The RISQ RECAP:
May 1st – May 5th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Insurance Could and Should Help Drive Gun Safety Efforts, Survey Says
“Three out of four Americans believe gun owners should be required to have firearm liability insurance. Those are the numbers out of a new Value Penguin survey of 1,995 people ages 18 to 77 exploring attitudes about the role insurance could play in reducing gun violence. While some may say that it isn’t the insurance industry’s place to get involved in the country’s ongoing debate about requirements regarding gun control, insurance has long been an instigator and standard bearer when it comes incentivizing and implementing safety measures that protect people and property.” Full Article
– Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Pay Equity Audits for the Transparency Era “In recent years, workplace pay equity has become a priority for many states and cities, as seen by the growing number of pay transparency laws being implemented across the country. In turn, pay equity has become a critical priority for employers.” Full Article – Akerman LLP
Educate Managers on FMLA/ADA Overlap “Time and again, I see managers conflate the two, and thereby create liability issues for the organization. A recent DOL opinion letter exemplifies how this issue can arise, particularly when an employee requests to limit the employee’s daily work hours.” Full Article – Levy Employment Law, LLC
NLRB Proclaims the Punishment Arrows in its Quiver “If the NLRB finds that you have committed an unfair labor practice (and maybe more than once), just what can it do? In Noah’s Ark Processors, a three-member panel of the board recently took an opportunity to pronounce available punishments for repeat labor offenders, and it was not shy.” Full Article – Bradley Arant Boult Cummings LLP
The EEOC’s “Best Practices” for LGBTQI+ Employment Equity “Sometimes, in addition to the recitation of federal sector cases, the EEOC will include an in-depth article on a particular topic of interest. Although these digests (and the articles they contain) are geared towards the federal government, the EEOC’s approach to certain employment issues can also be helpful for private employers.” Full Article – Shawe Rosenthal LLP
What Tiger Woods’ Foot Can Teach Employers About Managing Employees’ Medical Conditions “Golfing icon Tiger Woods had to withdraw from the Masters tournament in Augusta, Georgia, last week due to a painful foot condition called plantar fasciitis (which causes a stabbing pain in the heel or foot). Video footage showing Tiger limping during his third round of play, after re- aggravating the condition while competing in the tournament.” Full Article – Ford Harrison
EEOC, FTC, and Other Federal Agencies Release Joint Statement on Confronting Bias and Discrimination in AI and Automated Systems “On April 25, 2023, officials from four federal agencies released a joint statement pledging to increase “enforcement efforts to protect the public from bias in automated systems and artificial intelligence” (“AI”). The agencies taking part in this effort include the Equal Employment Opportunity Commission (“EEOC”), the Federal Trade Commission (“FTC”), the U.S. Department of Justice (“DOJ”), and the Consumer Financial Protection Bureau (“CFPB”).” Full Article – Proskauer Rose LLP
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
NEW JERSEY
New Jersey’s Temporary Workers’ Bill of Rights is First in the Nation to Require Equal Pay for Temporary Workers
“This new law, the most expansive of its kind in the nation, provides ‘temporary workers’ with new rights and protections, including the right to receive pay equal to that of regular employees.” Full Article
– Ford Harrison
CALIFORNIA
On-Call/Standby Time: Do We Really Have to Pay Employees When They Are Not Working?
“Disputes regarding whether employees are entitled to be paid for time spent engaged in certain activities are increasingly common, and claims alleging that employees should be paid for time spent ‘on call’ or ‘on standby’ are prime examples.” Full Article
– Hopkins & Carley
California Lawmakers Vote in Favor of Defamation Protection for Sexual Assault Survivors
“Following the #MeToo movement, experts noted an uptick in defamation lawsuits against accusers. These lawsuits are typically brought by the accused and seem aimed at rehabilitating their reputations and, some would say, silencing the victims.” Full Article
– Frankfurt Kurnit Klein & Selz P.C.
INDIANA
Indiana Bans Physician Non-Competes for Primary Care Physicians, Adds Restrictions for Others
“Indiana’s legislature has passed an amendment, Senate Enrolled Act No. 7. Senate Enrolled Act No. 7 would invalidate a significantly broader category of physician non-compete agreements entered into on or after July 1, 2023. Governor Eric Holcomb is expected to sign the bill into law.” Full Article
– Jackson Lewis P.C.
