Workforce Bulletin

As year-end approaches, it is an opportune time for companies to run an internal audit of their nonqualified deferred compensation plans to flag any potential violations of IRC Section 409A (“Section 409A”). Generally, the sooner a potential violation of Section 409A is identified, the more options a company has to correct the potential violation.

The guidance provided by the IRS regarding correcting 409A failures provides additional flexibility if errors are corrected within the year in which they occur, which means that after December 31, 2025, it could be more difficult and more costly to fix a 409A failure that occurred in 2025.

On September 12, 2024, the Regional Director of the National Labor Relations Board’s (“NLRB”) Region 22 in Newark, New Jersey, issued an unfair labor practice complaint against a New Jersey building services company, alleging that employee non-hire (or “no poach”) provisions in the company’s contracts with its building clients violate the National Labor Relations Act (the “Act”).

According to the NLRB’s news release, the complaint alleges that Planned Companies D/B/A Planned Building Services, which is a janitorial, building maintenance, and concierge services provider, “has maintained provisions in its contracts with its client buildings that interfere with, and are inherently destructive of, workers’ rights under Sections 8(a)(1) and (3) of the National Labor Relations Act.”  It further alleges that “Planned Companies restricts its client buildings from soliciting its employees to work for them in a similar job classification for a period of six months after the agreement is terminated, or from hiring employees after they leave Planned Companies’ employment. Any entity retained by the client building to replace Planned Companies is also bound by the hiring restriction.” 

A hearing before an NLRB Administrative Law Judge has been set for November 12, 2024.

The New York City Council recently amended Sections 8-109 and 8-502 of the New York City Administrative Code, directly affecting employment agreements.  

Under the New York City Human Rights Law (NYCHRL), employees have one year to file a complaint or claim with the New York City Commission on Human Rights (NYCCHR) for unlawful discriminatory practices or acts of discriminatory harassment or violence. Employees have three years to file a claim of gender-based harassment. The statute of limitations for commencing a civil action under the NYCHRL is three years.

Effective May 11, 2024, the amendments to Sections 8-109 and 8-502 of the NYCHRL prohibit provisions in employment agreements that shorten these statutory periods for filing complaints or claims with the NYCCHR or commencing civil actions under the NYCHRL. Below we outline the key implications of this new law for employers.

Twice in the past two weeks, the Securities and Exchange Commission (“SEC” or “Commission”) issued a cease-and-desist order settling proceedings against companies for using confidentiality and waiver of claims provisions in employee separation or severance agreements that violate an SEC rule promulgated after passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). The rule in question is designed to encourage and allow whistleblowers to freely disclose information to the SEC without impediments and ensure that they are (and ...

Allen B. Roberts, a Member of Firm in the Labor and Employment practice and co-chair of the firm’s Whistleblowing and Compliance Subpractice Group, in the New York office, wrote an article titled “Impact: Employers Brace for Change – Top 5 Issues Facing Businesses, as appeared in Insurance Advocate.”

Following is an excerpt:

By popular account, the Affordable Care Act (“ACA”) would preserve the base of insureds and extend health insurance coverage to as many as another 32 million Americans. That estimate could be wrong if ACA disrupts patterns and experience of spouse ...

By: Lauri F. Rasnick

At our October 2012 client briefing we discussed the new attitude of the National Labor Relations Board (“NLRB”) and the fact that non-unionized employers were not immune from the provisions of the National Labor Relations Act (“NLRA”).  The NLRA has been increasingly applied in non-union workplaces.  And most recently, it has found its way into the financial services industry.  In a recent NLRB administrative law judge’s decision, provisions contained in a mortgage banker’s employment agreement were found violative of the NLRA.  The provisions at ...

I co-authored an Act Now Advisory on the decision issued by NLRB Administrative Law Judge (ALJ) Joel Biblowitz on January 8, 2013, finding that Quicken Loans’ agreements concerning proprietary and confidential information and non-disparagement unlawfully interfered with these unrepresented employees’ Section 7 rights to engage in concerted and protected activity.  The ALJ decision adopts the expansive views of Acting General Counsel Lafe Solomon and further expands the Board’s involvement in non-union workplaces.

Click here to read the full advisory on ...

Before the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd Frank”) was enacted, whistleblower claims by registered representatives, including those arising pursuant to the Sarbanes-Oxley Act of 2002 (“SOX”) were subject to mandatory arbitration at FINRA.  See FINRA Notice 12-21 (PDF).  Dodd Frank changed that.  Dodd Frank specifically amended SOX to provide that “[n]o dispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.”  In addition, SOX was also amended to ...