Legislative Affairs
Government and Legislative Affairs
Legislative Affairs Update – What You Should Know
If you have any questions about these articles or need more information, please contact Jennifer Schancupp, SOCT SHRM Director, Government/Legislative Affairs at SchancuJ@jacksonlewis.com or call 203-961-0404.
New York Lawsuit Alleging Corporate Cover-up at The Weinstein Company is a Lesson in What Not to Do
By Richard J. Cino, David R. Jimenez and Jessica L. Sussman
- February 12, 2018
New York Attorney General Eric Schneiderman has filed a civil rights lawsuit against Harvey Weinstein, his brother Robert Weinstein, and their company, The Weinstein Company (TWC).
The lawsuit, which details allegations of harassment and intimidation of TWC employees by Harvey Weinstein, was filed on Sunday, February 11, 2018, because of an anticipated sale of TWC expected to be completed on that day.
The lawsuit also describes how many groups of predominately female employees were used to facilitate and cover-up Weinstein’s misconduct. TWC allegedly “employed one group of female employees whose primary job it was to accompany [Weinstein] to events and to facilitate [his] sexual conquests.” A group of predominately female executives allegedly were similarly required to meet with Weinstein’s prospective victims to facilitate sexual activity and to follow through on his promises of career advancement.
The allegations in the lawsuit not only focus on Weinstein’s treatment of TWC’s employees, but also claim executives turned a deaf ear to employee complaints. As set forth in the lawsuit, there were numerous complaints to Human Resources and Weinstein’s conduct was widely known by executives. The Attorney General’s investigation allegedly revealed that TWC executives and the board of directors repeatedly failed to protect employees from or address Weinstein’s misconduct.
The lawsuit further asserts that when Human Resources received complaints about Weinstein’s conduct, the complaints were forwarded by the Human Resources Director to the Chief Operating Officer. The Human Resources Director, however, was not involved in any investigation or resolution process. According to the lawsuit, despite complaints of harassment, Weinstein was never subject to a formal investigation or any adverse employment action based on his conduct. Moreover, complaints made to Human Resources were not treated as confidential or were not investigated. Likewise, and more troubling if true, the lawsuit alleges that employees who complained were separated from TWC, and were required to sign non-disclosure agreements.
Schneiderman reports the lawsuit resulted from a four-month investigation that included interviews with Weinstein’s alleged victims, in addition to TWC employees and executives. The Attorney General’s office also conducted a review of TWC’s records and emails. While the investigation is ongoing, Schneiderman filed the lawsuit to seek immediate judicial intervention based on the findings to date and the impending sale of TWC. According to Schneiderman, “[A]ny sale of The Weinstein Company must ensure that victims will be compensated, employees will be protected going forward, and that neither perpetrators nor enablers will be unjustly enriched.”
Corporate Governance Lessons for All Organizations
The need for all organizations to develop and maintain an effective anti-harassment program, in both policies and practice, continues to be vital and clear. Corporations will be held responsible for failing to address and correct improper behavior, and the responsibility for doing so may rise to the level of the company’s board of directors.
The allegations of misconduct by TWC executives underscores the significance of proper and coherent management of employee complaints. This includes the following:
- Harassment complaints should be routed to Human Resources and/or the appropriate individual(s) at the organization based upon the allegations and individuals raising the issue or accused of improper conduct;
- Complaints must be investigated and properly handled;
- Employees who make such complaints must be protected from retaliation of any kind; and
- The company must take corrective action based on the findings of the investigation.
Companies cannot seek to end a crisis merely by separating the complaining party, which just appears to facilitate and perpetuate the wrongful conduct of the executive at issue.
Please contact Jackson Lewis for assistance with this and other workplace issues.
©2018 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.
This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.
Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.
2018: The Year Ahead for Employers
January 24, 2018
An executive summary of recent changes in workplace law and a look ahead to 2018.
Obtain a pdf of the summary HERE!
©2018 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.
This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.
Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.
Changes to ERISA’s Disability Claims Regulations Coming April 1
By Megan G. Holstein
January 31, 2018
New handling regulations for ERISA disability claims will go into effect on April 1, 2018, the Department of Labor (DOL) has announced. The agency confirmed that the regulations are final, without changes.
The regulations were effective January 2017, but were delayed until April 1, 2018. The DOL has confirmed they will not be delayed or revised further.
Employers who offer short-term and long-term disability plans governed by ERISA (and their plan administrators) need to prepare for the approaching deadline. This article provides background on the flux of the regulations and offers steps to take now to ensure timely compliance.