NEW YORK
CLIENT ALERT: New York Department of Labor Finalizes Updates to the State’s Model Sexual Harassment Prevention Policy
“The updated model policy was developed consistent with a law that went into effect on October 9, 2018, which requires New York employers to either adopt and disseminate written sexual harassment prevention policies that meet or exceed the minimum standards set forth in Section 201-G of the New York Labor law or adopt the model policy published by the NYDOL.” Full Article
– Morgan, Brown & Joy LLP
- Published in Blog
The RISQ RECAP:
April 24th – April 28th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Q1 Net Income Up 21% at The Hartford but Personal Lines Unprofitable
“The Hartford Financial Services reported first quarter 2023 net income of $535 million, nearly a 21% increase over $443 million a year ago. In the company’s property/casualty segments, results were carried by net income of $421 million in commercial lines — offsetting a loss of $1 million in personal lines during the first three months. A year ago, Q1 net income in commercial was $383 million and $77 million in personal.” Full Article
– Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Courts Continue to Scrutinize ERISA Health Plan Benefit Denial Letters “In asking the administrator to ensure the denial letters accurately reflect the administrator record, the court, is requiring the administrator to refrain from standard, stock language and draft a more personalized explanation for denying benefits.” Full Article – Troutman Pepper, via Lexology
The Disconnect: More View Health Savings Accounts as Investment Accounts Than Use Them This Way “The majority (62 percent) of health savings account (HSA) accountholders reported that they are using the account to pay for out-of-pocket expenses. And most (69 percent) viewed the HSA as a savings account.” Full Article – Employee Benefit Research Institute [EBRI]
New Guidance on Gag Clause Attestation “To ensure compliance with the Gag Clause Prohibition, plans must annually submit an attestation of compliance with the law to the Departments. The Departments have now launched a website for submitting attestations and issued instructions, a system user manual, and a Reporting Entity Excel Template for plans and issuers to submit the required Compliance Attestation.” Full Article – Seyfarth Shaw LLP
Court Rejects Mental Health Parity Claim for Wilderness Therapy Coverage Denial “Noting that a successful MHPAEA claim requires a participant to plead facts showing a disparity in the plan’s treatment of MH/ SUD and medical/surgical benefits, the court concluded that the participant’s allegation was unsupported and contradicted plan language expressly applying the exclusion to both types of benefits.” Full Article – Thomson Reuters/EBIA
IRS Clarifies Ability to Reimburse Certain Programs Under HSAs, FSAs and HRAs “Programs to treat a drug-related substance use disorder, programs to treat an alcohol use disorder, and smoking cessation programs qualify as medical care because the programs are considered treatment for a disease. However, therapy, nutritional counseling, and weight-loss programs will only be considered medical care if used to treat a specific disease (e.g. obesity). Programs for general health or wellbeing will not qualify as medical care.” Full Article – Foley & Lardner LLP
Departments Issue Guidance on Preventive Services Under the ACA Following the Braidwood Decision “Preventive care requirements receiving an A or B rating from the USPSTF before March 23, 2010, are not affected by the ruling, which means plans and issuers must still cover those preventive care services without cost-sharing. FAQs Part 59 clarifies the Braidwood decision’s effect on the high deductible health plan (HDHP) preventive care deductible safe harbor.” Full Article – Bradley Arant Boult Cummings LLP
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
Columbus, Ohio Prohibits Asking Applicants Their Salary History “Recently, the City of Columbus joined a growing number of states and municipalities that have passed laws prohibiting employers from inquiring into a job applicant’s salary history. In Ohio, Toledo and Cincinnati currently have such ordinances.” Full Article – Vorys, Sater, Seymour & Pease LLPOHIO
Pennsylvania Court Holds Employer Must Reimburse Out-of-Pocket Costs for Medical Marijuana “A Pennsylvania Court held that an employer violated the state Workers’ Compensation Act (WCA) by refusing to reimburse an employee for out-of- pocket medical marijuana expenses related to a workplace injury.” Full Article – Jackson Lewis P.C.PENNSYLVANIA
New York State Releases Updated Model Sexual Harassment Prevention Policy and Training “The New York State Department of Labor (“DOL”) has released its long- awaited updated model sexual harassment prevention policy that addresses issues such as gender identity, remote work, and bystander intervention.” Full Article – Proskauer Rose LLPNEW YORK
Colorado’s Pay Transparency Laws “Colorado’s Equal Pay for Equal Work Act (“EPEWA”) requires employers to include compensation and benefits information in all job postings and notifications of promotional opportunities. The EPEWA covers all employers, public or private, that employ at least one person in Colorado. Employees of covered employers must also comply with the pay transparency requirements of the EPEWA.” Full Article – Bryan Cave Leighton Paisner LLPCOLORADO
California Seeks to Ban Most Criminal Background Checks “California legislators met on April 11, 2023 to discuss a proposed overhaul of employment-related criminal background checks. Simply put, if the Fair Chance Act of 2023 (SB 809) is passed into law, California will have the most restrictive criminal background check law in the country, and will significantly limit the way California employers can vet applicants for employment.” Full Article – Baker & McKenzie LLPCALIFORNIA
- Published in Blog
The RISQ RECAP:
April 17th – April 21st, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Viewpoint: D&O Market Conundrum — Softening Rates With Rising Claims Severity
“An uncertain economic landscape leading to a rise in claims, decreasing rates, and proposed US Securities and Exchange Commission regulations on environmental, social and governance disclosures (ESG) are just some of the challenges facing directors and officers liability insurance. AmTrust EXEC claims team members Dan Beatty and Erin Zimmerman look at key issues and trends in the sector.” Full Article
– Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
DOJ Continues Criminal Labor Antitrust Enforcement Despite Recent Prosecution Setbacks “With yet another criminal wage-fixing indictment filed this week, the Antitrust Division of the Department of Justice (“DOJ”) signaled its continued commitment to prosecuting anticompetitive conduct affecting the U.S. labor markets, including within the health care industry.” Full Article – Hall, Render, Killian, Heath & Lyman PC
The Rising Importance of Trade Secret Protection in the Coming Era of Non-Compete Ban: Two Steps Your Business Needs to Take Now “To become and remain competitive in virtually any industry, businesses develop, execute, and hone strategies to win over and keep customers. These strategies become critical operational and business information. To keep this information from falling into competitors’ hands, businesses rely on several tools.” Full Article – Kane Russell Coleman Logan PC
The Speak Out Act: What Employers Need to Know “Employers should be aware of and immediately take measures to comply with the Speak Out Act, which took effect on December 7, 2022. The Act prohibits nondisclosure agreements (NDAs) and nondisparagement agreements designed to prevent current and former employees from discussing sexual harassment and assault.” Full Article – Hall Benefits Law, LLC
Pay Transparency Goes Primetime: Sweeping New Federal Legislation Proposed in Congress “New proposed legislation in the U.S. House of Representatives would require all employers nationwide – regardless of size or number of employees – to include the wage range in all job postings, provide wage ranges to applicants, and provide wage ranges to existing employees for their positions.” Full Article – Littler Mendelson P.C.
