Latest updates

DOL creates path for 401(k) plans to offer private equity investment options
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 23 September 2020

The US Department of Labour recently issued an information letter indicating that, in limited circumstances, it will allow defined contribution retirement plans (eg, 401(k) plans) to indirectly invest in private equity funds. Specifically, the information letter allows plans to offer their participants a professionally managed asset allocation fund with a private equity component as an investment option.

IRS issues proposed regulations intended to clarify carried interest rules
McDermott Will & Emery
  • Corporate Tax
  • USA
  • 04 September 2020

The Internal Revenue Service recently issued proposed regulations under Section 1061, a provision enacted as part of the Tax Cuts and Jobs Act 2017 that recharacterises certain net long-term capital gain with respect to applicable partnership interests as short-term capital gain. The proposed regulations provide clarity on some of the statutory provisions. This article discusses some of the noteworthy provisions in the proposed regulations.

Off-duty conduct: COVID-19 and social media ranting – what's an employer to do?
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 02 September 2020

Many employers that reopened recently are now facing a new challenge – employee off-duty conduct. At stake are both workplace and customer safety, as well as the company's reputation. This article highlights different scenarios that employers are likely to face and provides tips on how they can practically navigate and mitigate any potential risks when responding to off-duty conduct issues.

SDNY vacates portion of DOL final rule on FFCRA
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 19 August 2020

The US District Court for the Southern District of New York recently struck down four parts of the US Department of Labour's final rule implementing the Families First Coronavirus Response Act (FFCRA). The FFCRA provides COVID-19-related sick leave and family leave to employees of businesses which have fewer than 500 employees. This article examines what this decision means for employers.

Illinois federal court dismisses ERISA claims against 401(k) fiduciaries
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 12 August 2020

The Employee Retirement Income Security Act (ERISA) requires plan fiduciaries to act prudently and loyally when making decisions about a plan. In a recent case, a federal district court held that the plaintiff's allegations about expensive record-keeping costs and imprudent investment options failed to give rise to an inference that the defendants had violated their ERISA obligations.

COVID-19 reopening plans
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 05 August 2020

States have imposed their own obligations on employers as part of their reopening plans. Employer requirements and best practices depend on the employer's locations of operation and type of business but, at a high level, there are general trends with respect to state-imposed employer obligations, including maintaining safe working conditions and monitoring employee health, undertaking sanitisation efforts, requiring the use of personal protective equipment and promoting telework.

COVID-19 safety plans: what employers need to know
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 22 July 2020

COVID-19 safety plans are a way for employers to demonstrate to their employees, the public (for public-facing businesses) and, in certain cases, state governments that they have considered the risks associated with COVID-19 in their respective workplaces and have developed a response to these concerns. This article answers FAQs for employers regarding COVID-19 safety plans, including whether state-specific guidance exists and when such plans should be updated.

Preparing for battle: how to build your litigation defences now
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 15 July 2020

The employment and business decisions made by employers under the spectre of the unprecedented COVID-19 pandemic are now being tested by opportunistic plaintiffs' lawyers. Employers of all sizes should expect a flood of employment litigation alongside ever-changing conditions, constantly updated guidance and, at times, conflicting state and local guidance. Litigation avoidance will require a team effort and proactive communication – both internally and externally.

Preparing for the unknown: how to anticipate and address future workplace problems
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 08 July 2020

The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries. The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. This article focuses on strategies for employers to anticipate and address future workplace problems which may arise once employees return to work.

Section 965 statutes of limitations for partnerships
McDermott Will & Emery
  • Corporate Tax
  • USA
  • 03 July 2020

The Internal Revenue Service (IRS) recently issued guidance on the period of limitations for Section 965 of the Internal Revenue Code transition tax-related adjustments of partnerships. Typically, pursuant to Section 6501, the IRS has three years to assess a tax liability for a tax year. However, Section 6501(e)(1)(C) states that if the taxpayer omits from gross income an amount properly includible in income under Section 951(a), the tax may be assessed at any time within six years after the return was filed.

Preparing your responses: how to tackle opening-day obstacles
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 01 July 2020

The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries. The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. This article focuses on preparedness for the opening-day obstacles that employers are likely to face as they bring their employees back to work.

Preparing your workforce: how to avoid legal landmines when bringing employees back
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 24 June 2020

The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries. The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. To properly navigate the complexities of these novel COVID-19 employment issues, employers need innovative but practical solutions.

California bill would make taxpayer information available to public
McDermott Will & Emery
  • Corporate Tax
  • USA
  • 19 June 2020

A concerning bill is pending in the California Senate which would require the California state controller's office to make taxpayer information publicly available. The bill would require that the controller post on its website a list of all taxpayers subject to the California corporation tax with gross receipts of $5 billion or more and information about each taxpayer, including tax liability and the amount of tax credits claimed in the previous calendar year.

Preparing your workplace: how to navigate safety mandates and recommendations
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 17 June 2020

With the restrictions imposed to combat the COVID-19 pandemic slowly loosening, businesses are thinking about returning to work and what this will look like in practice. While it will not be business as usual, this article highlights how employers can prepare their workplaces and navigate safety mandates and recommendations, including with regard to prioritising the safety of employees and customers, the use of face coverings in the workplace and the screening of employees.

Preparing to reopen: how to smoothly transition back to work
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 10 June 2020

With the restrictions imposed to combat the COVID-19 pandemic slowly loosening, businesses are thinking about returning to work and what this will look like in practice. While it will not be business as usual, this article highlights how employers can smoothly transition back to work, including through the use of transition teams and plans and by focusing on safety, staffing and a reopening timeline.

IRS flexes its administrative summons power in recent tax case
McDermott Will & Emery
  • Corporate Tax
  • USA
  • 05 June 2020

A recent US Court of Appeals for the 10th Circuit decision underlines the Internal Revenue Service's ability to obtain information that it needs to examine taxpayers' returns using its powerful summons tool. To be successful in defending against a summons, taxpayers must ensure that they have a strong case – for example, non-disclosure based upon a privilege claim.

COVID-19: guide for US businesses
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 03 June 2020

With the COVID-19 pandemic continuing to affect every facet of life, businesses have much to consider. This article covers the provisions available to employers in the United States and the key questions that they are asking, including topics such as the Families First Coronavirus Response Act, furlough, access to the workplace, reductions in hours and employers' obligations concerning employees who are experiencing symptoms.

COVID-19 ate my homework – recent extensions and relief for retirement plans
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 27 May 2020

In recognition of the difficulties faced by retirement plan sponsors, participants and beneficiaries due to the COVID-19 pandemic, the Department of Labour, in conjunction with the Internal Revenue Service and the Department of the Treasury, recently issued guidance extending a number of retirement plan deadlines, including deadlines for many participant notices and benefit plan claims.

COVID-19: FAQs on practical considerations linked to working from home and privacy
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 20 May 2020

With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines the practical considerations linked to working from home and privacy that employers need to know.

COVID-19: FAQs on furlough and financial help for employers
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 13 May 2020

With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines what employers need to know about furlough and the financial help that is available for employers.

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