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The Modern Workplace

The Modern Workplace

  • Posts by Emily E. Mawer

    Emily Mawer focuses her practice on higher education and child safety issues. Emily regularly advises colleges and universities on a variety of legal issues including Title IX, the Violence Against Women Reauthorization Act ...

Posted in Discrimination

On Friday, September 29, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) posted for public inspection its proposed “Enforcement Guidance on Harassment in the Workplace.”  The EEOC previously released proposed guidance on workplace harassment for public comment back in 2017, but the guidance was not finalized.  The updated proposed guidance posted last week reflects recent changes in the law and recent trends, including:

  • The U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that Title VII prohibits employment ...
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The Pregnant Workers Fairness Act (the “PWFA”) goes into effect on June 27, 2023.  Signed by President Joe Biden last year as part of the Fiscal Year 2023 Omnibus Spending Bill, the PWFA requires covered employers to provide reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations will cause the employer an undue hardship. 

Who is a covered employer under the PWFA?

The PWFA covers employers with at least 15 employees, including both private and public sector employers, Congress ...

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Employers should be aware of recent updates regarding two #MeToo-related federal laws: the Speak Out Act and the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.

The Speak Out Act

President Biden signed the Speak Out Act on December 7, 2022, and the law went into effect immediately.  The Act makes non-disclosure and non-disparagement clauses agreed to prior to a “sexual assault dispute” or “sexual harassment dispute” unenforceable.  In other words, non-disclosure agreements signed as part of an onboarding process for new employees are not ...

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The Centers for Disease Control and Prevention (CDC) recently issued new guidance regarding what activities fully vaccinated people may safely engage in. The CDC stated that fully vaccinated individuals can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal or territorial laws, rules and regulations. In response to the CDC’s new guidance, the Occupational Safety and Health Administration (OSHA) added a statement to its January 2021 guidance stating that OSHA is reviewing the recent CDC guidance and will ...

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Last week, the federal Occupational Safety and Health Administration (OSHA) issued new guidance to help employers and employees identify risks of being exposed to and/or contracting COVID-19 in the workplace and to assist in determining appropriate control measures. The guidance is advisory in nature and does not impose new legal requirements on employers, but provides additional information that may be helpful to employers in their efforts to provide a safe and healthful workplace during the COVID-19 pandemic. 
The guidance recommends implementing a workplace COVID-19 ...
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The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Many of the updates to the guidance document are consistent with the EEOCs March webinar on COVID-19, but the updates also provide additional clarifying information regarding the Americans with Disabilities Act (ADA) and COVID-19 screening. The ADA continues to apply during the COVID-19 pandemic and requires that any employment disability-related inquiries or medical exams, including COVID-19 ...
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Posted in Wage & Hour

Last week, the Minnesota Supreme Court issued a ruling that upheld the City of Minneapoliss $15 per hour minimum wage ordinance. Graco, Inc. sued the City over the ordinance back in 2017, arguing that the state of Minnesotas lower minimum wage law preempted the Minneapolis ordinance and seeking a permanent injunction against the ordinances enforcement. In a unanimous decision issued last Wednesday, the Minnesota Supreme Court held that the state legislature did not intend to occupy the field of minimum-wage rates. The Court also held that the City ordinance was valid, because it ...
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Happy Thanksgiving! With the holiday season upon us, we wanted to give you a quick refresher on some tricky workplace issues that are common this time of year.

Holiday Parties

While holiday parties can increase morale and provide an opportunity for team building, without planning and forethought, holiday parties can cause human resources issues that will follow you well into the new year.

Wage and Hour Issues

If you require non-exempt employees to attend a holiday party, you must compensate them for the time they spend there. If the party occurs during normal work hours, non-exempt ...
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Posted in Discrimination

The deadline for employers with annual EEO-1 reporting requirements to submit Component 2 pay data is just over a month away. Employers must file 2017 and 2018 Component 2 compensation data by September 30, 2019.

With the deadline approaching, the Equal Employment Opportunity Commission (EEOC) has released guidance to filing employers through answers to Frequently Asked Questions. Among other issues, the EEOC addressed reporting non-binary gender employees. Previously, the EEOC required an employer to list an employees gender for EEO-1 reporting as male or female. The EEOC ...
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Posted in Discrimination

Last month, the Seventh Circuit (which has jurisdiction over appeals from federal district courts in Illinois, Indiana, and Wisconsin) decided two cases with claims under the Americans with Disabilities Act (ADA). In one case, the Seventh Circuit joined multiple other circuits in holding that obesity, on its own, is not a protected disability under the ADA. In the other, however, the Seventh Circuit revived claims of an employee who alleges he was discriminated against due to his alcoholism.

