Employers within the life sciences industry should be keenly concerned with the Employee Retirement Income Security Act (ERISA) and taxes. For the purposes of ERISA, a severance plan classified as a “policy” may be considered a “plan.” This implies to where the plan is administered under the discretion of the employer, which means that ERISA is likely to apply when determining the level of benefits to award or determining if an employee is eligible for benefits. However, employers within this industry should understand that an ERISA-covered plan should have some chief requirements that include (1) a summary plan description must be provided to participants, (2) employers must annually file a Form 5500 for the plan, and (3) a plan must be in writing.
As a continuation of this discussion, we have shifted gears and hammered on key employment policies for employers within the life sciences industry in this post.
Key Employment Policies for Employers in the Life Sciences Industry
As discussed in our practice blog posts under this series, employers in the life science industry should firmly have in place a number of key employment policies. In this regard, every employer should, in addition to severance policies, policies on the protection and confidentiality of proprietary information, (Equal Employment Opportunity) EEO policies, and whistleblower policies, create and implement policies that include, but are not limited to:
- Social media policy – while it is particularly true with employees, irrespective of the level, who have access to sensitive and confidential information every day, there are significant risks that come with employee use of social media. Accordingly, while policies should not infringe upon employee legal protections, such as NLRA (National Labor Relations Act) rights, every employer should implement a social media policy requiring compliance by all employees. Depending on individual needs, employers may seek legal guidance on how to draft social media policies and what a social media policy should look like.
- A leave of absence, time-off, and an attendance policy– employee fraud within the life sciences industry should be addressed amicably and rooted out. Usually, employees are known to misuse leave of absence, among other common types of employee fraud. Accordingly, in order to help minimize fraud issues, employers should create and implement a transparent and firm leave of absence, time-off, and attendance policy. Such a policy should also be appropriately and consistently reviewed, updated, and enforced. Most importantly, employers should seek legal guidance about state laws on leave of absence, time off, and employee attendance.
- An anti-harassment policy (also referred to as the Faragher-Ellerth policy) – in order to support the Faragher-Ellerth affirmative defense that the employer exercised reasonable care to promptly correct and prevent any behavior related to harassment, every employer in this industry should adopt and implement a firm anti-harassment policy, which would be a key safeguard against workplace harassment lawsuits.
- An inventions/shop right assignment agreement policy – the protection of intellectual property should be one of the most critical goals of every employer within the life sciences industry. On the one hand, an employer is assigned, through an inventions assignment agreement, inventions developed by employees during their time of engagement. On the other hand, an employer is able to get a royalty-free license, through a shop right policy, for inventions that are created using the employer’s resources by employees.
In Part XIX of this series and our blog post titled “Artificial Intelligence (AI) & Big Data Within the Life Sciences,” we shall move the discussion forward by hammering on some of the key regulatory trends that employers within the life sciences industry should be aware of and conversant with.
In the meantime, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer & Author.