The New York City Council has approved an amendment to the Administrative Code of the City of New York (Int. 0863-2018) that prohibits employment discrimination and harassment based on an individual’s reproductive health choices, which goes into effect on May 20, 2019. Please see our recent LawFlash about this amendment, and reach out to the LawFlash authors or your Morgan Lewis contacts if you have additional questions.

With the economy humming along and unemployment at historic lows, it seems a strange time for a blog post about severance plans. This is the ideal time, however, to start planning for the next phase of the business cycle and the inevitable reductions in workforce that will follow. In connection with this planning, we wanted to remind our readers of the numerous advantages of adopting an ERISA-compliant severance plan. While many employers think they do not have an ERISA-covered plan—because it is not written or is not distributed to employees—they may in fact have a de facto plan if they have a routine policy for providing severance benefits that requires ongoing administrative discretion. Don’t panic: ERISA coverage is generally a good thing.

The US Supreme Court ruled on May 21 in Epic Systems Corp. v. Lewis that class and collective action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (FAA). The court sided with employers, rejecting arguments that class and collective action waivers were unenforceable because they violated the National Labor Relations Act (NLRA).

The employees argued that the FAA’s saving clause provided a basis for courts to refuse to enforce arbitration agreements that also include a waiver of the right to bring a class or collective action, because such waivers violate the NLRA. The employees also argued that the NLRA itself reflected a clearly expressed and manifest congressional intention to displace the FAA and bar class and collective action waivers, because the NLRA guarantees workers the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The Supreme Court rejected each of these arguments, finding that the NLRA does not contain a conflicting congressional command, and instead can be harmonized with the FAA to permit class and collective action waivers in employment arbitration agreements.

Authorities in various jurisdictions are stepping up enforcement against no-poaching agreements between employers. To learn more about how employment practices may be in breach of antitrust law and steps that employers can take to protect their hiring practices from running afoul of anti-competition laws, please read our recently published LawFlash.

To help companies navigate the myriad issues arising from claims of sexual harassment in the workplace, we offer a multidisciplinary team uniquely suited to address these complex challenges. To learn more about our thinking and action on these topics, please see How to Navigate a Workplace Harassment Crisis—a Q&A with the head of our labor and employment practice, Grace Speights—and our Guide to the New Rules for the Deductibility of ‘Misconduct’ Payments.

Many employers are searching for a strategic, holistic approach to these issues. View our Workplace Harassment Crisis Capabilities for more information on how we can help employers to investigate, defend against, and minimize the reputational damage from claims of workplace harassment or misconduct. If you need assistance with any harassment-related matters, please feel free to reach out to any of your Morgan Lewis contacts or Grace Speights.

One effective way to assist hurricane victims is for employers to give employees the option of donating leave that can be converted into cash charitable contributions. For practical tips on how to set up this type of program, please read Hurricane Recovery Client Alert: Establishing a Charitable Leave Donation Program.

A variety of tax-favored vehicles exist for employers and their employees to donate cash or even accrued leave to assist those impacted by Hurricane Harvey’s devastation. Our Hurricane Harvey Client Alert addresses four types of employer-sponsored relief programs that allow employers to provide assistance on a tax-advantaged basis.

As you have likely heard by now, the US Securities and Exchange Commission (SEC) has been targeting companies that require departing employees, as a condition to receiving severance benefits, to enter into severance agreements that discourage or prohibit the former employees from contacting regulators or from receiving whistleblower awards. The SEC whistleblower programs, established under Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and memorialized in Section 21F of the Securities and Exchange Act of 1934, as amended, and SEC Rule 21F-17, are designed to provide incentives to individuals to encourage their providing information regarding violations of securities laws, and to protect whistleblowers from retaliation resulting from any disclosure. 

Happy New Year from the ML BeneBits team! Join Morgan Lewis in January for these upcoming programs on a variety of employee benefits and executive compensation topics:

Visit our events page for more of our latest programs.

The US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has updated its sex discrimination guidelines for federal contracts. Under those guidelines, federal contractor healthcare plans, leave policies, accommodation practices, gender identity protections, and other employment practices will face increased scrutiny. To learn more, read our LawFlash Final Gender Discrimination Rule for Federal Contractors Issued.