Category: Labor & Employment

Congress Votes to Impose Bargaining Agreement to Avoid Nationwide Railroad Strike

Both the House and Senate have passed legislation under the Railway Labor Act to avoid a railroad strike by imposing the bargaining agreement brokered by President Joe Biden in September 2022.

The House already voted in favor of the legislation. (For details of the bill, see our article, President Biden Calls on Congress to Avoid Mass Railroad Strike.) With the Senate also voting to pass the main bill, by an 80-15 vote, the threat of a strike has been averted. The legislation moves to the president for his signature. Biden has indicated he will sign the bill.

While the House voted in favor of the separate, additional piece of legislation that would have added seven paid sick leave days annually for the rail workers, the Senate did not have enough votes to pass that bill. President Biden vowed in a separate statement to seek paid leave in the future not just for rail workers, but for all workers.

What was passed by Congress in its joint resolution was short and succinct. The three-page joint resolution stated that all tentative agreements entered into by the rail carriers and the unions were considered in effect as if they had been ratified. The exact terms of each collective bargaining agreement vary by union and were not part of the bill that was passed. This is a result of the special powers given to Congress under the Railway Labor Act.

All contracts contained generous wage increases: roughly 24 percent over four to five years with one extra day of leave. However, the other detailed terms will vary across the dozen national craft unions.

Article By Jonathan J. Spitz, Richard F. Vitarelli, James M. Stone, and James Verdi of Jackson Lewis P.C.

For for labor and employment legal news, click here to visit the National Law Review.

Jackson Lewis P.C. © 2022

Employment Tip of the Month – December 2022

Q:  As an employer, am I legally required to allow employees to bring marijuana to an office holiday party?

A:  No.  While adult recreational use of marijuana is now legal in 21 states and the District of Columbia, the use of marijuana remains illegal under federal law and employers with drug-free and smoke-free workplace policies can prohibit marijuana consumption in the workplace and during employer-sponsored events. Employers who wish to prohibit use of recreational marijuana at the office holiday party should remind employees of the policies and ensure that they understand the policies apply at all employer-sponsored events – even if the event is held after work hours and off company premises.

Laws surrounding the recreational use of marijuana differ from one state to another and evolve quickly.  Before taking adverse action against an employee for marijuana use, an employer should consult the specific laws governing their jurisdiction.

Article By Laura Stutz of Wilson Elser Moskowitz Edelman & Dicker LLP

For more labor and employment law legal news, click here to visit the National Law Review.

© 2022 Wilson Elser

Congress Passes Speak Out Act, Banning Certain Prospective Non-Disclosure Agreements (US)

Earlier this year, we reported that Congress amended the Federal Arbitration Act to preclude compulsory binding arbitration of sexual assault and sexual harassment claims. This past week, Congress went a step further, passing the Speak Out Act, S. 4524, which is aimed at prohibiting prospective, pre-dispute non-disclosure and non-disparagement agreements that prevent employees from discussing sexual harassment or sexual assault. The Senate passed the bill unanimously on September 29, 2022 and the House of Representatives voted in favor of the measure, 315-109, on November 17, 2022. President Biden has expressed his intention to sign the bill into law, and it will become effective immediately upon his signature.

The bipartisan federal legislation – the latest federal bill inspired by the #metoo movement and one that has been slowly gaining support over the past five years – applies only to pre-dispute nondisclosure and non-disparagement agreements and similar clauses in employment agreements, rendering them null and void in instances in which sexual harassment or sexual assault is alleged in violation of federal, state, or tribal law. The goal of the bill is to prevent the use of pre-dispute agreements aimed at silencing employees from reporting sexual impropriety in the workplace. Similar measures have been passed at the state level in some jurisdictions (see, for example, our prior reporting regarding analogous California, Illinois, Maryland, and Vermont here, here, and here, to name just a few), but when President Biden signs the Speak Out Act, as he has indicated he will do, the law becomes immediately effective nationwide.

Earlier versions of the Speak Out Act included language precluding non-disclosure clauses as applied to claims of race, age, national origin, and similar equal employment opportunity claims, but the bill was stripped back to apply only to claims of sexual harassment and sexual assault in its final form. President Biden’s administration urges further legislation to address the use of non-disclosure agreements used to prevent discussion of other types of labor violations, but as a practical matter, the National Labor Relations Act already protects the right of covered employees to engage in protected, concerted activity – such as discussing workplace discrimination, assault, and harassment – and existing EEO laws protect employees engaged in conduct aimed at asserting their own rights or cooperating with other employees in protecting their rights.

