It’s a cruel summer for employers as the National Labor Relations Board (the “Board”) issued both new election rules, and a landmark decision that upended decades of precedent and lowered the threshold for the Board to issue a bargaining order without holding an election. As a result, employers must be ready to act quickly in the event of a union’s demand for recognition and subsequent union election.
Another school year is upon us, which means employers around the country should study up on school-related activities leave policies. While there is no federal law mandating that employers give employees time-off to attend school-related activities for their children, there are many states across the country that do. Employers who fail to do their homework may suffer significant penalties. Currently, 11 states and Washington, D.C., have laws that require private employers to give eligible employees time off from work to attend school-related activities.
Pregnant workers seeking workplace accommodations can expect a less bumpy ride ahead, due to the delivery of the Pregnant Workers Fairness Act (PWFA). The PWFA protects employees and applicants who have known limitations relating to pregnancy, childbirth, or a related medical condition by requiring employers to provide them reasonable accommodations, absent an undue hardship on the employer’s business. The PWFA is intended to fill the void for pregnant workers not otherwise protected under other federal laws. Covered employers must ensure HR professionals and supervisors are trained for compliance with the PWFA, and are aware of the necessity to engage in the interactive process before implementing any accommodations under this new law. Employers should review their current policies and procedures to ensure these new protections are incorporated.
Employers, whether they have unionized employees or not, must navigate the aftermath of another change in the ever-evolving landscape of labor law. A recent National Labor Relations Board (NLRB or Board) decision has sent ripples through the realm of employer workplace rules. The decision has prompted all employers, both unionized and union-free, to revisit and revamp how to craft effective and lawful workplace rules. The NLRB’s revised standard will assess whether any challenged workplace rule has a reasonable tendency to chill employees from exercising their Section 7 rights guaranteed to them under the National Labor Relations Act (NLRA). In other words, almost any facially neutral workplace rule could have a tendency to chill employees from exercising their rights under the new standard.
In July, the United States Department of Homeland Security (DHS) announced its long-awaited modernization of the I-9 Employment Eligibility Verification process. The new rule became effective August 1, 2023, and allows eligible employers to utilize an alternative process for I-9 verification. The alternative process allows continued remote inspection of Form I-9 documents by a live video call interaction. The U.S. Immigration and Customs Enforcement (ICE) will also be releasing a new, shorter, version of the Form I-9 that will allow the employer to indicate whether they used the alternative inspection method. This is arguably the biggest change to the I-9 Verification process since the inception of the program in 1986. As such, employers should reach out to Akerman’s immigration attorneys should they have specific questions.
Courts have been dancing away from the two-step process for certification of collective actions under the Fair Labor Standards Act (FLSA), and the 6th Circuit is the latest to join the trend. In a recent decision that could have significant impact on the future of FLSA collective actions, the 6th Circuit has borrowed a “strong likelihood” standard from the preliminary injunction context, eliminating the first step of conditional certification which made it easier for FLSA plaintiffs to recruit additional members through notice at a very early stage in litigation. Now FLSA plaintiffs in the 6th Circuit must prove that there is a “strong likelihood” that potential plaintiffs are actually similarly situated to them before the Court will facilitate sending out notice.
Employers evaluating religious accommodations under Title VII are now required to strike a new balance due to the U.S. Supreme Court’s recent clarification of what constitutes an “undue hardship.” Employers should promptly reassess the factors they use to weigh the costs of providing religious accommodations in the workplace to avoid being caught off guard.
In a significant win for employers, the United States Supreme Court has ruled that the Federal Arbitration Act (FAA) requires an automatic stay of the case at the trial court level whenever a party appeals the trial judge’s decision to deny arbitration. This decision means that employers appealing an adverse ruling on a motion to compel arbitration cannot be forced to spend resources on litigating the underlying case while the appellate court reviews the lower court’s ruling.
Many employers mistakenly assume that their workforce is not likely to be organized by a union. Maybe they assume that only factory workers and public employees are the most typical members of unions. Maybe they assume they are far removed from the flurry of activity and pro-union movement sweeping across the country. Unfortunately, those assumptions are incorrect, along with other common myths about unions listed below. In order to maintain union-free status in today’s perfect storm of increased pro-union activity, smart employers are well advised to be aware of their union vulnerability and take affirmative steps to minimize it.
Below we debunk the top ten myths about unions. Employers everywhere, across all industries, should take note and heed these warnings and common misconceptions to stay ahead of the current pro-union organizing environment.
Artificial Intelligence seems to be everywhere these days. As we wrote last month, generative AI tools are rapidly becoming a workplace temptation for employees seeking to streamline their job duties. Similarly, AI has taken on a role in recruiting and hiring at many companies, which has drawn scrutiny from the EEOC, as well as state and local regulators concerned about the potentially discriminatory effect of AI-driven Automated Employment Decision Tools (AEDT). One important example is New York City, whose AEDT Law became effective January 1, 2023. The NYC law bans employers from using AI tools unless, among other things, they have first submitted to an independent audit bias within a year of use. NYC will begin enforcing the AEDT Law on July 5.