Under ERISA, a plaintiff must file a lawsuit within six years of an alleged breach of fiduciary duty, or within three years if the plaintiff had “actual knowledge” of the breach. There has been a longstanding split among the circuits regarding what constitutes “actual knowledge” for purposes of determining whether ERISA’s three-year limitations period should apply. On February 26, 2020, the Supreme Court settled this issue in Intel Corp. Investment Policy Committee v. Sulyma, 140 …

On May 14, 2020, the Department of Health and Human Services (HHS) issued a final rule stating that group health plans, including employer-sponsored health plans, are not required to count the value of drug manufacturer coupons toward participant deductibles and out-of-pocket maximums (the “Final Rule”).  The Final Rule, published in HHS’s Notice of Benefit and Payment Parameters for 2021, allows group health plans to exclude the value of drug manufacturer coupons from participant annual cost-sharing…

In mid-May the NLRB established a clear rule regarding stray marks on ballots in union representation elections, eradicating years of convoluted and inconsistent precedent. The decision, which applied retroactively, resulted in a union’s failure to amass a majority of the votes and, consequently, a reversal of the Regional Director’s Decision and Certification of Representation. In a dispute between Providence Portland Medical Center (the “Employer”) and Service Employees International Union Local 49 (the “Union”), the…

One day before they were to go into effect, the U.S. District Court in Washington, D.C. blocked portions of the NLRB’s recently promulgated election rule, but left the agency free to implement the remainder.  American Federation of Labor and Congress of Industrial Organizations v. National Labor Relations Board, Civ. No. 20-cv-0675 (KBJ) (May 30, 2020). Specifically, the Court granted the AFL-CIO’s motion for summary judgment “with respect to Count One of the Complaint”, but…

In another decision recognizing employers’ rights to issue reasonable prohibitions even if they have some slight impact of employees’ right to engage in concerted activity under the National Labor Relations Act, a beverage manufacturer’s rules banning cell phones in food production and warehouse working areas was recently upheld by the National Labor Relations Board.  Cott Beverages Inc., 369 NLRB No. 82 (2020).…

On May 19, 2020, the US Department of Labor (“DOL”) issued its final rule likely expanding the FLSA’s Section 7(i) overtime exemption for commission-based workers in retail and service industries by withdrawing the long-standing, historical list of businesses that the DOL identified as falling within or outside of what it deemed to be a retail or service establishment.…