In an article published by InvestmentNews, Bass, Berry & Sims attorney Doug Dahl provided insight on a recent district court ruling which allowed allegations that using multiple record-keeping firms in 403(b) retirement planning breaches fiduciary duty to continue. With many other prominent institutions involved in similar litigation, this particular lawsuit targets Emory University, and the decision to move forward could potentially impact the success of similar claims in those other cases. The plaintiffs claim that using multiple record-keeping systems burdens participants with fees because it is cost prohibitive and doesn’t adequately leverage assets to drive lower pricing. “This is a relatively new, or at least a newly successful, claim,” said Doug. While the article notes that it is still unclear whether there is anything necessarily wrong with the use of multiple service providers, Doug adds “I think the fact that the claim continued is definitely noteworthy.”

The full article, “Use of Multiple Record Keepers Could Hurt Defendants in 403(b) Lawsuits,” was published by InvestmentNews on May 19, 2017, and is available online.

In a big win for California employers, the California Supreme Court ruled on May 8, 2017 that employers are not required to provide employees with a “day of rest” on a “rolling seven-day basis,” but must only ensure that employees receive no less than an average of one day of rest for every seven-day workweek in a calendar month.  This means that employers may, from time to time, require that employees work seven consecutive days, as needed, without fear of running afoul of an ambiguous provision of the California Labor Code, which requires that every employee receive one day of rest for each seven days worked.

Continue Reading California Supreme Court Clarifies “Day of Rest” Requirements

On May 4, 2017, the House of Representatives narrowly passed a bill that will repeal and replace the 2010 Patient Protection and Affordable Care Act (ACA). The Republican-backed American Health Care Act (AHCA) passed in the House with a final vote of 217 to 213. President Trump, the Trump Administration, and House Speaker Paul Ryan consider this a major win. However, the AHCA may face significant opposition in the Senate, so it is uncertain whether the AHCA in its current form will become law.

Continue Reading House Passes American Health Care Act

Since 2009, many large retailers in California have been sued for failing to provide “suitable seating” in accordance with the state’s wage orders.  Some of those employers have recently been forced to pay significant settlement awards, providing another cautious reminder to employers of the importance of complying with California’s suitable seating requirements.

Continue Reading California Employers Reminded that Failure to Provide “Suitable Seating” Could Prove Costly

In an article published by SHRM online, Bass, Berry & Sims attorney Doug Dahl discussed protected genetic information and wellness program design. The article outlines recent legislation proposed by the House Education and Workforce Committee that intended to clarify differences between the wellness program rules under several federal statutes and regulations. The bill subsequently stalled in the House of Representatives because many opponents believe the legislation allowed businesses to use the genetic information employees provided through wellness programs in negative ways.

While the definition of genetic information is broad, as Doug points out in the article, “[t]he disease of a family member, including a spouse or adopted child, and how it is manifested is considered genetic information. Obesity is the primary issue many wellness programs are designed to help. Heart health is another focus, as are smoking cessation and mental health issues.”

The full article, “Bill to Harmonize Wellness Program Requirements May Have Stalled,” was published by SHRM online on April 20, 2017, and is available online.

In an article published by Law360, Bass, Berry & Sims attorney Tim Garrett provided insight on the continued increase in employment discrimination lawsuits, which may be due in part to fee-shifting in such lawsuits. Fee-shifting is a mechanism by which a prevailing party in a lawsuit can require the losing party to pay the reasonable attorneys’ fees of the prevailing party. The concept sounds fair, but in employment discrimination cases the only party who benefits from fee-shifting is the employee. Employers are hopeful that a new law recently passed in Ohio will start a new trend to reverse what employers perceive as unfairly one-sided fee-shifting. Time will tell whether a new trend has begun, and the new law at least may spark an interesting public policy debate.

The full article, “A New Fee-Shifting Trend In Employer Discrimination Cases?,” was published by Law360 on April 18, 2017, and is available online.

Additional insights can be found in my earlier blog post on the topic, “Employer Recovery of Fees and Costs in Discrimination Cases – Is There a Trend Starting?,” published on March 31, 2017.

In an unsurprising move, the Department of Labor (DOL) postponed the applicability date of the fiduciary rule on April 4 for an additional 60 days.  The new applicability date for the rule is June 9, 2017, although the DOL may choose to push that date back even further.  The extra time was added just days before the fiduciary rule was set to go into effect and gives the DOL additional time to consider revisions.  The agency was ordered to re-evaluate the rule by President Trump back in February.

Continue Reading For the Second Time, Fiduciary Rule Applicability Date is Pushed Back

On March 31, 2017, the United States Civilian Board of Contract Appeals (CBCA) dismissed a contractor’s claims against the Department of Veterans Affairs (VA) for a lack of jurisdiction, stating that the contractor should have secured a final decision from the General Services Administration (GSA) prior to filing its claim. According to the CBCA, since the dispute was over the terms of a GSA Schedule contract and not over contract performance, proper procedures call for a decision from the GSA Schedule contracting officer before the CBCA can weigh in on the dispute.

Continue Reading Agency First! – CBCA Refuses Jurisdiction over Contractor’s Challenge of Wage Rate Adjustments Despite Final Decision from Contracting Officer

Noted healthcare observer/thought leader Paul Keckley – who provided private-sector input on the Affordable Care Act – breaks down the “need to know” facts of its potential successor, the American Health Care Act, and discusses some of the big bets it makes about the future.

The full article, “The American Health Care Act: What You Need to Know and What You Need to Watch,” was published by The Keckley Report on March 13, 2017 and is available online.

Bass, Berry & Sims attorney Doug Dahl authored an article discussing the various ways in which employers seek to decrease risk associated with defined benefit pension plans and what HR and benefit professionals should know about the process. As Doug points out in the article, once an employer decides to engage in a de-risking strategy, HR and benefit professionals who understand de-risking and the importance of communication throughout will be in a good position to help their employers navigate the process.

The full article, “Pension De-Risking: What is It and Why is It So Popular?,” was published in the April 2017 issue of HR Professionals and is available online.