Labor & Employment Law Update

The long-awaited SECURE 2.0 Act of 2022 (“SECURE 2.0”), containing sweeping changes to workplace retirement plans, was signed into law on December 29, 2022 as part of the Consolidated Appropriations Act of 2023. SECURE 2.0 builds on the revisions to retirement plan rules enacted by the Setting Every Community Up for Retirement Enhancement Act of 2019 (the original SECURE Act), and makes even more aggressive changes. 

On August 25, 2022, the U.S. Securities and Exchange Commission (SEC) voted to adopt the “pay-versus-performance” rule, requiring publicly traded companies (except foreign private issuers, registered investment companies, and Emerging Growth Companies) to provide clear disclosure to shareholders on the relationship between companies’ executive compensation and financial performance. The adoption finally implements Section 14(i) of the Securities and Exchange Act of 1934 (the “Exchange Act”), as added by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

The U.S. Supreme Court's decision last month to overturn Roe v. Wade presents new challenges for employee benefit plans. By overturning the case establishing a constitutional right to abortion, the Court's decision in Dobbs v. Jackson Women's Health allows individual states to impose restrictions or outright bans on abortion. The decision is quickly leading to a patchwork of state laws that plan sponsors must now consider.

President Biden announced on January 10^th that the Biden-Harris Administration is requiring insurance companies and group health plans to cover the cost of over-the-counter (OTC), at-home COVID-19 tests. Beginning January 15, 2022, individuals with private health insurance coverage or covered by a group health plan who purchase an over-the-counter COVID-19 diagnostic test authorized, cleared, or approved by the U.S. Food and Drug Administration (FDA) will be able to have those test costs covered by their plan or insurance. Insurance companies and health plans are ...

The recent announcement that Delta Airlines will begin imposing a $200 per month health insurance surcharge on unvaccinated employees has prompted many employers to consider whether a similar surcharge may be an alternative to mandating COVID-19 vaccinations for employees.

The Illinois General Assembly is considering a bill (H.B. 117) that would make several amendments to the Illinois Secure Choice Savings Program Act, including extending the requirement to offer employees a retirement savings plan to employers with 5 to 24 employees. H.B. 117 was passed by the Illinois House of Representatives earlier this month and is currently pending in the Illinois Senate.

Currently, Illinois employers that have 25 or more employees and have been in business at least two years are required to participate in the state-run Illinois Secure Choice Savings Program ...

Almost one year after the enactment of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), and with the second extension of pandemic unemployment assistance about to expire for millions of workers on March 14, 2021, the American Rescue Plan Act of 2021 (the “Act”) was signed into law by President Biden on Thursday afternoon, March 11, 2021. 

The estimated cost of the Act is $1.9 Trillion, with $1,400 Recovery Rebate checks for each qualifying individual, the extension of supplemental unemployment benefits through September 6, 2021, as well as billions in ...

The Internal Revenue Service (IRS) recently published final regulations implementing changes made by the Tax Cuts and Jobs Act of 2017 (TCJA) to Section 162(m) of the Internal Revenue Code (Section 162(m)) expanding the scope of Section 162(m)’s compensation tax deduction limitation. Publicly held companies that already exceed or that may soon exceed the Section 162(m) $1 million deduction limit will need to carefully consider the impact of amended Section 162(m).

Section 162(m) generally disallows a tax deduction for compensation paid in excess of $1 million in any taxable ...

A $900 billion COVID-19 relief bill passed by Congress late last night is expected to be signed into law by President Trump later today. In addition to an assortment of aid for individuals and businesses, the bill extends several provisions of the CARES Act passed in March, including the tax credit for employers providing paid leave under the Families First Coronavirus Response Act (FFCRA). However, the bill does not extend the mandate for employers to provide paid leave, set to expire December 31, 2020.

What Does This Mean?

Employers are not required to provide paid sick leave or paid ...

On August 28, the IRS issued Notice 2020-65 providing brief guidance on the payroll tax deferral announced in a Presidential Memorandum issued on August 8th. The Memorandum directed the Treasury Department to issue guidance for a deferral of the withholding and payment of the employee portion of Social Security taxes to be “made available” to employers.  The IRS Notice, with very limited details, establishes the ability of an employer to defer the payroll tax, but leaves many questions unanswered.

Is it Required or Voluntary?

Under the Presidential Memorandum and IRS Notice ...

