Employment Law Insights

Analysis and practical guides on employment law.

7 articles, checklists, and guides on employment law law, written by the attorneys at MC Law. Every piece is general information, not legal advice — for a specific matter, contact the firm.

Employment LawEmployee Benefits

ERISA Fiduciary Duties for Plan Sponsors and Committees

Almost every company that offers a retirement plan has fiduciaries who do not know they are fiduciaries, exercising discretion they do not know is discretionary, without the documented process that is their only real defense. This article explains what ERISA actually requires. It separates settlor functions from fiduciary functions, identifies who becomes a fiduciary by title and by conduct, and works through the four core duties of loyalty, prudence, plan-document compliance, and diversification. It then covers the prohibited transaction rules and the exemptions that make ordinary plan administration lawful, the fee disclosure regime, and the monitoring obligation that the Supreme Court has addressed in Tibble and Hughes. Sections on excessive fee litigation and the pleading standard, delegation to 3(21) and 3(38) advisers, co-fiduciary and successor liability, correction programs, bonding and insurance, and health plan fiduciary issues follow, with a worked committee calendar, an FAQ, and related reading.

Casey Scott McKayMay 23, 202625 min read

Employment LawDiscrimination

Responding to an EEOC Charge: A Practical Guide for Employers

A charge of discrimination is the beginning of a process that is more consequential than most employers appreciate, because the position statement written in the first month becomes the employer's story for the rest of the case. This guide covers the response from receipt through resolution. It explains the jurisdictional and timeliness questions that should be evaluated before anything is written, the immediate steps including the litigation hold and the anti-retaliation instruction that prevents the second claim, and the investigation that must precede the position statement. It then addresses the position statement itself in detail, including what to include, what to withhold, and the disclosure rules that mean the charging party will read it. Later sections cover requests for information, on-site visits and witness interviews, mediation and conciliation, the determinations the agency can issue, and what to do when the right to sue letter arrives.

Casey Scott McKayNovember 3, 202525 min read

Employment LawEmployee Benefits

Administering a 401(k) Plan: Fiduciary Process, Compliance, and Common Failures

Running a retirement plan is an operational discipline, and most plan failures are not investment failures but administrative ones: the wrong definition of compensation used for a match, an employee who should have been enrolled and was not, deferrals deposited late, or a plan document that no longer matches how the plan is actually run. This guide covers the year in the life of a plan. It starts with the documents that govern and the restatement cycle that keeps them current, then eligibility and entry, the compensation definition that causes more corrections than any other single item, and the contribution types and limits. It covers deposit timing and the fiduciary exposure it creates, nondiscrimination testing and the safe harbor designs that avoid it, and the annual reporting and disclosure calendar. Later sections address loans, distributions, and the correction programs that fix errors before they become disqualification events.

Casey Scott McKayOctober 30, 202525 min read

Employment LawDiscrimination

Reasonable Accommodation Under the ADA: The Interactive Process in Practice

The Americans with Disabilities Act asks employers to do something most management training never covers: hold a structured conversation, document it, and make an individualized decision. This article explains how. It starts with who is protected after the 2008 amendments broadened the disability definition to the point that coverage is rarely the real fight, then covers what makes someone qualified and how essential functions are determined, which is where most cases are actually won or lost. It walks the interactive process step by step, including what medical information an employer may request and from whom, and surveys the accommodations that arise most often: schedule changes, telework, leave, equipment, job restructuring, and reassignment. Later sections address undue hardship and direct threat, the special rules for pregnancy and religion, confidentiality obligations, and the documentation that decides litigation, with a worked example, a decision framework, and an FAQ.

Casey Scott McKayApril 15, 202525 min read

Employment LawRestrictive Covenants

Non-Compete Agreements Under Siege: FTC Rulemaking and State Law Developments

The Federal Trade Commission's attempt to ban non-compete agreements nationwide is dead—set aside in Ryan, LLC v. FTC in August 2024 and formally abandoned by the Commission in September 2025—but the regulatory and judicial assault on restrictive covenants has only intensified. This article tells the full story of the FTC rule's rise and fall, including the Section 5/Section 6(g) authority debate and the major-questions problem that doomed it, then maps the fifty-state patchwork of bans, income thresholds, notice requirements, and physician-specific prohibitions that now governs employer practice. It explains the common-law reasonableness test, the blue-pencil problem, and the consideration traps that void agreements employers think are airtight, and it details the post-ban toolkit: garden leave, forfeiture-for-competition clauses, enhanced non-solicitation and confidentiality agreements, and the Defend Trade Secrets Act. Following a fictional sensor manufacturer through a complete redesign of its protection program, the piece shows how sophisticated employers protect trade secrets and customer goodwill without relying on a single fragile restraint. The throughline: the non-compete is under siege, but the interests it protected are not, and the tools for defending them have never been more sophisticated.

Casey Scott McKayDecember 12, 202452 min read

Employment LawRetaliation

Whistleblower and Retaliation Claims: SOX, Dodd-Frank, the False Claims Act, and State Law

Retaliation is the most frequently alleged employment claim in the United States, and it is the claim that survives when the underlying complaint fails. This article explains the overlapping statutes and how they differ where it matters. It covers the elements common to every retaliation theory, then works through the major federal regimes: Sarbanes-Oxley Section 806 with its contributing-factor standard and administrative exhaustion, the Dodd-Frank SEC program with its bounty awards and the reporting requirement the Supreme Court imposed in Digital Realty, the False Claims Act with its qui tam mechanism and separate anti-retaliation provision, and the twenty-plus statutes OSHA administers, several with filing periods as short as thirty days. It then covers state public policy wrongful discharge, what counts as protected activity and adverse action, the causation standards that decide cases, and the program design that prevents claims, with a worked example, an investigation checklist, and an FAQ.

Casey Scott McKayMay 8, 202426 min read

Employment LawLeave and Benefits

Family and Medical Leave: The FMLA, State Programs, and How Leave Interacts with the ADA

Leave administration is where employers with no dedicated HR function most reliably create liability, because three legal regimes govern the same absence and each has different triggers, different durations, and different consequences. This article explains how they fit together. It covers FMLA coverage and eligibility, what counts as a serious health condition, the notice and certification sequence with its precise deadlines, intermittent and reduced-schedule leave and the attendance policies that collide with it, and the job restoration and benefits obligations at the end. It then addresses the growing patchwork of state paid family and medical leave programs and paid sick leave laws, how they stack with the FMLA, and how payment interacts with an employer's own policies. A long section covers the interaction with the ADA, including leave as a reasonable accommodation beyond FMLA exhaustion and the maximum leave policies that generate systemic enforcement actions, followed by workers compensation coordination, a worked example, an administration checklist, and an FAQ.

Casey Scott McKayNovember 28, 202326 min read