Employers with tipped employees are constantly trying to keep up with the ever-changing and evolving tip credit rules promulgated by the United States Department of Labor (DOL) — specifically, what is known as the 80/20 rule. However, a recent federal appeals court has given the 80/20 rule the pink slip, and it may not be returning anytime soon, in light of an incoming Trump Administration. The 80/20 rule, which attempts to impose restrictions on when and how employers can take advantage of the tip credit for tipped employees, just might be cast aside for the foreseeable future.
Understanding the Pregnant Workers Fairness Act: What Employers Need to Know
Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other LeavesThe Pregnant Workers Fairness Act (PWFA) is growing up very quickly, and the EEOC has been working fervently, through a combination of guidance and enforcement measures, to ensure it thrives. Specifically, just shy of the PWFA’s first birthday, the EEOC’s final rule and interpretive guidance has taken effect, amplifying employer obligations regarding pregnancy-related accommodations in the workplace. Of late, the EEOC has initiated a string of lawsuits against employers under the PWFA. Given these recent developments, employers should review their pregnancy-related accommodations policies and procedures to make sure they comport with the latest agency guidance.
U.S. Supreme Court to Review Reverse Discrimination Standard
Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & RetaliationShould an employee’s burden to plead and prove workplace discrimination differ depending upon whether they are considered in a “majority” or “minority” group? The U.S. Supreme Court is now set to decide whether an arguably “heightened” standard of proof should apply in such “reverse discrimination” cases. If the Supreme Court strikes down what has come to be known as the “background circumstances” test, employers in jurisdictions where that analysis is currently applied might expect an increase in claims from members of such majority groups, or an increase in the success of claims brought by such “majority” plaintiffs.
DOL Promotes “AI & Inclusive Hiring Framework” Collab to Help Employers Avoid AI Discrimination in Hiring
Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & RetaliationCompanies are increasingly turning to artificial intelligence (AI) to assist with employment related tasks, such as recruiting and hiring. AI tools are useful to increase efficiency, streamline the recruiting process, and eliminate human bias. However, these tools can pose a risk of inadvertent discrimination against job applicants. We recently published an Employer’s Guide to Outsmarting Artificial Intelligence Liability in the Workplace, outlining ways employers can take advantage of AI tools while minimizing legal risks associated with this technology. As an additional resource, the U.S. Department of Labor (DOL) recently promoted a new AI & Inclusive Hiring Framework, which “offers guidance for employers, job seekers, and workers to maximize benefits and better manage risks when obtaining and using AI hiring technology.” DOL promoted the framework in alignment with the Biden Administration’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.
An Employer’s Guide to Outsmarting Artificial Intelligence Liability in the Workplace
Posted in Employment Discrimination Harassment & Retaliation, Employment LitigationEmployers need to be smarter than ever about how they use artificial intelligence (AI) in the workplace. Laws attempting to regulate the use of AI in the workplace have seemingly kept pace with advancements in the technology itself. Originally intended to streamline employment processes, AI may have unintended consequences that need to be mitigated. There is nothing artificial about the risk employers may face if they are not transparent and careful about how they use AI to make employment decisions. Employers must review their vendor agreements and AI protocols carefully, and conduct regular audits of AI’s processes, to minimize liability and avoid misuse or discriminatory outcomes, while maximizing the benefit of greater efficiencies in the workplace which properly used AI tools may deliver.
Ban on the Run: Federal Court Blocks the FTC’s Non-Compete Ban Nationwide
Posted in Employment Counseling & Workplace Claims Prevention, Non-Compete & Trade Secret LitigationA Federal Court has blocked the Federal Trade Commission’s Final Rule (the “Rule”) that was set to broadly ban nearly all forms of non-compete agreements.
