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Seyfarth Shaw's Annual Workplace Class Action Litigation Report (PDF)

17 pages. Excerpt: The 664-page Report, the seventh annual edition, is the most comprehensive analysis of workplace-related class actions in the U.S. It examines 848 decisions rendered in 2010 against employers in state and federal courts, including private plaintiff and government enforcement actions.  MORE >>

Increase Predicted for 2010 Workplace Litigation by Report from Seyfarth Shaw

Excerpt: Six key trends from the report are epitomized by the firm as follows: First, the plaintiffs' bar increased the pace of the Fair Labor Standards Act ('FLSA') collective action and the Employee Retirement Income Security Act ('ERISA') class action filings seeking recovery for unpaid wages and 401(k) losses. As lay-offs increased, displaced workers also filed more age discrimination and Worker Adjustment and Retraining Notification lawsuits. Even more litigation is expected in 2010, as businesses re-tool their operations.

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ERISA Preemption After Gobeille V. Liberty Mutual: Completing the Retrenchment of Shaw

"In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court's literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc....The Court reached this conclusion in a way which indicates that, going forward, Traveler's more restrained approach to ERISA preemption exclusively prevails. This is particularly significant for state-sponsored private sector retirement plans, now immune from ERISA preemption challenge, as well as for state taxes as they apply to the investment trusts of ERISA-regulated retirement plans."  MORE >>

Recent Developments Related to the Emergency Economic Stabilization Act of 2008 (PDF)

13 pages. Excerpt: On October 6, 2008, Seyfarth Shaw LLP provided a Management Alert to clients and friends of the firm detailing generally the provisions of the Act (the 'Original Alert'). Since such time, there have been a number of developments that have reshaped or clarified the way in which certain provisions of the Act will be implemented. For your convenience, set forth below is a summary of these recent developments and this Alert acts as a supplement to the Original Alert.  MORE >>

Post-Amara: Are Contribution or Indemnification Among Co-Fiduciaries Available Under ERISA?

[Editor's note: BenefitsLink included this article in yesterday's newsletter but our headline was incorrect, as was a summary we wrote. The article explained that a federal district court in the Eleventh Circuit has ruled that a right of contribution or indemnification exists among co-fiduciaries, but our headline and summary said the opposite. We apologize to readers and to the Seyfarth Shaw firm for this error.] Excerpt: "The court ... discussed whether such relief was available under the trust law principles that were the foundation of ERISA. The court held that the Eleventh Circuit has accepted those trust law underpinnings and thus would follow the approach laid out by the Second Circuit in Chemung Canal Trust Co. v. Sovran Bank/Maryland [in which] the Second Circuit held that an action for contribution and indemnity represented a 'fundamental principle of equity jurisprudence' and provided a means for 'equitably distributing responsibility for plaintiff's losses proportionally among those responsible for the losses'; accordingly, such an action was included in the federal common law of ERISA." [Guididas v. Community National Bank Corp., No. 8:11-cv-2545-T-30TBM (M.D. Fla., 11/5/2012)]  MORE >>

ADA, FMLA and Medical Marijuana, How Do They Mix?

"The fact that I might be using medical marijuana during my FMLA time off is irrelevant. Indeed, if my condition requires me to take time off from work to use medical marijuana, that time off would also be covered by the FMLA. One can only imagine the possibilities.... What if the employer has a zero tolerance drug policy, must the employer take the employee back when he/she tests positive for marijuana use after an FMLA covered absence to smoke marijuana as a medical treatment? Generally, an employer can enforce its drug free workplace against off duty marijuana use, because marijuana use is still illegal under federal law."  MORE >>

Text of Brief by Cambridge Financial Services, LLP Urging Supreme Court to Overturn Ninth Circuit Decision in Tibble v. Edison (PDF)

"CFS's experience in advising and counseling ERISA fiduciaries and its knowledge and understanding of prevailing and evolving best practices and 3 standards of care yields four key observations: [1] many plan fiduciaries, especially among large plans, already follow good monitoring practices, meaning that reversing the Ninth Circuit will not result in increased costs for these fiduciaries or their employers; [2] the cost of regular monitoring includes a small amount for 'benchmarking' plan fees in all service categories -- investment, administration, trustee, consulting, and the like, and is, in many cases, largely born by plan participants, not employers or fiduciaries; [3] the Ninth Circuit's decision threatens to erode the past decade's progress on fee reductions in defined contribution plans, driven in part by private lawsuits, which has saved plan participants billions of dollars ; and [4] the Ninth Circuit's standard of 'material' changed circumstances is unworkable and illogical."  MORE >>

Katten Muchin Rosenman LLP Comment Letter to IRS on Proposed Regs Regarding Calculation of UBTI for VEBAs (PDF)

"[U]nless Q&A-5 is revised, VEBAs which have been operating in a permissible manner will find that their investment income which was earned during the current year in which the regulation is promulgated, and perhaps even prior to the date that the regulation is enacted, will be subject to tax. I respectfully request that Q&A-5 be revised to provide that the effective date of the regulation be the first taxable year STARTING (not ENDING) on or after the date of publication of the final regulation[.]" [Editor's note: The author was the principal author of the 1980 proposed VEBA regulations.]

