NEWS

SORT BY PRACTICE AREAS:
ALL
  • ALL
  • Architects and Engineers/Design Professionals
  • Construction
  • Coverage
  • Environmental
  • Fair Housing and Public Accommodation
  • General Liability
  • Insurance Fraud/Special Investigations
  • Employment
  • Medical & Healthcare
  • Professional Liability
  • Securities
  • Workers' Compensation
There are no articles currently for that practice area!
employment
EEOC PUBLISHES PROPOSED RULE TO IMPLEMENT THE PREGNANT WORKERS FAIRNESS ACT

On August 11, 2023, the Equal Employment Opportunity Commission (“EEOC”) published its proposed regulations to implement the Pregnant Workers Fairness Act (“PWFA”) in the Federal Register. The PWFA became effective June 27, 2023, and requires that employers with at least 15 employees provide reasonable accommodations, absent undue hardship, to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The EEOC’s proposed regulations provide guidance on how the PFFA should be interpreted.

employment
SUPREME COURT CLARIFIES STANDARD FOR RELIGIOUS ACCOMMODATIONS

On June 29, 2023, the United States Supreme Court unanimously adopted a new “undue hardship” standard for religious accommodations under Title VII of the Civil Rights Act (“Title VII”). The decision came in Groff v. DeJoy, No. 22-174 (June 29, 2023), which concerned an Evangelical Christian postal worker who opposed working on Sundays due to his sabbath observance. Although the US Postal Service (“USPS”) attempted to accommodate Groff’s requests, it could not always find coverage for Groff’s Sunday shifts, and he was disciplined when he was scheduled to work on Sundays but refused.  Groff ultimately resigned over the issue and sued USPS.

employment
EMPLOYMENT PROTECTIONS EXPAND UNDER THE PREGNANT WORKERS FAIRNESS ACT

On June 27, 2023, the EEOC began accepting charges under the Pregnant Workers Fairness Act (“PWFA”). The PWFA requires “covered employers” to provide “reasonable accommodations” to a worker’s known limitations arising from pregnancy, childbirth or other related conditions, unless doing so would impose an undue hardship on the employer. With more than 30 states and cities having already adopted provisions to protect pregnant women, this new law ensures those protections are interpreted similarly.

employment
FEDERAL AGENCIES HAVE ANNOUNCED ACTION ON AI DISCRIMINATION

The Department of Justice (“DOJ”), the Federal Trade Commission (“FTC”), the Consumer Financial Protection Bureau (“CFPB”), and the Equal Employment Opportunity Commission (“EEOC”) have issued a joint statement outlining a collective commitment to monitor the use of automated systems and artificial intelligence (“AI”) and its relation to unlawful discrimination.  The agencies have warned that while AI tools utilized by employers offer a promise of advancement, their use carries the potential of unlawful bias, discrimination, and other harmful outcomes. 

employment
NLRB GENERAL COUNSEL ISSUES GUIDANCE ON NON-DISPARAGEMENT AND CONFIDENTIALITY PROVISIONS IN SEVERANCE AGREEMENTS

The National Labor Relations Board (“NLRB”) recently issued a decision in McLaren Macomb, 372 NLRB No. 58 (2023), holding that severance agreements containing overly broad non-disparagement or confidentiality clauses violate the rights of employees under the National Labor Relations Act (“NLRA”), Section 7. The NLRB held that such clauses interfere with employees’ rights to assist co-workers or former co-workers with workplace issues and communications with others about their employment. In the weeks following the NLRB’s decision, employers have had several questions regarding the implications of this decision and how it affects the agreements they have entered into, or plan to enter into, with employees.

employment
SUPREME COURT RULES EMPLOYEES PAID DAILY RATE ARE ENTITLED TO OVERTIME

On February 22, 2023, the U.S. Supreme Court affirmed a decision from the Fifth Circuit Court of Appeals that an employee earning a daily rate is not exempt from overtime pay under the Fair Labor Standards Act (“FLSA”). See Helix Energy Sols. Grp., Inc. v. Hewitt, 143 S. Ct. 677 (2023). In its 6-3 decision, the Supreme Court analyzed whether the employee fell within the bona-fide executive exemption to the FLSA, and ultimately found he did not because he was not paid on a salary basis.  See 29 U.S.C. § 213(a)(1).

