Category: Labor & Employment

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

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

Copyright ©2022 National Law Forum, LLC

State Voting Leave Requirements: A Refresher in Preparation for the 2022 Midterm Elections

Millions of workers across the United States will be headed to the polls on Tuesday, November 8, 2022, for the midterm elections. With control of Congress up for grabs for the final two years of President Joe Biden’s first term, several close Senate races, five states considering ballot measures to legalize recreational marijuana, and 36 states holding elections for governor, this midterm election is one of the most highly-anticipated in decades. Early voting numbers in some states already suggest there could be record turnout.

Despite the proliferation of early and mail-in voting, increased interest in this election could drive more employees to request time off from work to vote. Most states require employers to provide at least unpaid leave from work when polls are not open for a reasonable amount of time outside of employees’ work hours. Here is an overview of voting leave requirements across the United States to help employers prepare for Election Day.

States Without Specific Voting Time Off Requirements

Several states do not require employers to provide any specific leave to allow employees to vote. These include Delaware, Florida, Hawaii, Idaho, Indiana, Louisiana, Maine, Michigan, Montana, New Hampshire, New Jersey, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, and Virginia.

While not requiring leave, some of those states more generally protect employees’ rights to vote or participate in politics more generally. For instance, Florida and Mississippi prevent employers from discharging an employee for voting or based on how they voted. Similarly, in Idaho and Michigan, employers may not attempt to influence an employee’s vote by discharging or threatening to discharge an employee from employment.

Delaware and New Jersey prohibit employers from intimidating employees into how to vote or not to vote, and Pennsylvania prohibits employers from interfering with an employee’s right to vote. Louisiana requires that employers with 20 or more employees not make any rule that prohibits an employee from participating in politics. In North Dakota, employers are encouraged, but not required, to allow employees to take leave to vote in all elections when employees’ regular work schedules conflict with the time the polls are open.

Finally, Washington and Hawaii do not have specific voting leave laws, but both conduct elections by mail, eliminating the need to take leave to wait at the polls. Hawaii repealed a prior law providing for up to two hours of voting leave when it switched to vote-by-mail for all statewide elections with the 2020 primary election.

Voting Leave Laws Map

States With Unpaid Voting Leave Laws

Several states require employers to provide employees with some amount of unpaid leave to allow them to vote. Connecticut joined this list of states in June 2021, requiring employers to provide all employees with two hours of unpaid leave to vote in a covered election, though employees must provide the employer notice of the need to take the time off at least two days prior to the election. However, the law is set to sunset on June 30, 2024.

Arkansas and Ohio generally require employees to allow employees to take a reasonable amount of time off, unpaid, to vote on Election Day. In Alabama, employees are allowed to take up to one hour of leave to vote in primary and general elections if the polls are not open at least two hours before or one hour after an employee’s work shift.

In Georgia, employers must give employees “necessary” time off to vote when employees provide reasonable notice of the need for the leave, however, employers are not required to provide time off for employees who have at least two hours before or after their work shift when polls are open to vote. In Massachusetts, unpaid voting leave applies only to employees working in manufacturing, mechanical, or mercantile establishments, and employers are not required to pay for this leave. Further, employees may only request leave for the first two hours after the polls are open.

Some states provide more than two hours of leave for employees to vote, though employers are not required to pay for it. In Wisconsin, employers must allow employees to take up to three consecutive hours of unpaid leave to vote. Employers may not deny a request for this leave, but may designate the specific time of the absence. Kentucky provides the most time for voting leave, requiring employers to allow employees to take unpaid leave for a reasonable time, but not less than four hours, to vote or apply for an absentee ballot. Still, employees must request leave in advance and specify the hours to be used.

States With Paid Voting Leave Laws

Employers in a number of states are required to provide paid time off for employees to vote, at least in circumstances where polls are not open outside of an employee’s regular work hours. Alaska requires employers to allow employees who do not have two consecutive nonworking hours while the polls are open to take off as much work time as necessary to vote “without loss of pay.” Similarly, in Texas, employers must allow employees to take paid time off to vote, unless the polls are not open for two consecutive hours outside of an employee’s working hours.