Furthermore, the Speak Out Act only precludes the use of pre-dispute non-disclosure and non-disparagement agreements, meaning those signed before the unlawful conduct begins. It does not prevent employers and employees from agreeing to confidential settlements after alleged sexual harassment or abuse occurs. Parties remain free to enter into such arrangements, provided that employers still cannot preclude employees from reporting violations of EEO laws to agencies entrusted with enforcing such laws, like the Equal Employment Opportunity Commission. Employers may still require non-disclosure agreements to protect trade secrets and confidential business information, and may still include confidentiality provisions in severance agreements. Consequently, the Speak Out Act is not as much a sea change itself as a recommitment by Congress and the Administration to expanding measures aimed at transparency around sexual misconduct in the workplace. Employers should review existing handbook policies and standard non-disclosure agreements to ensure compliance with the Speak Out Act, but that should be just one small step in a comprehensive audit of sexual harassment policies, reporting mechanisms, and investigation procedures.

For more Labor and Employment Law news, click here to visit the National Law Review.

© Copyright 2022 Squire Patton Boggs (US) LLP

U.S. Supreme Court Refuses Review of Case Involving Technical Issue With Plaintiff’s EEOC Charge

Refusing to weigh in on the impact of a plaintiff’s failure to verify her discrimination charge filed with the Equal Employment Opportunity Commission (EEOC), the U.S. Supreme Court lets stand the lower court’s conclusion that the plaintiff’s failure to verify her charge barred her from filing a lawsuit. Mosby v. City of Byron, No. 21-10377, 2022 U.S. App. LEXIS 10436 (11th Cir. Apr. 18, 2022), cert. denied, No. 22-283 (U.S. Nov. 7, 2022).

Background

Rachel Mosby served as the fire chief of Byron, Georgia, for 11 years. One month after she came out as transgender, the city fired her.

Mosby filed a charge of discrimination with the EEOC, alleging violations of Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA). Title VII states that charges filed “shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires.” 42 U.S.C. § 2000e-5. This process is called “verification.” The parties did not dispute that Mosby did not properly verify her charge.

The City of Byron submitted a position statement with the EEOC on the merits of Mosby’s claim, but it did not raise the fact that Mosby failed to verify her charge. Mosby never amended her charge to meet the verification requirement.

After receiving a “right to sue” letter from the EEOC, Mosby sued the City of Byron. Before answering Mosby’s complaint, the City of Byron moved to dismiss because Mosby failed to verify her charge, requiring dismissal as a matter of law. After converting the City’s motion to dismiss to a motion for summary judgment, the district court held the failure to verify the charge barred Mosby’s Title VII and ADA claims.

Jurisdictional or Procedural?

Whether EEOC’s charge filing requirements are prerequisite to filing a lawsuit is jurisdictional or procedural remains in dispute. While procedural requirements can be waived or cured, jurisdictional requirements cannot. In 2019, the Supreme Court provided guidance in Fort Bend City v. Davis, 139 S. Ct. 1843, in which it held that a charge’s lack of verification does not strip the federal courts of jurisdiction to consider in a subsequent federal lawsuit. Unlike a jurisdictional issue, the Court reasoned, the lack of verification can be waived or forfeited by the parties. Accordingly, the Court held that an employer forfeited the issue of verification when it failed to raise it promptly at the outset of litigation.

Eleventh Circuit’s Reasoning

In appealing the dismissal of her claims to the U.S. Court of Appeals for the Eleventh Circuit (which has jurisdiction over Alabama, Florida, and Georgia), Mosby argued that Fort Bend required a finding that the City of Byron waived its verification defense because it did not raise the defense in its position statement submitted with the EEOC. The Eleventh Circuit disagreed. In the Supreme Court decision, the Eleventh Circuit said, Fort Bend City did not raise the verification defense until four years and “an entire round of appeals all the way to the Supreme Court” had passed. By contrast, the City of Byron raised the defense in a pre-answer motion to dismiss before causing “a waste of adjudicatory resources.”