employment
UNITED STATES SENATE REINTRODUCES BILL TO BAN NON-COMPETE AGREEMENTS

On February 1, 2023, a bipartisan group of United States Senators reintroduced a bill, entitled the “Workforce Mobility Act of 2023” (“the Act”). The Act proposes a nationwide ban on the majority of non-compete agreements and follows the recently proposed rule by the Federal Trade Commission (“FTC”).

employment
FEDERAL TRADE COMMISSION PROPOSES RULE TO BAN NONCOMPETE AGREEMENTS

On January 5, 2023, the Federal Trade Commission (“FTC”) proposed a rule to ban non-compete agreements between employers and workers. The proposed rule would prevent employers from requiring workers to agree to contract clauses that prevent the worker from seeking or accepting employment with another employer or operating a business after the conclusion of the worker’s employment. The only exception to the proposed rule is non-compete agreements stemming from the sale of a business or ownership interest in a business.  The FTC has proposed the rule on the basis that non-compete agreements are unfair methods of competition, and it estimates that the rule would increase American workers’ earnings between $250 billion and $296 billion per year. 

employment
PRESIDENT BIDEN SIGN SPEAK OUT ACT BARRING USE OF NON-DISCLOSURE AGREEMENTS IN HARASSMENT CASES

On December 7, 2022, President Joe Biden (“President Biden”) signed the Speak Out Act (“The Act”), which bans the use of pre-dispute, non-disclosure and non-disparagement contract clauses involving sexual assault and sexual harassment claims. The Act applies to agreements between employers, current employees, former employees and independent contractors.

employment
ELEVENTH CIRCUIT CONTINUES TREND OF INCREASED SCRUTINY IN NO HIRE AND NO POACH AGREEMENTS

The United States District Court for the Southern District of Florida erred when it dismissed a suit against a group of Burger King franchisees that alleged the restaurants illegally maintained no-hire and no-poach agreements. The workers claimed Burger King’s franchisee agreements prevented them from obtaining employment at other franchise restaurants. See Arrington v. Burger King Worldwide, Inc., 448 F.Supp.3d 1322, 1326 (S.D. Fla., 2020).

employment
U.S. DEPARTMENT OF LABOR ISSUES NEW RULE ON INDEPENDENT CONTRACTOR STATUS

On October, 11, 2022, the U.S. Department of Labor (“DOL”) released a proposed rule to update the test for determining whether a worker is an employee under the Fair Labor Standards Act (“FLSA”) or an independent contractor. The new rule significantly broadens the classification of workers as employees under the FLSA.

employment
ELEVENTH CIRCUIT ENFORCES EMPLOYEE ARBITRATION AGREEMENT, HOLDING THAT THE AGREEMENT WAS NOT UNCONSCIONABLE

The Eleventh Circuit Court of Appeals recently reversed a District Court’s decision that an employment arbitration agreement was “procedurally unconscionable”. See Lambert v. Signature Healthcare, LLC, No. 19-11900 (11th Cir. July 8, 2022).

employment
CDC ISSUES NEW GUIDANCE ON COVID-19 FOCUSING ON INDIVIDUAL DECISION MAKING

On August 11, 2022, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance regarding COVID-19 that emphasizes individual responsibility, rather than regulation by the government. The CDC states that the new guidance’s purpose is to help the public better understand how to protect themselves and others if they test positive for COVID-19 and what actions to take if exposed.

employment
ELEVENTH CIRCUIT UPHOLDS ADMINISTRATIVE EXEMPTION FOR OVERTIME COMPENSATION

The Eleventh Circuit Court of Appeals recently reaffirmed in Brown v. Nexus Bus. Solutions LLC, that the Fair Labor Standards Act (“FLSA”) allows an administrative exemption from overtime provisions. (11th Cir. Apr. 1, 2022). Traditionally, FLSA requires employees be paid overtime for all hours worked beyond 40 in a week. The rate of pay is set at least one and a half times the employees’ regular rate of pay.

employment
UNITED STATES SUPREME COURT RULES CERTAIN AIRLINE EMPLOYEES EXEMPT FROM FEDERAL ARBITRATION ACT

On June 6, 2022, the United States Supreme Court issued a decision that certain airline employees are exempt from the Federal Arbitration Act (“FAA”), as they are considered to be a “class of workers engaged in foreign or interstate commerce”.  See Southwest Airlines Co. v. Saxon, No. 21-309 (June 6, 2022). The FAA exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from coverage. 9 U.S.C. § 1. The Supreme Court previously held that the phrase “any other class of workers engaged in foreign or interstate commerce” applies only to “transportation workers.” Circuit City Stores v. Adams, 532 U.S. 105, 119 (2001).