Background
Like a few of the DOL’s regulations in the past year, ERISA disability claims handling regulations were caught up in the change of White House administration. The DOL initially published the final regulations (Final Rule) on December 19, 2016. The Final Rule revised the claims procedure rules for ERISA-covered employee disability benefit plans. It was made effective January 18, 2017, with a delayed applicability until January 1, 2018, in order to provide adequate time for disability benefit plans, employers, and third party administrators (TPAs) to understand the changes and adjust disability claims administration processes, notifications, plan language, and claim filing systems.
On February 24, 2017, President Donald Trump issued Executive Order 13777 (“E.O. 13777”) with the intent of reducing the regulatory burden. A Regulatory Reform Task Force was directed to evaluate existing regulations and make recommendations regarding regulations that can be repealed, replaced, or modified to make them less burdensome.
As a result of E.O. 13777, certain stakeholders wrote the DOL, claiming the Final Rule will drive up disability benefit plan costs, cause an increase in litigation, and, consequently, impair workers’ access to disability insurance protections. Subsequently, in the summer of 2017, the DOL announced that it would revisit the Final Rule. On October 12, 2017, the DOL issued a Notice of Proposed Rulemaking (NPRM) proposing a 90-day delay to the Final Rule’s applicability date and providing the public and stakeholders an additional opportunity to submit comments and data concerning the potential impact of the ERISA disability claims regulations.
Throughout the second half of 2017, employers, plan administrators, and TPAs were in limbo about whether, or to what extent, to implement ERISA’s regulatory changes.
Action Items for Employers, Plan Administrators, and TPAs
The following are provisions in the Final Rule and actions employers should consider, if applicable:
- Conflict of interest criteria: The regulations add specifics on the impartiality and independence of claims adjudicators, service providers, and vendors.
► Action item: Double check that vendor contracts (including those with medical and vocational experts) and employment relationships do not tie financial incentives and employment decisions to claim outcomes, such as providing bonuses for denied claims.
- Expanded benefit denial notice information: This requires benefit denial notices to expand upon the reasons and criteria relied upon when denying benefits, including a detailed explanation for disagreeing with the claimant’s treating physician or a Social Security Administration determination.
► Action item: Ensure that internal plan administrators or TPAs have the required information in any adverse benefit notification (a/k/a denial letter) that are sent to employees.
- Provide claimant a right to review and respond to new information (such as a physician review report or transferrable skills assessment) as soon as it is available and determined to be relied upon during the appeal process, and before an appeal-level denial is issued.
► Action item: Ensure the plan’s appeal administration includes this process. The DOL did not change the 45-day deadline by which a plan must make a decision on an appeal request, so this additional step will put significant pressure on the decision deadline. If a claimant-employee receives the new information and wishes to rebut the information, it may be prudent, in certain circumstances, to allow the claimant an extension of time to provide rebuttal information and the plan administrator to review the employee’s response.
- Consequences if the plan does not establish or adhere to claims processing rules or if plans are retroactively rescinded. If a disability plan is retroactively rescinded, the plan’s appeals process is triggered immediately. Claimants can skip the plan’s claims procedures (including the appeal process) if the plan administrator does not follow those procedures. If a claimant requests an explanation for why a plan failed to follow the plan’s claims procedures, the plan administrator must respond in writing in 10 days.
► Action item: In order to minimize litigation risk, ensure the plan administration process is always followed and that any minor deviation is noted with sufficient explanation in the claim filed. If a plan administrator receives a request from the claimant or his or her representative to explain why the plan’s claims process was not followed, the employer should consider emphasizing to the administrator the importance of providing a timely written response. Employers and plan administrators should agree upon the response process, including who will provide the written response. If possible, employers should avoid rescinding plans retroactively.
- Non-English language notices: The plan must make translation services available to certain claimants who speak languages other than English. This includes oral language services to assist with claim and appeal filing, translated notices upon request, and information to claimants about how to receive these language services. If a claimant’s address is in a county where at least 10 percent of the population is literate only in the same non-English language, denial letters must include a prominent statement in that non-English language about the availability of translation services. The plan must provide a copy of the applicable letter or notice in that language upon the claimant’s request.
► Action item: Check with plan administrator to ensure a translation vendor is available for both oral and written translations, and negotiate the cost of the service. In addition, employers should provide plan administrators with employee census information. This allows the administrator to determine if a claimant’s address is in a county that requires the translated language service notifications. The DOL provides county information on its website.
- Contractual limitations period:If the plan sets forth a limitation period in which the claimant can bring suit for a denial of benefits, then the benefit denial notification must include a description of the contractual limitations period and the actual calendar expiration date.
► Action items: Limitation language is recommended in disability plans. Without this language, courts will rely on state law. Employers need to make sure any limitation to filing suit is calculable to an exact deadline, because that date must be provided to a claimant whose claim for benefits is denied at the final appeal level.
