Trump Department of Justice Reverses Course on Class Action Waivers

DOJ

On June 16, 2017, the United States Department of Justice (DOJ) changed its position with respect to the enforceability of class action waivers in the labor and employment context. The move came via the DOJ’s filing of an amicus curiae brief in three consolidated cases pending before the Supreme Court (National Labor Relations Board v. Murphy Oil USA, Case No. 16-307, Epic Systems Corp. v. Lewis, Case No. 16-285 and Ernst & Young LLP v. Morris, Case No. 16-300)  The Court’s decision in these cases – which were granted review in January 2017 – is expected to resolve a circuit split over whether class action waivers included in employee arbitration agreements, constitute illegal waivers of rights under Section 7 of the National Labor Relations Act (NLRA).  The Seventh and Ninth Circuit Court of Appeals have ruled that such waivers violate Section 7 of the NLRA, while the Second, Fifth, Eighth and Eleventh Circuits have upheld the validity of class action waivers in the employment context.

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As If Leave Laws Aren’t Complicated Enough – Don’t Forget That Leave Can Be a Reasonable Accommodation

Leave

The myriad of leave laws and requirements often make employee leave requests an area of confusion, concern and risk for employers. If an employee has a medical condition and must take leave from their job, there may be several laws, benefits and policies that cover the situation.  Many employers are familiar with the Family and Medical Leave Act (FMLA) process as well as their own company’s policies for PTO, sick time and short or long term disability. But, that’s not the end of the leave analysis.  One thing to keep in mind while navigating the complicated leave process is that leave can also be a form of reasonable accommodation under the Americans with Disabilities Act (ADA) and similar state or local laws.  If an employee has exhausted other leave options, but still cannot return to work, employers should explore reasonable accommodations for the employee, including leave as a possible accommodation.

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Pension Plan Sponsors – When “De-Risking”, Select Annuity Providers With Care

Pension

Employer-sponsored retirement plans come in many varieties. For example, under 401(k) and other defined contribution plans, employees and, often, employers may make specific contributions to an employee’s plan account throughout the individual’s employment.  Accordingly, the amount of the employee’s benefit at retirement will vary, based on those contributions and their investment performance.

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Be Careful When Firing an Employee Who Is Out On Workers’ Compensation

Fired

Handling workers’ compensation claims can present a number of challenges, such as determining whether an injury is work-related and evaluating back-to-work accommodation requests. Another challenge arises when you consider terminating an employee who has filed a workers’ compensation claim.  For example, most states’ workers’ compensation laws impose penalties, either fines, jail time, or both, for wrongful termination.  While terminating an employee who has filed a workers’ compensation claim is not outright prohibited, employers must take great care to avoid a situation where it is deemed that an employee was fired because of the workers’ compensation claim.

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