While jingle bells have only just begun to ring, the U.S. Securities and Exchange Commission (SEC) enforcement bells have been ringing steadily throughout year. In recent months, the SEC announced significant settlements with employers for violations of Rule 21F-17 — the SEC’s whistleblower protection rule — as a result of language in non-disclosure agreements, separation agreements, and policies found to impede employees from reporting possible violations of securities laws to the SEC. With the SEC’s recent momentum, both publicly held and privately held employers should evaluate whether their form employment-related agreements and policies comply with the SEC’s latest interpretations of Rule 21F-17.
The U.S. Department of Labor (DOL) recently rocked the business world when it announced a Proposed Rule that, if implemented in its current form, would force employers around the country to increase salaries for millions of currently exempt workers or convert them to non-exempt employees eligible for overtime. The Proposed Rule would dramatically increase the existing salary thresholds for the Fair Labor Standards Act (FLSA) overtime exemptions by changing the underlying methodology and featuring automatic future increases on a three-year cycle. If the Proposed Rule takes effect, it will impact nearly all employers nationwide.
Do you know who your employees are? It seems pretty simple – those individuals on your payroll whose employment you control and supervise, right? Not so fast, says the National Labor Relations Board (NLRB or Board). Under the NLRB’s new joint employer rule, a company can be deemed a “joint employer” of another entity’s employees if it “possesses the authority to control (whether directly, indirectly, or both), or exercises the power to control … one or more of the employee’s essential terms and conditions of employment,” even if such control is NEVER actually exercised. And, bah humbug, the NLRB’s final rule on joint employer status takes effect the day after Christmas. Here is what employers need to know to avoid getting a lump of coal in their stocking.
A scary surprise is fun to encounter when you are in a haunted house at a Halloween event, but not so much fun when you are performing a background check on a potential employee. Even worse is finding out after the fact that you failed to comply with one of the many legal requirements, and that your company is now suddenly facing a fine or lawsuit. This Halloween, make background checks and hiring much less spooky by avoiding these common mistakes.
Every few years, employees working in the United States on nonimmigrant visas such as the H-1B and L-1 are forced to undertake the arduous journey to renew their visas at a consular post abroad. A valid visa is needed to both travel outside and then re-enter the United States. This journey is incredibly inconvenient for both employers and employees, as the employees usually must take at least two weeks off from work in order to obtain a new visa at a consular post abroad, and can sometimes be stuck abroad for months due to administrative processing or because the consulate cancelled their appointment last minute. The inconvenience has only increased due to consular waiting times, and there is no mechanism for nonimmigrant visa holders to obtain a new visa inside the United States.
The Equal Employment Opportunity Commission (EEOC) has published draft enforcement guidance regarding workplace harassment, entitled “Proposed Enforcement Guidance on Harassment in the Workplace.” The proposed guidance sets forth the legal standards applicable to harassment claims under federal law and provides a variety of examples with extensive citations to applicable case law. If made final, this would be the EEOC’s first updated workplace harassment guidance in effect since 1999 and would supersede all prior guidelines addressing the same issues. The EEOC previously sought public input on harassment guidance in 2017, but that proposed guidance was never finalized. Then came the #MeToo Movement, the COVID-19 Pandemic and the evolution of the remote workplace, the proliferation of social media, and a landmark decision by the U.S. Supreme Court regarding LGBTQ+ discrimination protection. The EEOC’s current proposed guidance on workplace harassment addresses several of these issues unique to the 21st century, especially pertinent to the modern day workplace. Highlights include broad protections for LGBTQ+ employees, virtual workplace harassment, and non-work related social media activity that contributes to a hostile work environment. This may be a signal for employers to refocus their policies, as it’s no longer time to party like it’s 1999.
Title VII prohibits discrimination against an individual with respect to their compensation, terms, conditions, or privileges of employment, based on certain protected characteristics, but how material must an adverse action or change in status be? Title VII does not define “privileges of employment,” and courts across the country have adopted their own materiality standards for adversity in general. For decades, the Fifth Circuit Court of Appeals has been an outlier in its longstanding analysis requiring an employee to prove an “ultimate employment decision,” meaning decisions specifically related to hiring, termination, promotions, demotions, or compensating. Other circuits have interpreted Title VII to apply more broadly in terms of what employment actions are unlawful. Although late to the game, the Fifth Circuit recently cast aside its “ultimate employment decision” test as “fatally flawed,” and more closely aligned itself with other circuits in marking the reach of Title VII’s prohibitions. Yet, while the Fifth Circuit may have inched the line on the threshold, it stopped short of deciding what specific employment actions would be sufficiently material to garner Title VII protection.
EEO-1 reporting season will soon be upon us. As we previously wrote, the 2022 EEO-1 reporting deadline has been a moving target. Almost since its founding in the 1960’s, the Equal Employment Opportunity Commission (EEOC) has collected data from employers about the demographics of their workforces as a means of ensuring compliance with equal employment laws. This data is now submitted to the EEOC as a confidential EEO-1 report. The EEOC recently announced that the collection window for 2022 data will now be open from Tuesday, October 31, 2023, to Tuesday, December 5, 2023. Because the collection period will not likely be postponed again, employers should begin gathering the required information now in order to ensure they complete their submissions by the deadline.
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.