Wyatt Employment Law Report


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Department of Labor – Fiduciary Rule Delay

By Sherry Porter

The U.S. Department of Labor’s (DOL) new fiduciary rule has been in the news for several years.  A portion of the rule relating to impartial conduct standards for employee benefit plans recently went into effect on June  10, 2017.  The remaining standards of the rule will become effective January 1, 2018.  The rule, which is essentially a consumer protection rule, has been quite controversial in that it imposes fiduciary status on many advisors who provide investment advice to retirement plans, IRAs and HSAs who had not been previously considered fiduciaries.  Many advisors have been working diligently to comply with the new DOL fiduciary rule – some investing significant hours and funds to comply.

Last week, the DOL filed a Notice of Administrative Action in a court case stating that it had submitted proposed amendments pertaining to the fiduciary rule to the Office of Management and Budget.  While they are currently in proposed state, the amendments propose to delay the applicability date from January 1, 2018 to January 1, 2019.  The proposed amendments have not yet been publicly released.  Stay tuned for more details, as it is likely the fiduciary rule will be pushed back.


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Risk for Nonqualified Deferred Compensation Falls on Employees

By Sherry Porter

The long-running Lehman Brothers bankruptcy case brings to light the risk employees have when participating in an employer sponsored nonqualified deferred compensation plan.  In this case (from the U.S. Bankruptcy Court in Manhattan), more than 300 executives and certain employees participated in a nonqualified deferred compensation plan (the “Plan”).  The Plan provided that payments under the Plan are “unsecured subordinate obligations” of Lehman Brothers (the “Company”) and contained a provision that the Plan benefit payments would be subordinated to Continue reading


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Senate Confirms Republican Member to NLRB

By Edwin S. Hopson

On August 2, 2017, just prior to the August recess, the U.S. Senate confirmed the nomination of Marvin Kaplan by a vote of 50 to 48 to be a Member of the National Labor Relations Board.  The Senate, however, did not vote on a second Trump nominee to the Board, William Emanuel.  The vote on the second nominee is expected in September.  With Kaplan’s confirmation, the five member Board now consists of two Republicans, two Democrats and one vacancy.  Thus, it is unlikely that there will be any more ground-breaking new precedent in favor of unions for some time to come.  It has been nine years since the Republicans had a majority of Board Members.

The term of the Democrat General Counsel to the Board expires in early November of this year.  He will be replaced by a Republican yet to be named.


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The Cold Hard Facts

By Michael D. Hornback

A recent Kentucky Court of Appeals decision is a reminder of a litigation truism –  there is no such thing as a “motion to change the facts.” Admittedly, I have handled numerous cases over the years wherein I wished, hoped and even prayed that I could file such a motion.  Much to my chagrin, a “motion to change the facts” is not available.  However, don’t despair because plaintiffs also find themselves wishing they could change the facts.  As the Kentucky Court of Appeals recently found, the “cold hard facts” are what they are, and a plaintiff’s subjective beliefs about the reason for her termination won’t carry the day.

In Conley v. Mountain Comprehensive Care Center, Inc., 2017 WL 3129215 (Ky. App., July 21, 2017), a licensed clinical social worker was terminated and sued her employer claiming age discrimination.  This case stems from Ms. Conley’s preparation and submission of a therapeutic treatment plan for a foster child directly to the Perry County Family Court, rather than to the Department for Community Based Services (“DCBS”).  It should be noted that Ms. Conley’s therapeutic treatment plan was apparently in conflict with Continue reading


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Employers Should Watch for New Overtime Regulations

By Mitzi Wyrick

Last year, the United States Department of Labor (“DOL”) issued new overtime regulations that would have substantially increased the salary level necessary for employees to remain classified as exempt.  Just before the new regulations were to go into effect, a United States District Court in Texas issued a nationwide injunction preventing the DOL from enforcing the overtime regulations.  You can read more on that here:  https://wyattemployment.com/2016/11/23/texas-judge-blocks-overtime-rule/

Now, the DOL seems ready to revisit the issue.  During the last week of June, the DOL sent a Request for Information related to the overtime rule to the Office of Management and Budget for its review.  Once the Request for Information is published, the public will have an opportunity to comment.   It seems likely that the DOL will again attempt to revise the current salary basis test, but perhaps not as substantially as previously attempted.  Watch this site for further details as they develop.


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Everything Old is New Again….

By Mitzi Wyrick

The United States Department of Labor Has Revived its Practice of Issuing Opinion Letters

Under the Obama Administration, the DOL’s Wage & Hour Division ceased issuing Opinion Letters and undertook the practice of issuing Administrator’s Interpretations which were designed to set forth generally applicable interpretations of the law and regulations unrelated to particular employers or industries.  Previously, the DOL preferred to offer written Opinion Letters demonstrating how the law or regulations applied in particular circumstances when requested to do so by employers, employees or other entities.  On June 27, 2017, the DOL revived its practice of issuing Opinion Letters.  At the same time, the DOL issued guidance on how to request an Opinion Letter, which can be found here: https://www.dol.gov/whd/opinion/opinion-request-1.htm.  While an Opinion Letter can provide an employer a good faith defense against liquidated damages, the decision to request an Opinion Letter should be carefully considered.

The DOL’s decision to resume issuing Opinion Letters may Continue reading


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Trump’s Recent NLRB Picks (if Confirmed) Projected to Overturn Controversial Obama-Era Rulings

By Sharon L. Gold

On Tuesday, June 27, 2017, President Trump picked William Emanuel, 75, to fill one of the two vacancies on the National Labor Relations Board.  The NLRB is currently controlled by Democrats, with a 2-1 majority.  When there are no vacancies, the Board is filled with three members from the President’s party and two from the opposing party.

Emanuel was an employment lawyer at an employer-friendly law firm in Los Angeles.  He has represented trade groups and employers before the NLRB for many years.

Trump has also nominated Republican Marvin Kaplan for Continue reading