Coverage Testing – The Forgotten Nondiscrimination Rule

By Gregory Viviani and Elise Norcini on January 30, 2024 Posted in Retirement, Tax

This blog post addresses retirement plans that are intended to be tax-qualified under Section 401(a) of the Internal Revenue Code (Code).

Specifically, this post will provide information related to:

“ Coverage Testing” rules under Code Section 410(b)
Related “ Controlled Group” rules under Code Section 414

Quite often, we see employers, particularly smaller employers, design and implement tax-qualified retirement plans without a basic understanding of how these rules apply to their plans. This results in confusion over if the plan is required to take corrective action under these rules in a particular plan year.

This blog post is intended to provide employers with a fundamental understanding of these rules, so that the plan sponsor can mitigate potential compliance issues at the time of the plan’s implementation.

Supreme Court of California Holds Trial Courts Lack Inherent Authority to Dismiss Unmanageable PAGA Claims

By Carmen Cole on January 29, 2024 Posted in California, Class Action, PAGA

In Estrada v. Royalty Carpet Mills, Inc., No. S274340, 2024 WL 188863 (Cal. Jan. 18, 2024), the Supreme Court of California resolved a split among the Courts of Appeal regarding whether trial courts possess inherent authority to dismiss California Labor Code Private Attorneys General Act (“PAGA”) claims based on their lack of manageability and held that courts lack such authority. The employer in Estrada contended that the PAGA claim brought against it was unmanageable because it involved a substantial number of individual issues and would require testimony from a vast number of individuals. This decision takes a potentially potent tool for defending against PAGA claims away from defendant employers and may encourage plaintiffs to pursue the broadest possible PAGA claims.

DOL Publishes Final Independent Contractor Rule (US)

By Paul Erian and Scott Held on January 22, 2024 Posted in Department of Labor, Fair Labor Standards Act, Independent Contractors

Way back in October 2022, we discussed the U.S. Department of Labor’s (DOL) issuance of a notice of new rule that would substantially change the test for whether a worker is an employee, and thus covered by the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA), or is an independent contractor, and therefore not covered by those FLSA provisions. After an extensive notice-and-comment period, on January 10, 2024, the DOL published the final rule.

Workplace Harassment in Germany: “We Encourage You to Speak Up!” But to Whom?

By Laura Sparschuh on January 22, 2024 Posted in Employment, Harassment, Whistleblowing

In the first of a short series of blog posts on workplace harassment in Germany, Laura Sparschuh highlights Germany’s new Whistleblower Protection Act and key issues for employers to consider when handling reports of harassment.

In Germany, the Whistleblower Protection Act came into full effect in December 2023. The main news is that employers with more than 50 employees are now required to establish and maintain channels and offices (the WPA reporting office) for reporting misconduct that is covered by the Whistleblower Protection Act.

Such reporting channels are not new under German legislation. The General Act on Equal Treatment, for example, requires employers to establish complaints boards to allow employees to report incidents covered by that legislation. This mainly affects harassment on grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation. In such circumstances, the complaints board assesses the complaint and informs the complainant without having to meet any stringent deadlines or other formal requirements.

US State Law Roundup – 2023 Year-end Update

By Shennan Harris and Margaret Lombardo on January 2, 2024 Posted in Employment, Employment Law, State Law Updates

State and local legislatures were active throughout 2023 in passing laws and ordinances that will impact employers of all sizes and all industries in 2024.

Click HERE for our summary of these laws and related developments, including important developments in California, Colorado, Illinois, Minnesota, New York and elsewhere!

If you haven’t already, you might also want to review our updates from the first half of 2023, available here and here.

As always, our team will continue to monitor these and other state employment law developments. If you have questions or need guidance, please contact your SPB lawyer. Happy New Year!

Belgium – “When the lights go out”: the burn-out pandemic

By Marga Caproni on January 2, 2024 Posted in Employee Health/Welfare, Health & Safety, Recent Cases

In this last episode of our mini-series on long-term absence, we will zoom in on probably the most common current ground for long-term absence in Belgium, which is burn-out.

