In two cases issued on August 31, 2023, the National Labor Relations Board greatly expanded the universe of employee activity protected by the National Labor Relations Act. This is the latest in a week-long flurry of pro-union/worker cases that have left employers, both unionized and not, reeling, including restrictions on unionized employers’ ability to act unilaterally, employers being subject to collective bargaining orders without a secret-ballot election, an expedited timeline for secret ballot elections, and affirmation of a test for determining when adverse action is motivated by protected conduct. Continue Reading The NLRB Vastly Expands the Parameters of Protected Concerted Activity
The U.S. Department of Labor has now issued its highly-anticipated proposed revision to the regulations governing which employees are exempt from the requirement to pay overtime for all hours worked over 40 in a workweek. As expected, the proposed rule seeks to increase the salary levels for the statutory “white-collar” exemptions from overtime, meaning that up to 3.4 million more employees (according to the DOL) will be eligible for overtime pay.Continue Reading DOL Proposes New Overtime Rule To Increase the Required Salary Level for Exempt Employees
One of the most shocking moments in the recent Women’s World Cup came after the final, when the head of the Spanish soccer federation kissed one of the victorious Spanish players – first on the cheeks (ok – it’s European) but then on her lips (not ok without consent – European or not). In the locker room immediately afterwards, the player said “I didn’t like it.” And this moment highlights just how much further the women soccer players have to go in terms of achieving equity with their male counterparts – on the field and off. It also provides a reminder to employers generally that equity in the workplace encompasses many things. Continue Reading Lessons from the World Cup – Gender Equity Goes Far Beyond Pay
In an interesting, but ultimately unsurprising, analysis of Maryland’s anti-discrimination law, Maryland’s highest court has determined that the State’s prohibition against “sex” discrimination, including in the workplace, does not include sexual orientation (and by extension, gender identity). But employers should be aware that other protections for those personal characteristics exist under both state and federal law.Continue Reading Maryland’s Supreme Court Finds “Sex” Discrimination Protections Do Not Include Sexual Orientation (or Gender Identity)
On August 7, 2023, the Equal Employment Opportunity Commission (EEOC) issued proposed regulations to implement the new Pregnant Workers Fairness Act (PWFA), which was enacted by Congress last December as part of a federal omnibus funding bill and which became effective on June 27, 2023. The proposed regulations provide guidance on how the EEOC plans to interpret employers’ obligations under the PWFA – and in some cases, expands the obligations beyond even the heightened standards under the Americans with Disabilities Act.Continue Reading EEOC Issues Proposed Pregnant Workers Fairness Act Regulations
As most of us know, Hollywood is striking (or more specifically, the members of the writers’ and actors’ unions). Some of you may have seen media reports, like this CNN article, about the unions filing unfair labor practice (ULP) charges with the National Labor Relations Board over unsafe picketing conditions. Which may cause some of you to wonder – what is an employer’s responsibility with respect to those conditions? Continue Reading Are Employers Supposed to Protect Striking Employees?
A few years back, during the initial surge of corporate diversity, equity and inclusion initiatives in response to the killing of George Floyd and the #BlackLivesMatter movement, I wrote a blog post that applauded corporations for focusing on the issue – but also cautioned them to avoid inadvertently violating anti-discrimination laws in their eagerness. Well, following the Supreme Court’s recent decision prohibiting the use of race in college admissions, my (somewhat prescient?) warnings have taken on new urgency. Continue Reading Hey CEOs – Be Careful with Those Diversity Initiatives!
On June 29, 2023, a unanimous U.S. Supreme Court ruled that religious accommodations under Title VII of the Civil Rights Act must be provided to employees or prospective employees unless the employer is able to demonstrate that the burden is substantial. The Court rejected the “de minimus” standard as a misreading of the Court’s precedent in TWA v. Hardison.Continue Reading The Supreme Court Redefines the Religious Accommodation Obligation for Employers
On June 29, 2023, a divided U.S. Supreme Court ruled that affirmative action in student admissions decisions at Harvard University and the University of North Carolina at Chapel Hill violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. What does the Court’s holding mean for employers?Continue Reading What the Supreme Court’s Affirmative Action Ruling Means for Employers
In a move that surprised absolutely no one, the National Labor Relations Board has reversed course on yet another issue – the standard for determining whether an individual is an employee, who is subject to the National Labor Relations Act, or an independent contractor, who is not. The Board’s decision will once again make it harder to establish independent contractor status.Continue Reading U-Turn! NLRB’s “Modified” Independent Contractor Standard Favors Findings of Employee Status