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 ...

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 ...

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 ...

As we have previously reported, the most recent Minnesota legislative session resulted in a number of new laws that affect employers with Minnesota-based employees. We have issued client alerts about Minnesota’s new law banning noncompete agreements, as well as new and/or expanded laws regarding earned sick and safe time, paid family and medical leave, parental leave, pregnancy accommodation, lactating employees, and recreational adult-use marijuana. But the Minnesota Legislature did not stop there. Additional developments - including an amendment to Minnesota’s ...

In a memorandum released on May 30, 2023, the National Labor Relations Board (“NRLB”) General Counsel opined that noncompete agreements may violate the federal National Labor Relations Act (“NLRA”). In doing so, the General Counsel joins the Federal Trade Commission and a growing number of states in attacking the ability of employers to use these agreements. 

Section 7 of the NLRA Act protects, among other things, the right of non-management employees to organize and to act together to improve working conditions. The NLRB General Counsel takes the position that noncompete ...

Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, religion, sex and national origin, requires employers with 15 or more employees to accommodate the sincerely held religious beliefs and practices of applicants and employees unless doing so would impose an “undue hardship on the conduct of the employer’s business.” 42 U.S.C. §2000e(j). On Thursday, June 29, 2023, the U.S. Supreme Court issued an opinion that clarified what “undue hardship” means in the Title VII religious accommodation context, raising the bar ...

For federal government contractors and their applicable subcontractors, your OFCCP Portal registration/certification deadline is now here for 2023 affirmative action plans (AAPs) – it is Thursday, June 29, 2023! The OFCCP has not extended this deadline as of yet and has indicated that, unlike last year, it most likely will not do so this year – so be alert. Previous updates on OFCCP compliance: January 26, 2023; June 24, 2022; January 28, 2022

Regarding the submission of the EEO-1 Report, an annual obligation of federal contractors and their applicable subcontractors, the EEOC ...

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 ...

The current 2023 Minnesota legislative session has been a whirlwind of activity and may prove to be the most consequential year in recent history for many employers doing business in the state. Below is a summary of proposed new laws and one new law that has already passed – the Crown Act - that employers should pay attention to, as, if passed, they will directly impact compliance obligations and current operating procedures.

Paid Family and Medical Leave

The Minnesota House of Representatives recently approved HF2, a bill that would provide eligible employees with up to 18 weeks of ...

On March 13, 2023, Governor Pritzker signed the Paid Leave for All Workers Act (the “Act”), which requires nearly all Illinois employers to provide employees up to 40 hours of paid leave annually to be used for any reason. The Act’s paid leave requirements will go into effect on January 1, 2024. Illinois is now the third state to require employers to provide paid time off to employees to be used for any reason, following Maine and Nevada.

Under the Act, Illinois employees are eligible to accrue paid leave at the rate of one hour of paid leave for every 40 hours worked up to 40 hours in a ...

A National Labor Relations Board (the Board) decision issued this week served notice on employers that they need to carefully consider the use of confidentiality and non-disparagement provisions in any employment-related separation and release agreements. In an Unfair Labor Practice proceeding, the Board reviewed two specific terms of a separation agreement that had been offered by the employer to several employees who were being terminated. The two terms in issue were (1) a requirement that the employee keep the terms of the agreement confidential and (2) a requirement that the ...

On February 9, 2023, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued Field Assistance Bulletin No. 2023-1 (FAB) to help employers (1) better understand their wage and hour obligations under the Fair Labor Standards Act (FLSA) with regard to their non-exempt teleworkers; and (2) how to apply the eligibility rules under the Family and Medical Leave Act (FMLA) when employees telework. Although the FAB does not break new ground or change the FLSA or the FMLA and their regulations, it does provide guidance on the DOL’s enforcement positions going forward.

Highly ...

Companies with employees working in Colorado must prepare now for that state’s Family & Medical Leave Insurance (“FAMLI”) program, which will provide paid leave to eligible employees for certain qualifying events beginning in 2024. Covered employers will need to register for the FAMLI program and periodically submit certain wage data and required premiums to the State’s FAMLI Division to help fund the program. Some of the important steps for covered employers to take to comply with the new FAMLI Program include the following:

Step 1 – Post the 2023 Program Notice.

Step 2

Last Friday, January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) issued its newest Corporate Scheduling Announcement List (affectionately known as CSAL) for applicable supply and service federal contractors and their applicable subcontractors. The OFCCP definition of “federal contractor” is relatively straightforward - generally a single $50,000 contract with a federal agency - but the OFCCP definition of an applicable subcontractor to a federal contractor can be much more subtle in application and could be difficult to ascertain.