Workplace Violence: An Unfortunate Reality– Are you Prepared? “Mass shootings have been increasingly in the headlines in recent years, and many of these incidents have occurred in the workplace. Regardless of anyone’s politics, employers are having to face either the fear of, or the actual experience of, murder in their own offices, factories and schools. What steps should an employer take to keep their employees safe and help to ease the impact on their employees?” Full Article – Bradley Arant Boult Cummings LLP
Treasury Greenbook Includes Proposal to Alter Work Opportunity Tax Credit “On March 9, 2023, the U.S. Department of Treasury released the Greenbook (formally known as the General Explanation of the Administration’s Revenue Proposals) for FY 2024 to explain revenue proposals included in the Administration’s budget. One proposal is to increase the number of hours required to be worked by an individual for the employer to be eligible for the Work Opportunity Tax Credit (WOTC).” Full Article – Covington & Burling LLP
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
Columbus, Ohio Prohibits Asking Applicants Their Salary History “Recently, the City of Columbus joined a growing number of states and municipalities that have passed laws prohibiting employers from inquiring into a job applicant’s salary history. In Ohio, Toledo and Cincinnati currently have such ordinances.” Full Article – Vorys, Sater, Seymour & Pease LLPOHIO
Pennsylvania Court Holds Employer Must Reimburse Out-of-Pocket Costs for Medical Marijuana “A Pennsylvania Court held that an employer violated the state Workers’ Compensation Act (WCA) by refusing to reimburse an employee for out-of- pocket medical marijuana expenses related to a workplace injury.” Full Article – Jackson Lewis P.C.PENNSYLVANIA
New York State Releases Updated Model Sexual Harassment Prevention Policy and Training “The New York State Department of Labor (“DOL”) has released its long- awaited updated model sexual harassment prevention policy that addresses issues such as gender identity, remote work, and bystander intervention.” Full Article – Proskauer Rose LLPNEW YORK
Colorado’s Pay Transparency Laws “Colorado’s Equal Pay for Equal Work Act (“EPEWA”) requires employers to include compensation and benefits information in all job postings and notifications of promotional opportunities. The EPEWA covers all employers, public or private, that employ at least one person in Colorado. Employees of covered employers must also comply with the pay transparency requirements of the EPEWA.” Full Article – Bryan Cave Leighton Paisner LLPCOLORADO
California Seeks to Ban Most Criminal Background Checks “California legislators met on April 11, 2023 to discuss a proposed overhaul of employment-related criminal background checks. Simply put, if the Fair Chance Act of 2023 (SB 809) is passed into law, California will have the most restrictive criminal background check law in the country, and will significantly limit the way California employers can vet applicants for employment.” Full Article – Baker & McKenzie LLPCALIFORNIA
- Published in Blog
The RISQ RECAP:
April 10th – April 14th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Dog-Related Injuries Cost Insurers More Than $1 Billion in 2022
“Insurers paid out more than $1 billion in dog-related injury claims in 2022, a 28% increase over 2021 even though the number of claims decreased last year, according to the Insurance Information Institute (Triple-I) and State Farm. There were 17,597 dog-related injury claims in the U.S. in 2022, down from 17,989 in 2021, according to a Triple-I analysis of homeowners insurance claims data. Despite a 2.2% decline in the number of claims, the total cost of claims increased significantly—from $882 million in 2021 to $1.13 billion in 2022.” Full Article
– Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
CMS Updates Could Help Employers on Second Round of Drug Cost Reporting “Employers facing a June 1, 2023, deadline for 2022 prescription drug cost reporting have important new clarification on issues such as plans that cover more than one employer, average monthly premium calculations, and medical plans that carve out prescription drug benefits. That clarification and more come in updated instructions recently released by CMS.” Full Article – Ogletree Deakins
States Step in as Telehealth and Clinic Patients Get Blindsided by Hospital Fees “Along with Colorado and Connecticut, other states that have implemented or are considering limits on facility fees are Indiana, Minnesota, New Hampshire, Ohio, Texas, and Washington. Those measures include collecting data on what facility fees hospitals charge, prohibiting add-on fees for telehealth, and requiring site-neutral payments for certain Medicaid services.” Full Article – Kaiser Health News
ACA Preventive Service Requirements Partially Vacated “The final judgment does not impact all of the ACA preventive service requirements. Specifically, the ACIP (immunizations/ vaccines) and the HRSA (women’s preventive care recommendations, including the contraceptive coverage requirements and preventive screenings for children) are not changed by this ruling.” Full Article – Groom Law Group
NLRB General Counsel Issues Guidance Memorandum Regarding Severance Agreements “Memorandum GC 23-05 seeks to clarify the scope of the McLaren Macomb decision, including: the types of provisions that may violate the NLRA; language that may be acceptable in light of the decision; whether the decision applies retroactively to previously executed severance agreements; and the potential applicability of the decision to supervisors.” Full Article – Hunton Andrews Kurth LLP
San Francisco Employers, Do You Need to Submit an Employer Annual Report Forms by May 1st? “The HCSO applies to private and non-profit employers who employ any individual in San Francisco, and twenty or more workers inside or outside of San Francisco.” Full Article – Jackson Lewis