On April 29, 2020, the Department of Labor (DOL) and the Treasury Department issued guidance extending certain timeframes related to employee benefit plans due to the COVID-19 outbreak. The agencies acknowledge that plan sponsors, participants and beneficiaries may have difficulty meeting the standard timeframes due to the national emergency and the extensions are intended to help maintain group health plan coverage.

Relief for Participants and Beneficiaries

A joint final rule issued by the DOL and Treasury provides that all group health plans, disability plans, other ...

The Small Business Administration stopped accepting applications for loans under the Payroll Protection Program (PPP) late last week after quickly reaching the program’s $349 billion limit. Congress is debating appropriating additional funds for the program and businesses shut out last week may get another chance. But in the meantime, employers should consider the other options under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, as discussed below.

Employee Retention Tax Credit

An Employee Retention Tax Credit of up to $5,000 per employee is available to ...

Recent legislation providing COVID-19 relief to individuals and businesses includes provisions allowing more flexibility under retirement plans for individuals impacted by COVID-19. The CARES Act permits special hardship distributions of up to $100,000 from most tax-qualified retirement plans without early-withdrawal penalty taxes, increases the maximum 401(k) loan available for participants impacted by the pandemic and allows a delay in existing loan repayments. Required minimum distributions from defined contribution plans are waived for 2020.

On March 14, 2020, the U.S. House of Representatives passed House Bill 6201 (HR6201). The legislation seeks to protect private sector workers and government employees during the COVID-19 pandemic. However, the legislation does not apply to any private sector employer with 500 or more employees. To be clear, the current legislation will regulate only those private sector employers who employ less than 500 employees. The Senate is expected to take up the bill early this week. The legislation would take effect within 15 days of enactment and expire on ...

Congress recently passed the Setting Every Community Up for Retirement Enhancement Act of 2019 (the SECURE Act), the largest package of retirement plan reforms in more than ten years.  This sweeping federal legislation aimed at the private employer-based retirement system is not to be confused with the Illinois Secure Choice Act, passed in 2015, which created a state-run retirement savings program.

The SECURE Act includes a myriad of provisions from multiple bills intended to make it easier for businesses to offer retirement plans and for individuals to save for retirement. The law ...

On September 23, 2019 the IRS issued final regulations updating the rules governing hardship distributions from 401(k) and 403(b) plans. They are generally similar to the proposed regulations issued late last year and primarily reflect changes made by the 2018 Tax Cuts and Jobs Act and the Bipartisan Budget Act of 2018.

Some of the changes in the final regulations are mandatory, requiring employers to take action by January 1, 2020.

1. Eliminates of the 6-month contribution suspension requirement

Beginning January 1, 2020, 401(k) and 403(b) plans will no longer be able to suspend ...

Illinois employers that have 25 or more employees and have been in business at least two years will be required to participate in the state-run retirement savings program or offer another qualifying retirement plan later this year.

The status of the Illinois Secure Choice Program was uncertain last fall following an amendatory veto issued by former Governor Bruce Rauner making the program optional, instead of mandatory, as discussed in a previous blog post. The Illinois legislature generally opposed making the program optional, and chose not to act on the amendment ...

The future of Illinois’ mandatory retirement savings program, Illinois Secure Choice, is up in the air after Governor Bruce Rauner issued an amendatory veto to change the word “shall” to “may” in key passages of the law, making the program optional, instead of mandatory.  The program is scheduled to roll-out in a series of “waves” starting this November.

The Illinois Secure Choice Savings Act (Secure Choice Act), enacted in 2015, requires private employers with more than 25 employees that have been operating in Illinois for at least two years to participate in the ...

On June 21, 2018, the US Department of Labor (DOL) published a final rule making it easier for a group or association of small employers to band together to buy health insurance.  The rule allows employers that previously could only purchase small group health coverage to join together to purchase insurance in the less-regulated large group market.

The rule broadens the definition of an “association” that can act as a single “employer” to sponsor an Association Health Plan (AHP) under the Employee Retirement Income Security Act of 1974 (ERISA). Employers that pass a ...

On December 22, 2017, the Tax Cuts and Jobs Act was signed into law as P.L. 115-97.  Hidden about halfway into the law, in Section 13307, is an amendment to the tax code on itemized deductions for individuals and corporations. Generally, current law permits employers to treat the costs of settlement payments and related attorney’s fees as a tax deductible business expense. However, the recent amendment eliminates the deduction in certain situations, stating:

No deduction shall be allowed under this chapter for — (1) any settlement or payment related to sexual harassment or ...