The OFCCP ...

On January 1, 2023, the amendments to the Illinois One Day Rest in Seven Act (“ODRISA”) took effect, and the changes are significant. Employers with one or more employees in Illinois should take note of these new amendments to avoid costly penalties.

New Rest Breaks

The amended ODRISA requires covered employers to provide non-exempt employees with a minimum of 24 hours of rest within every consecutive seven-day period. Prior to January 1, 2023, the ODRISA required employers to provide eligible employees with at least twenty-four consecutive hours of rest in every “calendar ...

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 ...

As employers increasingly operate in multiple jurisdictions and are allowing more and more employees to work remotely, employers should be mindful that a number of states are passing pay transparency laws.  Employers hiring workers in such states and/or posting positions that permit remote work locations need to be sure that they are aware of and comply with potential pay transparency laws.

The California Transparency Laws

California, which already required employers to disclose salary information to applicants upon reasonable request, has added new pay scale disclosure ...

On October 19, 2022, the Equal Employment Opportunity Commission (“EEOC”) released a new poster that employers must prominently display in the workplace. The new poster replaces an old version, titled “Equal Employment Opportunity is the Law,” which featured important information regarding federal laws prohibiting workplace discrimination embedded in blocks of text that may have been cumbersome and difficult to read. The new poster, entitled simply “Know Your Rights,” contains much of the same information, along with some new updates. 

Perhaps most striking ...

In June 2022, in S.W. Airlines Co. v. Saxon, 142 S. Ct. 1783 (2022), the Supreme Court weighed in on the scope of arbitration agreements in employment contracts for transportation workers. Saxon, a ramp supervisor at Southwest Airlines who worked loading and unloading cargo from aircrafts, brought a putative class action against Southwest for allegedly violating the Fair Labor Standards Act by not providing ramp workers with overtime compensation despite requiring them to work over forty hours a week. Southwest argued that Saxon was bound by the arbitration provision in Saxon’s ...

Just this month the Supreme Court of the United States issued its decision in Viking River Cruises, Inc. v. Moriana, No. 20-1573, 2022 WL 2135491 (U.S. June 15, 2022), wherein it partially reversed the California Supreme Court’s holding in Iskanian v. CLS Transp. Los Angeles, LLC. The case deals with the controversial Private Attorneys General Act (“PAGA”). California’s Labor and Workforce Development Agency (“LWDA”) is authorized to enforce California’s labor laws; however, because the legislature believed that the LWDA did not have sufficient resources to ...

Effective October 1, 2021, Connecticut and Nevada join a chorus of other states – including, for example, California, Colorado, Maryland, Washington and Rhode Island - in implementing new pay disclosure laws.  Employers with employees in Connecticut and Nevada must now disclose wage and/or wage range information at various stages in the hiring process. Connecticut and Nevada’s new pay disclosure laws are designed to level the playing field for applicants, promote pay equity, and promote pay transparency and accountability.

Under Connecticut’s “An Act Concerning the ...

Last month, on September 2, 2021, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), which enforces federal government contractor requirements, rescinded a Trump-Era notice of intent not to use EEO-1 Component 2 employer pay data to analyze pay equity issues. The OFCCP stated that “it was premature to issue a notice stating OFCCP did not expect to find significant utility in the data.” 84 FR 49354 (September 2, 2021). The EEO-1 Component 2 Data was last collected by the federal government for calendar years 2017 and 2018 and consists of ...

Last week, the National Labor Relations Board’s General Counsel directed the Regional Offices to adopt a hardline approach to settling unfair labor practice charges. When an employee or union files an unfair labor practice charge, the Regional office will conduct an investigation. This investigation generally does not allow the employer to see any statements or other evidence provided by the charging party or its witnesses, and, in fact, the employer may not even know the identity of the witnesses. Based on this investigation, and before any hearing, the Regional Office ...

The new federal administration continues to put its stamp on the development and enforcement of wage and hour laws under the Fair Labor Standards Act (FLSA). Recently, the Department of Labor (DOL) issued a new Field Assistance Bulletin (Bulletin 2021), revoking a Trump administration policy relating to the practice of seeking liquidated damages in pre-litigation settlement discussions.

Employers who violate the FLSA provisions relating to minimum wage, overtime compensation, and protections for tipped employees, are liable for the unpaid wages or tips as well as an equal ...

