You Don’t Have To Rule Out Environmental, Social and Governance Investments in Your ERISA Portfolio, but Be Careful

ERISA generally requires retirement plan fiduciaries to invest prudently, diversify assets to minimize the risk of large losses, and act solely in the interest of plan participants. These duties have been interpreted as prioritizing the pecuniary interests of plan participants and their beneficiaries. Because investment returns are not to be sacrificed or greater risks assumed to promote collateral social policies, many plan fiduciaries have shied away from environmental, social and governance (ESG) investments.

However, such investments do not need to be avoided if the ERISA fiduciary gives appropriate consideration to the facts and circumstances relevant to a particular investment or course of action, including the role of the investment in the portfolio, and acts accordingly.

In fact, a recent proposal by the U.S. Department of Labor seeks to modify certain prior regulatory guidance that had chilled ESG investments. Appropriate considerations include the risk of loss, opportunity for gain or other return as compared to similar investment alternatives. Diversification, liquidity, projected return are all factors for considering investments in a retirement plan, but investment returns are not to be sacrificed or greater risks assumed to promote collateral social policies. Thus, ESG factors may serve as a “tie breaker” when considering … Keep reading

The Americans With Disabilities Act prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Over the past few years, innumerable lawsuits have been brought against universities, banks, and businesses, claiming that they have engaged in unlawful discrimination under the ADA because their websites (1) act as “places of public accommodation,” and (2) are not fully accessible to people with visual impairments. (Often, these lawsuits concern the fact that, although a visually impaired person can use a “screen-reader” to convert text on a website into audio, if there is no subtitle to a non-text picture or image, that user would have no way of knowing that a picture or image exists, let alone what it might be.)

While there have been cases holding that websites are not places of public accommodation, the trend seems to be otherwise. Some jurisdictions hold that a website may be a place of public accommodation if there is a connection between the site and a physical location. See, Keep reading

When Massachusetts voters legalized the use of marijuana for medicinal purposes four years ago, the impact on most employers was limited to clarifying that “legal” marijuana use was still generally prohibited in the workplace. Now, Massachusetts has legalized limited use of recreational marijuana. Although the recreational marijuana use law also provides that employers may prohibit employees from reporting to work or performing work under the influence of marijuana, the new law is raising practical challenges for employers. Here are three ways that employers may consider changing what they have been doing:

1. Pre-employment Drug Testing

Many employers require job candidates to successfully pass a drug test as a condition to receiving a job offer. Prior to the legalization of marijuana, a positive test for marijuana use by a job candidate was an indication of illegal drug use and clear grounds for rescinding an offer of employment. Since legalization of medical and recreational use, from a legal standpoint, rescinding a job offer based on testing positive for marijuana use is still generally permitted. From a practical standpoint, however, the rationale that marijuana use is illegal no longer exists and brings into question the rationale for drug testing for marijuana at … Keep reading