News & Commentary

June 14, 2019

Alisha Jarwala

Alisha Jarwala is a student at Harvard Law School and a member of the Labor and Employment Lab.

The upcoming Supreme Court term could be “the term of ERISA,” according to Bloomberg.  The justices have already agreed to hear two cases involving the Employee Retirement Income Security Act and could hear up to four.  In Intel Corp. Investment Policy Committee v. Sulyma, the Court will decide when the clock starts for the three-year statute of limitations under ERISA—the Ninth Circuit has said the clock starts when a plan participant has “actual knowledge” of a breach, but the Sixth Circuit has found that clock starts when participants are provided with documents disclosing material facts.  The second case is Retirement Plans Committee of IBM v. Jander, where plan participants filed a class action after the value of IBM shares in the company’s 401(k) plan dropped more than 7 percent and the Second Circuit allowed the case to go forward. Bloomberg notes that defense attorneys believe this ruling violates the high standard set for claims by the Court in Fifth Third Bancorp v. Dudenhoeffer.

Presidential candidate Beto O’Rourke released a comprehensive plan to address LGBTQ rights, including expanding civil rights protections to include sexual orientation and gender identity.  According to his campaign website, O’Rourke’s plan includes executive action to end “exclusion of sexual orientation and gender identity as protected under sex discrimination under Title VII and Title IX, in particular to redress the discrimination against LGBTQ+ women and people of color in employment and other settings” and to direct the EEOC to “collect data on and prioritize the enforcement of laws, such as non-discrimination laws, involving LGBTQ+ individuals.”

In May, I wrote about a settlement of a class-action case brought by a father at JP MorganChase who was denied 16 weeks of parental leave, part of a growing number of suits brought by men arguing that parental leave policies are discriminatory.  Yesterday, Bloomberg reported that fighting to get parental leave policies for men on Wall Street might be easier than actually taking the leave because of a culture that “lionizes face time and relationship upkeep.”  Bankers told Bloomberg that they were subtly (and not-so-subtly) discouraged from taking leave by their bosses and coworkers.  Nationwide, only half of all working fathers think their bosses support time off with newborns, according to a new poll by advocacy group Paid Leave for the United States.

Finally, staff at the Department of Labor have described the agency as having a “fortress mentality.”  Senior political staff cannot access Labor Secretary Alexander Acosta—literally, because their codes to the executive suite no longer work. In addition, career officials have been prohibited from taking notes during meetings with political staff and Solicitor of Labor Kate O’Scannlain has been moved into an advisory role.  According to a current official: “Nobody has any allies. It’s a constant Game of Thrones.”

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