The Eleventh Circuit affirmed the lower court, holding that “a charge neither filed under oath or affirmation nor subsequently cured by amendment fails to satisfy the statutory requirement that an employee submit [her] charge to the Commission.” The Fifth Circuit reached a similar conclusion in 2021, making these the only two circuits that have addressed the issue. See Ernst v. Methodist Hosp. Sys., 1 F.4th 333.

Takeaway for Employers

An employer responding to a charge of discrimination filed with the EEOC should evaluate whether the claimant properly verified the charge. If not, preserve the defense by raising it as soon as practicable at the EEOC charge stage and in any ensuing litigation.

Article By Stephanie L. Adler-Paindiris and Stephanie E. Satterfield of Jackson Lewis P.C.

For more litigation and Supreme Court legal news, click here to visit the National Law Review.

Jackson Lewis P.C. © 2022

Following the Recent Regulatory Trends, NLRB General Counsel Seeks to Limit Employers’ Use of Artificial Intelligence in the Workplace

On October 31, 2022, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released Memorandum GC 23-02 urging the Board to interpret existing Board law to adopt a new legal framework to find electronic monitoring and automated or algorithmic management practices illegal if such monitoring or management practices interfere with protected activities under Section 7 of the National Labor Relations Act (“Act”).  The Board’s General Counsel stated in the Memorandum that “[c]lose, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights,” and urged the Board to find that an employer violates the Act where the employer’s electronic monitoring and management practices, when viewed as a whole, would tend to “interfere with or prevent a reasonable employee from engaging in activity protected by the Act.”  Given that position, it appears that the General Counsel believes that nearly all electronic monitoring and automated or algorithmic management practices violate the Act.

Under the General Counsel’s proposed framework, an employer can avoid a violation of the Act if it can demonstrate that its business needs require the electronic monitoring and management practices and the practices “outweigh” employees’ Section 7 rights.  Not only must the employer be able to make this showing, it must also demonstrate that it provided the employees advance notice of the technology used, the reason for its use, and how it uses the information obtained.  An employer is relieved of this obligation, according to the General Counsel, only if it can show “special circumstances” justifying “covert use” of the technology.

In GC 23-02, the General Counsel signaled to NLRB Regions that they should scrutinize a broad range of “automated management” and “algorithmic management” technologies, defined as “a diverse set of technological tools and techniques to remotely manage workforces, relying on data collection and surveillance of workers to enable automated or semi-automated decision-making.”  Technologies subject to this scrutiny include those used during working time, such as wearable devices, security cameras, and radio-frequency identification badges that record workers’ conversations and track the movements of employees, GPS tracking devices and cameras that keep track of the productivity and location of employees who are out on the road, and computer software that takes screenshots, webcam photos, or audio recordings.  Also subject to scrutiny are technologies employers may use to track employees while they are off duty, such as employer-issued phones and wearable devices, and applications installed on employees’ personal devices.  Finally, the General Counsel noted that an employer that uses such technologies to hire employees, such as online cognitive assessments and reviews of social media, “pry into job applicants’ private lives.”  Thus, these pre-hire practices may also violate of the Act.  Technologies such as resume readers and other automated selection tools used during hiring and promotion may also be subject to GC 23-02.

GC 23-02 follows the wave of recent federal guidance from the White House, the Equal Employment Opportunity Commission, and local laws that attempt to define, regulate, and monitor the use of artificial intelligence in decision-making capacities.  Like these regulations and guidance, GC 23-02 raises more questions than it answers.  For example, GC 23-02 does not identify the standards for determining whether business needs “outweigh” employees’ Section 7 rights, or what constitutes “special circumstances” that an employer must show to avoid scrutiny under the Act.

While GC 23-02 sets forth the General Counsel’s proposal and thus is not legally binding, it does signal that there will likely be disputes in the future over artificial intelligence in the employment context.

Article By Steven M. Swirsky, Adam S. Forman, Nathaniel M. Glasser, Neresa A. De Biasi, and Ridhi D. Madia of Epstein Becker & Green, P.C.

For more labor law legal news, click here to visit the National Law Review.

©2022 Epstein Becker & Green, P.C. All rights reserved.

Latest I-9 Virtual Flexibility Guidance

On Oct. 11, 2022, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension to compliance flexibilities governing Form I-9. The extension permits continued remote verification and additional Form I-9 flexibilities until July 31, 2023.