FAQs Anticipate End of COVID-19 National Emergency, Address Outbreak Period Extensions for COBRA and HIPAA Special Enrollment “The FAQs leave some open questions — notably, no examples address how the outbreak period’s end will affect extended deadlines for filing benefit claims, appeals, and requests for external review; express guidance would be welcomed.” Full Article – Thomson Reuters/EBIA
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
Michigan Rolls Back its “Right-to-Work” Law; NLRB’s Top Lawyer Provides Post-McLaren Macomb Guidance “Michigan becomes the first state in nearly 60 years to repeal its RTW law, which was implemented in 2013 under then-Governor Rick Snyder (R). The repeal is viewed as a major victory for union organization which reached an all-time low in 2022.” Full Article – Benesch Friedlander Coplan & Aronoff LLPMICHIGAN
Proposed FTC Ban on Non-Competes: What Texas Business Owners Need to Know “The proposed rule, announced by the FTC in January, would generally ban the practice of non-compete agreements by making it illegal for an employer to enter these agreements, maintain existing agreements, and/or represent to a worker that they are subject to a non-compete.” Full Article – Boyar MillerTEXAS
UPDATED: The City of Los Angeles’ Fair Work Week Ordinance Will Take Effect April 1, 2023 “The Ordinance, which was unanimously passed by the Los Angeles City Council in November 2022, requires retail employers in the City of Los Angeles to provide employees at least 14 days’ advance notice of their work schedules and to compensate employees in the event of certain schedule changes.” Full Article – Sheppard Mullin Richter & Hampton LLPCALIFORNIA
Illinois Supreme Court Finds Federal Law Labor Preempts Union Members’ BIPA Claims “Walton should stop unionized employees from bringing new BIPA claims in state and federal court. Walton also forecloses unionized employees from bringing BIPA claims on a class action basis. Companies on the receiving end of a BIPA lawsuit from a current or former union member should always explore a motion to dismiss the lawsuit on preemption grounds.” Full Article – Sheppard Mullin Richter & Hampton LLPILLINOIS
Delaware’s “Freedom of Contract” Approach to Non-Compete Agreements– Even Between Sophisticated Parties in the Sale-of-Business Context– Has its Limits “Non-compete agreements have recently gained a new round of attention with the Federal Trade Commission’s (FTC) proposed rule that would effectively ban employers from imposing non-competes (albeit not in certain sale-of-business scenarios).” Full Article – Gibbons PCDELAWARE
- Published in Blog
The RISQ RECAP:
April 3rd – April 7th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
“Risk management is shifting” – The Institutes CEO
“A predict and prevent approach to risk management is becoming more significant as technological developments create added value for both brokers and their policyholders. “With new technologies and capabilities, we can predict when bad things are going to happen and stop them, rather than waiting for an incident to occur and making sure the person is financially whole, which is a great thing and will always be,” said Pete Miller, CEO of The Institutes.” Full Article
– Insurance Business
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Email Layoffs From the Employment Litigator’s Lens “With the market continuing on its roller coaster trajectory, many employers have been forced to make big cuts to payroll. When doing so, employers must think about a number of things, between final paychecks, vacation time, and other benefits.” Full Article – Mintz
Workplace Investigations: Anticipate Cognitive Overload “Sometimes you just need to let things gel in your mind for a while. I came to this conclusion in my investigations practice years ago, but only recently recognized it as symptomatic of a far more universal phenomenon, what mental health professionals call “cognitive overload.” Full Article – Levy Employment Law LLC
Bystander Responsibility in the Era of #MeToo: Lessons Learned From Apple TV’s The Morning Show “Partners Tracey Diamond and Evan Gibbs sit down with Megan Bigelow, assistant general counsel at Sonesta Hotels, to talk about the popular Apple TV series The Morning Show and harassment in the workplace.” Full Article – Troutman Pepper
2023 Compensation Check-Up: Four Questions to Ask About Your Compensation Practices “Compensation is always a top-of-mind issue for employers, but on the heels of the “Great Resignation,” and amidst ongoing labor shortages, economic uncertainties, and evolving legal requirements, many employers are reassessing their compensation practices.” Full Article – Levenfeld Pearlstein LLC
The Two Factors Critical to Employee Recruitment and Retention “The United States is experiencing a historically tight and transient labor market. Employers seeking to remain competitive in such a market would be wise to re-evaluate the nature of employment in their industry, the roles within their companies, and related pay and benefits according to a time – Constangy Brooks Smith & Prophete LLP
-tested theory.” Full Article
Dear Littler: How Do We Handle Drug or Alcohol Impairment in the Workplace? “We are a manufacturing company with facilities in multiple states. We have had a number of incidents when supervisors have suspected an employee was impaired while working due to alcohol or drug use. We are particularly concerned about employees potentially endangering themselves or others if they are using our equipment while impaired, but we are unsure what to do in these circumstances. Can you help?” Full Article – Littler Mendelson
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
Michigan Rolls Back its “Right-to-Work” Law; NLRB’s Top Lawyer Provides Post-McLaren Macomb Guidance “Michigan becomes the first state in nearly 60 years to repeal its RTW law, which was implemented in 2013 under then-Governor Rick Snyder (R). The repeal is viewed as a major victory for union organization which reached an all-time low in 2022.” Full Article – Benesch Friedlander Coplan & Aronoff LLPMICHIGAN