In Minnesota, employees must have “the time necessary” to go to their designated polling place and return to work on Election Day. In Nevada, employees may request “sufficient” leave time to vote on Election Day, which is determined by the distance of the polling place from the employee’s workplace (1 hour for up to 2 miles; 2 hours for greater than 2 and up to 10 miles; and 3 hours for more than 10 miles). Wyoming requires employers to provide for one hour of leave other than a meal break to vote in a general, primary, or special congressional election unless polls are open for at least three consecutive hours outside of an employee’s work shift.

Many states provide for up to two paid hours of leave for voting. These include: California, Colorado, District of Columbia, Illinois, Iowa, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, South Dakota, and Utah. Iowa, in 2021, reduced the paid leave from three hours to two. On the other hand, D.C. joined the states providing for up to two hours of paid leave for voting in October 2020. The D.C. law further requires employers to post a “Time Off to Vote” notice in a conspicuous location in the workplace. In New York, employers must give employees two hours of paid leave if employees do not have at least four consecutive nonworking hours to vote while polls are open. New Mexico’s leave law includes elections for Native American nations, tribes, or pueblos.

A handful of states provide for up to three hours of paid leave to vote if necessary, including Arizona, Missouri, Tennessee, and West Virginia. These states require employees provide notice of the need for leave prior to Election Day.

Employers may want to prepare for employees to take the leave time afforded by these laws to vote in the November elections.

Article By Ashley Prickett Cuttino and Zachary V. Zagger of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more election law and legislative news, click here to visit the National Law Review.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

The Evolving New York City Workplace: Two Important Updates Effective November 1st

Two important measures impacting New York City employers will be effective on November 1, 2022. The first measure is Mayor Adams’ lifting of the COVID-19 vaccine requirement for private employers, which was implemented by his predecessor Mayor de Blasio shortly before he left office. The second measure is New York City’s new “pay transparency” law, which continues the city’s aggressive efforts to eradicate pay disparity and requires employers to immediately review and update their hiring practices.

Vaccine Mandate Lifted

The New York City COVID-19 vaccine mandate, which became effective on December 27, 2021, mandated all New York City private employers to require that all in-person employees be vaccinated against COVID-19, subject only to approved religious and medical exemptions. Effective November 1, 2022, this vaccine mandate will be lifted.

Going forward, New York City employers retain the right to implement their own vaccination policies. New York City employers may lift the requirement and allow employees who are not vaccinated to return to work on site. Alternately, employers may continue to require the COVID-19 vaccine for in-person staff, in which case such employer mandatory vaccination policies must still provide for medical or religious exemptions consistent with applicable laws.

Pay Transparency

Following a recent national trend, New York City continues to aggressively regulate pay equity by amending the New York City Human Rights Law (“NYCHRL”) to implement “pay transparency” requirements. The law also contains an anti-retaliation provision. The New York City pay transparency law applies to employers with four or more employees (or one or more domestic workers) and employment agencies of any size. The new law does not apply to temporary help firms seeking applicants to join their pool of available workers.

Going forward, covered entities must include the minimum and maximum annual base salary or hourly range of compensation that the employer believes in good faith to be accurate at the time in any advertisement for a job, promotion or transfer opportunity that can or will be performed, in whole or part, in New York City.  While the statutory language is sparse, and regulations have not yet been issued, according to a Fact Sheet published by the New York City Commission on Human Rights (“Commission”) (https://f.datasrvr.com/fr1/622/87383/Salary-Transparency-Factsheet.pdf?cbcachex=897118), an “advertisement” is defined broadly as a written description of an available job, promotion or transfer opportunity that is publicized to a pool of potential applicants, regardless of the medium, and includes postings on internal bulletin boards, internet advertisements, printed flyers at job fairs and newspaper advertisements. The requirement applies when advertising for full-time or part-time employees, interns, domestic workers or independent contractors. The law does not prohibit employers from hiring without using an advertisement or require employers to create an advertisement in order to hire.

According to the Fact Sheet, employers must include both a minimum and maximum salary, and the salary range cannot be open-ended. However, note that “salary” does not include other forms of compensation or benefits offered, including overtime, commissions, tips, bonuses or stock. For example, “$15 per hour and up” or “maximum $50,000 per year” would not be consistent with the new New York City requirements. Further, an advertisement that solely provides that a salary will be commensurate “with experience” also would appear to be inconsistent with the new law.