ICE initially implemented the policy in March 2020, presumably responding to increased remote employment due to COVID-19. These flexibilities were narrowly and exclusively applied to employers and workplaces that were 100 percent remote, reflecting the agency’s long-standing resistance to remote I-9 verification. ICE granted some discretion in the physical presence requirements associated with Form I-9, allowing employers to inspect documentation remotely. Employers were instructed to state “COVID-19” in Section 2 on Form I-9.

Many employers have since implemented telework arrangements to adapt to changes brought about by the COVID-19 pandemic. ICE’s guidance since March 2020 has been revised to suggest that positions that are remote, even if other positions at the same employer are not remote, are eligible for remote I-9 verification. Further reflecting the changing nature of the workplace, on Aug. 18, 2022, DHS announced a Notice of Proposed Rulemaking (NPRM) intended to explore alternative regulatory options, including making some of the current pandemic-related flexibilities permanent.

The proposal includes a pilot program and framework allowing the DHS secretary to authorize optional alternative documentation examination procedures in the event of heightened security needs or a public health emergency. Moreover, DHS proposed adding boxes to Form I-9 that allow employers to report alternative procedures used to complete Section 2 or Section 3, as well as updates to form instructions to clarify the purposes of these boxes.

Importantly, this NPRM doesn’t itself adopt a specific remote I-9 procedure – it is intended to formalize DHS’ authority to make some form of remote I-9 verification permanent. Subsequent adoption of I-9 remote verification procedures would require separate rulemaking.

Article By Tejas Shah and Mandira Sethi of Barnes & Thornburg LLP

For more immigration law legal news, click here to visit the National Law Review.

© 2022 BARNES & THORNBURG LLP

Upcoming Proposed Changes to DOL’s Independent Contractor and Overtime Rules

The Department of Labor’s Wage and Hour Division is expected to propose new rules on independent contractor classification and overtime entitlement requirements in the coming weeks.  The proposals would alter the qualifications for certain employees to receive overtime payments under the Fair Labor Standards Act when they work in excess of 40 hours in one week.

The Fair Labor Standards Act (“FLSA”) grants the Department of Labor authority regarding overtime eligibility under the statute.  Currently and among other considerations, employees are non-exempt under the FLSA when they earn less than a guaranteed $684 per week or $35,568 per year.  If the DOL raises this salary threshold, as it is considering, an even larger swath of the workforce could be entitled to overtime payments.

The proposals follow President Biden’s withdrawal of former President Trump’s independent contractor rule in May 2021, which had not yet taken effect when President Biden took office.  However, United States District Judge Marcia A. Crone held in March 2022 that the DOL had not properly followed the requirements for withdrawal as set forth in the Administrative Procedure Act.  In so holding, Judge Crone gave the Trump administration’s independent contractor rule the effect of law as if it had gone into effect in March 2021, as scheduled. The Biden administration’s proposed changes to the existing rule will likely affect the salary basis and exemption requirements of the employee versus independent contractor misclassification analysis under the FLSA.  Employers should prepare for these upcoming changes by reviewing their employee job descriptions and time record procedures.  Employers should also engage counsel to re-examine their employee classifications at large to ensure their exempt employees are truly exempt under the current rules and that they understand that changes may need to be implemented when the new rules take effect.

Article By Holly H. Williamson and Savannah R. Gibbs of Hunton Andrews Kurth

For more government contractor legal news, click here to visit the National Law Review.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.

Five States Put Abortion Questions on the Ballot; Health Care and Other Employers Should Stay Tuned

In the wake of the landmark decision in Dobbs v. Jackson Women’s Health Organization, we have been closely monitoring legal developments across the country. In addition to well publicized “trigger laws” that were effectuated as a result of the U.S. Supreme Court’s order, states have taken up a variety of legislative actions in response to the ruling, which placed authority for the regulation of abortion with the states.

On Election Day, five states will have voters consider various proposals in light of Dobbs and its directive that abortion law belongs with the people. Here is a run-down of abortion-related ballot initiatives that will be put to a popular vote on November 8, 2022.

A Constitutional Amendment for California

On the ballot in California is Proposition 1: Constitutional Right to Reproductive Freedom, which would amend the state Constitution at Article I, Section 1.1, to provide that the state cannot “deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.” Any amendment to the California Constitution requires a simple majority of voters. If the amendment is passed, changes take effect the fifth day after the Secretary of State files the statement of the vote for the election.

