The end of 2016 is a good time to review and consider a subtle shift in employment law which appears to be gaining momentum. The shift, which may be imperceptible at first, could prove to have lasting impact on employers, especially those who operate in multiple cities and states, and can easily be described as “going local.”
The “Persuader Rule” — Brief Background
After several years of review and public comment, on March 24, 2016, the U.S. Department of Labor (DOL) issued its new interpretation of the so-called “Persuader Rule.” The new interpretation changed more than 50 years of DOL policy under which employers and consultants had no duty to report “persuasive activity,” (that is advice, memoranda, bulletins, etc. intended to persuade employees to vote against unionization) so long as there was no direct contact between the consultant and the target employees. Under the new March 2016 interpretation, employers and consultants would have been required to engage in a complex and unclear examination of the work performed in order to determine whether the consultant’s activities were “advice” (not reportable) or newly defined “persuasive activities” (reportable).
As we have previously reported, under the Obama administration, the Equal Employment Opportunity Commission (EEOC) has aggressively sought to expand the breadth of the agency’s authority to collect employee pay data and other private company information. Similarly, the EEOC has sought to expand the scope of federal civil rights laws in a number of areas, such as enforcing protections for transgender employees and applying Title VII to sexual orientation-based harassment.
Multistate employers with headquarters located outside California may wake up to a rude surprise on January 1, 2017, as a result of a new California Labor Code law affecting their employment agreements with California employees. California Labor Code Section 925 applies to employment contracts with employees who live and work primarily in California, prohibiting such agreements from requiring California employees to agree (as a condition of employment) to:
Sponsors of qualified retirement plans and group health plans may receive tens, if not hundreds, of plan document requests every year. Responding to these requests in accordance with the rules set forth under the Employee Income Retirement Security Act (ERISA) can be fairly straight-forward, especially if the plan sponsor maintains updated copies of all requested plan documents. However, plan sponsors should consider going beyond ERISA’s bare-bones requirements and make it a practice to also provide a cover letter, containing certain specific information.