On December 22, 2017, the Internal Revenue Service (IRS) announced a 30-day extension of the deadlines for certain information reporting requirements under the Affordable Care Act (ACA).

In IRS Notice 2018-06, the agency announced a 30-day automatic extension — until March 2, 2018 — for employers and insurers to provide 2017 IRS Forms 1095-C (Employer-Provided Health Insurance Offer and Coverage) and 1095-B (Health Coverage) to employees. The original due date was January 31. This extension is virtually identical to the extension provided last year for 2016 Forms.

With only 30-days to respond, employers should be watching their mail for Affordable Care Act (ACA) employer mandate penalty letters (IRS Letter 226J), coming before the end of 2017.

Recent updates to the “Questions and Answers on Employer Shared Responsibility Provisions (ESRPs) Under the Affordable Care Act” on the Internal Revenue Service (IRS) website indicate the agency is gearing up to begin enforcement of the ESRP provisions of the ACA, commonly known as the employer mandate. According to Q&As 55-58, “Making an Employer Shared Responsibility Payment,” the IRS ...

Secretary of Labor Alexander Acosta announced on Monday that portions of the controversial Department of Labor (DOL) fiduciary rule will go into effect as planned on June 9, 2017, with full implementation of the rule on January 1, 2018. Issued in April 2016, the fiduciary rule expanded the definition of a fiduciary under the Employee Retirement Income Security Act (ERISA) and imposed a higher standard of care and significant new procedural requirements on those providing investment advice to retirement plans, plan sponsors and participants. Implementation of the rule was ...

Small employers struggling to assist their employees with the cost of health coverage, but daunted by the high cost of a group health plan, now have another option.

The 21st Century Cures Act, passed at the end of 2016, created a new type of reimbursement plan called a Qualified Small Employer Health Reimbursement Arrangement (QSEHRA). QSEHRAs allow eligible small employers to reimburse employees for premiums for individual health insurance policies and other eligible medical expenses. This is a change, as since the implementation of the Affordable Care Act (ACA), employers of all ...

Shortly following his inauguration on Friday, President Trump signed an Executive Order affirming his intent to eliminate the Affordable Care Act (ACA). The executive order is not a repeal of the ACA and does not make any changes to the law or regulations thereunder, but rather addresses the actions of federal agencies in enforcing the existing law. The executive order directs the agencies responsible for overseeing ACA enforcement (Health and Human Services, Treasury Department, and Department of Labor) to, “take all actions consistent with the law to minimize the ...

On October 11, 2016, the Occupational Safety and Health Administration (OSHA) issued the final rule creating procedures for handling whistleblower complaints under the Affordable Care Act (ACA).  The ACA prohibits employers from retaliating against employees who report alleged violations of the act’s health coverage reforms or who receives a premium subsidy or tax credit for purchasing individual health coverage through a state or federal exchange. A covered employer can receive a penalty if an employee receives a tax-credit or premium subsidy for coverage through an ...

Compensation to employees who opt out of health insurance or other benefits, known as a “cash-in-lieu” program, can be an attractive option for both employers looking to manage skyrocketing health care costs and employees looking for a little extra cash. But a recent ruling by the Ninth Circuit Court of Appeals highlights a significant risk to employers of such programs.

In Flores v. City of San Gabriel, 2016 WL 3090782 (June 2, 2016), the first case of its kind, the court held that under the Fair Labor Standards Act (FLSA) cash payments made to an employee in lieu of benefits must ...

On July 1, 2016, the DOL issued an interim final rule that significantly increases the penalty amounts that may be imposed on plan sponsors for certain ERISA violations. The final rule ups the penalties for certain failures including failure to file an annual Form 5500 and failure to provide the Summary of Benefits and Coverage, as required by the Affordable Care Act.

These increases are the result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 whereby federal agencies were directed to adjust their civil monetary penalties for inflation each year ...

The U.S. Department of Labor (DOL) recently announced a $1.1M judgment in favor of employees in the Gruber Systems Inc. Employee Stock Ownership Plan (ESOP). The department filed suit against Gruber Systems Inc., a California corporation, and its CEO in May of 2015 alleging they caused Gruber ESOP participants to lose money when the ESOP bought company stock at considerably more than fair market value. The DOL alleged that money used to fund stock purchases to shore up the company during financial troubles should have been used to fund the retirement accounts of Gruber employees. The ...

