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Breaking Down the FTC Rule Banning Non-Competes: Action Steps for Employers

"[1] Determine which of your workers have agreed to non-compete clauses. This may include former workers, and may include 'Senior Executives.' [2] Consider whether your existing agreements will be enforceable under applicable state laws that are not preempted by the FTC rule.... [3] [S]tart thinking about the logistics of notifying your workers about unenforceable non-competes. [4] If your business relies on trade secrets or other confidential information ... consider taking additional steps to protect your most valuable information from being misappropriated by departing workers ... [5] Develop a system to keep track of any restrictive covenants you use moving forward."

District Court Provides Roadmap for Opposing Grant of Attorney Fees Even When Court Grants Benefit Claim

"Should plaintiffs always recover attorney fees when the ultimate decision to deny benefits 'was a close call' …and both sides' positions had merit? No. And this new case explains the point." [Messing v. Provident Life and Accident Ins. Co., No. 20-0351 (W.D. MI Aug. 25, 2023)]

Ready or Not, Here It Comes: Paid Leave Oregon!

"Oregon's paid family and medical leave and wage replacement program is now accepting employee applications and will soon be paying benefits to eligible employees. Starting August 14, Oregon employees can apply for paid time off benefits provided by Paid Leave Oregon (PLO). PLO benefits will start on September 3."

Sixth Circuit: Responding to Procedural Objections to Claim Procedures

"This new case highlights the arguments Plaintiffs' may make in challenging claims handling, and how the Sixth Circuit rejected those arguments." [Avery v. Sedgwick Claims Management Services, Inc., No. 22-1960 (6th Cir. July 24, 2023; unpub.)]

Sixth Circuit Describes Plaintiffs' High Burden of Proof to Establish 'Continuous' Disability During the Elimination Period

"This new Sixth Circuit case explains: the very high burden of proof a Plaintiff must meet to establish 'continuous' disability during the Elimination Period; and when medical evidence obtained after the Elimination Period cannot satisfy the Plaintiff's burden to prove disability during the Elimination Period." [Tranbarger v. Lincoln Life & Annuity Co. of New York, No. 22-3369 (6th Cir. May 18, 2023)]

How Much Weight Do Independent Doctor Paper Reviews Get, and Should Rule 52 Bench Trials Be Used to Resolve De Novo Review Cases

"A new case highlights that, in cases applying de novo review, Rule 52 bench trials should be used -- especially when there are factual debates on the diagnosis or severity of impairment of a claimant.... [The case also] highlights that Independent Medical Exams (IME) may be needed more frequently, at least in the Fourth Circuit, due some overly broad language in the opinion concerning the weight to be given 'paper reviews.' " [Tekmen v. Reliance Standard Life Ins. Co., No. 20-1510 (4th Cir. Dec. 16, 2022)]

Third-Party Administrators May Be on the Hook for ACA's Anti-Discrimination Rules

"[A] federal district court ... recently ruled that a third-party plan administrator (TPA) violated the ACA's anti-discrimination rule when administering a self-insured health plan that excluded gender-affirming care.... The court concluded the TPA fit the definition of a health program or activity, expressly concluding that [HHS] rules to the contrary were not binding.... The court concluded that ERISA could not be read to invalidate or impair Section 1557, nor could ERISA insulate the TPA from liability. " [C.P. v. Blue Cross Blue Shield of Illinois, No. 20-6145 (W.D. Wash. Nov. 9, 2022)]

Ninth Circuit: Why Denial Letters Must Include All Rationale to be Asserted in Litigation

"[T]his new Ninth Circuit decision indicates for the first time that it is 'clear error' for a district court to adopt 'newly presented rationale when applying de novo review.' Even rationale focused on a claimant's credibility must be affirmatively stated in the claim denial, if considered, or it will be deemed a 'newly presented rationale' and must be excluded from consideration by the district court if asserted in the litigation." [Collier v. Lincoln Life Assurance Company of Boston, No. 21-55465 (9th Cir. Nov. 21, 2022)]

Ninth Circuit: Denial Letters Must Include All Rationale to Be Asserted in Litigation

"[T]his new Ninth Circuit decision indicates for the first time that it is 'clear error' for a district court to adopt 'newly presented rationale when applying de novo review.' Even rationale focused on a claimant's credibility must be affirmatively stated in the claim denial, if considered, or it will be deemed a 'newly presented rationale' and must be excluded from consideration by the district court if asserted in the litigation." [Collier v. Lincoln Life Assurance Company of Boston, No. 21-55465 (9th Cir. Nov. 21, 2022)]

Abortion Coverage as an Employee Benefit: The Supreme Court Forces Employers Into the Fray

"For employers, the first step may be the hardest ... Employers must determine how the Dobbs decision impacts their various constituencies (employees, customers, shareholders) and how to respond. Geography may play a role. Policy decisions by labor market competitors may play a role. And your population of employees and prospective employees may play a role because your decision could impact recruitment and employee retention. Employer decisions can also be influenced by the level of employee engagement regarding abortion coverage, the associated costs of offering additional benefits, and the potential legal risk involved."