Monthly Archives: July 2018


Although 401(k) plans are intended to accumulate savings for participants’ retirement, the reality is that when unexpected expenses arise, participants may ask whether they can get a distribution from their 401(k) account. Federal tax rules permit a hardship distribution if (a) the participant experiences an “immediate and heavy financial need,” and (b) the distribution is no greater than the amount “necessary to satisfy the financial need.”  If a plan administrator permits a hardship distribution that does not fit within the hardship rules, the result is an operational error that must be corrected in accordance with IRS rules.  To avoid the time and expense involved with corrections, plan administrators should stay current with rules in this area.  In recent legislation, Congress has loosened restrictions on hardship distributions in some ways and tightened them in others.  Read More »


The National Labor Relations Board (“NLRB”) is presently wrestling with a particularly important legal issue that has nothing to do with union elections or unfair labor practices. The matter facing the NLRB is much more rudimentary than that – when should NLRB members be recused based upon a conflict of interest.  Not to belabor the point (pun intended), but it is critical that NLRB members be able to rule on legal issues presented to them.  If matters taken to the NLRB are frequently subject of conflict concerns, the system slows and the wheels of justice do not turn. Read More »

Faragher-Ellerth, #MeToo, and the Court of Public Opinion

Last week, the Third Circuit released an opinion in Minarsky v. Susquehanna County, et al., in which it reversed the district court’s award of summary judgment to Susquehanna County and remanded the case for a jury trial on the merits.  What is significant about this opinion is the impact that the #MeToo movement has seemingly had on the decision.  In a page-long footnote, the Court discusses the #MeToo movement, the pervasiveness of sexual harassment in the workplace, and comments on why sexual harassment victims may not, even with proper mechanisms in place, reasonably be willing to report harassment. Read More »

Supreme Court Decision Hands Defeat to Public Sector Unions

Public Employees Have The Right To Refrain From Union Membership and Compelled Union Dues

In a 5-4 ruling split evenly along party lines, the United States Supreme Court bolstered the right of public sector employees to abstain from union membership and compulsory dues payment.  The ruling in Janus v. AFSCME provides that public sector unions cannot require employees to pay dues and fees associated with the negotiation of labor agreements and administration of grievances under such agreements, although those employees will be covered by the bargaining agreement.  Public sector employers have been a final stronghold of the American labor movement.  While only 6.5% of private sector employees are unionized, unionization of public sector employees is currently 34.4%.  To put public sector’s union activities into context, of the $64.6 million spent by these unions during the 2016 election cycle, 90% of those funds went to Democratic candidates.  Read More »