U.S DOL Offers Some Good News for Smaller Businesses with 401(K) Plans

Daniel L. Morgan ●

It’s not often that business owners get good news from the government, but small and even some medium-sized businesses with 401(k) plans got a helping hand from the U.S. Department of Labor (“DOL”) earlier this year when the DOL eased the rules for identifying which 401(k) plans are required to have audited financial statements.

Background

The Employee Retirement Income Security Act of 1974 (“ERISA”), everyone’s favorite federal law, has a dual reporting structure for 401(k) plans depending on the number of participants in the plan. Plans with 100 or more participants at the beginning of the year—so-called large plans—are required to prepare audited financial statements and file them with the plan’s Form 5500, Annual Return/Report of Employee Benefit Plan. Plans with fewer than 100 participants escape the audit requirement and, in most instances, can file a Form 5500-SF, Short Form Annual Return/Report of Small Employee Benefit Plan.

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NLRB’s General Counsel Foreshadows More Expansive Restrictions on Separation Agreements Following the Board’s McLaren Macomb Decision

Andrew I. Herman, Garrett P. Buttrey, and Jason E. Reisman


Overview: On February 21, 2023, the National Labor Relations Board (“NLRB” or Board) found two routinely standard separation agreement provisions—confidentiality as to the agreement and non-disparagement—to be unlawful when included in an agreement offered to an employee. McLaren Macomb, 372 NLRB No. 58 (2023). This week NLRB General Counsel Jennifer Abruzzo issued guidance in an effort to clarify the scope and impact of that decision. The General Counsel’s guidance takes an expansive view of McLaren Macomb, foreshadowing more restrictions on separation agreement and other employment agreements.

In McLaren Macomb, the NLRB held that employers violate the National Labor Relations Act (“NLRA”) when they offer severance agreements with provisions that would restrict employees in the exercise of their NLRA rights. The Board explained that, where an agreement “unlawfully conditions receipt of severance benefits on the forfeiture of statutory rights, the mere proffer of the agreement itself violates the [NLRA] because it has a reasonable tendency to interfere with or restrain the exercise” of NLRA rights.

NLRB General Counsel Takes an Expansive View of McLaren Macomb

The guidance from General Counsel Abruzzo—the chief investigator and prosecutor of violations of the NLRA—is a warning to employers about her expansive views of the reach of the McLaren Macomb decision. In her memorandum, the General Counsel provides the following insight about McLaren Macomb’s broader implications:

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The DOJ’s Newest Pilot Program on Compensation and Clawbacks: Executives and Employees Should Reap What They Sow

Jennifer L. Achilles, Brooke T. Iley, Anthony A. Mingione, Shawn M. Wright, and Amelia Clegg

Employers will not be able to take full advantage of the DOJ’s new program if their compensation systems do not permit clawbacks from wrongdoer employees. Companies should review their existing compensation systems and consider updating them before problems arise, so that they will be in a position to take full advantage of the DOJ program should it become necessary to do so. In updating compensation systems to permit clawbacks, or expand the scope of existing clawback provisions, employers must also take appropriate steps to maintain compliance with the wage and hour laws in the jurisdictions in which they operate. Navigating these sensitive issues will be complicated and will require more coordination between employment counsel and white-collar counsel than ever before.

The Roman lawyer and orator Cicero phrased personal responsibility thus in his De Oratore: “ut sementem feceris, ita metes”—“just as you sow, so you shall reap”. This turned out to be particularly fitting for Cicero himself–after his death at the hands of Mark Antony, Antony’s wife Fulvia took Cicero’s severed head and stabbed his tongue repeatedly with her hairpin to exact revenge for his barbed attacks on her and her husband. It appears that the Department of Justice (“DOJ”) has taken Cicero’s advice to heart when drafting the revised corporate compliance policies unveiled last week at the ABA White Collar Crime Conference in Miami. The revisions reflect an ethos that corporate employees who engage in misconduct, as well as the supervisors who enable such conduct, should suffer the consequences of their misdeeds. Accordingly, the DOJ will now reward corporations for clawing back compensation from both corporate wrongdoers and their supervisors.

On March 2, Deputy Attorney General Lisa Monaco both cemented the DOJ’s recent amendments to its corporate self-disclosure program (for more detail, please see here) and announced the launch of a novel pilot program on compensation incentives and clawbacks.