Proposed FTC Ban on Non-Competes: What Texas Business Owners Need to Know “The proposed rule, announced by the FTC in January, would generally ban the practice of non-compete agreements by making it illegal for an employer to enter these agreements, maintain existing agreements, and/or represent to a worker that they are subject to a non-compete.” Full Article – Boyar MillerTEXAS
UPDATED: The City of Los Angeles’ Fair Work Week Ordinance Will Take Effect April 1, 2023 “The Ordinance, which was unanimously passed by the Los Angeles City Council in November 2022, requires retail employers in the City of Los Angeles to provide employees at least 14 days’ advance notice of their work schedules and to compensate employees in the event of certain schedule changes.” Full Article – Sheppard Mullin Richter & Hampton LLPCALIFORNIA
Illinois Supreme Court Finds Federal Law Labor Preempts Union Members’ BIPA Claims “Walton should stop unionized employees from bringing new BIPA claims in state and federal court. Walton also forecloses unionized employees from bringing BIPA claims on a class action basis. Companies on the receiving end of a BIPA lawsuit from a current or former union member should always explore a motion to dismiss the lawsuit on preemption grounds.” Full Article – Sheppard Mullin Richter & Hampton LLPILLINOIS
Delaware’s “Freedom of Contract” Approach to Non-Compete Agreements– Even Between Sophisticated Parties in the Sale-of-Business Context– Has its Limits “Non-compete agreements have recently gained a new round of attention with the Federal Trade Commission’s (FTC) proposed rule that would effectively ban employers from imposing non-competes (albeit not in certain sale-of-business scenarios).” Full Article – Gibbons PCDELAWARE
- Published in Blog
The RISQ RECAP:
March 27th – March 31st, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
APCIA Says Property Insurance Market ‘Hardest in a Generation’
“A combination of historic high inflation and a growing frequency of natural catastrophes is creating the hardest market in a generation for property insurance, the American Property and Casualty Insurance Association says in a new white paper. “The growth of population, housing, and businesses in hazard-prone areas are exacerbating the effects of climate change, leading to more frequent and severe catastrophe losses,” stated Karen Collins, the APCIA’s vice president, property and environmental, in a press release. “The higher costs of capital and reduced reinsurance capacity are further exerting upward pressure on insurance rates and may result in stricter underwriting in catastrophe-exposed markets.”” Full Article
– Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
No Surprises Act Gives Plan Sponsors Savings Opportunities “The No Surprises Act also provides an employer or plan sponsor of an ERISA group health plan an opportunity to revisit their plan’s administrative services agreements with their third-party administrator TPA and reduce or eliminate certain fees being charged by the TPA.” Full Article – Hall Benefits Law
IRS FAQs Explains When Health FSAs, HSAs, or HRAs Can Reimburse Nutrition, Wellness, and General Health Expenses “These FAQs do not break new ground or include any surprises. However, they may be helpful to those on the ‘front lines’ of cafeteria plan administration, who are sometimes asked to explain the reasons for plan operating rules and decisions.” Full Article – Thomson Reuters/ EBIA
Telehealth and the End of the COVID-19 Emergency “The stand-alone telehealth relief under the ACA is available until the end of the latest plan year that begins on or before the last day of the PHE. For calendar-year plans, this relief would last until December 31, 2023. When an employer ends its stand-alone telehealth benefit, it may need to provide participants a 60-day notice of a material reduction in benefits.” Full Article – McDermott Will & Emery
States Act to Strengthen Surprise Billing Protections Even After Passage of No Surprises Act “Where state law is more consumer- protective, the state law remains in effect. The NSA allows states to specify how payment disputes between insurers and providers are resolved. The federal approach does not apply if a state specifies its own mechanism. States may develop their own processes for enforcing the NSA and specified state laws.” Full Article – The Commonwealth Fund
DOL Annual Report to Congress on Self-Insured Group Health Plans (PDF) “Approximately 74,100 group health plans filed a Form 5500 for 2020, an increase of nearly 13 percent from 2019. Self-insured plans covered nearly 35 million participants and held more than $112 billion in assets, while mixed-insured plans covered roughly 29 million participants and held $157 billion in assets.” Full Article – Employee Benefits Security Administration, U.S. Department of Labor
Insulin as Preventive Care: Why Not Eliminate Patient Cost Sharing? “The No Surprises Act also provides an employer or plan sponsor of an ERISA group health plan an opportunity to revisit their plan’s administrative services agreements with their third-party administrator TPA and reduce or eliminate certain fees being charged by the TPA. Sponsors have a fiduciary obligation under ERISA to understand these fees and how they can be reduced.” Full Article – Health Affairs
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
Cal/OSHA Proposes Changes to Update Workplace Exposure to Lead Regulations “On March 3, 2023, the Cal/OSHA Standards Board published notice of proposed revised regulations pertaining to workplace exposure to lead for the general industry and construction safety orders.” Full Article – Jackson Lewis PCCALIFORNIA
