Douglas A. Darch

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Firm/Organization: Baker McKenzie
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Originally published in Benefits Law Journal. Champagne and a steak dinner have traditionally marked celebrations at the close of a corporate deal. Celebrations these days are being marred by a party pooper—Employee Retirement Income Security Act (ERISA) pension plan successor liability. Increasingly, courts are delivering a “pay up now” notice to the buyer of financially challenged companies with underfunded pension plans through the use of innovative judicial remedies. On September 4, 2018, the Sixth Circuit…
This article was originally published on Law360.com. Taking advantage of an unaddressed area of law, and his virtually unfettered discretion to control the prosecution of unfair labor practice allegations, the general counsel of the National Labor Relations Board has returned the board’s deferral policy to its historical practice. Once again, unfair practice charges in a union-represented workplace will be deferred to the parties’ grievance and arbitration process whenever a grievance has been filed or could…
On January 25, 2019, the National Labor Relations Board reaffirmed its adherence to the traditional common law independent contractor test for determining whether a worker is an employee or an independent contractor under the National Labor Relations Act. In SuperShuttle DFW, Inc., the Board expressly overruled its 2014 FedEx Home Delivery decision. In FedEx, the Board drastically reduced the significance of entrepreneurial opportunity in the determination of independent contractor status. FedEx emphasized the right…
Illinois employers will have a new headache this new year, because as of January 1, 2019, they must reimburse employees for all “necessary expenditures and losses” incurred within the scope of their employment. This August, the Illinois Wage Payment and Collection Act changed to specifically include an expense and loss reimbursement requirement.…
Government contractors are familiar with the obligation to retain minority or women-owned businesses as subcontractors to obtain government work. Increasingly, apex private sector businesses require participation by minority or women-owned businesses as a condition of obtaining work, as well. A recent decision by the federal court for the Southern District of New York is a cautionary tale, and highlights the care required when terminating a minority business enterprise (MBE) sub-contractor. Annuity Funds Operating Engineers Local…
US Secretary of Labor, Alexander Acosta, recently announced the creation of a new office, the Office of Compliance Initiatives. The “OCI” will be tasked with promoting greater knowledge of federal labor laws and regulations through enhanced compliance assistance outreach efforts. The goal of the OCI initiative is to prevent workplace violations.…
A recent decision by the National Labor Relations Board left experienced labor practitioners scratching their heads. In Tschiggfrie Properties Ltd. v. NLRB, a three-member panel of the Eighth Circuit did more. The panel vacated the NLRB’s decision in a case involving an employee who was fired for abusing his employer’s Wi-Fi and for sleeping on the job. (The same employee also initiated the process of unionizing the workforce and served as an observer for the…
Mark Twain famously said: “Reports of my demise have been greatly exaggerated.” So it is true with reports that employers can breathe easier with the new Trump National Labor Relations Board. The recent decision in Circus Circus Casinos Inc. is a stark reminder that even as the mid-term elections in the Trump presidency approach, the Obama era, at least at the NLRB, is not over. The decision in Circus Circus imposes on employers an additional…
Last month the Seventh Circuit drew a distinction between “commissions” and “bonuses” as those terms are used in the Illinois Wage Payment and Collection Act (IWPCA) and its implementing regulations. For employers, particularly those in retail, Sutula-Johnson v. Office Depot informs how employers structure, amend and communicate their employee incentive compensation schemes.…