North America

Two recruits join our Insurance Law Practice Group

December 1, 2016 — RSS recently added two litigators to its Insurance Law Practice Group:

  • Georgia Papadolias, who joined us in the early days of November after having been with a boutique litigation firm. Her practice will comprise an important share of transportation and maritime law cases.
  • Sandrine Bédard, called to the Bar a mere few days ago, will remain on a course that began in 2014 as a student and continued when she articled with us. She will continue to represent before the courts a clientele that is already familiar to her.
Read full article

Compensation Based on Assets Under Management May Raise Conflict of Interest Concerns Requiring a Prohibited Transaction Exemption

Advisers and financial institutions that are compensated based on a fixed percentage of the value of assets under management may want to reconsider that compensation methodology as it could require compliance with a prohibited transaction exemption, such as the Best Interests Contract Exemption (the “BIC Exemption”), which is a component of the fiduciary rule issued by the Department of Labor (the “DOL”) in April 2016 (the “Final Rule”).  While stating in the recently published “Conflict of Interest FAQs” (the “FAQs”) that the ongoing receipt of a fixed percentage of the value of a customer’s assets under management, where such values are determined by readily available independent sources, typically does not require compliance with a prohibited transaction exemption, the DOL cautions that such compensation may still raise conflict of interest concerns and require that the adviser comply with a prohibited transaction exemption.  The FAQs, like the Final Rule, are generally limited to advice concerning investments in employee benefit plans covered by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), individual retirement accounts (“IRAs”) and certain other plans.

Read full article

HOWARD & HOWARD’S STEVEN M. VAN BEEK NAMED TO MICHIGAN LAWYERS WEEKLY “UP & COMING LAWYERS” CLASS OF 2016


Royal Oak, Michigan, November 29, 2016: Howard & Howard Attorneys PLLC is pleased to announce that attorney Steven M. Van Beek has been named to Michigan Lawyers Weekly “Up & Coming­­ Lawyers” Class of 2016. The 30 Honorees were selected by a committee based on criteria including those who have established a name for themselves in the legal community, go above and beyond, and display the ambition, drive, determination and accomplishments that set them apart among their peers — in their first 10 years in practice.
Steven M. Van Beek concentrates his practice in the area of financial regulations. He represents credit unions throughout the country to help ensure they comply with the regulations and guidance issued by the Consumer Financial Protection Bureau, the National Credit Union Administration, the Federal Reserve Board as well as the underlying legal statutes. Beyond the regulations, Mr. Van Beek has intimate knowledge of the operational issues facing credit unions and best practices credit unions can follow to reduce compliance, strategic and reputation risks.

Read full article

NLRB Majority Strikes Down Overly Broad Employee Handbook Policies

Our colleagues Lauri F. Rasnick and Jonathan L. Shapiro, attorneys at Epstein Becker Green, have a post on the Financial Services Employment Law blog that will be of interest to many of our readers: “Policies Prohibiting ‘Insubordination or Other Disrespectful Conduct’ and ‘Boisterous or Disruptive Activity in the Workplace’ Struck Down by NLRB Majority.”

Following is an excerpt:

Read full article

Following an Appeals Court Decision, Pennsylvania Adopts New Payroll Regulations

On October 21, 2016, a Pennsylvania appeals court found that a group of franchisees were in violation of the state’s Wage Payment and Collection Law (“WPCL”) when they required employees to be paid with payroll debit cards. While the WPCL only permitted wage payment in cash or check, the Pennsylvania court noted that voluntary use of payroll debit cards may be an appropriate method payment. In this case, the court held that mandatory use of payroll debit cards was not lawful, as it may subject the employee to fees without his or her consent.

Two weeks later, on November 4, 2016, the Pennsylvania legislature adopted new legislation amending the WPCL and officially including payroll debit cards as a permissible form of payment by employers, provided that several conditions are met. The new law takes effect on May 5, 2017.

