans for employees - and if there is no fiduciary advisor, the provider is likely responsible. Please see full E-Note below for more information. more

Health Care Group News: Part Two: The Rest of SB 351 (Now Public Act 16-95)

While Senate Bill 351, now enacted as Public Act 16-95 (the "Act"), received attention for the limits it placed on physician non-compete provisions, numerous other provisions of the Act are worth highlighting. These provisions include: (1) expanding the entities that can form medical foundations to include entities with partial (at least 60%) physician ownership; (2) expanding the definition of a captive professional entity; (3) requiring hospital bills to include the hospital’s cost-to-charge ratio; (4) easing patient notification requirements when providers refer to affiliated providers, and (5) introducing the possibility of future legislation requiring the licensing of urgent care and limited service health clinics. more

Employment Law This Week: Paid Parental Leave, NLRB’s Top Issues, Health History Forms, Final Fiduciary Rule

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates. This week’s stories include ... (1) San Francisco and New York State Approve Landmark Legislation on Paid Parental Leave Our top story: San Francisco and New York State break new ground on paid parental leave. The San Francisco Board of Supervisors unanimously approved a city ordinance requiring businesses with more than 50 employees in San Francisco to give new parents six weeks off, fully paid, starting in 2017. Once Mayor Ed Lee signs the ordinance, San Francisco will become the first city in the United States to require full pay for new mothers and fathers during their time off. Meanwhile, New York State has passed the most comprehensive paid parental leave policy in the country. New York State’s legislation mandates 12 weeks of partially paid leave for all new parents by 2021. (2) NLRB General Counsel Reveals Top Issues in Recent Memo A National Labor Relations Board (NLRB) memo outlines top enforcement priorities for 2016. The General Counsel for the NLRB has issued an internal memo that offers employers insight into his office’s initiatives and emphasis this year. The memo describes the types of cases that must be submitted to the Division of Advice for review rather than decided by the Regional Office, where the charge was filed. Among other priorities, the General Counsel wants to expand employees’ rights to organize and communicate using company resources, cut back on employer rights in bargaining, and grant significant new rights to nonunion employees. Steve Swirsky, from Epstein Becker Green, has more. (3) EEOC Fights Medical Information Requirement in Job Applications The U.S. Equal Employment Opportunity Commission (EEOC) targets health history forms in job applications. The EEOC has brought suit against Grisham Farm Products for requiring job applicants to complete a three-page health history. When a recent applicant refused to answer the questions on the form because he would have been forced to reveal a disability, he was told that he would not be considered for the job. The EEOC has filed suit against the company for violating Title I of the Americans with Disabilities Act with its health form requirement. The agency also alleges that this is a violation of the Genetic Information Nondiscrimination Act (GINA), which bars employers from requesting or requiring genetic information from applicants. (4) DOL Releases Softer Final Fiduciary Rule The U.S. Department of Labor (DOL) softens its final fiduciary rule for retirement advisors. The DOL has released its long-awaited final fiduciary rule, with some notable changes after the comment period. The new regulation still requires brokers for individual retirement accounts to act in their clients' best interests and expands the definition of who qualifies as an investment advice fiduciary. But in the final rule, the DOL has made some concessions to opponents of the regulation. These adjustments include a simplification of the "best interest contract exemption" and a grandfather provision that prevents the new standard from applying to recommendations made before the rule goes into effect. (5) In-House Tip of the Week Brian Rauch, General Counsel for Harvard Maintenance, shares some advice on dealing with unions around the country. For more information and to subscribe, visit

No Surprises in Recent Vested Rights Decision: Fry v. City of Los Angeles

The recent decision in Fry v. City of Los Angeles (California Second District Court of Appeal Case No. B259791, March 7, 2016) held, after careful parsing of the language in the City Charter and the applicable City ordinances, that City safety retirees had no vested right to have the City Fire & Police Pension Board determine the amount of any increases to their annual retiree health care subsidies.more

