Monthly Archives: April 2023

April 7, 2023

How to Support an Employee Going Through a Gender Transition

Laurie Rogers

by Laurie Rogers

As transgender employees become more comfortable living openly as their authentic selves in the workplace, employers should be prepared to work with transitioning employees. Consider putting a plan in place that fosters an inclusive work environment and guards against discrimination based on gender identity and expression. This plan should include communicating with transitioning employees, educating your workforce, and creating clear policies addressing the rights and needs of transgender and gender nonconforming employees.

Communication

You should create an accepting work environment that invites employees to speak openly with HR or management. Inviting open communication directly with company leadership allows you to address concerns before they escalate.

When a transitioning employee comes to you, work with them on their anticipated transition timeline, including whether and how they want their coworkers to learn about the transition. Encourage self-identification of pronouns and acknowledge and allow name and/or pronoun changes within your HR systems, regardless of whether the employee has legally changed their name. Assure the transitioning employee that they may dress in a manner that corresponds with their gender expression or identity, and they are permitted to use bathrooms and locker rooms that align with their gender identity. Read more >>

April 5, 2023

10th Circuit Rejects ERISA Arbitration Provision

Alex Smith

by Alex Smith

Courts have been mixed regarding the enforceability of arbitration provisions in Employee Retirement Income Security Act (ERISA) retirement plans since the U.S. 9th Circuit Court of Appeals’ 2019 decision in Dorman v. Charles Schwab Corp. Some employers and plan sponsors have considered adding arbitration provisions based on Dorman and the proliferation of ERISA class action lawsuits. Following the decision from the 10th Circuit (whose rulings apply to all Colorado employers) in Harrison v. Envision Management Holding, Inc. Board, however, employers in the 10th Circuit may want to reconsider.

10th Circuit’s decision

In Harrison, the 10th Circuit rejected the enforcement of an employee stock ownership plan’s (ESOP) arbitration provision in a lawsuit filed by a plan participant alleging the ESOP’s fiduciaries overpaid for the employer’s stock, breached numerous ERISA fiduciary duties, and engaged in prohibited transactions.

The 10th Circuit’s ruling focused on the ESOP’s specific arbitration provision, which allowed participants to obtain only individual relief and therefore made it impossible for them to obtain the plan-wide relief under ERISA. As a result, the 10th Circuit concluded the participants couldn’t effectively vindicate their statutory rights under ERISA. Read more >>