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  • DoD Issues Proposed Rule on Enhanced Debriefing Procedures

    The Department of Defense (DoD) recently issued a proposed rule to implement Section 818 of the FY18 NDAA. Under Section 818, Congress required the DoD to issue new regulations in the Defense Acquisition Regulation Supplement (DFARS) on the procedures for enhanced debriefing rules within six months. 

  • ASBCA Confirms the “Goldilocks Principle” in Government Contract Appeals

    Contractors must ensure that they do not appeal a contracting officer’s decision too early or too late lest they find that the courts and board have no jurisdiction. Yet, the government continues to issue directions that provide no certainty on the issue and, indeed, serve only to muddle the question of what constitutes an appealable final decision. Last month, the Armed Services Board of Contract Appeals (ASBCA or Board) issued a decision in the appeal of Northrop Grumman Corporation, ASBCA No. 62189, dismissing the appeal for lack of jurisdiction and highlighted what these authors will refer to as “the Goldilocks Principle” for when contractors can appeal a contracting officer’s decision that certain costs are not allowable. Frustratingly, the Government often issues unclear decisions that can leave contractors wondering whether the timing for appeal is too early, too late or just right.

  • President Biden Issues an Executive Order Increasing the Minimum Wage for Many Employees of Federal Contractors to $15.00

    On April 27, 2021, President Biden signed an Executive Order raising the minimum wage paid by Federal contractors and subcontractors to $15.00 per hour, beginning on January 30, 2022. The Federal minimum wage currently is $10.95 per hour for all workers on Federal construction and service contracts, based on President Obama’s 2014 Executive Order 13658, which had raised that minimum wage to $10.10 per hour and provided for adjustment for inflation. These Executive Orders do not change the current minimum wage of $7.25 under the Fair Labor Standards Act (FLSA) applicable to non-exempt employees who do not work for government contractors, and to employees of government contractors who do not work on or in connection with Federal construction and service contracts.

  • COVID-19 Business Interruption Losses: Time is of the Essence to Pursue Coverage

    The United States declared a national emergency in response to COVID-19 on March 13, 2020, and states quickly followed with stay-at-home orders that impacted businesses and institutions nationwide. More than 10 months have passed since the COVID-19 pandemic emerged in the United States and the prevalence of the virus has had significant impacts, not only with respect to the number of people infected and lives lost, but also to the widespread physical damages and economic losses suffered by businesses.

  • Congressional and Government Investigations in 2021: What to Expect from the Biden-Harris Administration and How to Prepare

    Government investigations pose many risk management challenges. They are unpredictable, political and often public. If handled incorrectly, they can last for many years, spiral into multiple Congressional, criminal, and/or regulatory investigations at the state and federal levels, and generate serious reputational harm. Potential targets can take proactive steps to mitigate their risks.

  • California Executive Power and Industrial Facilities in the Wake of COVID-19

    The COVID-19 pandemic has rapidly become one of the world’s most serious public health challenges, and has caused unprecedented disruption to industries in the United States and across the globe. Industries doing business in California have felt the impacts more acutely than most, as the state has become one of the nation’s “hotspots” for new COVID-19 cases. These impacts have sparked numerous efforts by state and local authorities in California to attempt to address the virus, encompassing everything from suspension of all public gatherings, to mass cancellation of sports and entertainment events, to citywide quarantines.

  • New York State Enacts Mandatory Sick Leave Law with Job Protection During COVID-19 Quarantine

    On March 18, 2020, Governor Andrew Cuomo signed Senate Bill S8091 into law to provide sick leave and job protection for New York workers during the COVID-19 crisis. Under the new law, effective immediately, companies cannot fire or penalize employees who are unable to work while subject to “a mandatory or precautionary order of quarantine or isolation due to COVID-19.” The order must be issued by the state of New York, the department of health, local board of health, or any governmental entity with authority to issue such orders. The job protection lasts for the duration of the period that employees are self-isolating under a mandatory or precautionary order. Employees who are able to work remotely while under the “stay at home” orders and who are asymptomatic or not yet diagnosed are not covered by the new law.

  • DC’s UPL Law Regulations Present Choices and Challenges for Employers

    Universal Paid Leave Benefits Become Available in July
    On July 1, 2020, the District of Columbia’s Department of Employment Services (DOES) will begin administering paid leave benefits as part of the Universal Paid Leave Amendment Act. These benefits—called variously Universal Paid Leave (UPL) or Paid Family Leave (PFL) benefits—will permit eligible employees working in the District to receive partial wage replacement benefits from the D.C. government for qualifying absences from work. Lower-wage employees may receive 90% of their average weekly wage—up to $840 per week. Employees who are paid more than 150% of minimum wage will receive larger benefits checks, although reflecting a smaller percentage of their earnings, up to a maximum of $1,000 per week. The benefits will be funded through a 0.62% payroll tax imposed on covered employers that went into effect on July 1, 2019.