Burn-out was in the Belgian press again recently because of a decision in the Antwerp Employment Court that it is discriminatory for a health care insurer to limit payments to two years for disability arising from mental disorders, personality disorders, chronic fatigue syndrome or fibromyalgia, where for other physical disorders it had not imposed any such time limitation. The rationale behind it was that two years is a feasible recovery time for mental disorders, whereas for physical illnesses, the recovery time is usually shorter such that an upper limit was not necessary. The Court did not accept this argument and considered the distinction to be discriminatory.

U.S. Department of State Implements Domestic Visa Renewal Pilot Program

By Luisa Koidl on December 29, 2023 Posted in Immigration, U.S. Department of State, Visa

On December 21, 2023, the United States Department of State (DOS) published a notice detailing the implementation of a domestic visa renewal through a limited pilot program. The pilot program resurrects a process the DOS discontinued in 2004 and will allow certain eligible applicants to renew an H-1B visa in the United States without needing to travel abroad to a United States consulate. The pilot program will be in effect from January 29, 2024 through April 24, 2024, and will be limited to a total of 20,000 H-1B visa applications. Applicants must file the Form DS-160 nonimmigrant visa application online and begin the process at a dedicated DOS domestic renewal website.

Amendments to California Anti-Retaliation Laws Facilitate Employee Lawsuits

By Carmen Cole on December 28, 2023 Posted in California, Discipline, Equal Pay, General, Retaliation

Soon it will be easier for California employees to establish a prima facie claim of retaliation in violation of California law. On October 8, 2023, Governor Gavin Newsom signed Senate Bill No. 497 into law. Also referred to as the Equal Pay and Anti-Retaliation Protection Act, the legislation amends California Labor Code Sections 98.6, 1102.5 and 1197.5 and will create a presumption of retaliation when an employer takes an adverse employment action against an employee within 90 days of the employee engaging in conduct protected under any of the specified Labor Code sections.

Pre-nups in employment contracts – not a marriage made in heaven (UK)

By David Whincup on December 15, 2023 Posted in Compensation, Disciplinary, Dismissal, Grievance, Litigation, Recent Cases, Unfair dismissal, Whistleblowing

In its judgement in Zabelin -v- SPI Spirits and Shefler this month, the Employment Appeal Tribunal has offered a refresher course on some important questions around protected disclosures, contracting out of statutory rights and when the Acas Code applies.

The background facts are relatively simple. Zabelin worked for SPI which is owned by Mr Shefler. Like many other employers, SPI agreed a temporary pay cut with its employees in 2020 to mitigate the adverse impact of the pandemic. Like rather fewer of them, it then unilaterally extended that cut beyond the date agreed, provoking Zabelin into complaining about that breach of contract as it applied to him and others, a complaint reinforced by SPI’s simultaneous proposal to change his 2019 bonus provision retrospectively from something he had a reasonable chance of obtaining to something he didn’t. Zabelin said that this too was a breach of his contract and those of other staff, that this approach was causing great unease and damage to mental health among other SPI teams and offices, and that the whole exercise was being conducted without transparency or financial necessity, but simply to increase SPI’s profit. What must have been a less than amicable call between him and Shefler about all this ended abruptly when Zabelin was told that he really needn’t worry about any of it because he was fired.

Employees on long-term sickness absence – out of sight, out of mind no longer (Belgium)

By Marga Caproni on December 13, 2023 Posted in Data Protection, Dismissal, Legislation, Sick Leave

The Belgian Parliament is currently discussing a draft Bill proposed by Federal Health Minister Frank Vandenbroucke which aims to reverse the growing trend of long-term sickness. About half a million employees have been off sick for more than a year, according to figures from the National Institute for Sickness and Disability Insurance. That’s two-thirds more than a decade ago. Because of those rising numbers, health insurance funds cannot always keep up. Some of those employees have check-ups with the health insurance fund doctor only very sporadically (the Health Minister has reportedly based his draft bill on the anecdotal story of an employee who had not seen the health insurance fund doctor in 12 years). If the Bill becomes law, employees who fall ill will have mandatory physical appointments with the health insurance fund after four, seven and 11 months of absence. Even after 12 months – when the employee is officially labelled ‘long-term sick’ – appointments will remain mandatory, but the exact timing and frequency will then depend on an assessment of the extent to which a quick return to work is realistic. Those appointments will be fixed by the health insurance fund, and employees who decline to attend may see their allowance temporarily suspended.