Should Proposition 1 pass, it would add express protection for reproductive freedom, including decisions about abortion and contraception, to the state constitution, under its existing guaranteed right to privacy. If the proposition does not pass, it will not affect the status quo of reproductive rights in California: while current protections for abortion and other reproductive medical care would not be constitutionally guaranteed, they would remain in place under state law.

California currently has strong protections for the right to abortion, generally only prohibiting abortion at viability. Since the Dobbs decision earlier this year, California has promoted access to abortion, including launching abortion.ca.gov, a website dedicated towards providing information on reproductive health care services to people both inside and outside of California. Recently, in late September, Governor Gavin Newsom signed a package of 12 bills of abortion protections, aimed towards improving access to abortion and protecting patients and clinicians who undergo or provide them.

With the backdrop of an already-strong California legal reproductive health network, consistent polling indicates the ballot measure is expected to pass by a wide margin. Passage of the proposition will likely signal and establish the state as a refuge for individuals from more restrictive states seeking abortions.

Michigan May Modify its Constitution, Too

Michigan will also turn to its voters to decide whether its state constitution should be amended to include protections for abortion. The Michigan proposal, referred to as “Proposal 3 of 2022 – ‘Reproductive Freedom for All’ Petition,” seeks to protect the right to an abortion with a constitutional amendment that declares a right to reproductive freedom. The petition sets forth proposed language for a new section of the Michigan Constitution, stating, in part, that “[e]very individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.”

Proposal 3 would take effect 45 days following the ballot initiative if approved by the majority of voters. It would (1) establish new individual rights to reproductive freedom, to broadly include the right to make and carry out all decisions relating to pregnancy; (2) permit state regulation of abortion in limited circumstances; (3) forbid discrimination in enforcement of reproductive rights; (4) prohibit adverse action by the state with respect to “potential, perceived, or alleged pregnancy outcomes;” and (5) invalidate state laws that conflict with the Constitution as amended by Proposal 3.

If Proposal 3 is not passed and the state constitution remains as is, the future of the right to an abortion in Michigan will be unclear. Michigan has a pre-Roe ban that, if enforced, would prohibit abortion in nearly all situations and make abortions in non-life saving circumstances potentially prosecuted as manslaughter. However, a Michigan Court of Claims judge granted a permanent injunction in Governor Gretchen Whitmer’s suit to block local prosecutors from enforcing the ban. The ban is subject to an ongoing lawsuit.

Given the uncertainty of the ballot initiative’s outcome, Michigan employers should closely monitor the results of the November 8, 2022 vote.

Vermont’s Vote

In Vermont, abortion remains legal after Dobbs under state law. However, on November 8, 2022, voters will have the opportunity to further protect abortion rights through a ballot initiative. This initiative, referred to as Proposal 5, asks registered Vermont voters whether they are in favor of amending the state’s constitution to add the following language: “That an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.” Passage would guarantee the right to access and obtain an abortion as well as other reproductive care, and prohibit government infringement of reproductive rights absent a compelling state interest, which would need to be achieved through the least restrictive means.

Should Proposal 5 pass, the resulting constitutional amendment is not expected to significantly alter the legal landscape of abortion in Vermont, which currently has strong protection for the right to abortion. If approved, the amendment will become part of Vermont’s constitution on November 22, 2022.

In Contrast, Kentucky Seeks to Constitutionally Exclude Abortion Rights

Kentuckians will cast their votes deciding whether to amend the state’s constitution to explicitly provide that the state constitution offers no protection for a right to abortion. The proposal further clarifies that there is no constitutional right to use public funds for abortion. “Constitutional Amendment 2” poses the following question to voters: “Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be numbered Section 26A to state as follows: ‘To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?’”

If the majority of votes are affirmative, a new section will be added to Kentucky’s constitution. This does not constitute an outright abortion ban, but rather prohibits courts from finding an implicit right to an abortion within the state’s constitution. Kentucky laws restricting abortion, including those triggered by Dobbs, are among the most restrictive in the nation. Approval of Constitutional Amendment 2 would not alter these laws or their existing narrow exceptions, which permit the procedure only when necessary to preserve the health or life of the mother.

An advisory from the Kentucky Attorney General provides further color on the ramifications of the amendment, noting that Amendment 2 does not ban abortion, but rather ensures that elected officials of Kentucky’s General Assembly, and not courts, would regulate abortion. The Advisory also explains that implementation of Amendment 2 would not amend other provisions in the state’s constitution.