The Commission investigates complaints of discrimination, as well as the new salary transparency protections. Employers and employment agencies who are found to have violated the NYCHRL may have to pay monetary damages to affected employees, amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants and engage in other forms of affirmative relief. According to the Fact Sheet, the Commission will not assess a civil penalty for the first complaint alleging violation of the salary transparency provision, provided that the employer shows that it has fixed the violation within 30 days.

Notably, New York State lawmakers have also passed a similar pay transparency bill, which is currently pending Governor Hochul’s signature and would go into effect 270 days after it is signed into law. The New York State bill, if it is enacted in its current form, will be potentially broader in its application, such as requiring provision of a job description for the position, if one exists.

It is also important to note that prior recent measures adopted by New York State and/or New York City to ensure non-discriminatory hiring practices and equal employment opportunities include regulations prohibiting employers from asking candidates about their prior salary history, pay equity provisions requiring equal pay for the same or substantially similar work, and stringent limitations on criminal history inquiries.

Takeaways

New York City continues to be at the forefront of enacting employment legislation to protect the rights of employees and applicants. It is critical for New York City employers to be vigilant to ensure compliance with the ever-changing legal requirements, including those relating to COVID-19, and to implement appropriate policies and practices.

With regard to the new pay transparency law, it is important for employers to promptly assess their pay practices, ensure that pay ranges are appropriate and equitable, consider documenting the applicable factors that were considered in reaching the salary decision, review job descriptions and ensure that advertising complies with the new requirements (including online recruitment sites).

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

© Copyright 2022 Sills Cummis & Gross P.C.

Employers, It’s Time to Replace Your Mandatory EEOC Poster

On October 20, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released an updated version of its mandatory workplace poster that informs employees of their rights and protections.

Employers must post this new version of the poster in their office spaces as soon as practicable.

The latest “Know Your Rights” flyer, which replaces the previous “EEO is Law” poster, must be displayed in all workplaces covered by the agency’s jurisdiction. This includes private sector businesses with 15 or more employees, as well as state and local government agencies, educational institutions, unions, and staffing agencies.

What’s Changed?

The new poster includes several updates from the older version. Some of the main changes are:

  • Clarification that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, or gender identity;
  • Identifies harassment as a prohibited form of discrimination;
  • Provides information about equal pay discrimination for federal contractors; and
  • Uses more straightforward language and formatting.

The poster also includes a QR code for employees with a smartphone or other compatible devices to quickly access the EEOC’s website on how to file a charge of employment discrimination.

What’s Remained the Same?

While the poster has been updated, some of the information included remains the same. The bulletin still outlines the types of discrimination that are prohibited by federal law, such as:

  • Race, color, sex (including pregnancy and related conditions, sexual orientation, or gender identity), national origin, religion,
  • Age (40 and older),
  • Equal pay,
  • Disability,
  • Genetic information (including family medical history or genetic tests or services), and includes
  • Retaliation for filing a charge, reasonably opposing discrimination, or participating in a discrimination lawsuit, investigation, or proceeding.

Actions Employers Should Take

Employers who fail to post the new Know Your Rights poster could face noncompliance penalties from the EEOC. Therefore, businesses must take the time to update their posters as soon as possible.

On October 25, 2022, the EEOC distributed an FAQ stating that employers should remove the old poster and display the new one “within a reasonable amount of time” but did not provide a specific deadline.

The agency recommends that employers post the new flyer in a conspicuous place where employees will see it, such as in a break room or near the time clock.  Covered employers should also consider posting an online notice on their website for remote or hybrid workers.

You can download a copy of the poster here.

Article By Emily G. Massey and Ward and Smith, P.A.

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

© 2022 Ward and Smith, P.A.. All Rights Reserved.

Love and Basketball … and Romantic Workplace Relationships? Key Takeaways for Employers from the Boston Celtics’ Recent Suspension of its Head Coach

The Boston Celtics recently suspended its head coach Ime Udoka for the entire 2022-2023 season and although the team did not disclose whether the suspension will be paid or unpaid, it noted that he will be subject to a “significant financial penalty” as a result of multiple unspecified violations of the organization’s policies stemming from Udoka’s conduct towards a female member of the organization.