Richardson v. Chicago Transit Authority

During an examination of his fitness to return to ...
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Posted in Discrimination

Pursuant to an April 25 court order, employers with annual EEO-1 reporting requirements will now have until September 30, 2019 to provide the new Component 2 pay data.


As we discussed in our recent update, the Equal Employment Opportunity Commission (EEOC) requires employers with at least 100 employees and federal contractors with 50 or more employees and contracts of $50,000 or more to file annual EEO-1 reports. The EEO-1 report collects, through its Component 1 requirements, the demographic makeup of the employers workforce by race, gender, ethnicity, and job ...
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The trend of location specific employment laws is continuing. A new discrimination law and guidance have taken effect, respectively, in the state of New York and New York City, and a new discrimination law will take effect next month in the city of Portland, Oregon. Employers with multijurisdictional operations should continue to monitor location specific developments that may affect their operations.

New Yorks Gender Expression Non-Discrimination Act

Employers with New York operations should take heed of New Yorks Gender Expression Non-Discrimination Act (GENDA), which ...
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Posted in Health Care

On December 14, 2018, a federal judge for the U.S. District Court for the Northern District of Texas ruled that the Affordable Care Act is invalid. The case before the Court was brought by 20 states, including Texas. The plaintiffs argued that the ACAs individual coverage mandate was no longer constitutional, because the Tax Cuts and Jobs Act of 2017 removed the tax penalty associated with being uninsured. The plaintiffs claimed that, as a result, the individual mandate could no longer be upheld as a proper exercise of Congress taxing power. In addition, the plaintiffs argued that the ...
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Posted in Leave

With the midterm elections less than a month away, it is a good time for employers to refresh on the laws related to employee voting leave. In these contentious political times, employers may see an uptick in employee voting absences on Election Day and preparing in advance can minimize business disruptions.

Many states have laws that entitle employees to take reasonable time off on election days to vote. For example, employees in Minnesota have a right to paid time off to vote. On election day, every Minnesota employee that is eligible to vote may be absent from work for the time necessary ...
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Several Members of Congress have introduced competing bills related to paid leave and flexible work schedules. The proposals have sparked debate at the federal level about whether and how to require paid family leave, paid sick time, and flexible scheduling.

The Economic Security for New Parents Act

The Economic Security for New Parents Act would give workers at least two months off at about two-thirds of their regular salary in order to care for newborn or newly adopted children. The workers would fund the bill themselves by deferring Social Security benefits for several months ...
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In a unanimous decision last month, a three-member panel of the National Labor Relations Board (NLRB) found that a restaurant company violated the National Labor Relations Act (NLRA) when its New York City location fired four employees after the employees emailed other employees and managers to complain about, among other things, work schedules, the companys tip policies, and the managements treatment of employees.

The case arose after an employee wrote an email upon her resignation complaining about managements treatment of employees, tip policies, work schedules, and more ...
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With many laws protecting workers classified as employees and not offering protection for those classified as independent contractors, a workers classification has broad implications for the worker and for the company using the workers services. In the rise of the sharing economy, companies like Uber Technologies, Inc. and Grubhub, Inc. have classified their drivers as independent contractors; and workers have turned to the courts to challenge that classification. 

In the first federal court decision on this issue, a federal magistrate judge in California ruled on February 8 ...
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In the midst of the growing Me Too movement, employers may find it more expensive to settle employment claims of sexual harassment or sexual abuse. A provision in the new tax law signed by President Trump on Dec. 22, 2017 (the Tax Cuts and Jobs Act) provides that, effective as of the signing of the law, a business can no longer deduct the costs incurred to settle employment sexual harassment or abuse claims if a nondisclosure agreement is included in the settlement.  This provision was added to the tax law in response to the Me Too movement and growing criticism of the historic practice of ...
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Last Thursday, August 31, 2017, a federal district court judge in Texas struck down the Obama administrations long-embattled federal overtime pay rule. The rule would have more than doubled the minimum weekly salary required to qualify for the federal Fair Labor Standards Acts (FLSA) white collar exemptions (from $455 per week to $913 per week). The rule was originally scheduled to go into effect on December 1, 2016, but the same Texas-based judge enjoined its implementation late last year.
As a quick refresher, the FLSA requires non-exempt employees to receive no less than the ...
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