Montana’s Ballot – NOT a Proposed Constitutional Amendment

Abortion is currently legal in Montana, as a 1999 Supreme Court ruling held that the state constitution protects abortion under its right-of-privacy provision. However, in 2021, a number of restrictive abortion laws were enacted, including a law that prohibits abortions after 20 weeks. These laws are under legal challenge by abortion providers and are temporarily enjoined pending litigation.

Meanwhile, on the ballot for November 8 is a referendum on LR-131, also known as the Born Alive Infant Protection Act. The Act proposes a new statute that would classify any infant born alive as “a legal person” and require the provision of “medically appropriate and reasonable care” to such person. This would include all infants born alive from an induced labor, C-section, or attempted abortion. The Act also includes a provision mandating providers, employees, and volunteers to report a failure to comply to law enforcement, and sets forth criminal penalties. Violation of this law would be a felony with a maximum sentence of 20 years in prison or a fine of up to $50,000. The proposed law is aimed at health care workers, and does not impose liability on parents or other parties.

Health care providers have raised concerns that the broad language of the bill could lead to unintended consequences, particularly for OB/GYN practitioners. Health care providers would be required to take “medically appropriate and reasonable care” to keep any infant alive, but these terms are not defined in the bill. Health care workers that could be held liable include doctors, nurses, and “any individual who may be asked to participate in any way in a health care service of procedure.”

If approved by the Montana electorate, the law would take effect on January 1, 2023. Hospitals and other health care providers would need to reexamine their operating procedures to comply with the bill, should it pass, including compliance with the mandatory reporting requirement.

Keeping Up With The Changes

We continue to track litigation, legislative developments, and the entirety of the post-Dobbs legal landscape as it continues to shift. Our 50-state survey and other resources provide employers, health care providers, life sciences stakeholders, and others impacted by these rapidly changing circumstances with in-depth analysis and monthly updates. Election Day results will be another element of this evolving story.

Article By Susan Gross Sholinsky, Amy K. Dow, and Catherine Kang of Epstein Becker & Green, P.C.

For more labor and employment legal news, click here to visit the National Law Review.

©2022 Epstein Becker & Green, P.C. All rights reserved.

An Updated Federal Overtime Rule: When’s It Coming?

Twice a year (in the spring and the fall), each federal agency publishes a “Regulatory Agenda” that discloses the proposal and final rules it has recently issued, together with those that it plans to issue.  Back in the fall of 2021, the U.S. Department of Labor’s Wage and Hour Division noted in the agenda that it was reviewing the regulations for exemption of executive, administrative, and professional (“EAP”) employees from the Fair Labor Standards Act’s minimum wage and overtime requirements codified in 29 C.F.R. Part 541.

One of the “primary goals” of the planned rulemaking is to update the minimum salary level requirement for employees who, by virtue of their duties, would qualify for an EAP exemption under section 13(a)(1) of the FLSA.  You may recall that in May 2016, the Obama DOL issued a new overtime rule, to take effect on December 1 of that year, that would have—among other things—required the DOL to update (i.e., increase) the salary threshold for EAP exemptions every three years.  In November 2019, before it could take effect, a federal judge in Texas enjoined the new overtime rule on a nationwide basis, declaring it “unlawful.”

In September 2019, the Trump DOL issued a new overtime rule, which took effect on January 1, 2020, raising the weekly minimum salary for EAP exemptions from $455 per week ($23,660 per year) to $684 per week ($35,568 per year).  The increase was the first in 15 years, but nowhere near the boost the Obama administration tried to roll out in 2016 (to $913 per week, or $47,476 per year).

Cut to the Biden administration.  The DOL noted in the fall 2021 Regulatory Agenda that “[r]egular updates [to the minimum salary for EAP exemption] promote greater stability, avoid disruptive salary level increases that can result from lengthy gaps between updates and provide appropriate wage protection.”  The agency listed a timetable for issuance of a proposed overtime rule update (a Notice of Proposed Rulemaking, or NPRM) as April 4, 2022.  Seven months later, we’ve seen no proposed rule.

If and when issued, the public will have the opportunity to comment on the proposed rule.  (Back in 2016, the Obama DOL received more than 293,000 comments to its proposed overtime rule.)  Stay tuned.

