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Following the Federal Trade Commission’s proposed near-total ban on non-compete agreements, which we wrote about here, and an increasing number of state laws limiting or banning such agreements, another federal agency official is piling on. On May 30, 2023, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo expressing her position that noncompete agreements violate the National Labor Relations Act (NLRA). Specifically, GC Abruzzo asserts that noncompete agreements chill employees’ exercise of rights guaranteed by Section 7 of the NLRA unless the noncompete agreement is “narrowly tailored to address special circumstances” that justify the interference with employees’ Section 7 rights. Absent narrow tailoring to address special circumstances, GC Abruzzo contends that proffering, maintaining, or enforcing noncompete agreements violates the NLRA.Continue Reading The NLRB General Counsel Joins the War on Noncompete Agreements

Opinion letters from the U.S. Department of Labor are pretty unusual, so I get really excited when they issue one. And typically, the letter addresses an issue of some significance for employers. So I was giddy (GIDDY, I say!) when I saw a new one had just dropped – until I actually read it. Three times, because I thought I was missing something. But really, it just affirms what I already thought about the Family and Medical Leave Act and holidays. At least it’s a good reminder of how to deal with holidays under the FMLA. Continue Reading (Not Terribly Useful) Guidance from the DOL on the FMLA and Holidays

On May 18, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on the use of software, algorithms, and artificial intelligence (AI) for employment decisions under Title VII of the Civil Rights Act of 1964. This guidance comes as part of the agency-wide initiative launched by the EEOC in 2021 to ensure that the use of software and other technologies used in hiring and other employment decisions (which the EEOC calls “selection procedures”) comply with federal civil rights laws. Continue Reading The EEOC Targets the Use of AI in Employment Decisions

Throughout the COVID-19 pandemic, the EEOC has provided guidance to employers on how the federal anti-discrimination laws interact with COVID-19. This guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws, was revised multiple times to account for changing circumstances and, now with the declared end of the COVID-19 public health emergency, the EEOC has updated it once more. The revisions remind employers that, although the declared emergency may be over, COVID-19 still has a workplace impact that lingers on.Continue Reading Employers Beware: The End of the COVID-19 Emergency Does Not Mean The End of the EEOC’s COVID-19 Guidance

Way back in 2016, I wrote a blog post on menstrual leave, in which I suggested that menstrual leave (the concept of giving women up to 3 or so days of leave during THAT time of month) was not necessary for all women. Interestingly, this post struck a nerve and I received a number of hate emails about this post from people who suffer from extreme menstrual pain and WHO OBVIOUSLY DID NOT READ THE ENTIRE POST. Continue Reading Menstrual Leave Redux

On May 1, 2023, President Biden issued a statement announcing the end of the federal COVID-19 vaccine mandates, including those impacting federal contractors and CMS-covered healthcare employers, among others. But what impact does this have on employer vaccine mandates?Continue Reading Biden Administration Ends Federal Vaccine Mandates – What This Means for Employers

As I’ve mentioned before, in my spare time (a lot more, now that the kids are out of the house) I sometimes review the Equal Employment Opportunity Commission’s federal sector Digest of EEO Law (which they used to issue quarterly, but now seems to be a little more sporadic). Sometimes, in addition to the recitation of federal sector cases, the EEOC will include an in-depth article on a particular topic of interest. Although these digests (and the articles they contain) are geared towards the federal government, the EEOC’s approach to certain employment issues can also be helpful for private employers. And that’s what we have here, with the EEOC’s article, “Moving Towards Equality in the Workplace for LGBTQI+ Employees.” Continue Reading The EEOC’s “Best Practices” for LGBTQI+ Employment Equity

So many EEOC lawsuits – so many lessons… Some recent announcements from the Equal Employment Opportunity Commission (which is the federal agency that enforces federal anti-discrimination laws) provide some lessons for employers on possible reasonable accommodations under the Americans with Disabilities Act – specifically, when such accommodations already exist for the employee in question or their co-workers.Continue Reading Don’t Deny a Reasonable Accommodation that Exists – Really!

Maybe it’s because I’m getting older (and crossed over that 40-year old cutoff for protection under the Age Discrimination in Employment Act (ADEA) a number of years ago), but a couple of recent lawsuit announcements from the Equal Employment Opportunity Commission caught my eye – and they provide some lessons for employers who are facing an aging workforce.Continue Reading Code Words for Age Discrimination?

Many moons ago, when the ink was barely dry on my law school degree, I assisted a company with a compliance review by the Office of Federal Contract Compliance Programs. (In case you’re not familiar with the OFCCP, they enforce the affirmative action requirements for companies with federal contract and subcontracts). The company had engaged in some conversations with the OFCCP before they decided to call counsel (NEVER a good idea in a government investigation). And one of the warehouse managers made *that* comment to the OFCCP investigator. (Yikes!) Continue Reading “I just didn’t see women working in the warehouse…”