The gig economy is an industry that is generally characterized by the prevalence of short-term contracts, freelance work, and indefinite flexible working arrangements. It also usually comes with getting work through some type of online or app-based digital platform. The unifying factor in all of these companies is that they are managing independent contractors and freelancers who have signed up to perform task services for the ultimate end user. From a legal perspective, this is very different from the traditional employee model. In a recent podcast, we explored the impacts of the ...

On June 15, 2020, the United States Supreme Court handed the LGBTQ community a major victory. In Bostock v. Clayton County and companion cases, the Supreme Court held that an employer who terminates an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964.

The Courts ruling involved a trio of cases, with each employee filing a lawsuit under Title VII alleging discrimination based on sex. Title VII applies to employers with at least 15 employees in each of 20 or more calendar weeks in the current or preceding calendar year and makes it unlawful ...

• Paid leave (generally).
• Medical leave.
• Family leave.
• Work shift scheduling requirements.
• Wage theft ...

Not surprisingly ...

The cases before the Supreme court involved state laws from four states Kentucky, Michigan, Ohio, and Tennessee -- that defined marriage as the union of a man and a ...

On June 15, 2015, the Colorado Supreme Court held that an employer was permitted to discharge an employee due to his licensed medical use of marijuana at home during nonworking hours. In the case, Coats v. Dish Network, the employee had worked for the employer for three years before he tested ...

A hiring policy based on looks is like nails on a chalkboard to an employment lawyer. So it comes as no surprise that the "Look Policy" of an Abercrombie & Fitch (A&F) store caused A&F trouble before the Supreme Court last week when the Court found in favor of the EEOC on a charge of religious discrimination against the clothing retailer. However, the decision has implications that reach beyond image-based hiring and sets standards of proof for religious accommodation claims and Title VII generally.

The Court's 8-1 opinion held that an employer need not have actual knowledge of an ...

Todays EEOC . . . is pursuing many questionable cases through sometimes overly aggressive means and, as a result, has suffered significant court losses that are embarrassing to the agency and costly to taxpayers. Courts have found EEOCs litigation tactics to be so ...

Minnesota recently became the 22nd state to legalize medical marijuana use and, as part of the new law, to enact new potential employment protections for registered users of medical marijuana. Minnesota's new marijuana law has already gone into effect, but distribution of marijuana for medical purposes is not expected until July 1, 2015. Employers should use this extra time to familiarize themselves with Minnesota's new law and its potential implications. While the new Minnesota law purports to impose some new employment law obligations on employers, it also raises many ...

Technology's impact on privacy took center stage in news headlines this week. The New York Times and National Public Radio (NPR) both reported on alternative software tools to track employees in the workplace - one tool identifies inside security threats and another tracks employee productivity. Our blog post earlier this week also discussed this issue, highlighting both upsides to employee monitoring and some of the downsides and risks. In addition, there was big privacy news coming out of the United States Supreme Court this week. In a highly anticipated ruling, the Court ruled ...

The Star Tribune is reporting that Minnesota legislators have reached a deal that will increase Minnesota's minimum wage for most employers to $9.50 per hour by 2016. When the proposed law is passed and signed by Governor Dayton, Minnesota will join 21 other states and the District of Columbia in having a minimum wage that exceeds the current federal law minimum of $7.25 per hour. Currently, the state of Washington has the highest minimum wage, coming in at $9.32 per hour.  The U.S. Department of Labor provides a summary of state minimum wage rates on its website: 

In addition to state wage ...

Earlier this month, President Obama directed the U.S. Department of Labor to update the federal overtime pay regulations by revising the salary component of the executive, administrative, and professional exemptions.  To qualify for these overtime pay exemptions (a.k.a. the white collar exemptions), employees must receive a minimum, guaranteed weekly salary of at least $455 and satisfy a duties test that requires them to primarily perform exempt-level tasks. The Presidents directive was aimed only at the salary component of the white collar exemptions. The currently ...

From communication methods to office space, technology continues to affect workplace norms. During the week of November 4th, for instance, the U.S. Supreme Court heard oral arguments in a case involving the line between technological gear and clothing in the workplace. In the case, steelworkers are seeking to be paid for the time spent putting on flame-retardant jackets and pants, protective leggings, Kevlar sleeves, gloves, steel-toed boots, hard hats, safety glasses, earplugs, and hoods. Under the federal wage and hour law, an employer must pay employees when they engage in a ...

 Last week, attorneys general of nine states signed a five page letter addressed to the Equal Employment Opportunity Commission. The letter sharply criticizes the EEOCs guidance related to employers use of criminal background checks, and calls the EEOCs position misguided and a gross federal overreach. It accuses the EEOC of attempting to expand Title VIIs protected classes to persons with conviction records.