Under the pilot program:

      • Every corporate resolution involving the Criminal Division will now include a requirement that the resolving company develop compliance-promoting criteria within its compensation and bonus system. Companies subject to a resolution will need to revise their performance and bonus metrics to include compliance-related components. Companies may implement a system whereby executives and employees are required to forfeit their bonuses if they fail to meet certain compliance-related objectives.
      • The Criminal Division will reduce fines for companies who seek to claw back compensation from corporate wrongdoers. Companies that pursue clawbacks in good faith, but are unsuccessful, may receive a fine reduction of up to 25 percent of the amount of compensation sought.

In other words, companies will be able to reduce criminal fines by clawing back, or attempting in good faith to claw back, compensation from wrongdoers and their supervisors, and the companies will be able to keep any recovered funds.

To read the full client alert, please visit our website.

NIST Issues Guidance to Help Companies and Organizations Operationalize AI Risk Management

Brian Wm. Higgins ●

The U.S. Department of Commerce’s National Institute of Standards and Technology (“NIST”) last week released an Artificial Intelligence Risk Management Framework (“AI RMF 1.0”). Calling it a guidance document for voluntary use by organizations in designing, developing, deploying, or using AI systems, the framework can be used to contextualize and manage the potential risks of harm posed by AI systems, technologies, and practices in all areas where they may be used.

AI-related risk management is an increasingly important issue. Documented harms traceable to AI technologies have been widely reported and threaten to undermine people’s trust in AI. Companies that make AI systems, and those that use AI to automate decisions across their organizations or enterprises, may have policies and procedures for evaluating general corporate risks from AI. But with several states and localities implementing laws requiring data-centric risk assessments, data privacy impact assessments, and bias audits around data-based technologies like AI (including New York City’s Law No. 144 that requires audits by those who use automated employment decision tools), and with Congress poised to consider national data privacy legislation containing economy-wide risk provisions, it is important for companies and organizations that make or use AI to review to ensure their approaches to risk management around AI are comprehensive and comply with applicable laws and regulations.

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It’s Not Too Late: Notify OFCCP Now to Prevent Disclosure of EEO-1 Data

Merle M. DeLancey, Jr. ●

In case you have not been following this development, the Office of Federal Contract Compliance (“OFCCP”) intends to release certain EEO-1 data in response to a FOIA request. Specifically, OFCCP intends to release EEO-1 Type 2 Reports submitted by federal contractors from 2016 to 2022. All multi-establishment companies (i.e., any corporation that does business out of multiple physical locations) are required to submit Type 2 Reports. These reports must include data for all employees of the company (i.e., all employees at headquarters as well as at all establishments) categorized by race/ethnicity, sex, and job category.

OFCCP is notifying contractors who have not objected that it intends to release the requested EEO-1 Data after the start of the new year. In e-mails sent to contractors at the end of November 2022, OFCCP stated:

The objection period is now closed, and we are sending this message to confirm we have not received an objection from your organization regarding release of the requested data. Because we have received no objection, we are providing your organization with notice that its Type 2 EEO-1 data is subject to release under FOIA, and OFCCP intends to release this data after January 2, 2023.

The e-mail notice instructs companies to contact OFCCP “as soon as possible but no later than January 2, 2023” if OFCCP has erred and the company did timely object to release of its data or the company was not a federal contractor during the applicable time period.

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NYC Employers Using AI For Screening Beware

Anthony A. Mingione, Mara B. Levin, and Amelia Clegg


Starting January 1, 2023, New York City employers that utilize artificial intelligence (“AI”) decision-making tools in their hiring practices will need to provide notice to applicants of the technology and conduct independent bias audits to ensure that these tools do not have a discriminatory impact on candidates. This new law, which is aimed at eliminating bias in automated employment decisions, is the first of its type in the United States. 

The New York City Department of Consumer and Worker Protection (“DCWP”) has issued proposed regulations in connection with the law, and the DCWP will be holding a public forum to discuss the proposed regulations on October 24, 2022.

Employers and employment agencies should not wait until the regulations are finalized to develop a catalog of AI-driven tools they use for assisting in hiring and promotion decisions and working with vendors and technology stakeholders to develop the means for independent audits that are sufficiently linked to the jobs and job classes for which the organization anticipates hiring.  

To read the full client alert, please visit our website. 

