It’s Election Season! Regulating Political Speech in the Workplace

By Emily Ayvazian on August 19, 2024 Posted in Employment Counseling & Workplace Claims Prevention

With 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?

By Ryan Krone on August 14, 2024 Posted in Labor Relations

The 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?

By Matthew Gurnick and Damien P. DeLaney on July 16, 2024 Posted in Wage & Hour

In 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

By Phillip Walters on July 3, 2024 Posted in Employment Litigation, Labor Relations, Wage & Hour

Based 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…).

Legal Challenges to the U.S. Department of Labor’s New Overtime Rule

By Akerman Law on July 1, 2024 Posted in Employee Benefits, Employee Handbooks & Policies, Wage & Hour

As expected, the first lawsuits have been filed to challenge a new Department of Labor (DOL) “Overtime Rule” that significantly raises the minimum salary threshold for the exempt, administrative, and professional (EAP) and highly compensated employee (HCE) overtime exemptions under the Fair Labor Standards Act. The new rule is intended to take effect today, July 1, initially increasing the EAP salary minimum from $684/week ($35,568 annually) to $844/week ($43,888 annually) and the HCE salary minimum from $107,472 annually to $132,964 annually before another set of increases come on January 1, 2025. The plaintiffs in the lawsuits have each asked the court to immediately block enforcement of the new rule pending a ruling on the merits of the challenges, raising the question of whether employers will need to adapt to this change and, if so, when.

California’s New Drug Testing Rules Protect Employees’ Off-Duty Cannabis Use

By Matthew Gurnick on June 10, 2024 Posted in Cannabis, Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

With expanding legalization and commercialization—including several state initiatives in 2024 and perhaps even federal legislation—the chances are good that your California business has at least a few employees who consume recreational cannabis in their free time. A new California law, Assembly Bill 2188, shields these employees from consequences at work for using cannabis away from work. Among other things, AB 2188 prohibits employers from taking adverse action against employees for off-the-job cannabis consumption and limits employers from testing for cannabis with methods which are unable to identify active chemical cannabis compounds. Here’s what California employers can (and should) do about it.

Wired For Success: How Recent Development in the Semiconductor Industry Can Shape Immigration Programs

By Zain Abidi on June 5, 2024 Posted in Immigration Planning & Compliance

America runs on semiconductors, also known informally as chips. Chips are integral to the cars we drive, the planes we fly, the systems that defend our country, and the computers that every single industry, from manufacturing to finance, relies upon. A recent top-down approach by the Federal Government — best exemplified by the CHIPS and Science Act (2022) — provides opportunities for immigration professionals to create a pipeline for talented foreign nationals and climb above their competition within the industry.

Headlines over the past few months have highlighted the United States’ renewed interest in building and expanding its semiconductor industry. This has resulted in government funding for private sector technology companies, which is being used for the construction and expansion of production facilities.

The federal government’s top-down approach to the chips industry has spurred this new investment, and is expected to spark continued expansion over the coming months and years. This renewed focus on the chips industry comes from increased geopolitical tensions surrounding Taiwan, which accounts for an outsized proportion of global semiconductor foundry operations.

Employers Must Keep Reproductive Health Information About Their Plan Participants Private Under New HIPAA Privacy Rule

By Elizabeth F. Hodge and Beth Alcalde on June 4, 2024 Posted in Employee Benefits, Privacy

Imagine you are a corporate Human Resources/Total Rewards leader who receives a request from a state’s law enforcement agency for health plan records about a plan participant’s abortions or other reproductive health care. How should you respond? Since most company health plans are considered a “HIPAA covered entity,” the request should be generally be denied, subject to certain limited exceptions, as addressed in a new HIPAA Privacy Rule which takes effect June 25, 2024.

It is critical for employers and plan fiduciaries/administrators to stay informed of HIPAA privacy and security-related legal developments because most employer sponsored group health plans – regardless of the employer’s industry or size – are considered covered entities under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Therefore, individually identifiable medical information that group health plans create, use, store, or transmit is “protected health information” (PHI) pursuant to HIPAA. In the newly updated HIPAA Privacy Rule, reproductive health care records have received enhanced protection from disclosure, including as to attempted access by state law enforcement agencies. Employers should take note of upcoming compliance deadlines and obligations imposed by this new HIPAA Privacy Rule.

California Proposes New Legislation Prohibiting Algorithmic Discrimination in the Workplace

By Akerman Law on June 3, 2024 Posted in Employee Handbooks & Policies, Employment Discrimination Harassment & Retaliation, Employment Litigation

Algorithmic discrimination continues to be a focal point of concern, as evidenced by recent legislation introduced in California which, if passed into law, will require employers who use automated decision tools to make consequential decisions to undergo a cost-benefit analysis regarding the use of such technology. Employers must continue to proceed with caution, and be “smart” about how they use Artificial Intelligence (AI) in the workplace, particularly as to hiring, firing, and other important employment-related decision-making.

How Much Worse Off Must an Employee Be Post-Job Transfer to State a Title VII Claim?

By Paige Newman on May 21, 2024 Posted in Employment Discrimination Harassment & Retaliation

In what may be considered a “win” for employees, the United States Supreme Court recently clarified that an employee challenging a job transfer as “discriminatory” need only prove that they sustained “some” harm due to the transfer, not “significant” harm, to assert a Title VII violation. Although the bar may appear to have been lowered, employers who remain agile in assessing the implications of a particular job transfer in advance may keep the employee from clearing this hurdle and getting to the finish line.