Human Resources and Workplaces

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Q: Can Fourth Circuit plaintiffs be granted “surcharge” as a remedy for breach of fiduciary duty under ERISA?

A: Not anymore. In a divided-panel opinion issued Tuesday, September 12, in Rose v. PSA Airlines, Inc., 2023 WL 5839282, — F.4th — (2023), the Fourth Circuit narrowed the scope of remedies available to plaintiffs in ERISA breach of fiduciary duty claims in this circuit. In short, the Fourth Circuit held that “surcharge” is not an available remedy. Instead, monetary recovery under 502(a)(3) is only available when a plaintiff points to specific funds that the plaintiff rightfully owned but that the defendant possesses as a result of unjust enrichment. This is a reversal of prior Fourth Circuit decisions, which had previously authorized recovery of surcharge as a form of “appropriate equitable relief” under § 502(a)(3).Continue Reading Can Fourth Circuit Plaintiffs be Granted “Surcharge” as a Remedy for Breach of Fiduciary Duty Under ERISA?

Q. Are there any updates related to New Jersey’s Temporary Workers’ Bill of Rights?

A. Yes. As previously reported, in February, New Jersey Governor Phil Murphy signed into law the Temporary Workers’ Bill of Rights (the Bill of Rights), which established several new labor and employment protections for New Jersey’s 125,000+ temporary workers. On July 21, the New Jersey Department of Labor and Workforce Development Division of Wage and Hour Compliance published a set of proposed regulations implementing the Bill of Rights. While there is a 60-day comment period before the regulations become final, the state has represented that, at this time, it intends to enforce the Bill of Rights in accordance with the proposed regulations.Continue Reading New Jersey Published Proposed Regulations Implementing the “Temporary Workers’ Bill of Rights”

Q. Has the U.S. Equal Employment Opportunity Commission (EEOC) issued any recent guidance regarding employers’ use of artificial intelligence (AI)?

A. Yes. On May 18, the EEOC released new guidelines, explaining how employers’ use of AI could trigger a federal employment law violation. This development makes the government’s position clear: Employers using AI in the workplace run the risk of violating antidiscrimination law — specifically, Title VII of the Civil Rights Act of 1964.Continue Reading With Great Hiring Power Comes Great Responsibility: EEOC Releases New Warnings for Employers Leveraging AI

Q. Do temporary workers have workplace protections in New Jersey?

A. Yes. On February 6, New Jersey Governor Phil Murphy signed Assembly Bill No. A1474 / S511 (also known as the Temporary Workers’ Bill of Rights). The Bill of Rights establishes several new labor and employment protections for the state’s 125,000+ temporary workers.

Continue Reading New Jersey Enacts “Temporary Workers’ Bill of Rights”

Executive Summary

On February 21, the National Labor Relations Board (NLRB or Board) reversed course from its own Trump-era precedent when it held that an employer’s offer of employee severance agreements with broad confidentiality and non-disparagement provisions is an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act (Act). In light of this change, all employers, regardless of whether they are unionized, should carefully consider actions including:Continue Reading NLRB Prohibits Confidentiality and Non-Disparagement Provisions in Severance Agreements With Broad Implications

Q: Does the Speak Out Act affect employer nondisclosure and nondisparagement agreements?

A: Nearly five months after Senator Kirsten Gillibrand (D-NY) first introduced the bipartisan Speak Out Act, President Joe Biden signed it into law on December 7, 2022. The Speak Out Act bars judicial enforcement of nondisclosure and nondisparagement clauses concerning sexual assault and sexual harassment allegations if entered into “before the dispute arises.” This ensures that “victims and survivors have the freedom to report and publicly disclose their abuse,” while still allowing employers to use nondisclosure and nondisparagement clauses in resolving a dispute once it has arisen.Continue Reading Biden’s “Speak Out Act” Bars Use of Nondisclosure and Nondisparagement Agreements to Restrict Sexual Harassment and Sexual Assault Allegations

Work-life balance — does it exist? In Episode 4 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Debbie Epstein Henry, best-selling author, public speaker, consultant, and host of the Inspiration Loves Company podcast, to discuss the hit TV show Severance and lessons learned about work-life balance. Tune in to hear a lively discussion about ways companies can help workers find work-life balance to increase happiness and satisfaction, while maximizing effectiveness.
Continue Reading What Can the Show Severance Teach Us About Work-Life Balance?

* Michael T. Byrne is a 2021 summer associate at Troutman Pepper. He is not admitted to practice law.

Q: Are California employers required to rehire employees they laid off for reasons related to the COVID-19 pandemic?

A: Yes, but only if the employer falls within certain industries and establishes an open job position for which one of its laid-off employees is qualified. Under California’s Senate Bill No. 93 (SB 93), if a covered employer opens a job position and has previously laid off workers due to reasons related to the COVID-19 pandemic, the employer must first offer the position to eligible laid-off employees within five days of establishing the position.Continue Reading California Provides Right to Recall to Certain Employees Laid off Due to COVID-19

Q: Is medical marijuana an expense reimbursable by the employer?

A: For New Jersey employers, the answer is likely yes. Weednews reports that as of January 9, New Jersey and 34 other states have legalized marijuana for medical use, although it remains a Schedule 1 controlled substance at the federal level. As a result, patients have had to pay out of pocket for medical marijuana, as insurers contend that covering the cost would violate the federal prohibition on marijuana under the Controlled Substances Act (CSA). Recently however, the New Jersey Supreme Court unanimously affirmed the ruling in Hager v. M&K Construction, 462 N.J. Super. 146 (App. Div.), that an employee injured in the workplace is eligible to have medical marijuana costs reimbursed by his/her employer under New Jersey’s state workers’ compensation laws.
Continue Reading New Jersey: Medical Marijuana Costs Reimbursable in Workers’ Compensation Scenario