Paid Leave for Nearly All Illinois Employees Coming Soon “Paid leave for any reason is coming to Illinois. On March 13, 2023, Gov. JB Pritzker signed the Paid Leave for All Workers Act (Paid Leave Act), which requires employers to provide up to 40 hours of paid leave to nearly all employees in Illinois. The Paid Leave Act becomes effective on January 1, 2024.” Full Article – Cooley LLPILLINOIS
Paid Family Leave Comes to Maryland “Maryland has joined 10 other states and the District of Columbia in passing a paid family leave law. Under the new Time to Care Act of 2022 (TCA), eligible employees may apply to a state-administered fund that will be used to provide up to 12 weeks of paid family and medical leave, with the possibility of another 12 weeks for parental leave.” Full Article – Gordon Feinblatt LLCMARYLAND
Delaware is Moving Away from Broadly Enforcing Non-Competition Restrictions “Delaware courts are joining a growing list of legislative, judicial, and regulatory bodies that view restrictive non-competition covenants unfavorably. In three recent Chancery Court opinions, Delaware courts reflect an evolution in jurisprudence regarding restrictive covenants’ interpretation.” Full Article – Frost Brown Todd LLPDELAWARE
Michigan Senate Votes Repeal 2012 Right-to-Work Law “The “right-to-work” law prohibits union-security agreements, which required private and/or public employees to pay union dues or services fees as a condition of obtaining or continuing employment. Employees in unionized jobs who opted out of the union are still afforded rights and benefits as members of the bargaining unit. The bill will now return to the House for a vote before it goes to Gov. Gretchen Whitmer for her signature.” Full Article – Plunkett Cooney PCMICHIGAN
- Published in Blog
The RISQ RECAP:
March 19th – March 24th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Chubb Announces Climate-Focused Underwriting Standards for Oil and Gas Extraction
“Chubb Ltd. announced new underwriting criteria for oil and gas extraction projects that will require clients to reduce methane emissions, a by-product of oil and gas production that are among the most severe greenhouse gases. Chubb also announced it will not provide insurance coverage for oil and gas projects in government-protected conservation areas in the World Database on Protected Areas that do not allow for sustainable use. The underwriting criteria for oil and gas extraction are part of an ongoing collaboration and consultation with environmental stakeholders and experts, Chubb said.” Full Article
– Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Ones to Watch: Legislation Landscape for 2023 “Three months into the new legislative year, with all but a handful of state legislatures currently in session, clear employment law trends for 2023 have emerged. Some of the more significant trends reflect the country’s social and political atmosphere.” Full Article – Littler Mendelson PC
States Push Pay Reporting Requirements in Effort to Ensure Pay Equity “As many employers know, federal law prohibits employers from demanding pay confidentiality from employees. Pay transparency laws go a step further and require employers to publish ranges for open positions, adding transparency to the conversations about pay.” Full Article – Hunton Andrews Kurth LLP
Circle K Agrees to Pay $8 Million After EEOC Investigation into Disability, Pregnancy, and Retaliation Charges “Circle K Stores Inc. has agreed to pay $8 million and comply with the terms of a four- year settlement with the Equal Employment Opportunity Commission (EEOC) amid charges that it failed to offer reasonable accommodations to and retaliated against disabled and pregnant workers.” Full Article – Hall Benefits Law LLC
U.S. Department of Labor Releases Guidance on Teleworkers “The U.S. Department of Labor (DOL) Wage and Hour Division recently issued a Field Assistance Bulletin (FAB) advising on certain applications of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) for teleworking employees. The primary focus of the FAB is compensable time, breaks for nursing employees, and FMLA eligibility rules for remote employees.” Full Article – Venable LLP
Biden Administration Requests Big Budget Increase for OSHA “The FY 2024 budget request for OSHA is approximately $738.7 million, an increase of more than $106.3 million from FY 2023. The upcoming fiscal year begins Oct. 1. Released on March 9, the proposal includes increases of 16.3% for federal enforcement (up roughly $40 million for FY 2023), 30% for federal compliance assistance (+$23.3 million), and 26.3% for safety and health standards (+$11.1 million).” Full Article – Seyfarth Shaw LLP
DOJ Antitrust Division Announces Indictment Against Health Care Staffing Executive for Nurse Wage-Fixing “On March 16, the U.S. Department of Justice Antitrust Division (“DOJ Antitrust Division”) announced that a federal grand jury returned an indictment charging a former health care staffing executive of fixing wages for nurses. The press release noted, “The charges in this case were brought in connection with the Antitrust Division’s ongoing commitment to prosecute anticompetitive conduct affecting American labor markets.” Full Article – Mintz
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
Cal/OSHA Proposes Changes to Update Workplace Exposure to Lead Regulations “On March 3, 2023, the Cal/OSHA Standards Board published notice of proposed revised regulations pertaining to workplace exposure to lead for the general industry and construction safety orders.” Full Article – Jackson Lewis PCCALIFORNIA
Paid Leave for Nearly All Illinois Employees Coming Soon “Paid leave for any reason is coming to Illinois. On March 13, 2023, Gov. JB Pritzker signed the Paid Leave for All Workers Act (Paid Leave Act), which requires employers to provide up to 40 hours of paid leave to nearly all employees in Illinois. The Paid Leave Act becomes effective on January 1, 2024.” Full Article – Cooley LLPILLINOIS
