Compliance Stuff

The U.S. Supreme Court has agreed to review the pleading standards that plaintiffs must satisfy in Employee Retirement Income Security Act (ERISA) prohibited transactions cases. The case,   Cunningham v. Cornell University , involves a challenge of Cornell’s allegedly excessive recordkeeping fees in its retirement plans. We’ve gathered articles on the news from SHRM and other outlets. Split Among Appellate Courts At least two federal appeals courts have ruled that plaintiffs alleging prohibited transactions under ERISA only have to allege that such a transaction took place to survive a defendant’s motion to dismiss. But the 2nd Circuit and three other appeals courts have said those lawsuits must also allege that a plan engaged in a prohibited transaction with the intent to benefit a third party, such as a recordkeeper. The Cornell plaintiffs told the Supreme Court that the 2nd Circuit had gone further and misconstrued ERISA “by placing the onus on plaintiffs to negate, rathe...

  The National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo to board regional directors doubling down on her position that overbroad noncompete agreements are unlawful and asserting that certain “stay-or-pay” provisions violate employees’ rights under the National Labor Relations Act (NLRA). We’ve gathered articles on the news from SHRM and other outlets. General Counsel’s Reasoning Under stay-or-pay provisions, an employee must pay their employer if they separate from work, Abruzzo explained. Such provisions “infringe on employees’ Section 7 rights in many of the same ways that noncompete agreements do,” she wrote. Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to ...

In this Comment from a Reuters magazine, the author attempts to rescue the underlying environmental, social and governance principles from the often disparaged term, “ESG.” ESG, he observes, was “[o]riginally conceived as a financial tool to frame how corporations disclose their impact and investment,” but has now become a term that is “fraught with debate, lacks a clear definition and is often misunderstood.” However, he contends, people actually associate many of the values and concepts underlying ESG with business success.  Perhaps the term should be retired, he suggests, in favor of something less freighted.   “Responsible business” might do the trick—especially “responsible business” that correlates with positive corporate performance. In some circles, particularly conservative circles, the author observes, ESG has become almost synonymous with “woke capitalism”—a perspective that a “growing segment of American voters” rejects: those hostile to ESG and “seeking to influe...