Labor + Employment Workforce Watch is a guide to the employment law developments most likely to impact your business. The Troutman Pepper Locke Labor + Employment Team represents employers in the most sensitive workplace matters, enabling our clients to concentrate on their core business operations. Our team is adept at handling and managing labor and employment issues on national, international, and local levels. Recognized as a leading law firm by Chambers USA, our attorneys provide comprehensive advice on every type of employment issue a company may encounter, at every stage of the employment life cycle.
Navigating Legal Obstacles in Life Sciences Restructurings
Troutman Pepper’s Deborah Spranger, Mateusz Saykiewicz, Tracey Diamond, and Brent Hoard recently authored Reuters Legal News article “Navigating Legal Obstacles in Life Sciences Restructurings” where they discuss how life sciences companies can mitigate legal risk when undergoing a restructuring.
Can Fourth Circuit Plaintiffs be Granted “Surcharge” as a Remedy for Breach of Fiduciary Duty Under ERISA?
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).
New Jersey Published Proposed Regulations Implementing the “Temporary Workers’ Bill of Rights”
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.
With Great Hiring Power Comes Great Responsibility: EEOC Releases New Warnings for Employers Leveraging AI
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.
New Jersey Enacts “Temporary Workers’ Bill of Rights”
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.
NLRB Prohibits Confidentiality and Non-Disparagement Provisions in Severance Agreements With Broad Implications
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:
Biden’s “Speak Out Act” Bars Use of Nondisclosure and Nondisparagement Agreements to Restrict Sexual Harassment and Sexual Assault Allegations
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.
EEOC Introduces New “Know Your Rights” Poster
Q. Did the EEOC update its “EEO is the Law” poster?
A. Yes. On October 19, the U.S. Equal Employment Opportunity Commission (EEOC) released a new “Know Your Rights” poster, which updates and replaces its former “EEOC is the Law” poster.
What Can the Show Severance Teach Us About Work-Life Balance?
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.