March and April 2016 Filing and Notice Deadlines for Qualified Retirement and Health and Welfare Plans

Employers and plan sponsors must comply with numerous filing and notice deadlines for their retirement and health and welfare plans. Failure to comply with these deadlines can result in costly penalties. To avoid such penalties, employers should remain informed with respect to the filing and notice deadlines associated with their plans.more

Supreme Court Restricts State Medical Claims Data Reporting Law

ERISA does not allow a state to compel a self-insured group health plan to compile and report medical claims data for inclusion in a state-wide all-payer health care database, the U.S. Supreme Court has ruled in a landmark decision.more

U.S. Supreme Court Rules That ERISA Preempts State Health Claims Reporting Law

Yesterday, in Gobeille v. Liberty Mutual Insurance Company, the United States Supreme Court held that the Employee Retirement Income Security Act of 1974 (“ERISA”) preempts a Vermont state law that requires certain entities to report health care information to a state agency for inclusion in a health care database.more

Employee Benefits Developments - February 2016

IRS Issues Guidance Regarding Application of ACA Fee to Expatriate Health Plans. Section 9010 of the Affordable Care Act (ACA) imposes an annual fee on covered entities engaged in the business of providing health insurance for United States health risks. The definition of covered entities for purposes of this fee is limited to health insurance issuers, health maintenance organizations, certain insurance companies, insurers providing Medicare Advantage, Medicare Part D, Medicaid, and multi-employer welfare benefit arrangements.more

Important Development in Dave & Buster’s Lawsuit Regarding Whether Cutting Employee Work Hours Violates ERISA

In a case of first impression that is being closely watched by plaintiffs’ attorneys and large employers alike, a federal judge recently ruled against a motion brought by Dave & Buster’s, the restaurant chain, to dismiss a proposed class action lawsuit (Marin v. Dave & Buster’s, Inc., S.D.N.Y., No. 1:15-cv-03608) alleging that the company impermissibly reduced workers’ hours to avoid its obligations under the Affordable Care Act’s employer mandate. The ACA’s employer mandate generally requires large employers to offer affordable and minimum value health coverage to its full-time employees (defined as employees who regularly work an average of at least 30 hours per week). Employers are generally not required to offer coverage to employees working an average of less than 30 hours per week. more

Employment Law This Week: Equal Pay Data, HIV-Positive Employees, DOL’s Fiduciary Rule, NJ Harassment Defense

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! This week’s stories include ... (1) EEOC Asks for Equal Pay Data from Employers The Equal Employment Opportunity Commission (EEOC) wants your pay data. The EEOC has proposed changing its EEO-1 forms. The forms currently require employers to provide information about the gender, race, and ethnicity of their workers across 10 different job categories. The proposed change would add a requirement that employers submit information pertaining to employees’ hours worked and report W-2 earnings across 12 different pay bands. If the proposal is implemented, employers will use the new forms beginning in September 2017. Peter Stein from Epstein Becker Green goes into more detail. For tips on how to avoid employment compliance reporting missteps, click here: (2) EEOC Addresses Rights of HIV-Positive Employees More from the EEOC this week—the agency recently released two different guides on the rights of HIV-positive employees. The first guide outlines employees’ rights under the Americans with Disabilities Act. The second guide is intended for health care providers with HIV-positive patients and encourages these providers to advocate for their patients' rights in the workplace. These documents are also valuable resources for employers. Among other takeaways, the guides break down the process involved in a request for reasonable accommodation from an HIV-positive employee. For more information on these guides, click here: (3) DOL’s Fiduciary Rule Takes Final Step The U.S. Department of Labor (DOL) sent its proposed fiduciary rule to the White House. The new rule would impose stricter conflict-of-interest rules and fiduciary requirements on advisors working with retirement plans and investors. Critics of the DOL proposal have charged that it would prevent workers who cannot afford highly individualized advice from receiving basic retirement planning services. As with the EEOC, the DOL is making a big regulatory push in President Obama's last year. Next on the horizon is the DOL’s contentious overtime rule, which will most likely go into effect in July. For more on the overtime rule, click here: (4) NJ Supreme Court Clarifies Harassment Defense The New Jersey Supreme Court confirms that anti-harassment policies are critical to a defense against vicarious liability. In New Jersey, an employer may avoid liability for workplace harassment by showing that it exercised reasonable care to prevent and promptly correct any harassment and that the employee unreasonably failed to complain about the harassment. In declining to hear a recent case, the Court reemphasized that only an employer that has instituted effective anti-harassment policies and procedures can use the defense, and after-the-fact remedial action alone is not sufficient. More on the defense against vicarious liability in New Jersey, click here: (5) In-House Counsel Tip of the Week Richard Nohe, General Counsel for BT, describes the legal landscape for employees’ use of personal devices at work. Tune in each week for developments that may affect your business. Click here to subscribe by email - select the checkbox next to Employment Law This Week: Trouble viewing the video? Please contact and mention whether you were at home or working within a corporate network. We'd also love your suggestions for topics and guests!more