Article By Allan S Bloom of Proskauer Rose LLP

For more labor and employment legal news, click here to visit the National Law Review.

© 2022 Proskauer Rose LLP.

Fall 2022 Legal Industry News Highlights: Law Firm Hiring and Expansion, Notable Awards and Recognition, and the Latest in Diversity, Equity, and Inclusion

Happy November! As the holiday season approaches, we hope you and yours are remaining safe, happy, and healthy. Please read on below for the latest in legal industry updates, including notable law firm hirings and expansions, legal awards and recognition, and diversity, equity, and inclusion news.

Law Firm Hiring and Updates

Ropes & Gray has named 21 new partners as of November 1st, 2022. They have been selected for their roles as outstanding advisors to the firm’s clients across the globe, representing practices and specialties across sectors such as healthcare, life sciences, technology, labor and employment, and more.

“We are pleased to welcome this new group of partners, who are uniquely positioned to help our clients thrive in today’s uncertain economic environment,” said Chair Julie Jones. “These lawyers are problem solvers and big-picture thinkers, guided by a commercial approach and a deep understanding of the law.”

The firm’s newest partners are as follows: Samantha Barrett Badlam, Stephanie Bruce, Drew Clary, Dan Coyne, Sally Davis, William T. Davison, Gabrielle DiBernardi, Shona Ha, Laura Hirst, Yoni Levy, Nichole Lopez-Tackett, Jessica Marlin, Pascal Mayer, Anthony Mongone, Jessica Reece, Ben Rhode, Scott Rolnik, Alexander Simkin, Annie Sipe, PJ Sullivan, and Dan Zuckerman.

Baker Donelson has added Jill Walters to its Corporate Restructuring & Bankruptcy Group. Located in the firm’s Raleigh/Research Triangle office, Ms. Walters joins as a shareholder, providing more than fifteen years of experience counseling clients in restructuring, bankruptcy, insolvency, and complex Chapter 11 cases. Her work spans many industries and sectors, such as healthcare, manufacturing, real estate, and construction.

“I am thrilled to welcome Jill to the Firm. She is an excellent addition to our team and further deepens our bankruptcy and restructuring bench,” said Eric L. Pruitt, leader of Baker Donelson’s Corporate Restructuring & Bankruptcy Group. “Jill joins a dedicated team that has extensive litigation and transactional experience, and is advising clients in highly complex financial restructuring and bankruptcy cases.”

Morgen A. Mueller has joined Goldberg Segalla as an associate in the firm’s Chicago office. Now a part of the Workers’ Compensation practice group, Ms. Mueller focuses her practices on representing and defending insurers, administrators, and employers in all aspects of employment law, managing claims at all stages, including discovery, hearings, depositions, arbitrations, mediations, and trials.

Previously, Ms. Mueller served as legal counsel at Liberty Mutual Insurance, where she handled workers’ compensation defense cases and personal injury cases.

Davis|Kuelthau s.c. and SmithAmundsen LLC have announced that they will formally merge on November 1st, 2022, to form Amundsen Davis, LLC. The firm will offer services in a wide variety of areas, including labor and employment, intellectual property, litigation, mergers and acquisitions, real estate, and more. Comprised of twelve offices across the US, Amundsen Davis will serve clients both nationally and internationally.

“SmithAmundsen has grown steadily and strategically over the last 25 years to add service areas and expand our geographic reach to truly benefit our clients,” said Managing Partner Larry A. Schechtman. “The opportunity to combine with a firm that is so like-minded is one we are very excited about. What will set Amundsen Davis apart from its large law firm competition is our ability to maintain a boutique firm feeling in terms of client service while providing the resources and infrastructure of a large national firm.”

Legal Industry Awards and Recognition

Julia Perkins, partner at Varnum LLP, was named Class of 2022 Leaders in the Law by Michigan Lawyers Weekly. This honor goes to lawyers who have had outstanding accomplishments, exhibited leadership in improving the justice system in Michigan, and have made improvements to the legal community.

Ms. Perkins is the leader of Varnum’s Family Law Practice Group. Her contributions go beyond the legal field as she has served on the advisory committee for Kids Talk Children’s Advocacy Center since 2005. Using her legal experience, she volunteers as a mediator for Lakeshore Legal Aid. Lakeshore Legal Aid provides legal services to low-income families, seniors, and survivors of domestic violence and sexual assault.