Under the new law, the use of payroll debit cards is permitted if, among other things:

  • The payroll card account is established at a financial institution whose funds are insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration;
  • The employer does not make the payment of wages, salary, commissions or other compensation by means of a payroll card account a condition of employment or a condition for the receipt of any benefit for any employee;
Read full article

Policies Prohibiting “Insubordination or Other Disrespectful Conduct” and “Boisterous or Disruptive Activity in the Workplace” Struck Down by NLRB Majority

Once again seemingly appropriate work rules have been under attack by the National Labor Relations Board (“NLRB”). In a recent decision (Component Bar Products, Inc. and James R. Stout, Case 14-CA-145064), two members of a three-member NLRB panel upheld an August 7, 2015 decision by an Administrative Law Judge (“ALJ”) finding that an employer violated the National Labor Relations Act (“NLRA” or the “Act”) by maintaining overly broad handbook rules and terminating an employee who was engaged in “protected, concerted activity” when he called another employee and warned him that his job was in jeopardy.  Member Miscimarra concurred in part and dissented in part, arguing that the Board should overrule applicable precedent interpreting the Act.

Factual background

Read full article

Judge Orders Lawyer and Client Jailed For Contempt

Business Development Bank of Canada v. Cavalon Inc. 2016 ONSC 6825

                             

In this case, both a lawyer and his former client were ordered to serve 90 day custodial sentences after being found in contempt of an order of a judge of the Ontario Superior Court of Justice.    

 

These reasons arose out of the penalty phase of contempt proceedings.  In previous reasons, Justice Gray found Robert Bortolon (“Bortolon”) and his former lawyer, Robyrt Regan (“Regan”), in contempt of an order of Justice Lemay.  The context involved an application commenced by the Business Development Bank of Canada
Read full article

Decision Enjoining Federal Overtime Rule Changes Will Not Affect Proposed Increases Under New York State’s Overtime Laws

Abstract Image - Business TimeAs we recently reported on our Wage & Hour Defense Blog, on November 22, 2016, a federal judge in the Eastern District of Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor from implementing its new overtime exemption rule that would have more than doubled the current salary threshold for the executive, administrative, and professional exemptions and was scheduled to take effect on December 1, 2016. To the extent employers have not already increased exempt employees’ salaries or converted them to non-exempt positions, the injunction will, at the very least, appear to allow many employers to postpone those changes—but likely not in the case of employees who work in New York State.

On October 19, 2016, the New York State Department of Labor (“NYSDOL”) announced proposed amendments to the state’s minimum wage orders (“Proposed Amendments”) to increase the salary basis threshold for executive and administrative employees under the state’s wage and hour laws (New York does not impose a minimum salary threshold for exempt “professional” employees).  The current salary threshold for the administrative and executive exemptions under New York law is $675 per week ($35,100 annually) throughout the state.  The NYSDOL has proposed the following increases to New York’s salary threshold for the executive and administrative exemptions:

Read full article

New Form I-9 Goes Into Effect On January 21, 2017

E. Jason Tremblay

E. Jason Tremblay

A revised Employment Eligibility Verification Form I-9, which is required to be filled out for every new employee, was recently issued by the U.S. Citizenship and Immigration Services. The new version is here. Among other changes to the form, Section 1 now asks to provide “other last names used” and streamlines the certification for certain foreign nationals.

The current version of the Form I-9 will continue to be valid until January 21, 2017. After this date, employers will be required to use the new form.

Read full article

The U.S. Supreme Court May Review the Enforceability of Class Action Waivers

One of the most controversial issues in employment law these days involves the position of the National Labor Relations Board (“NLRB” or “Board”) that an employer violates the National Labor Relations Act (“NLRA”) when it requires employees to pursue any dispute they have with their employer on an individual, rather than on a class or collective action, basis with other employees. It is a position that has been adopted by two circuit courts and rejected by three—a conflict that suggests that the issue is ripe for U.S. Supreme Court review.

The NLRB has contended that when an employer requires employees to sign an agreement precluding them from bringing or joining a concerted legal claim regarding wages, hours, and other terms and conditions of employment, the employer deprives them of rights guaranteed under Section 7 of the NLRA to engage in concerted activities for employees’ mutual aid or protection. That right, the proponents argue, includes the right to join together in class and collective litigation to pursue workplace grievances in court or in arbitration.

In making that argument, the NLRB appears to be neglecting the second part of Section 7 (added to the NLRA by the 1947 Taft-Hartley Amendments), which guarantees to employees an equal right to refrain from engaging in concerted activities for their mutual aid and protection. It would seem to follow that, if they have the right to refrain from engaging in concerted activities, employees could waive their right to participate in class and collective actions.

Read full article