employment
SUPREME COURT BARS DAMAGES FOR EMOTIONAL DISTRESS UNDER THE SPENDING CLAUSE

The United States Supreme Court recently held that emotional distress damages are not recoverable in private actions to enforce statutes authorized by the Spending Clause of the United States Constitution. Cummings v. Premier Rehab Keller, P.L.L.C., No. 20-219 (Apr. 28, 2022). Statutes authorized by the Spending Clause include the Rehabilitation Act, Title IX of the Education Amendments Act of 1972, Title VI of the Civil Rights Act of 1964 and the Patient Protection and Affordable Care Act.

employment
SEVENTH CIRCUIT UPHOLDS SUMMARY JUDGMENT FOR EMPLOYER IN ADA DISCRIMINATION CASE BASED ON DIRECT THREAT EXCEPTION

The Seventh Circuit recently held an employer’s rescission of an employment offer upon learning the prospective employee suffered from uncontrolled seizures did not violate the Americans with Disabilities Act (“ADA”).  Russell Pontinen (“Pontinen”) applied to work as a Utility Person at United States Steel Corporation’s (“USS”) Midwest Plant and received a contingent employment offer. After an investigation, USS discovered that Pontinen suffered from an uncontrolled seizure disorder that imposed work restrictions on him. The restrictions conflicted with the requirements of the position for which he applied; so, USS rescinded the employment offer. Pontinen sued for disability discrimination under the ADA, and the district court granted USS’s motion for summary judgment.

employment
PRESIDENT BIDEN SIGNS FEDERAL LAW RESTRICTING SEXUAL HARASSMENT AND ASSAULT ARBITRATION

On March 3, 2022, President Joe Biden (“President Biden”) signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“the Act”), a law that limits the use of pre-dispute arbitration agreements and class action waivers covering sexual assault and sexual harassment claims. The Act amends the Federal Arbitration Act (“FAA”) to give employees who are parties to arbitration agreements with their employers the option of bringing sexual assault or sexual harassment claims either in arbitration or in court.

employment
OSHA WITHDRAWS VACCINE OF TEST EMERGENCY TEMPORARY STANDARD FOR LARGE EMPLOYERS

On Tuesday, January 25, 2022, the U.S. Occupational Safety and Health Administration (“OSHA”) announced the withdrawal of its November 2021 Emergency Temporary Standard (“ETS”) that would have required private sector U.S. employers with 100 or more employees to either mandate COVID-19 vaccinations for their employees or require them to comply with weekly COVID-19 testing and face covering requirements. On January 13, 2022, the U.S. Supreme Court stayed enforcement of the ETS, finding that those parties challenging it were likely to succeed and sent the matter back to a lower federal appellate court for review on the merits of the parties’ arguments. In issuing its order staying enforcement of the ETS, the six-justice majority sent a clear signal to OSHA that it believed OSHA may have exceeded its authority in issuing a broad vaccination-or-testing requirement that would impact nearly 90 million U.S. employees. The Court explained that OSHA exists to regulate workplace safety, not the public health. Following the Supreme Court’s decision, OSHA decided to withdraw the ETS.

employment
SUPREME COURT BLOCKS PRESIDENT BIDEN’S COVID 19 EMERGENCY TEMPORARY STANDARD

On November 5, 2021, OSHA released the COVID-19 Emergency Temporary Standard (“ETS”) providing that employers with at least 100 employees adopt a vaccination policy requiring employees to be fully vaccinated or submit to weekly testing. On January 13, 2021, in a 6-3 decision, the United States Supreme Court issued a ruling blocking the mandate stating that the Labor Secretary “lacked authority to impose the mandate” and it should have been left up to Congress to decide.

employment
OSHA OPENS INVESTIGATION FOLLOWING DEATH OF SIX EMPLOYEES IN AMAZON WAREHOUSE COLLAPSE

On Friday December 10, 2021, an EF-3 tornado devastated the Midwest, including the community of Edwardsville, Illinois. The Amazon warehouse in Edwardsville was hit by the tornado, causing the sides of the warehouse to collapse and the roof to cave in. Six were killed and one other hospitalized.