The Obama Administration announced on the afternoon of July 2 that it would not penalize employers that do not provide health insurance in 2014. The Affordable Care Act initially required that all employers with more than 50 employees provide coverage to workers or pay significant fines, beginning in 2014. The Treasury Department now says that it will postpone its implementation until 2015, largely due to employers' concerns. Stay tuned for more specifics as the Treasury Department clarifies this and as employers figure out what this means for them going forward.

For an E-Benefits ...

Click here for a GPM eBenefits Alert on how yesterdays United States Supreme Courts decisions on same-sex marriage will impact employee benefits.

 Last week the Minnesota House of Representatives passed Ban the Box legislation, which prohibits private employers from asking applicants about their criminal record until after they have been selected for an interview. The bill, Senate File 523, passed easily on a 107-26 vote, with 35 Republican Representatives joining all DFL Representatives voting in support.  Governor Mark Dayton has indicated his support and is expected to sign the bill into law.

With passage of this legislation, Minnesota will be the third state to expand Ban the Box to private employers.  Proponents believe ...

The United States Supreme Court will be deciding an important affirmative action case this term and has now agreed to hear a second, similar case. These are not employment cases, but the Court's decisions will still be of interest to those of us who advise employers and who have followed the twists and turns of affirmative action over the years. Some observers think that the Court's decision in Fisher is going to signal the end of affirmative action once and for all. Others predict a divided Court and decisions so narrowly tailored that they have no real impact on the future of affirmative ...

The Minnesota Legislature is in full swing, and as always, employers will want to monitor the proposals under consideration at the Capitol. Bills that may impact employers include:

• Health Insurance Exchange. Governor Dayton has just signed legislation creating Minnesota's health insurance exchange, which is a significant part of the federal health insurance overhaul.

• Minimum Wage Increase. Lawmakers appear to be moving forward with House and Senate bills that would increase Minnesota's minimum wage for most employees to $9.95 or tie the required wage to inflation. Currently ...

A new provision of the Minnesota unemployment statute became effective July 1. Enacted by the 2012 legislature, the new language could have an impact on Minnesota employers and employees, but just what that effect might be is not -- to be charitable -- entirely clear.

It is not unusual for an employer to enter into an agreement with the departing employee under which the employee releases potential claims against the employer. To make such an agreement enforceable in a court of law, the employer must provide the departing employee something of value that, without the agreement, the ...

• The Society of Human Resource Management provides a brief summary of the decision on its Web site.
• Kaiser Permanente (the largest medical provider network in the country) has a helpful summary (aimed at consumers) at After The Ruling: A Consumers Guide.
• Other sites are providing relevant analysis such as the Minneapolis/St ...

Privacy is right on the tip of everyone's tongue again this week.  Delaware proposed its own Facebook privacy law for employers and employees that goes even further than Maryland's recent legislation and  the law currently before Congress.  The FCC released its full report on concerns with Google's gathering of data for their Street View feature on Google maps.  A court in the Eastern District of Virginia ruled that a Facebook "like" is not protected under the First Amendment.  Finally, the New York Times described how users can cover up their searching habits on the web.

Technology and the ...

Keeping an Eye on ...

In Minnesota, a proposed bill is now working its way through the legislature that, if enacted, would make it significantly more difficult for a worker in the construction industry to qualify as an independent contractor, rather than an employee. The current version of this bill includes new, detailed, and restrictive criteria for qualification as an independent contractor.  The new criteria proposed include, among other things, that an independent contractor must maintain a separate business with an office, equipment, and materials, and must incur the main expenses ...

Love is in the air this week as Valentine's Day approaches, and technology is in the news as it continues to impact and influence the development of the law.  A Senate committee approved a bill this week that would allow television access to Supreme Court proceedings.  A Texas court upheld the use of a defendant's MySpace page as evidence in his murder conviction.  The country of Brazil filed suit against Twitter to try to block accounts that warn drivers of speed traps and roadblocks.  And just as the law has collided with technology, Cupid's arrow has struck mobile devices everywhere ...

Technology and the Law
Can a Court Make You Give Up Your Password? (ABC News)
New Fight Breaks Out ...

You may be wondering what cats have to do with employment law. Well, last week the U.S. Supreme Court recognized the cats paw theory of employment discrimination for the first time, making it easier for employees to prove discrimination and for employers to get burned by legal liability. The phrase cats paw stems from an Aesop fable in which a monkey uses flattery to induce a cat to retrieve roasting chestnuts from a hot fire and then absconds with the chestnuts after the cat has burned its paws. Based on the fable, cats paw refers to a person who is unwittingly used to accomplish another's ...