State of the Union 2016 – What Will the President Focus on in his Final Year in Office?

While much of last night's State of the Union Address focused on big-picture issues, President Obama did make some specific employment-related comments during the annual speech to the country. One underlying purpose of this year's SOTU is to lay the groundwork for the next Administration to carry on the President’s legacy and pursue his policy initiatives. To that end, the speech touched upon a number of job-related issues, including healthcare, paid leave, and portable benefits.more

The PATH Act Brings Federal Income Tax Changes - The Protecting Americans from Tax Hikes Act of 2015 Enacted in December 2015

The Protecting Americans from Tax Hikes Act of 2015, also known as the PATH Act, was enacted by Congress at the end of 2015. Below are the highlights from that legislation. TAX EXTENDERS - Tax extenders are popular but traditionally temporary tax breaks.more

The Health and Welfare “Wrap” Document: What It Is and Why You Want One

When it comes to telling their employees about certain benefits, many employers have for decades (since 1974 to be exact) flouted a particular provision of the law with impunity. The law to which we refer is the Employee Retirement Income Security Act (ERISA), and the provision relates to the requirement that the employer tell employees about the salient plan terms by providing them with a Summary Plan Description or “SPD.” The Affordable Care Act alters the regulatory landscape on this score. And while the ACA did not change the requirements that apply to SPDs, it radically changes the surrounding compliance environment. Complying with the SPD requirements all of a sudden looks not only like a good idea, but it also rises—dare we say—to a best or at least highly recommended practice.more

What's on the Horizon for Employers in 2016?

2016 is nearly upon us. While federal employment legislation most likely will not be enacted in the upcoming year, employers can expect federal agencies to continue their efforts to implement the Obama Administration's agenda through rule-making and increased compliance activity. Additionally, states undoubtedly will continue to enact legislation to fill in what many perceive as gaps in laws protecting employees.more

Employee Benefits Developments - November 2015

PACE Act Changes the Definition of ‘Small Group’ for Market Reform Purposes. On October 7, 2015, President Obama signed into law the Protecting Affordable Coverage for Employees Act (PACE Act). The PACE Act changed the definition of small group for the purposes of the ACA’s small group market reforms. Under the PACE Act, a small employer is an employer who employed an average of 1 to 50 employees on business days during the preceding calendar year (the default rule).more

The IRS Releases The Benefit Plan Limitations For 2016, Most Limits Remain The Same

The Internal Revenue Service (IRS) recently announced the annual inflation adjustments for 2016 for qualified retirement plans, fringe benefits and health plans. This information may be found on the IRS' website and in Revenue Procedure 2015-53. It should be noted that though many of the limits remain the same, a few highlights of the changes include the following...more

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