Compliance Stuff

The Supreme Court of the United States recently denied certiorari in  Bivens v. Zep, Inc. , leaving in place a stark circuit split on the standard for employer liability when customers or other third parties harass employees. 00:00 24:53 Quick Hits The Supreme Court left intact the Sixth Circuit’s intent-based standard for employer liability for third-party harassment. The Sixth Circuit’s ruling diverges sharply from the EEOC’s position, as well as that of almost all other circuits to address the issue. Employers in Kentucky, Michigan, Ohio, and Tennessee continue to benefit from the higher bar for employer liability set by the Sixth Circuit, while employers in most other jurisdictions remain subject to a more employee-friendly standard. Background In  Bivens v. Zep Inc . , the Sixth Circuit held that an employer can be liable for customer harassment only if it intended for the harassment to occur or was willfully indifferent to it. In its decision, the Sixth Circuit rejected ...

On August 7, 2025, President Donald Trump released an executive order to attempt to permit alternative assets among 401(k) investment options. It marks a shift away from Biden-era  guidance  that discouraged alternative assets in 401(k)s. Quick Hits President Trump’s executive order directs the DOL to revisit its guidance on alternative assets in 401(k) plans and coordinate with other regulators to expand investment options. If the DOL issues regulations, enforcement risk from the agency will likely decrease, but plan sponsors may face more participant lawsuits over investment risk, fees, or performance. To limit liability, plan sponsors may want to consider ensuring alternative assets qualify for ERISA § 404(c) protection and maintain strong due diligence, disclosures, and monitoring. Background Executive Order 14330  aims to expand 401(k) investment options by allowing access to alternative assets, such as private equity, real estate, and digital assets. The order dire...

  The U.S. Department of Labor (DOL) indicated in court documents that it intends to begin new rulemaking to replace a previous rule that permitted 401(k) plan fiduciaries to consider environmental, social, and governance (ESG) factors when choosing investment options in the plan. Quick Hits The DOL will no longer apply a previous rule that allowed retirement plan fiduciaries to take ESG factors into account when selecting investment options . Twenty-six states challenged the rule in the Fifth Circuit Court of Appeals. Plan fiduciaries may continue to rely on financial factors to make decisions about which investments to include in the plan. Under the Employee Retirement Income Security Act (ERISA), retirement plan fiduciaries are required to select and monitor plan investments in accordance with ERISA’s fiduciary duties. Among those duties are the requirements to prudently select and monitor plan investments, to diversify plan investments in most cases, and to act solely in the i...