Late yesterday afternoon, the Internal Revenue Service (IRS) announced it was extending the due dates for certain 2015 Affordable Care Act (ACA) information reporting requirements. The welcome delay gives employers almost two additional months to furnish statements to employees and close to three additional months to file required returns with the IRS.

Specifically, Notice 2016-4 extends:

• the due date for providing individual Forms 1095-C and 1095-B to employees from February 1, 2016, to March 31, 2016
• the due date for filing Forms 1094-B, 1094-C and 1095-C with the IRS from ...

Employers are receiving a temporary reprieve from the controversial “Cadillac Tax” on health plans as part of a large spending and tax bill signed into law by President Obama on Friday, December 18, 2015. The Consolidated Appropriations Act (the “Act”) delays the effective date of the Affordable Care Act’s (ACA’s) excise tax on so-called high cost health plans, known as the “Cadillac Tax,” until January 1, 2020.

The Cadillac Tax, previously scheduled to take effect on January 1, 2018, is a 40% excise tax on employers and insurers who offer health insurance plans that ...

The Internal Revenue Service (IRS) recently released its second set of guidance discussing approaches to the excise tax on employer-sponsored health coverage, often referred to as the “Cadillac tax.” Starting in 2018, the Cadillac tax imposes a 40% tax on the cost of employer-sponsored health coverage in excess of $10,200 for self-only coverage and $27,500 for family coverage. Intended to target overly-generous employer-provided health plans, the Cadillac tax continues to be one of the most controversial parts of the Affordable Care Act (ACA) as dollar thresholds set in ...

The Trade Preferences Extension Act of 2015 (“Trade Bill”), signed into law by President Obama on June 29, significantly increases potential penalties for employers and insurers that fail to comply with the Affordable Care Act (ACA) reporting requirements, beginning in early 2016.

As a reminder:

• IRS Code 6056 requires employers with 50 or more full-time equivalent employees to file reports with the IRS annually stating whether the employer offered health coverage to full-time employees and their dependents during the preceding calendar year.
• IRS Code 6055 requires all ...

In a major decision announced earlier today, the Supreme Court upheld the tax credits under the Affordable Care Act (ACA) in states that have a federal health care exchange, affirming the 4^th Circuit’s ruling in King v. Burwell.  The Court’s ruling confirms the legality of tax credits for the purchase of individual health coverage in the 37 states that have a health care exchange run by, or in partnership with, the federal government – including Illinois, Indiana, Wisconsin and Missouri.

At issue was the interpretation of language in Section 36B of the ACA ...

A recent court decision from the Eastern District of New York found that posting a summary plan description (SPD) on a company Intranet, without additional notice to participants, does not satisfy the electronic disclosure rules for employee benefit plans under ERISA.

In Thomas v. CIGNA Group Ins, an employee was participating in her employer’s life insurance plan at the time she became disabled. She stopped working and ceased paying the insurance premiums. The life insurance plan included a waiver of premium provision under which a disabled employee could request that life ...

The IRS and Treasury Department recently issued Notice 2015-16 discussing initial approaches to implementing the 40% excise tax imposed on high-cost health plans under the Affordable Care Act (ACA).  This notice is the first step in the process leading to final regulations.

Beginning in 2018, the excise tax, also called the “Cadillac Tax,” will impose a 40% tax on the cost of employer-sponsored health plans that exceeds certain thresholds. The tax may affect few plans initially, but is expected to affect many more over time as the cost of health care grows faster than inflation.

On January 26, 2015, the U.S. Supreme Court established a new standard for the vesting of collectively bargained retiree medical benefits, holding in M&G Polymers USA, LLC, et al. v. Tackett, et al., that collective bargaining agreements (CBAs) must be interpreted using ordinary principles of contract law and rejecting the presumption that collectively bargained retiree welfare benefits vest for life.  M&G Polymers, No. 13-1010 (U.S. Jan. 26, 2015).

In M&G Polymers, a group of retirees brought suit against their former employer after the announcement that retirees ...

The Illinois Secure Choice Savings Act (Secure Choice Act) was quietly signed into law by Illinois Governor Pat Quinn over the weekend.  The controversial legislation will require most businesses in Illinois to adopt a retirement savings plan for their employees by June 1, 2017.