On August 20, 2024, Judge Ada Brown of the Northern District of Texas permanently enjoined the Rule, ordering that it “shall not be enforced or otherwise take effect” on its originally intended effective date of September 4, 2024, “or thereafter.” Though the FTC may appeal Judge Brown’s decision, and has articulated a likely intention to do so, the Rule now faces an extremely difficult path to ultimate enforcement.
It’s Election Season! Regulating Political Speech in the Workplace
Posted in Employment Counseling & Workplace Claims PreventionWith less than three months to go until the general election, politics seem to be a hot topic for discussion these days! However, today’s political climate is more divisive than ever, and there are many reasons why you may not want these discussions in your workplace. You also may wonder if you can prohibit your employees from wearing or displaying election-related posters, pins, hats, shirts, and other types of clothing, accessories, or political adornments.
Although private, non-governmental employers generally do have the right to regulate the speech, dress, and conduct, of their employees in the workplace, that right is not without limit. In fact, in some circumstances employees have a right to engage in certain types of speech while at work. Therefore, employers need to implement their workplace policies and procedures carefully to ensure they don’t incidentally infringe on their employees’ protected rights.
Will Section 10(j) Injunction Petitions By the NLRB Melt Away or Just Cool Down Since SCOTUS Served Starbucks a Win This Summer?
Posted in Labor RelationsThe National Labor Relations Board (NLRB or Board) has been using a caffeinated approach to challenge employers in unfair labor practice disputes, with Section 10(j) injunction petitions at the top of the menu, often resulting in drastic relief imposed by a court, such as reinstatement of terminated employees to maintain the “status quo,” while the case works its way through the administrative process. The NLRB has expressed no plans to cool off its 10(j) injunction efforts despite the U.S. Supreme Court recently serving a win for employers facing NLRB petitions under 10(j) of the National Labor Relations Act (NLRA). However, fortunately for employers, the decision adopts and unifies the more stringent traditional “four-factor” analysis courts must apply when considering whether to grant preliminary injunctions against employers under the NLRA. Employers may still need to think long and hard about the consequences of taking actions that could invite a 10(j) petition, such as disciplining or discharging employees who violate company policy, but they can at least expect a more standard approach by courts when evaluating whether or not a preliminary injunction is appropriate.
Is the Wicked Witch Really Dead? California Passes Long Anticipated PAGA Reforms, But Do They Really Help Employers?
Posted in Wage & HourIn a lightning-fast deal brokered by Governor Gavin Newsom, California lawmakers enacted significant amendments to PAGA, California’s so-called “sue-your-boss” law that deputizes millions of workers across the state to bring labor law enforcement actions against their employers. The amendments, which passed both assembly houses unanimously after attracting broad support from employer groups as well as unions and other worker-advocacy groups, avoid a November ballot initiative that could have repealed PAGA altogether. The majority of the amendments take effect immediately and apply to any PAGA notices submitted on or after June 19, 2024.
On their face, the reforms take aim at longstanding criticisms of PAGA, such as assertions that it encourages frivolous claims and provides little remuneration to employees while generating massive fees for plaintiff’s attorneys. It’s unclear, though, whether the new provisions are cause for employers’ celebration just yet. Precisely how these reforms will play out in practice as both employers and plaintiff’s lawyers adapt to them remains to be seen.
Thanks for Your Opinion, But We’ve Got This: SCOTUS Eliminates Long-Standing Deference to Federal Agency Statutory Interpretation
Posted in Employment Litigation, Labor Relations, Wage & HourBased upon a recent ruling by the U.S. Supreme Court, federal regulatory agencies are no longer entitled to deference as to their interpretation of a statute that is ambiguous, and federal courts are now compelled to exercise their independent judgment in deciding if an agency acted within its statutory authority. While the Supreme Court was careful not to disturb decades of precedent where deference previously may have been given, the future implications may be unprecedented and far reaching in the business world, affecting rulemaking by the alphabet soup of federal regulatory agencies that may apply to a particular company’s operations (DOL, EEOC, EPA, FTC, ICC, NLRB, OSHA, SEC…).