Originally believed to have been a consensual relationship, it was subsequently reported that the female staff member accused Udoka of making unwanted advances, including inappropriate comments towards the staff member.  In response, the Celtics organization acted quickly and launched an internal investigation, which found “a volume of violations” of various policies.  Please note, it is unknown as to whether the Celtics had a consensual relationship policy in place for employees.

The Celtics scandal comes at a time when workplace harassment claims (as reported by the EEOC) are on the rise, yet consensual office romantic relationships remain fairly common.  While most employees do not want their employers placing limits on whom they may seek as a romantic partner, from an employer’s viewpoint, the risks of such romances are clear, as they can easily cause real issues in the workplace: interoffice gossip, lack of productivity, reduced moral, allegations of favoritism, or worse, claims of sexual harassment.

Fortunately, employers have several options available to minimize risk. Employers can rely on various types of anti-fraternization policies (also known as workplace romance or consensual relationship policies) and/or love contracts.  Separate, but related, employers should also implement robust anti-harassment policies and training for all employees (including management).

Relationship Policies

Some employers choose to implement a policy banning all romantic relationships between employees regardless of position or authority.  These policies discourage personal and romantic workplace relationships and threaten discipline against employees who violate the policy. Other employers opt for a more flexible policy, which only prohibits romantic relationships where one individual has the ability to affect the terms and conditions of the other’s employment, including but not limited to, compensation, assignments, and promotions. This latter policy is more common as it is often less intrusive and aimed at preventing favoritism or claims of sexual harassment or retaliation.

Regardless of the policy used, most employers also include a disclosure requirement, which then allows the employer to determine the best course of action forward (e.g. eliminating the reporting relationship)..

Further still, some employers, in addition to their relationship policy, have used “love contracts” that couples sign to confirm their consensual relationship status, affirm their awareness of the company’s sexual-harassment and workplace conduct policies and other expectations related to conducting themselves in the workplace, indicate that they understand the consequences if they fall short of the company’s expectations.

Employer Actions After A Relationship Disclosure

Such policies and related documents allow employees to come forward as early as possible so employers can proactively address a situation.  For example, it allows employers to remove any supervisory oversight or doubt that such a relationship is consensual, while also setting expectations with both employees about their conduct in the workplace during the relationship, and if and after the relationship ends.  As part of this expectation setting discussion, even in the absence of a reporting relationship, employers should make sure to provide a copy of its anti-harassment policy to the dating employees and have them reaffirm they will comply with its terms and conditions.  Employers should also confirm with each employee that they will immediately disclose when the relationship ends or is otherwise no longer consensual.

Anti-Harassment Policies & Training

Ultimately, and regardless of what policy an employer adopts, all employers should have a clear anti-harassment policy that, among other things, defines and clearly prohibits sexual harassment and requires all employees to report sexual harassment, including any unwanted advances or comments.

Such policies should include a complaint procedure that is readily accessible to employees and provides multiple avenues for raising complaints.  It should confirm that the company will promptly and thoroughly investigate all complaints and will not retaliate against any individual who reports or participates in an investigation of harassment (including sexual harassment).

It is crucial that employers think about responding in a fashion similar to the Celtics’ in promptly investigating and addressing alleged misconduct.  For example, the Celtics quickly engaged independent outside counsel to conduct a thorough investigation, which positioned the Celtics well to determine its appropriate next steps.  Critically, the Celtics did not appear to allow the employee’s status within the organization to interfere or impact its decision to enforce its policies and impose serious penalties.  By following the Celtics’ lead, employers can, among other things, create an environment where employees feel safe to complain and further eliminate the possibility of misconduct in the workplace, while also enhancing any legal defense in the event a lawsuit follows.

Having written policies is key, but it is equally important that employees, particularly supervisors or managers, are thoroughly trained on how to recognize potentially problematic situations, including when employees are dating, and how to respond to and further report potential policy violations.  Some jurisdictions even make training a statutory requirement.

Key Takeaways for Employers

The reality is that romantic relationships in the workplace occur and those employers that are proactive in anticipating such relationships and responding to them when they occur will be best positioned to limit potential liability.  Employers should consider taking the following actions:

  • Adopting a consensual relationship policy that is best suited for the company;
  • Ensure the use of a robust anti-harassment policy;
  • Periodically conduct anti-harassment training; and
  • Be prepared to monitor and respond upon learning of a relationship between your employees.

Article By Delaney M. Busch of Mintz

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

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