The National Labor Relations Board (NLRB or Board) is making waves yet again. This time the NLRB has held that certain confidentiality and non-disparagement clauses in severance agreements violate Section 7 rights under the National Labor Relations Act (NLRA or Act), which is another significant step in the NLRB’s continued push to expand the protections offered to employees. While it is important to keep in mind that this decision only applies to employees that are covered by the NLRA, which is generally non-supervisory employees (even in a non-union setting), it is still a major development for all employers. Considering the NLRB’s position, employers need to tread carefully in how they draft severance agreements, employment agreements, and employee handbooks moving forward.
Pay Transparency Law Updates: Hiring in 2023
Posted in Employee Benefits, Employment Counseling & Workplace Claims Prevention, Wage & HourRecent legislative action across the country suggests that expanding pay transparency requirements will continue to be a major issue for employers to navigate in 2023. Three states—Illinois, Rhode Island, and Washington—recently joined the pay transparency movement by issuing regulations or enacting laws that require some form of pay disclosure to job applicants to promote pay equity and address existing pay gaps. Employers looking to add and retain talent need to pay close attention to the developing patchwork of law on pay transparency. When recruiting in multiple states, whether for in person or remote positions, employers need to be aware of the nuances in newly enacted or amended laws relating to pay transparency.
2022 EEO-1 Component 1 Data Collection Now Set to Begin Mid-July 2023
Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims PreventionThe EEO-1 reporting deadline has become a moving target, so covered employers need to sharpen their data collection and be ready to upload. The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that the collection window will open in “mid-July” 2023, not April, as initially scheduled. Covered employers should expect to have the same amount of time (about one month) to upload or file their 2022 EEO-1 Component 1 data through the EEOC’s website before the window closes. Despite postponement of the deadline, employers should do what they can now to prepare for submission.
The H-1B Lottery Registration Period is Approaching!
Posted in Immigration Planning & ComplianceEmployers interested in hiring foreign nationals in specialty occupations should seriously consider registering for the H-1B lottery, which is quickly approaching. Last month, the U.S. Citizenship & Immigration Services (USCIS) announced it would open the initial registration period for this year’s H-1B lottery at noon EST on March 1 and close at noon EST on March 17.
How To Be “Smart” About Using Artificial Intelligence In The Workplace
Posted in Employee Handbooks & Policies, Employment Discrimination Harassment & Retaliation, Labor Relations, PrivacyArtificial Intelligence (AI) is undoubtedly revolutionizing the workplace. More and more employers are relying on algorithms or automated tools to determine who gets interviewed, hired, promoted, compensated, disciplined, or terminated. If adequately designed and applied, AI can help employees find employment, match employers with valuable employees, and advance diversity, inclusion, and accessibility in the workplace. Yet, despite its positive impacts, AI poses new risks for employment discrimination, especially when designed or used improperly, and has become a focal point of targeted efforts by federal and state enforcement agencies and lawmakers. Employers must be smart, transparent, and knowledgeable about how they use AI in their workplaces. When used properly, AI tools could potentially make employment processes faster and more efficient, while eliminating both conscious and unconscious bias.
What’s in Store for the Next Four Years? – Part Two: The EEOC’s Strategic Enforcement Plan
Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & RetaliationThe U.S. Equal Employment Opportunity Commission (EEOC or Commission) recently published its substantive agency enforcement priorities to combat employment discrimination and promote inclusive workspaces over the next four years. The EEOC periodically adopts a multi-year plan to guide fulfillment of its mission to prevent and remedy unlawful discrimination in employment. We discussed the EEOC’s overall logistical plan to achieve and monitor its general and long-term goals and objectives in our blog post earlier this month about the EEOC’s Strategic Plan (2022-2026). Now we have details about the subject matters where the EEOC will steer its efforts. In the EEOC’s Strategic Enforcement Plan 2023-2027 (SEP) (draft released January 10, 2023), the EEOC strives to get the most “bang for its buck.” So, to maximize its effectiveness, expect the EEOC to focus on activities that have a significant impact on the development of the law or on promoting compliance across a large organization, geographic region, or industry.
Overbroad and Overstepping? FTC Moves to Ban Non-Competes Nationwide
Posted in Non-Compete & Trade Secret LitigationOnly days into the new year, the Federal Trade Commission announced a controversial proposed rule that would potentially ban all non-compete agreements nationwide. While the proposed rule would not take effect until the end of a 60-day public comment period, at the earliest, it has left employers wondering how they can protect their businesses should it become binding? The actual impact of the proposed rule depends on the legal challenges and substantial revisions the rule is likely to face, but, at this point, here is what employers need to know.
What’s in Store for the Next Four Years? The EEOC’s Strategic Plan
Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & RetaliationThe EEOC promises to secure greater equitable relief, to better investigate systematic discrimination, and to improve its customer service over the next four years, among other New Year’s resolutions. In its draft EEOC Strategic Plan 2022-2026 (released November 4, 2022), the agency sets forth 3 overarching goals and 15 identified performance measures for the purpose of achieving those goals. Although the comment period has ended, the EEOC has not yet published the final version of its Strategic Plan. Aside from potential changes to its preliminary plan, the EEOC concedes that budgetary, demographic, legal, and technological factors may impact its success in achieving its stated goals. Employers should brace themselves for the impact the EEOC’s manifestation of its performance measures may have over the next four years.
Surprise Surprise, the NLRB Continues Expanding Employee Protections
Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations, PrivacyImagine this: a nurse leaves the operating room during spinal surgery to participate in a union action, the employer terminates the nurse, and the National Labor Relations Board (NLRB) holds that the employer violated federal labor law by terminating the nurse. That is exactly what happened to a New York hospital recently when the Board compared the nurse’s actions to a non-union employee who acted in a similar manner and was not disciplined, and found that the hospital violated the law. This is just one of many hard to believe examples of the NLRB’s continued push to expand the protections offered to employees.
With the expanded focus on employee protection, a major area the NLRB continues to focus on is the expansion of what constitutes “protected concerted activity.” One example of this expansion is that employers must be aware that behavior that looks on its face to be harassment may be considered protected concerted activity by the NLRB. Further, the NLRB has even suggested that a single employee’s workplace complaint could constitute protected concerted activity. Over the last month, the NLRB has continued to push the limits on protecting employees and the expansion of protected concerted activity.
LGBTQ+: What’s the Fuss?
Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment LitigationThe Respect for Marriage Act is now law, upholding recognition of interracial and same-sex marriages, and the U.S. Supreme Court has held that sexual orientation and gender identity discrimination in the workplace is illegal, but what rights do LGBTQ+ employees have in the workplace and how inclusive must employers be? The EEOC’s attempt to provide employers guidance has been thwarted, most recently by a federal court in Texas, and earlier this year in a legal challenge regarding state sovereignty rights. In the meantime, employers are left to strike a delicate balance between non-discrimination, inclusion and accommodation, under applicable and sometimes competing federal and state mandates.