LMG Life Sciences recognized five ArentFox Schiff lawyers’ outstanding work in the life sciences industry. The organization specifically recognizes key North American law firms and lawyers that work in the field of life sciences, taking into account case evidence, peer feedback, and client feedback for rankings.

The ArentFox Schiff attorneys that were selected, as well as their practice groups, are as follows:

  • Partner Imron Aly – Hatch-Waxman Patent Litigation
  • Partner Richard J Berman – General Patent Litigation, Patent Prosecution, Patent Strategy & Management, Hatch-Waxman Patent Litigation
  • Partner Kevin Nelson – Hatch-Waxman Patent Litigation
  • Partner Sailesh Patel – Hatch-Waxman Patent Litigation
  • Partner Stephanie Trunk – Healthcare Pricing & Reimbursement

Rhonda Tobin of Robinson & Cole LLP was one of five women recognized for Managing Partner of the Year in Corporate Counsel’s 2022 Women, Influence and Power in Law (WIPL) Awards. The WIPL Awards are meant to honor general counsel, in-house attorneys, and other law firm leaders who have demonstrated ongoing efforts to empower women in the legal profession, and who have overall made a substantial impact on the field.

Ms. Tobin is a partner at Robinson+Cole and has spent 32 years working on high-profile insurance coverage litigation. She has served as Managing Committee for 12 years and as a chair of the firm’s Litigation Section for 13 years before becoming the firm’s first woman managing partner. This year, she was also listed in the Hartford Business Journal’s 2022 Power Players Section, and she has also been recognized on the Insurance Law Trailblazers list from the National Law Journal.

Diversity, Equity, and Inclusion

Global law firm Kennedys and U.S. law firm Miller Canfield have achieved Mansfield Plus Certification from Diversity Lab, a DEI incubator. Diversity Lab adopted the Mansfield Rule, a 12-month program for law firms to boost underrepresented groups in firm leadership, in 2017. The 2021-2022 Mansfield 5.0 program required firms to consider at least 30% historically marginalized groups for at least 70% of senior promotions and enrichment roles, track and document job candidate demographics, submit three-month, six-month, and annual surveys and data collections, and build professional community with other firms.

Kennedys achieved U.S and U.K. certification as a first-time participant in the program. “Kennedys has always been committed to D&I but participating in Mansfield provided both a structure and a mechanism for accountability that allowed us to move beyond words to concrete action. It was a turning point for all of us and has allowed us to continue to identify concrete goals for the future,” says Meg Catalano, US Regional Managing Partner and Global Board Member.

Miller Canfield is a veteran of the Mansfield Program. The firm was the first in Michigan to adopt the rule, one of 27 firms to achieve certification in the program’s first year, and one of 39 to be certified five years in a row.

“When we first adopted the Mansfield Rule, we didn’t know how or if this small, but influential, group would have an impact on the profession and on law firms nationwide,” said Miller Canfield CEO Megan Norris. “We didn’t know whether law firms would be ready to adopt this level of transparency and accountability. We’re pleased to see that the movement is growing and maintaining momentum to create an opportunity for equity in law firms.”

The American Association for Access, Equity And Diversity presented Jackson Lewis P.C. with their 2022 President’s Award at a virtual award ceremony on October 13th, 2022. The award is intended to recognize organizations that have demonstrated ongoing commitment to the AAAED and their mission of expanding access, equity, and diversity.

Jackson Lewis’ Affirmative Action, OFCCP and Government Contract Compliance practice group works with clients and partners to foster a strong DEI culture within a wide range of powerful organizations and industries. The firm has collaborated with AAAED on a number of initiatives, from providing faculty for the AAAED Professional Training Institute to participating on an AAAED amicus brief team to submit two briefs before the U.S. Supreme Court, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina.

“We are thrilled to be recognized for the President’s Award,” says Matthew J. Camardella, co-leader of the firm’s Affirmative Action, OFCCP and Government Contract Compliance group. “I would like to thank Firm Chair Kevin G. Lauri and Chief Diversity, Equity & Inclusion Officer and Principal Kimya S.P. Johnson for continuing to invest in our partnership with AAAED and its mission to promote and protect policies that ensure equity and inclusion in all spheres of opportunity.”

Article By Chandler Ford, Crissonna Tennison, and Shelby Garrett of The National Law Review / The National Law Forum LLC

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