The Secure Choice Act creates a state-run retirement savings program in which eligible workers can contribute to a Roth IRA through automatic payroll deductions from their paychecks. Employers with 25 or more employees, who do not offer another type of retirement program, will be required to offer the ...

Beginning January 2015, employers will be subject to extensive ACA reporting requirements. Although submission of the data for 2015 will not take place until early 2016, employers and insurers need to start capturing the required data in January and should ensure that all the proper data can be captured and tracked prior to the beginning of the year.

The rules require extensive data reporting and are intended to help the IRS enforce various tax provisions of the ACA, including the employer and individual mandates.  Proposed instructions for reporting and draft forms were ...

In Fifth Third Bancorp v. Dudenhoeffer, No. 12-751 (June 25, 2014), the Supreme Court overhauled the legal landscape of ERISA “stock drop” litigation. The case was brought by 401(k) plan participants after Fifth Third’s employer matching contributions, made in company stock to an ESOP component of the plan, dropped 74% over a two-year period. Plaintiffs argued that plan fiduciaries breached their duties under ERISA by investing in and maintaining investments in Fifth Third stock in light of the risks associated with the employer’s subprime lending ...

In contrast to the Supreme Court’s ruling in the recent Hobby Lobby case, which directly affected only a handful of employers, two cases with the potential to derail the Affordable Care Act (“ACA”) were decided last Tuesday – with conflicting results. Less than two hours after a panel of the D.C. Circuit Court of Appeals ruled in Halbig v. Burwell that the insurance subsidies that help millions of Americans pay for health insurance are illegal in 36 states, the 4^th Circuit Court of Appeals issued a contradictory ruling in King v. Burwell, affirming the exact ...

Earlier this month, the Department of Labor (DOL) issued proposed regulations revising the COBRA notice requirements to align with the Affordable Care Act (ACA) and make clear to workers that if they are eligible for COBRA, they have the option to choose to purchase coverage on the exchange instead. The DOL also issued two new model COBRA notices to help employers comply with the revised notice requirements.

The updated Model General COBRA Notice is similar to the previous model notice, but includes a new page of instructions for administrators, as well as additional information ...

The IRS released Notice 2014-19 earlier this month, answering many of the open questions on the application of the Supreme Court’s decision in U.S. v. Windsor to qualified retirement plans.  Although the IRS provided initial guidance on the impact on employee benefit plans shortly after the Court found the Defense of Marriage Act’s (DOMA) ban on same-sex marriage unconstitutional, many details specific to retirement plans were still outstanding.

Effective Date and Retroactivity

The recent release reaffirms that qualified retirement plans are required to recognize ...

Earlier today, President Barack Obama signed a Presidential Memorandum directing his Secretary of Labor to update the regulations to expand the number of employees eligible for overtime under the Fair Labor Standards Act (FLSA). The president was expected to take more specific action based on statements made by White House personnel earlier this week, but he left virtually all of the details to the United States Department of Labor.

The president set the stage for the Department of Labor to narrow the exceptions to the FLSA by discussing the failure of the executive or ...

On March 10, 2014, the Treasury Department and the IRS published the final rules on the Affordable Care Act (ACA) information-reporting provisions for employers and insurers set to take effect in 2015. The final regulations on Sections 6055 and 6056 of the Internal Revenue Code are being touted by the agencies as simplifying the original reporting requirements, which had been criticized by many employer groups as unnecessarily onerous.

Some progress has been made toward simplification – moving to a single combined form capturing data required by both Sections 6055 ...

The number of DOL benefit plan audits held steady in 2013 with the Employee Benefit Security Administration (EBSA) recently announcing that 3,677 civil investigations were closed in 2013, resulting in $1.7B in corrections, restored plan assets and fines. With that in mind, it’s a good time for plan sponsors and administrators to turn their attention to some basic housekeeping.

If the thought of a DOL plan audit makes you nervous, there’s good reason! DOL investigations find a failure in over 70 percent of plan audits. Failures typically result from defects in plan ...

The U.S. Supreme Court continues to rule in favor of the ERISA plan document.

A disability plan’s three-year limitations period doesn’t violate the Employee Retirement Income Security Act (ERISA), a unanimous Court ruled on December 16, 2013 in Heimeshoff v. Hartford Life & Accident Ins. Co. “[A] participant and a plan may agree by contract to a particular limitations period, even one that starts to run before the cause of action accrues,” held the Court. ERISA itself does not specify a statute of limitations for claims brought under covered plans.

 In Heimeshoff, the ...