employment
FIFTH CIRCUIT STAYS OSHA’S COVID 19 EMERGENCY TEMPORARY STANDARD

On November 5, 2021, OSHA released a COVID-19 Emergency Temporary Standard (“ETS”) providing that employers with at least 100 employees adopt a vaccination policy requiring employees to be fully vaccinated or submit to weekly testing. The ETS further required employers to provide paid time off to recover from and receive the vaccine, and unvaccinated employees must wear a mask when in contact with coworkers.  Under the ETS, the test for the number of employees is counted by the enterprise, not the location. Part-time employees are counted, but independent contractors are not. In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes.

employment
EEOC ISSUES GUIDANCE ON ENFORCEMENT OF DISCRIMINATION LAWS REGARDING GENDER IDENTITY AND SEXUAL ORIENTATION

Last year, the United States Supreme Court decided Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020) and held that it is unlawful under Title VII to discriminate against an employee because of their gender identity or sexual orientation. Since then, employers have been left with little guidance regarding how far the decision reaches. Earlier this year, the Equal Opportunity Employment Commission (“EEOC”) issued guidance clarifying the implications following Bostock. The EEOC Guidance is not binding, however, it shows the EEOC’s interpretation and how the EEOC intends to enforce discrimination laws going forward.

employment
ELEVENTH CIRCUIT UPHOLDS MONETARY AND NONMONETARY RULE 11 SANCTIONS AGAINST SERIAL ADA CASE FILERS

In Johnson v. 27th Ave. Caraf, Inc., the Eleventh Circuit Court of Appeals sent a message:  If you choose to misuse the legal system, be prepared to suffer the consequences.  No. 19-14353, 2021 WL 3627604, at *30 (11th Cir. Aug. 17, 2021).

employment
US DEPARTMENT OF LABOR WITHDRAWS JOINT EMPLOYER RULE

On July 29, 2021, the U.S. Department of Labor (“DOL”) announced the withdrawal of the “Joint Employer Rule”, which was established during the Trump Administration. This rule, which took effect on March 16, 2020, was intended to clarify the definition of who may be held jointly liable as an employer under the Fair Labor Standards Act (“FLSA”) by emphasizing whether the proposed employer:

  1.      Hires or fires the employee;
  2.      Supervises and controls the employee's work schedule or conditions of employment to a substantial degree;
  3.      Determines the employee's rate and method of payment; and
  4.      Maintains the employee's employment records.
employment
FIFTH CIRCUIT COURT OF APPEALS REJECTS LOWER STANDARD FOR GENDER IDENTITY DISCRIMINATION CLAIMS UNDER TITLE VII

Last summer, the United States Supreme Court decided Bostock v. Clayton County and held that Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against individuals for being homosexual or transgender. 140 S. Ct. 1731 (2020). The Fifth Circuit Court of Appeals recently decided Olivarez v. T-Mobile USA, Inc., where it rejected the argument that Bostock altered the standard for these individuals in their Title VII suits. No. 20-20463, 2021 WL 1945680 (5th Cir. May 14, 2021).

employment
OSHA ISSUES EMERGENCY TEMPORARY STANDARD FOR COVID 19 FOR HEALTHCARE EMPLOYEES

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) published an Emergency Temporary Standard (“ETS”) limited to employers in the healthcare section for COVID-19.  OSHA has the authority to issue an ETS without utilizing the regular rulemaking process if it determines that (1) workers are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or from new hazards; and (2) an ETS is necessary to protect workers from that danger.

employment
US DEPARTMENT OF LABOR WITHDRAWS INDEPENDENT CONTRACTOR RULE

On May 6, 2021, the U.S. Department of Labor (“DOL”) announced the withdrawal of the “Independent Contractor Rule”, which was established in the last days of the Trump Administration. This rule would have established a uniform standard for determining a worker’s status as an “independent contractor” under the Fair Labor Standards Act (“FLSA”).

employment
ELEVENTH CIRCUIT HOLDS WEBSITES NOT PLACES OF PUBLIC ACCOMMODATION UNDER AMERICANS WITH DISABILITIES ACT

On April 7, 2021, the Eleventh Circuit Court of Appeals rendered its opinion in Gil v. Winn-Dixie Stores, Inc., reversing the trial court’s decision against Winn-Dixie, holding that websites are not places of public accommodation under Title III of the Americans with Disabilities Act (“ADA”) and an inaccessible website is not necessarily equal to the denial of goods or services.  See Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. Apr. 7, 2021).

employment
DEPARTMENT OF LABOR ISSUES GUIDANCE TO STATE UNEMPLOYMENT INSURANCE AGENCIES THAT EXPANDS ELIGIBILITY FOR PANDEMIC UNEMPLOYMENT ASSISTANCE

