Notable Developments as of 2018.02.10


2017.02.07  "The Front Line in the War Against Sexual Harassment" explains why "For employers who agree that bad acts should have bad consequences, 2018 will be a good year in which to revisit what is placed at risk, and how that risk will materialize."  Further discussed at Dismissals for Cause.  


2017.02.01  My Law Firm Change (Poerio).  It is an honor for me to have joined Wagner Law Group, a truly preeminent boutique firm that brings together top-flight ERISA, employee benefits, employment, and immigration attorneys.  The firm provides one-stop service, and has a lean structure that keeps hourly rates remarkably reasonable.  As a result, I am excited about the opportunity to couple growth of my national executive compensation practice with a local Maryland business focus (thanks in part to joining the Maryland Bar last year).  See this CNBC article about my move, and feel welcome to sign up for ourWLG Alerts.


2017.12.30  "Hitting Workplace Harassers Where It Hurts" (National Law Journal). The inspiration for this article traces back to the following statement in a 2016 EEOC study focused on preventing sexual harassment in the workplace: "Much of the training done over the last 30 years has not worked as a prevention tool."  There are many tools by which employers may discourage bad employee behavior.  Financial devastation for the wrongdoer is one that employers should consider emphasizing, but only after carefully considering . . .  continued at "Dismissals for Cause".


2017.12.19  Director Compensation: Boards Beware of New DE Decision. The Supreme Court of Delaware has departed from past precedent in a year-end decision that increases the risk of shareholder derivative litigation alleging that director compensation is excessive. See this Litigation Update


2017.12.28  Tax Reform Act of 2017 - Executive Compensation Provisions.  For final text of the three sections of TRA 2017 that primarily focus on executive compensation, see Sections 13601 re 162(m), 13602 re tax exempt orgs, and 1363 re qualified equity grants. For discussion and information, see Code 162(m), Tax Exempt Orgs, and Qualified Equity Awards.


2017.11.24  Circuit Split Widens over "Select Group" for Top Hat Purposes. Is an executive's ability to negotiate plan terms required as an ERISA top hat plan?  The 3rd Circuit has disagreed with the 2nd, 6th, and 9th Circuits - and agreed with the 1st Circuit in finding that . . . continued at Nonqualified Plans.


2017.10.17  "Dean Foods Gets TRO Blocking Ex-Exec From Rival Dairy" - That title comes from a Law360 article about a Texas state court decision that enforced restrictive covenants set forth in restricted stock awards. This is yet another reminder that employers may achieve significant business protections through minor, though smartly-crafted, refinements to their annual stock or cash bonus awards. Information about the case is available here.


2017.07.05  Substantial Compliance Suffices for ERISA Claims Procedures.  The 8th Circuit has joined others in holding . . .  continued atERISA Claims Procedures


2017.04.07   Voluntary Severance Plans: Case on Point.  For employers wanting to thin their workforces, voluntary severance plans (VSPs) are have an often under-appreciated potential to create a win-win dynamic.  They can also spur litigation if employees feel they were misled or would have made different decisions with better information.  A March 29th decision from Delaware’s federal district court is discussed here because it involves a typical VSP structure, and a litigation risk for employers to avoid. 


2017.04.04   Claims Releases and Government Enforcement Risks.  The SEC and the EEOC have been slapping significant penalties (up to $1.4 million so far) on employers whose separation agreements with former employees - or employment agreements with active employees -- discourage whistle-blowing actions.  See this Release Checklist for provisions to consider updating.

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Other News:

  • Employment Agreements - "Good Reason" and "Just Cause" cases.
  • Golden Parachutes - IRS audit manual released Jan. 2017.
  • Retirement Plans - IRS Corrective Applications (John Doe Alternative) - added 1/8/18
  • Survey Data - see Stock Awards (FW Cook's 2017 survey added for Equity Awards and LTIs)

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