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SEC Proposal to Curb 'Pay to Play' Practices Directed at Public Pension Plan Management

Excerpt: Pepper Point: The proposed rules implicate First Amendment issues. Regardless of whether the proposed rules are ultimately promulgated, advisers as a matter of 'best practices' should review and consider making changes to their internal compliance practices consistent with the proposed rules' provisions. As always, all advisers having any dealings with public officials affecting their business should consult with qualified counsel.

New York Releases Guidance on Paid Sick Leave; Key Questions Remain Unanswered

"[T]he guidance does not clearly address key questions left open by the [New York Sick Leave Law (NYSLL)], including: [1] If an employer provides a lump sum of paid sick leave at the beginning of each year (also known as front-loading), whether the employer must still allow employees to carry over accrued, unused leave at the end of the year. [2] In determining the amount of sick leave the employer is required to provide, whether to count only employees within New York or employees nationwide.... [3] Whether employers can require reasonable documentation to support an employee's request to use New York Sick Leave."

COVID-19 Resource Guide: Action Items and Implementation Guidelines for Employee Benefit Plans

22-page chart summarizes official guidance, effective dates, employer actions, and additional notes for employer-sponsored plans.

COVID-19 Executive Compensation Q&As: Incentive Plans and Nonqualified Deferred Compensation

"[1] Can or should companies make adjustments to their annual and long-term incentive plans in light of COVID-19 business impacts? ... [2] We were about to pay our 2019 annual bonuses but want to indefinitely delay payment given financial uncertainty caused by COVID-19. Will that delay cause any legal issues? ... [3] The COVID-19 crisis has caused our stock price to drop dramatically. What impacts could this have on our equity compensation program? ... [4] Can we permit participants to cancel deferral elections and/or receive distributions from our nonqualified deferred compensation plans?"

New York Enacts COVID-19 Sick Leave Law, Effective Immediately

"Employers in New York with fewer than 500 employees are subject to both the newly enacted federal Families First Coronavirus Response Act and the NYSLL. The law that provides the more generous benefit applies, which will depend on employer size and the reason the employee cannot work (employee himself/herself is ill or quarantined, employee is taking care of a child whose school is closed, etc.)."

President Trump Signs Families First Coronavirus Response Act

"The Act permits the [DOL] to adopt regulations that would exempt small businesses with fewer than 50 employees from the requirements of the EFMLA 'when the imposition of such requirements would jeopardize the viability of the business as a going concern.' ... [E]mployers must restore employees taking EFMLA leave to their position, or an equivalent position -- however, there is an exemption that employers with fewer than 25 employees may be able to use if [certain] conditions are met[.]"

Proposed IRS Regulations for Hardship Distributions Offer Welcome Guidance

"While the expansion of available sources for hardship distributions and the elimination of the requirement that a participant first take a plan loan are voluntary changes, the proposed regulations require that, for any hardship distribution made on or after January 1, 2020, a plan may not impose the six-month suspension of employee contributions as a condition of obtaining the distribution."

Iowa Is Latest State to Challenge ACA Through Noncompliant Plans

"Iowa's new law would permit Iowa's Farm Bureau to partner with a designated insurance company to create self-funded health benefit 'arrangements' that are not technically health insurance plans, thus allowing these 'arrangements' to avoid state regulation and ACA mandates like essential health benefits. Under the law, these plans are to be 'sponsored by a nonprofit agricultural organization . . . [and] shall be deemed not to be insurance.' Tennessee permits a similar process."

CMS Thwarts Idaho's Attempts to Skirt ACA, But Provides a Path Forward

"[CMS] outlined a path for Idaho to still allow its state-based plans within the bounds of the law. It explained that ... HHS [has] proposed a rule that would expand the availability of short-term, limited duration health insurance, by allowing consumers to buy these plans for any period less than 12 months, rather than the current maximum period of less than three months.... In stopping Idaho's current plan, CMS may very well have given other states the green light to adopt more creative ways to skirt the requirements of the ACA."

Successful Challenge to ACA Risk Adjustment Formula in New Mexico

"In holding that the formula was arbitrary and capricious, the district court rejected HHS's argument that the formula was justified because the ACA requires risk adjustment to be budget neutral. The court agreed ... that the statute includes no such requirement. and vacated all HHS risk adjustment regulations dating back to 2014." [New Mexico Health Connections v. HHS, No. 16-878 (D.N.M. Feb. 28, 2018)]