New D.C. Noncompete Law to (Finally) Take Effect October 1

Kevin M. Passerini and Daniel L. Morgan ●

The Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”) passed by the D.C. Council over the summer will take effect on October 1, 2022, imposing new substantive and procedural restrictions on D.C. employers’ use of noncompetes, new compensation thresholds below which such noncompetes are now banned, and creating new administrative and civil enforcement measures, including administrative penalties for noncompliance.

The New Law in a Nutshell

The Act defines “noncompete provision” as “a provision in a written agreement or a workplace policy that prohibits an employee from performing work for another for pay or from operating the employee’s own business.” Consequently, the law covers both agreements containing noncompetes and workplace policies restricting employee’s competitive or outside activities, subject to several exceptions summarized below.

Most notably, the Act imposes two new income thresholds for “noncompete provisions” with “highly compensated employees”—those who earn at least $150,000—and “medical specialists”—licensed physicians earning at least $250,000. Both thresholds are subject to adjustments in accordance with increases in the Consumer Price Index beginning in 2024, and any “noncompete provisions” with employees below those levels are effectively banned by the Act.

The Act clarifies that wages, salary, bonuses or other cash incentives, commissions, overtime premiums, vested stock and restricted stock units, and other payments provided on a regular or irregular basis may all be included in determining who qualifies as a “highly compensated employee.” The Act excludes the value of noncash fringe benefits, but because it does not define “fringe benefits,” there is uncertainty as to what noncash benefits may constitute “other payments provided on a regular or irregular basis.”

To read the full client alert, please visit our website. 

CA Update: Pay Data Reporting Law Signed!

Caroline Powell Donelan ●

Gov. Newsom signs California’s newest and broadest pay transparency law, SB 1162, requiring California companies to disclose pay data starting next year.

Read more: Big Brother Just Got Bigger: Expanded Pay Data Reporting Expected to Hit the Golden State

As always, Blank Rome’s employment team stands by ready to assist.

Big Brother Just Got Bigger: Expanded Pay Data Reporting Expected to Hit the Golden State

Caroline Powell Donelan ●

As our team has previously reported, California currently requires private employers with 100 or more employees, and who are required to file an annual EEO-1 report, to submit certain employee pay data to the state’s Civil Rights Department, formerly known as the Department of Fair Employment and Housing (“DFEH”), including pay data on the number of employees by race, ethnicity, and sex, in each of the 10 EEO-1 specified job categories.

As pay transparency rules continue to sweep the nation, the California legislature—never to be outdone—has passed its own amendments which will significantly expand employers’ current pay data reporting requirements and wage range disclosure obligations. The newly passed bill, “SB 1162,” is currently sitting on Governor Newsom’s desk for signature (or veto). With a potential compliance date of May 10, 2023 (and reporting due each year thereafter on or before the “second Wednesday of May”), Golden State employers are advised to take inventory now of additional steps they need to take in order to adequately prepare for and timely comply with SB 1162, including:

      1. Gathering median and mean hourly rate data for specific job categories, further categorized by their race, ethnicity, and sex;
      2. For employers with multiple establishments, preparing a separate pay data report for each establishment, doing away with the current requirement of a consolidated report;
      3. Gathering pay scale information by position, which would need to be provided to applicants and current employees upon request;
      4. For employers with 15 or more employees, preparing pay scale information to be added to current job postings and shared in any new job postings, including postings by third parties (not just upon request); and
      5. For employers with 100 or more employees hired through labor contractors, submitting a separate pay data report for those employees, so long as one employee is in California.

If enacted, SB 1162 also allows courts to impose civil penalties “not to exceed one hundred dollars ($100) per employee upon any employer who fails to file the required report and not to exceed two hundred dollars ($200) per employee upon any employer for a subsequent failure to file the required report.”

Governor Newsom has until September 30, 2022, to sign the bill, which would trigger a January 1, 2023, effective date and have massive impacts across the state. As we learned earlier this year, an ounce of prevention is worth a pound of cure. Blank Rome’s employment team stands by ready to assist.

There Are Stranger Things in Florida than the Court Blocking Florida’s Individual Freedom Act

Asima J. Ahmad ●

Florida’s Individual Freedom Act (“IFA”), also referred to as the “Stop W.O.K.E. Act,” went into effect July 1, 2022, and, among other things, amended the state’s Civil Right Act of 1992 to make it unlawful for an employer to require its employees to attend mandatory trainings or instruction that “espouses or promotes” any of the following eight prohibited concepts:

      • That members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
      • An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously
      • An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin
      • Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin
      • An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin
      • An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion
      • An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin
      • Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
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