  • Significant Changes Ahead for California Employers, Effective January 1, 2020

    The New Year will bring with it many new legal requirements for California employers. Although much of the focus has been on the passage of AB 5 and its new, onerous standards for independent contractor classification, there are numerous other laws that employers must be aware of and take measures to comply with in advance of their January 1, 2020 effective date.

  • IRS Reopens Determination Letter Program for Hybrid and Merged Plans

    Since January 2017, the IRS has significantly limited the ability of employers to submit individually designed plan documents for approval under the IRS’s determination letter program. Newly established plans can still be submitted, and existing plans that have previously received a favorable determination letter can be submitted if the plan is being terminated, but all other existing plans have been prohibited from seeking IRS approval.

  • The IRS Issues 83(i) Guidance: Opportunity to “Opt Out”

    Internal Revenue Code Section 83(i) was introduced as part as of the Tax Cuts and Jobs Act of 2017. Under Section 83(i), if certain requirements are satisfied, employees of private companies who receive nonstatutory stock options (NSOs) or restricted stock units (RSUs) may elect to defer federal income tax on the exercise of the NSOs or settlement of the RSUs for up to five (5) years (referred to as an 83(i) election).

  • How Employers Should Respond to the Trump Administration’s Proposed Overtime Rule

    On March 7, 2019, the U.S. Department of Labor (DOL) issued its much-anticipated Notice of Proposed Rulemaking (NPRM) for amending the federal Fair Labor Standards Act (FLSA) regulations for exemptions from overtime pay requirements for the so-called “white collar” exemptions. The Obama Administration had previously published a regulation that would have more than doubled the minimum salary level for executive, administrative, and professional employees to be classified as exempt from overtime and minimum wage requirements (the EAP exemption) and increased the minimum salary level by a third for highly compensated employees (the HCE exemption), with further automatic increases every three years (the “2016 Final Rule”). On November 22, 2016, just nine days before that regulation would have become effective, a United States District Court in Texas issued a nationwide preliminary injunction against enforcement of the 2016 Final Rule, followed by a permanent injunction on Aug. 31, 2017. The current salary minimum for the EAP exemption is $23,660, below the federal poverty level for a family of four, and there was widespread support among both employers and employees for increasing that minimum. Until publication of the NPRM, however, uncertainty reigned about what level the Trump Administration’s DOL would propose. For EAP employees, the DOL has proposed a minimum salary level almost at the midpoint between level sought by the 2016 Final Rule and the current level, and it has proposed raising the minimum salary for highly compensated employees above the salary level first stated in the 2016 Final Rule.

  • Winning Say-on-Pay: Top Ten Executive Compensation Proxy Tips For 2019

    As calendar year companies complete their Compensation Discussion & Analysis (CD&A) in their proxy statement for spring shareholder meetings, they may wish to consider the following tips for a favorable Say-on-Pay result:
    1.  Run the ISS CEO Pay-for-Performance Test Before Year End Decisions Are MadeThe pay-for-performance test of Institutional Shareholder Services, in part, compares TSR and CEO compensation against an ISS-constructed peer group. If relative shareholder return ranks in the lower tier of that peer group, ISS may criticize CEO pay that ranks at or above the peer group median and issue a no-vote recommendation. Companies should carefully consider the risk of a no-vote before setting year end pay. Such results may also behoove companies to summarize next year decisions, to the extent made, for helpful context.

  • New York Employment Law Outlook 2019

    2018 was a year of sweeping change for employers and employees in New York. In the wake of the #MeToo movement, New York State and New York City reacted quickly to pass a series of laws to reduce sexual harassment in the workplace. The New York Paid Family Leave Benefits Law went into effect, providing employees eight weeks of partially paid leave funded by employee paycheck deductions. New York City amended its Earned Sick Time Act to allow employees to take “safe leave” to seek redress for victims or family members of victims of sexual assault, domestic violence, or stalking.

  • Pillsbury's Post-Election Outlook

    The 2018 Midterm Election played out as most poll forecasters speculated. Although several races have yet to be decided, Republicans have retained control of the Senate, but lost at least 29 seats, allowing the Democrats to wrest back control of the House for the first time since 2010.

  • 2018 Election Night Guide

    Pillsbury’s Political Law and Public Policy groups break down the need-to-know numbers for this year’s election. Pillsbury’s biennial Election Night Guide examines the potential outcomes for the 2018 Congressional and Governor’s races. Our Public Policy team is also preparing a post-election guide that will be useful in navigating potential changes in Congress.

  • New EU Data Laws—What Nonprofit Organizations Need To Know

    Nonprofit organizations can often handle large amounts of data originating in the EU. Though it is a common misconception that nonprofits are exempt from GDPR compliance, the fact is they are not.

  • The Future of the ERISA Fiduciary Rule

    With the future of the Fiduciary rule still uncertain, retirement plan fiduciaries must stay apprised of the rule's viability and carefully monitor the services provided by their plans’ investment advisors.

