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The Modern Workplace

On April 23, 2024, the U.S. Federal Trade Commission (“FTC”) announced the issuance of a final Noncompete Clause Rule that would, if it goes into effect, ban future employment noncompete agreements and render most existing noncompete agreements void and unenforceable throughout the country. Our firm previously issued a number of alerts discussing the Noncompete Clause Rule.

When the Noncompete Clause Rule was announced, the rule was set to be effective 120 days after its publication in the Federal Register. On May 7, 2024, the rule was published in the Federal Register, which ...

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At the end of April 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published its final guidance on harassment in the workplace, “Enforcement Guidance on Harassment in the Workplace” (“Guidance”). The Guidance is lengthy, with 387 footnotes, and it contains 77 examples and scenarios of various types of unlawful harassment according to the EEOC. The EEOC’s examples include harassing conduct based on race, color, religion, sex (including pregnancy, childbirth, or related medical conditions; sexual orientation; and gender identity), national ...

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Posted in Discrimination

How should an employer react if an employee claims that mandatory anti-discrimination training conflicts with the employee’s religious beliefs? Two recent EEOC decisions shed some light on this question. In both cases, the employer provided mandatory training on treating co-workers and customers with dignity and respect to prevent discrimination and harassment. In one case, an employee sought to be excused from any portion of the training which discussed LGBTQI+ issues because he asserted that this conflicted with his sincerely held Catholic religious beliefs. In the other ...

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In recent announcements to the media and otherwise, the Equal Employment Opportunity Commission (EEOC) provided the following information which should be of interest to all employers:

  • 2023 EEO-1 Reports – The 2023 EEO-1 Component 1 data collection will open on Tuesday April 30, 2024. The DEADLINE for employers covered by the EEO-1 requirements to file their 2023 EEO-1 Component 1 report is Tuesday June 4, 2024.  The 2023 EEO-1 Component 1 Instruction Booklet is available here.

It appears that any further consideration of resurrecting the Component 2 pay data collection has been ...

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Recently, the Supreme Court of the United States issued a decision in Murray v. UBS Securities, LLC holding that whistleblowers are not required to prove their employer acted with “retaliatory intent” to be protected under the federal Sarbanes-Oxley Act of 2002 (“SOX”). Instead, whistleblowers only need to prove that their protected activity was a “contributing factor” in the employer’s adverse personnel action against them.

Congress enacted SOX to prohibit publicly traded companies from retaliating against employees who report what they reasonably believe ...

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Posted in Discrimination

Employers with employees located in the states falling within the jurisdiction of Fifth Circuit federal courts (e.g. Louisiana, Mississippi and Texas) should take note of an important federal appellate ruling impacting Title VII discrimination claims. On August 18, 2023, the U.S. Court of Appeals for the Fifth Circuit, issued a ruling in Hamilton v. Dallas County (Hamilton) that reversed decades of case precedent within the Circuit and changed the requirements for the ”adverse employment action” element of a Title VII discrimination claim to be in line with other federal ...

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The U.S. Department of Labor (“DOL”) announced a final rule revising its guidance on how to analyze whether a worker is properly classified as an employee or independent contractor under the Fair Labor Standards Act (“FLSA”).  The final rule rescinds the DOL’s 2021 independent contractor rule and takes effect on March 11, 2024.

The FLSA requires, among other things, covered employers to pay nonexempt employees at least the federal minimum wage for all hours worked and overtime pay for every hour worked over 40 in a workweek. These FLSA protections do not apply to independent ...

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Employers should be aware of Colorado law changes that may impact their job postings and other practices, including some changes that are likely a welcome roll-back of some prior requirements.  On January 1, 2024, the amendment to Colorado’s Equal Pay for Equal Work Act (the “Act”) took effect. As background, the Act applies to (1) all public and private employers that employ at least one person in Colorado and (2) all employees of those employers. The Act requires covered employers to include certain information in each job posting, including the hourly rate or salary ...

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Posted in Labor & Unions

On October 26, 2023, the National Labor Relations Board (“NLRB”) issued its Final Rule addressing the Standard for Determining Joint Employer Status under the National Labor Relations Act (“NLRA”). The Final Rule rescinds the prior rule enacted in 2020 and expands the scope of joint employment by including indirect control in the joint-employer standard.

The Final Rule establishes that, under the NLRA, two or more entities may be considered joint employers of a group of employees if each entity has an employment relationship with the employees and if the entities share or ...

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Posted in Labor & Unions

For decades, the National Labor Relations Board (“NLRB”) has found that secret ballot elections are the best method for determining whether workers want to be represented by a union. A recent memo from the NLRB General Counsel, however, makes it clear that the current Board is intent on making it much easier for unions to win the right to representation without a vote of the employees. The memo, GC 24-01 (issued November 2), explains the Board’s approach following this summer’s decision in the case of Cemex Construction Materials Pacific and International Brotherhood of ...

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