Under the Consolidated Appropriations Act, 2021 (H.R. 133)(the “Act”) (here), which was signed into law on December 27, 2020, new relief is available for employees who participate in health care flexible spending accounts and dependent care flexible spending accounts (“FSAs”).   While the Internal Revenue Service (“IRS”) issued limited relief for FSA participants in 2020 (here), that guidance only expanded opportunities to make mid-year elections.  It did not address the desire of so many employees to extend access to their unspent FSA balances beyond the 2020 plan year.

The changes under the Act are intended specifically to address this concern.  Importantly, the changes are optional.  Employers who implement these changes will likely experience higher costs due to reduced forfeitures and changes in plan administration.  Additionally, changes to health FSAa could adversely affect the participant’s eligibility to contribute (or receive contributions) to a health savings account.  Below is a summary of the changes affecting FSAs:

Continue Reading Flexibility for Flex Accounts – Congress Provides New Relief to Employees

With political division in the United States on full display in the midst of a pandemic, Americans are faced with deepening rifts that touch not only their social circles and family units, but also their work lives. It therefore behooves employers to recognize the reality that disagreements about politics are likely to arise in one form or another in the workplace. With that in mind, employers should review their employment policies and related practices to ensure they are ready to address workplace disputes centered on politics, especially in light of the telecommuting arrangements that many employers are still utilizing during the pandemic.

Continue Reading It’s Time for Employers to Revisit Their Employment Policies to Be Ready to Address Political Disputes Among Coworkers

On December 11, 2020, the United States Department of Labor (DOL) issued a pre-publication version of its final regulations with respect to proxy voting in plans that are subject to the Employee Retirement Income Security Act of 1974 (ERISA).  The purpose of the rule is to clarify the DOL’s longstanding position regarding fiduciary responsibilities to vote proxies, to coordinate with recent changes implemented by the United States Securities and Exchange Commission (SEC) for investment advisers, and to dovetail on recent changes in DOL guidance regarding ERISA plan investments that promote environmental, social, and governance (ESG) principles.  These final regulations generally apply following the expiration of the 30-day period following publication in the Federal Register (although certain provisions are not effective until January 31, 2022 for plan fiduciaries other than investment advisers).

Continue Reading Plan Fiduciaries: You Have No Right to Vote

The United States Court of Appeals for the Fifth Circuit recently reminded employers that they should create and maintain contemporaneous documentation for their personnel decisions and implement flexible progressive discipline policies. Specifically, on December 7, 2020, the Fifth Circuit affirmed a district court’s grant of summary judgment in an employer’s favor on an employee’s age discrimination claim. It did so, in part, because the employer showed that a merit raise it gave the former employee pre-dated the documented decline in her performance and that its progressive discipline policy allowed it discretion in implementation of the progressive steps.

Continue Reading Fifth Circuit Reminds Employers of the Importance of Contemporaneous Documentation and Flexible Progressive Discipline Policies

Winstead’s Labor & Employment and Executive Benefits attorneys conduct client-tailored training programs for executives and managers on workplace discrimination, harassment, retaliation, regulatory compliance, restrictive covenant and trade secrets enforcement and defense, executive compensation, and benefit structures.  Our attorneys frequently speak on complex workforce issues before local and national trade associations.

Continue Reading Resources

Picture this: you’re sitting in your seventh grade classroom and your teacher asks “can someone give me an example of a multinational bank?”  One of your classmates responds in a stage whisper “a piggy bank!”  The entire class erupts into laughter, but your teacher isn’t amused and demands to know the culprit.  No one owns up, and, in fact, some of your classmates are still laughing, so the teacher issues a whole class detention for that same afternoon.  This is upsetting to you because you totally had plans to [insert generationally appropriate pastime here] after school.

Continue Reading One Bad Apple Won’t Spoil the Whole Bunch? Proposed IRS Regulations Provide an Exception to the Unified Plan Rule for Multiple Employer Defined Contribution Plans

Mandatory arbitration agreements for employees have been enforceable for decades.  Over the last several years, there has been an ongoing controversy between the Fifth Circuit Court of Appeals, among others, and the National Labor Relations Board as to whether mandatory arbitration agreements which prohibit collective actions are enforceable.  In the recent decision of Epic Systems Corp. v. Lewis, the U.S. Supreme Court has now held that employers may impose mandatory arbitration agreements which deny employees the right to file collective action arbitrations.  In other words, agreements requiring employees to proceed individually in arbitration are enforceable.  In the wake of this decision, many employers are opting to require their current employees to agree to mandatory arbitration.  Continue Reading Implementing Your Mandatory Arbitration Program

In what appears to be the first website accommodation decision within the Fifth Circuit,  Judge Sim Lake of the Southern District of Texas District Court found that a “website is not a place of public accommodation” under the Americans with Disabilities Act (“ADA”).  Zaid v. Smart Financial Credit Union, No. H-18-1130, 2019 U.S. Dist. LEXIS 11363 (S.D. Tex. Jan. 24, 2019).  Stephen W. Schueler and Modinat “Abby” Kotun defended Smart Financial Credit Union (“SFCU”) against allegations that SFCU’s website discriminated against blind individuals due to its alleged incompatibility with the plaintiff’s screen reader, which he used to access websites.  The plaintiff sought declaratory and injunctive relief requiring SFCU to ensure that its website was accessible to the visually-impaired along with attorneys’ fees.

Continue Reading Americans with Disabilities Act (ADA) Website Accommodations