Paid Family Leave Comes to Maryland “Maryland has joined 10 other states and the District of Columbia in passing a paid family leave law. Under the new Time to Care Act of 2022 (TCA), eligible employees may apply to a state-administered fund that will be used to provide up to 12 weeks of paid family and medical leave, with the possibility of another 12 weeks for parental leave.” Full Article – Gordon Feinblatt LLCMARYLAND
Delaware is Moving Away from Broadly Enforcing Non-Competition Restrictions “Delaware courts are joining a growing list of legislative, judicial, and regulatory bodies that view restrictive non-competition covenants unfavorably. In three recent Chancery Court opinions, Delaware courts reflect an evolution in jurisprudence regarding restrictive covenants’ interpretation.” Full Article – Frost Brown Todd LLPDELAWARE
Michigan Senate Votes Repeal 2012 Right-to-Work Law “The “right-to-work” law prohibits union-security agreements, which required private and/or public employees to pay union dues or services fees as a condition of obtaining or continuing employment. Employees in unionized jobs who opted out of the union are still afforded rights and benefits as members of the bargaining unit. The bill will now return to the House for a vote before it goes to Gov. Gretchen Whitmer for her signature.” Full Article – Plunkett Cooney PCMICHIGAN
- Published in Blog
The RISQ RECAP:
March 13th – March 17th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Transactional risk insurance remains a critical factor in M&A – report
“Transactional risk insurance remains a critical factor in de-risking deals, according to a new report from Marsh Specialty. The report, Transactional risk insurance 2022: year in review, discusses the continued rise of transactional risk insurance as a mainstream feature of M&A deals globally. While transactional risk insurance was viewed as an esoteric product two decades ago, today it’s a mainstream strategy for protecting buyers and sellers from the risks inherent in M&A transactions, the report said.” Full Article
– Insurance Business Magazine
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
IRS Provides an “Electric Shock” by Lowering Mandatory Electronic Filing Threshold “Many plan sponsors, employers, and other filers not currently subject to mandatory electronic filing will be ensnared by the new regulations and be required to file returns electronically.” Full Article – Groom Law Group
Surprise-Billing Law Loophole: When ‘Out-of-Network’ Doesn’t Quite Mean Out-of-Network “What’s the difference between a hospital that’s ‘in-network’ and one that’s a ‘participating provider’? In this case, by contracting with Regence as an out-of-network but also participating provider, Swedish straddled the line between being in and out-of-network.” Full Article – Kaiser Health News
Departments Issue Guidance Requiring First Annual “Gag” “While explicit, direct violations of the prohibition on gag clauses may not be difficult to determine, provisions that have the effect of restricting the disclosure of information or data in violation of the gag clause prohibitions may not be obvious.” Full Article – The Wagner Law Group
Attestation by December 31, 2023
It Doesn’t Have to be That Way: Negotiating Good Service Provider Agreements is More Important Than Ever “It is time to get serious (and maybe even more serious) about privacy and security. Employers who have employees located in California in particular should be looking at these rules to ensure that their benefit plan service providers are in compliance with these requirements.” Full Article – Holland & Hart LLP
What the End of the COVID-19 Pandemic Means for Employee Benefit Plan Deadlines and Coverage “The calculation of normal deadlines will resume on July 10, 2023, for individuals whose Relief Event date was after July 10, 2022. Employers would also be well served to review COBRA notices previously issued to determine if an updated notice or communication is merited in light of the impending end of the relief.” Full Article – Jackson Lewis P.C.
Text of IRS Rev. Proc. 2023-17: Adjusted Applicable Dollar Amounts Under Section 4980H, for Calculation of 2024 Employer Shared Responsibility Payments (PDF) “This revenue procedure provides indexing adjustments for the applicable dollar amounts under Section 4980H(c)(1) and (b)(1) of the Internal Revenue Code. These indexed amounts are used to calculate the employer shared responsibility payments (ESRP) under Section 4980H(a) and (b)(1), respectively.” Full Article – Groom Law Group
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
Illinois Supreme Court Rules BIPA Claims Accrue With Each Scan “On February 17, the Illinois Supreme Court issued its long-awaited decision in Cothron v. White Castle, holding that a claim under Illinois’ Biometric Information Privacy Act (BIPA) is triggered upon each biometric scan, rather than just the first.” Full Article – Troutman PepperILLINOIS
Seattle Becomes the First U.S. Jurisdiction to Prohibit Caste Discrimination “On February 21, 2023, the City of Seattle, Washington became the first U.S. city – or any U.S. jurisdiction for that matter – to add caste to its list1 of categories protected against discrimination.” Full Article – Littler MendelsonWASHINGTON
Massachusetts May Be Next in Line to Enact Pay Transparency Laws “The proposed law focuses on a broad range of employee and wage data, including the number of employees by race, ethnicity, and gender that fall within certain job categories or roles, and their corresponding wage information.” Full Article – Nelson Mullins Riley & ScarboroughMASSACHUSETTS
New Jersey Enacts First-of-Its-Kind Temporary Workers’ Bill of Rights “Under the law, employers must pay temporary workers no less than the average rate of pay and cost of benefits provided to company employees in similar positions who perform the same or substantially similar work. It also gives temporary workers rights to certain information on the terms and conditions of their engagement and imposes significant obligations on staffing agencies and their clients.” Full Article – Morgan Lewis & BockiusNEW JERSEY
