ECBM's Blog: Information To Protect What You Grow

 On March 15, 2018, the United States Court of Appeals for the Fifth Circuit dealt Obama era regulations their most recent defeat. In the wake of numerous other overturned rules by regulatory action or executive order, a federal court struck down the Department of Labor’s fiduciary rule. The rule revised the definition of who constituted a fiduciary of retirees under the Employee Retirement Income Security Act (“ERISA”) and changed the exemptions available to advisors who sought to earn commissions for investment advice.

In 2016, the same law firm started twelve different lawsuits against twelve different universities alleging violations of federal retirement law. Schlichter, Bogard, and Denton is often credited with starting the trend of filing lawsuits over excessive fees charged to retirement plans and has apparently moved on to 403(b) plans offered by nonprofit organizations. The university lawsuits alleged similar violations of the Employee Retirement Income Security Act (“ERISA”), claiming that the universities violated their obligation to their employees by failing to take steps to keep fees low while maximizing returns. The trouble for these organizations is that 403(b) plans and 401(k) plans have the same obligations under ERISA. The naming distinction comes from how such plans are treated under the tax code.

 As various parts of the United States federal government move to address the growing opioid crisis, the Department of Transportation has updated its drug testing policies to include a stronger focus on testing for painkillers.  Published on November 13, 2017, the new policy went into effect on January 1, 2018.  It brings the Department of Transportation’s drug testing rules into harmony with new rules issued by the Department of Health and Human Services.  The new rules will apply to employers regulated by the Department of Transportation, including the Federal Motor Carrier Safety Administration.  That means trucking companies will fall under the purview of this rule change when it comes to pre-employment and post-accident drug testing.

Litigation related to retirement plans continues to be a major issue facing businesses in the United States.  Companies must offer recruits and employees some form of retirement plan in order to attract and retain quality employees in a competitive labor environment.  At the same time, the fiduciary duties places on companies by the Employment Retirement Income Security Act (“ERISA”) and the regulations promulgated by the Department of Labor (“DOL”), and the Security Exchanges Commission (“SEC”) to enforce it can expose employers and the parties whom they hire to manage those plans to expensive litigation.  A wave of recent cases highlight both the cost of these cases and some pitfalls to avoid.

As more and more companies face litigation related to their retirement plans, executives naturally wonder how they can best protect themselves and their company from expensive and time-consuming litigation.  Over the past few years, total settlements from retirement plan related litigation have averaged approximately one billion dollars a year.  While this number may pale in comparison to the almost twenty seven trillion dollars held in various retirement assets within the United States, it represents a substantial threat to bottom line of many businesses.

An older tractor trailer jackknifes on a federal interstate. A qualified mechanic estimates the cost of repairing the tractor trailer at $17,000. Unfortunately, an appraisal on the market value of the vehicle estimates it at $15,500. The insurance company declares the vehicle a total loss and only pays the $15,500 for the estimated value of the truck.

What Is Constructive Total Loss?

The trucking industry is set for a series of big changes over the coming decades.  A lot of these changes will come from new technologies and range from more efficient and better equipped trailers to better tracking andlogging devices to fully autonomous trucks.  While many of these improved technologies have the potential to save trucking companies money, one non-technological change on the horizon may wind up costing them... and that is driver compensation.

It is a long spoken truism that industry moves faster than government attempts to regulate it.  Congress passed the Food Safety Modernization Act in December 2010 and the President signed it into law in January 2011.  Yet it took the FDA more than six years to implement seven new regulations aimed at executing the Food Safety Modernization Act, and many of those regulations have not come into full force yet.  At the same time, a major new issue with food safety in this country has arisen. 

Waivers of subrogation present interesting issues in most contracts, but they can pose particular problems within the context of worker’s compensation.  Companies who are not careful with how they manage their contracts can find themselves between a rock and a hard place, with the rock being their own employees and the hard place being companies who contract for their services.

Wage and Hour litigation continues to increase across most types of businesses in the United States.  The number of cases filed in the US reached an all-time high in 2015.  Unsurprisingly, industries with large number of service jobs caused the majority of cases and losses: hotels, restaurants, leisure companies, as well as department stores and supermarkets.  The nature of these suits can vary but often involve multiple claims - misclassification of employees, failure to pay or calculate overtime properly, breaking rules on rest periods and meal periods, as well as a host of violations relating to the paying of tipped employees.