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Davis & Harman LLP Comment Letter to SEC on Standards of Conduct and Other Obligations of Broker-Dealers and Investment Advisers (PDF)

"Because it is not possible to determine the effects of possible SEC reforms without taking into account the interaction with possible DOL reforms significantly affecting the same conduct and the same IRA market, the responses to the SEC Request will virtually all be incorrect as soon as the DOL acts, thus rendering the SEC's administrative record unhelpful.... [T]here is complete overlap between the two projects with respect to investment services provided to IRA owners. Since IRA assets were approximately $4.9 trillion as of the end of 2011, the degree of overlap between the two projects is enormous."  MORE >>

Virginia Significantly Broadens Statewide Paid Sick Leave Requirements

"The new paid sick leave requirements go into effect on July 1, 2027 for employers with at least 50 employees, and then will be introduced in phases over the next 18 months. On January 1, 2029, all employers with at least one employee will be covered by the mandate. The newly enacted mandate reflects a significant expansion of the state's existing paid sick leave law ... The new mandate includes a broad definition of employee[.]"  MORE >>

Maine PFML Benefits Start May 1, 2026: What Employers Should Be Doing Now

"With the benefit start date approaching and applications now being accepted, Maine employers should promptly review their leave policies, administrative procedures, and benefit‑coordination practices to ensure compliance with the PFML program."  MORE >>

DOL Proposes Rule Clarifying ERISA Fiduciary Duties in Selecting 401(k) Investment Options

"The Proposed Rule is process‑based and asset‑neutral. It neither mandates nor prohibits any asset class, including alternative investments.... Asset‑allocation vehicles, including target‑date funds, are expressly within the rule's scope. The Proposed Rule underscores the importance of documenting the fiduciary decision making process, the appropriate use of expert advisors, and ongoing monitoring."  MORE >>

DOL Proposes to Readopt the 2021 Independent Contractor Rule with Minor Variations

"[If] finalized, the Proposed Rule will be welcome news for employers and workers, as it provides to courts the regulatory agency’s interpretation of the economic realities test, including a modern, well-balanced, clear analysis that gives greater weight to the two core factors and interprets all factors in an even-handed manner consistent with decades of case law."  MORE >>

New York City Amended Safe and Sick Time Act Now in Effect

"Earlier this month, the City issued proposed amendments to the ESSTA Rules.... In recent days, the City also rolled out amended ESSTA FAQs, a revised ESSTA website, a new report focused on the City's ESSTA compliance efforts, and an updated Notice of Employee Rights."  MORE >>

HIPAA’s February 16 Deadline: A Strategic Moment for Privacy Governance

"[A] February 16, 2026, deadline ... requires health plans and most health care providers to update their Notices of Privacy Practices (NPPs).... Although the task may appear administrative, the revisions present a strategic opportunity to evaluate privacy practices, modernize internal systems, and reinforce protections for sensitive health information."  MORE >>

2026 Massachusetts Paid Family and Medical Leave Updates

"Effective January 1, 2026, the Massachusetts Department of Family and Medical Leave (DFML) announced an increase to the maximum weekly Massachusetts Paid Family Medical Leave (PFML) benefit.... In addition, the DFML has issued a memo regarding IRS Revenue Ruling 2025-4 which addresses the tax treatment of state paid family and medical leave benefits."  MORE >>

New York City Expands Paid Safe & Sick Time Benefits

"The impending amendments make a variety of substantive changes to ESSTA, including: [1] expanding reasons for use; [2] adding unpaid leave entitlement; [3] formally codifying Paid Prenatal Leave ... and [4] modifications of collective bargaining provisions. In addition, the amendments will bring changes to the separate New York City Temporary Schedule Change Law."  MORE >>

Time to Catch-Up (Again!): IRS Finalizes Catch-Up Regulations

"These Final Regulations provide comprehensive guidance for retirement plan sponsors and administrators, clarifying operational requirements and correction methods for contributions subject to the Roth Catch-Up Requirement, as well as the enhanced super catch-up contribution limits. [This article provides] answers to some of those lingering questions and significant changes in the Final Regulations[.]"  MORE >>

Nebraska Paid Sick Time Law Now in Effect

"As of ... October 1, 2025, Nebraska employers must allow employees to earn and use up to 40 or 56 hours of paid sick time per benefit year, depending on employer size.... [O]ver the last four months Nebraska ... [has seen] amendments to the statute, multiple rounds of FAQs ... a separate 'guidance document' ... model posters and notices, and a revamped website."  MORE >>

PAID Back: DOL Revives Voluntary Self-Audit Program, Extends it to FMLA Issues

"The [DOL] has officially revived its Payroll Audit Independent Determination (PAID) program ...[which] aims to encourage employers to self-identify and correct compliance issues under the FLSA and FMLA.... For employers, the program provides a potential avenue to correct mistakes without inviting the threat of fines, litigation, or plaintiffs' attorney fees (though ... not all exposure necessarily disappears).... The revived PAID program includes several enhancements and limitations[.]"  MORE >>