CA Win for Employers: Ninth Circuit Holds That California AB 51 Prohibiting Mandatory Arbitration is Preempted by the Federal Arbitration Act ““As of February 15, 2023, employers in California may once again require mandatory arbitration as the US Court of Appeals for the Ninth Circuit held that the Federal Arbitration Act (FAA) preempts Assembly Bill 51 (AB 51), a law that prohibited “forced arbitration” as a condition of employment.” Full Article – McDermott Will & EmeryCALIFORNIA
- Published in Blog
The RISQ RECAP:
March 6th – March 10th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Livestock Operations Grow as Demand Rises; Nationwide’s Cumings Sees Direct-to-Consumer Models Adding Additional Liability Risk
“Specialization is critical in the cattle business and increased consumer demand for protein is driving new trends, including niche farms that offer direct-to-consumer strategies. In today’s evolving and growing livestock landscape, deep knowledge of market conditions and specialization is key to success, according to Erin Cumings, a senior consultant with Nationwide’s sponsor relation team who has years of agribusiness underwriting expertise. But for those agents willing to develop that expertise, she sees opportunities for agents in this changing and dynamic market.” Full Article
– Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
DOL Issues Internal Guidance on Telework Under the FLSA & FMLA “FAB 2023-1 addresses FLSA regulations governing “hours worked,” rules related to break time and privacy for nursing employees, and regulations regarding FMLA eligibility factors.” Full Article – Jackson Lewis
OSHA Implements Pilot Program to Streamline Complaint Intake Process “This pilot program aims to relieve the strain on OSHA’s investigative resources by allowing an investigator to administratively close a complaint without needing to contact the Complainant.” Full Article – Proskauer Rose
Tick-Tock-Time for Healthcare Employers to Review Their Internet and Social Media Use Policies! “Every healthcare organization, from small medical groups to large health systems, should adopt a social media use policy that outlines permissible uses, best practices, and potential discipline in the event of violations by their employees.” Full Article – Sheppard Mullin Richter & Hampton
Paid Leave for USERRA? We Recommend a Comparability Analysis “The Ninth Circuit recently addressed the issue of whether an employer is required to provide pay for employees taking short-term military leave when it offers other types of short-term paid leave. In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit revived a class action claiming discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for the failure to pay short-term military leave.” Full Article – Baker McKenzie
Supreme Court Upholds Ruling That FLSA Overtime Exemption Didn’t Apply to Day-Rate Rig Worker “On Sept. 9, 2021, the U.S. Court of Appeals for the Fifth Circuit held a highly compensated rig worker was not exempt from the Fair Labor Standards Act’s (FLSA’s) overtime requirements because the employee was paid on a day rate as opposed to a guaranteed salary. On Feb. 22, 2023, the U.S. Supreme Court affirmed this decision.” Full Article – McGuire Woods
NLRB Prohibits Confidentiality and Non-Disparagement Provisions in Severance Agreements with Broad Implications “On February 21, the National Labor Relations Board (NLRB or Board) reversed course from its own Trump-era precedent when it held that an employer’s offer of employee severance agreements with broad confidentiality and non- disparagement provisions is an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act (Act).” Full Article – Troutman Pepper
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
Illinois Supreme Court Rules BIPA Claims Accrue With Each Scan “On February 17, the Illinois Supreme Court issued its long-awaited decision in Cothron v. White Castle, holding that a claim under Illinois’ Biometric Information Privacy Act (BIPA) is triggered upon each biometric scan, rather than just the first.” Full Article – Troutman PepperILLINOIS
Seattle Becomes the First U.S. Jurisdiction to Prohibit Caste Discrimination “On February 21, 2023, the City of Seattle, Washington became the first U.S. city – or any U.S. jurisdiction for that matter – to add caste to its list1 of categories protected against discrimination.” Full Article – Littler MendelsonWASHINGTON
Massachusetts May Be Next in Line to Enact Pay Transparency Laws “The proposed law focuses on a broad range of employee and wage data, including the number of employees by race, ethnicity, and gender that fall within certain job categories or roles, and their corresponding wage information.” Full Article – Nelson Mullins Riley & ScarboroughMASSACHUSETTS
New Jersey Enacts First-of-Its-Kind Temporary Workers’ Bill of Rights “Under the law, employers must pay temporary workers no less than the average rate of pay and cost of benefits provided to company employees in similar positions who perform the same or substantially similar work. It also gives temporary workers rights to certain information on the terms and conditions of their engagement and imposes significant obligations on staffing agencies and their clients.” Full Article – Morgan Lewis & BockiusNEW JERSEY
CA Win for Employers: Ninth Circuit Holds That California AB 51 Prohibiting Mandatory Arbitration is Preempted by the Federal Arbitration Act ““As of February 15, 2023, employers in California may once again require mandatory arbitration as the US Court of Appeals for the Ninth Circuit held that the Federal Arbitration Act (FAA) preempts Assembly Bill 51 (AB 51), a law that prohibited “forced arbitration” as a condition of employment.” Full Article – McDermott Will & EmeryCALIFORNIA
- Published in Blog