  • Top Ten Emerging Trends in Pay Ratio Disclosure

    Preliminary trends are emerging from the pay ratio disclosures filed by U.S. public companies in 2018.

  • Recent and Upcoming Changes to 401(k) Plans

    The rules governing 401(k) plans are steadily evolving. Both the Tax Cuts and Jobs Act (the Act) and the Bipartisan Budget Act of 2018 (the Budget) contain a number of changes to the 401(k) plan rules.

  • Human Trafficking Raises Corporate Liability Concerns for the Hospitality Industry

    Not sure if an anti-human trafficking compliance program is necessary for your business? A recent lawsuit illustrates just how important these programs can be.

  • A Sexual Harassment Sea Change for Employers?

    Thanks to movements like #MeToo and Times Up, workplace harassment victims may be more empowered than ever before to make their voices heard. Even companies with clearly established zero tolerance policies need to be prepared to address such crises publicly, or else be exposed to significant reputational damage.

  • Department of Labor Changes Rules on Unpaid Internships

    The U.S. Department of Labor has announced a new seven-factor test to determine whether an intern is entitled to payment under the FLSA’s minimum wage provisions.

  • Five Things Employers Should Know about Tax Reform

    The final Tax Cuts and Jobs Act will require employers to address a number of  changes to equity compensation and employee benefits laws. Here are five major ones.

  • DOL Again Delays Implementation of ERISA Fiduciary Rule

    The latest postponment comes amid Department of Labor concerns that financial institutions and advisors may incur undue expense. Is a more comprehensive revision--or total repeal--next?

  • Prime Contractors Take Note of New California Law Imposing Liability for Subcontractors’ Employees’ Unpaid Wages

    A new California law requires prime contractors on private projects to be as involved in monitoring their subcontractors’ payroll practices as their public works counterparts.

  • Without Further Delay: The ERISA Fiduciary Rule

    On April 7, 2017, the Department of Labor (DOL) published a final rule delaying the applicability date of the “Fiduciary” rule and certain related “Prohibited Transaction Exemption” rules until June 9, 2017. Although there was speculation as to whether the DOL would further delay the applicability date of the Rules, on May 22, 2017, the DOL issued Field Assistance Bulletin 2017-02 and Conflict of Interest FAQ (the May 2017 Guidance) confirming that the applicability date will remain June 9, 2017.

  • Acquirers Beware: Salary History Bans Impact Employment Diligence and Arrangements

    In a new law taking effect October 31, New York City has made it an unlawful for employers to inquire about prospective employees’ salary history (all compensation, benefits, bonuses and retirement plans), or to consider a job applicant’s salary history when determining compensation. Employers across the country should pay particular attention to developments in this growing area of law.

  • House Judiciary Committee Votes to Advance Controversial ADA Amendment

    The House of Representatives has proposed legislation that would limit Americans with Disabilities Act lawsuits based on a business’s failure to proactively remove obstacles that impede access to existing public accommodations. Disabled persons’ groups oppose the bill.

  • Possible Further Delay of ERISA Fiduciary Rule

    In August, the Department of Labor (DOL) and Secretary of Labor submitted a proposal to the Office of Management and Budget (OMB) to delay the applicability date of certain parts of the “Fiduciary” rule until July 1, 2019. While the full rule’s future is unclear, until the DOL issues further guidance, plan sponsors and named fiduciaries should expect that its remaining portions, including BICE and the Principal Transactions Exemption, will become applicable January 1, 2018.

  • New York City’s “Freelance Isn’t Free” Act Also Isn’t Waivable

    A New York City law that went into effect on May 15, 2017 requires any person or entity hiring an individual independent contractor who will perform work in New York City to put the terms of the independent contractor relationship in writing if the contractor will be paid $800 or more. This article reviews the final rules for implementing the Freelance Isn’t Free Act.

  • Startups Beware: California Expands Workers’ Comp to Include Corporate Officers, Directors and Working Partners

    In January 2017, the California legislature expanded the scope of mandatory Workers’ Comp coverage to include a business’s corporate officers, directors and working partners. This article outlines the new coverage requirements.

  • PFLL Withholding Begins: New York Employers May Begin Deducting from Employees’ Pay to Fund Paid Family Leave

    On January 1, 2018, New York’s Paid Family Leave Law (PFLL), which is funded entirely through payroll deductions and is the most expansive in the nation, will go into effect. New York employers should start withholding from employee paychecks and obtaining PFLL insurance in 2017, to prepare for full compliance.

  • The Rapidly Evolving Legal Landscape for New York Employers

    New York employers need to prepare for compliance with the most expansive paid leave law in the country and need to ensure compliance with New York’s wage transparency law and minimum wage and salary thresholds for exemptions from overtime, which are significantly higher than those under federal law.

  • Human Rights and Global Supply Chains

    Fashion retailers need to be vigilant to prevent human rights abuses in their supply chains whilst complying with their legal obligations.