More information on the Final Rule, including our complimentary webinar, can be found here. The DOL’s fact sheet also provides further information.
Jackson Lewis attorneys are available to assist employers, plan administrators, and TPAs to ensure compliance with the Final Rule by April 1st.
©2018 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.
This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.
Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.
Trump Administration Rescinds Guidance on Transgender Rights under Title IX
- February 23, 2017
The Trump Administration has announced that the Department of Education (DOE) and the Department of Justice (DOJ) rescinded the Obama Administration’s May 2016 Dear Colleague Letter directing that schools “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”
The Obama Administration’s Dear Colleague Letter (“Dear Colleague Letter”) offered guidance on a range of issues, including access to restrooms, locker rooms, and similar facilities, equal participation in educational programs and activities, and recordkeeping and privacy. (See our article, U.S. Departments of Justice and Education Issue ‘Significant Guidance’ on Transgender Rights under Title IX.) Since its issuance, the Dear Colleague Letter has been the subject of significant litigation challenging the enforceability of its protections providing access to restrooms and other facilities that match a student’s gender identity. (See our article, Court Decisions Could Frustrate Obama Administration Efforts to Protect Transgender Students, Employees.)
Rescinding the Dear Colleague Letter on February 22, 2017, the DOE and the DOJ explained that the guidance did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did [the Obama Administration] undergo any formal public process.” (See February 22, 2017, Dear Colleague Letter.) In their 2017 letter, the DOE and the DOJ referred to the contradicting litigation that has surrounded the issuance of the Dear Colleague Letter. Further, they explained that “due regard” must be given to the role of state governments and local school districts in establishing “educational policy.” The Departments stated that the revocation of the Dear Colleague Letter “does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” Critically, the Departments appear to indicate that further guidance will be provided on Title IX’s coverage of gender identity in the future.
Reports say that the issue of how to address the Dear Colleague Letter, particularly as to the bathroom access provisions, have created a rift within the Trump Administration. President Donald Trump reportedly sided with Attorney General Jeff Sessions, overriding concerns raised by Education Secretary Betsy DeVos that rolling back the Dear Colleague Letter could cause potential harm to transgender students. Secretary DeVos said in a strongly worded statement issued with the recession of the Dear Colleague Letter that she has “dedicated her career to advocating for and fighting on behalf of students, and as Secretary of Education, [she] consider[s] protecting all students, including LGBTQ students, not only a key priority in the Department, but for every school in America.” It is unclear how the DOE’s Office of Civil Rights will respond to this revised guidance.
On February 10, the Trump Administration foreshadowed the revocation of the Dear Colleague Letter when it signaled that it would not defend the guidance provided in that document.
The Trump Administration’s actions come just weeks before the U.S. Supreme Court is scheduled to hear argument in Gloucester County School Board v. G.G. on March 28, 2017. (See our article, U.S. Supreme Court to Hear Transgender Student Case.) Notably, both parties to the Supreme Court case have indicated they want the Court to decide the case. In deciding the hear the case, the Court certified not only the question of what weight to give to the Departments’ interpretation, but also whether a policy requiring students to use the bathroom corresponding with the gender that they were assigned at birth is consistent with Title IX. It is unclear what effect, if any, the revocation of the Dear Colleague Letter might have, both on this case and the enforcement of Title IX generally.
Despite the Departments’ latest actions, schools remain free to voluntarily allow transgender students to access the bathroom matching their gender identity. The Dear Colleague Letter was merely guidance indicating how the Departments would interpret Title IX as to transgender students. The Dear Colleague Letter did not have the force of law.
There is significant uncertainty surrounding how the Supreme Court will address the application of Title IX to transgender students. Accordingly, schools, colleges, and universities should continue to review and, as appropriate, update their harassment and transgender policies to ensure compliance with state and local LGBT discrimination protections. Schools, colleges, and universities also should train school administrators, human resources, and faculty on how best to comply with transgender student rights. In addition, and equally important, is the necessity to consider Title VII of the Civil Rights Act on the employment policies for schools, colleges and universities. At this point, the Equal Employment Opportunity Commission has taken the position that gender identity and sexual orientation are covered under the post-Price Waterhouse sex stereotyping line of cases. It has also issued a Fact Sheet (dated May 3, 2016) on Transgender Restroom Access and, to date, these Guidelines remain in effect.
Schools, colleges, and universities should consider carefully whether to change course in light of the Trump Administration’s actions, until the Supreme Court has weighed in on the issue.
Please contact Jackson Lewis for assistance regarding transgender and gender non-conforming students, Title IX, and Title VII in general.
©2017 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.
This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.
Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.
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