In response to a directive from President Biden, the U.S. Department of Labor (“DOL”) has issued guidance to state unemployment insurance agencies that expands the number of instances in which workers can be eligible for Pandemic Unemployment Assistance (“PUA”). PUA is a federally funded unemployment expansion that was adopted under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to provide unemployment benefits for certain individuals not otherwise entitled to state benefits and unemployed for COVID-19-related reasons.  The new DOL guidance reflects the Biden administration’s pledge to “ensure that unemployed Americans no longer have to choose between paying their bills and keeping themselves and their families safe from COVID-19.”

employment
DEPARTMENT OF LABOR ANNOUNCES FINAL RULE ON STANDARD FOR EMPLOYEES VERSUS INDEPENDENT CONTRACTORS

On January 6, 2021, the US Department of Labor (“DOL”) announced its final rule clarifying the standard for employee versus independent contractor under the Fair Labor Standards Act (“FLSA”). The effective date of the final rule is March 8, 2021.The purpose of the new rule is to provide clarity to workers and employers by making it easier to identify employees covered by the FLSA. The new rule replaces the previously used seven-factor economic realities test that the DOL and most Courts have used when analyzing a work relationship to determine independent contractor versus employee status.

employment
CAN EMPLOYERS REQUIRE EMPLOYEES TO RECEIVE COVID-19 VACCINATION?

The Food and Drug Administration (“FDA”) recently issued emergency use authorizations for COVID-19 vaccines. As the vaccines become widely available, more employers will consider whether to mandate vaccinations for employees. While generally employers may mandate vaccinations, there are some additional considerations with the COVID-19 vaccine.

A key consideration is the Americans with Disabilities Act (“ADA”), which generally requires that a disability-related inquiry or medical examination of an employee be job related, consistent with business necessity, and no more intrusive than necessary. With the COVID-19 pandemic continuing to spread, the direct threat COVID-19 poses to the workplace may be sufficient to meet the ADA’s requirement. Many healthcare employers require employees to receive the influenza vaccine and have successfully demonstrated that the inquiries related to the flu vaccine are job related and consistent with business necessity.


employment
CALIFORNIA SAFETY AGENCY IMPOSES COVID-19 EMERGENCY REGULATIONS

Throughout the past few months, COVID-19 cases have continued to rise causing several areas of concern for employers across the nation. On November 18, 2020, the California Division of Occupational Safety and Health (“Cal OSHA”) proposed emergency regulations containing new workplace protocols that provide employers with more comprehensive guidelines to adequately enforce or modify existing safety rules regarding COVID-19. These regulations can be found at California Code of Regulations (CCR), Sections 3205, 3205.1, 3205.2, 3205.3 and 3205.4.

employment
OSHA COVID INVESTIGATIONS

Across the nation, COVID-19 cases continue to rise and so have COVID-related complaints to the Occupational Safety and Health Administration (“OSHA”). OSHA has initiated over 1,000 investigations related to COVID, and as of October 22, 2020, OSHA had issued just under 150 COVID-related citations. OSHA has not developed standards specific to COVID-related concerns. Instead, it is applying existing OSHA standards.

employment
PRESIDENT TRUMP’S ORDER ON COMBATING RACE AND SEX STEREOTYPING AND HOW IT IMPACTS GOVERNMENT CONTRACTORS
President Trump recently signed Executive Order 13950, Combating Race and Sex Stereotyping (the “EO”), which seeks to “combat offensive and anti-American race and sex stereotyping and scapegoating,” and end “divisive concepts” covered in some of these workplace trainings. The EO establishes requirements aimed at “promoting unity in the Federal workforce,” by prohibiting messages in workplace trainings that imply “an individual, by virtue of their race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.”
employment
NLRB ISSUES GUIDANCE ON COVID-19

The National Labor Relations Board (“NLRB”) recently addressed the issue of COVID-19 for the first time since the pandemic. The NLRB issued a series of advice memoranda instructing its regional offices to dismiss various COVID-19 related charges against employers.

employment
COVID LITIGATION FILED BY PREGNANT EMPLOYEES

Businesses continue to grapple with the realities of working during the COVID-19 pandemic and the quickly evolving legal landscape regarding returning employees to work. A number of new lawsuits related to pregnancy discrimination have been recently filed because COVID-19 can present an elevated immune and respiratory risk to pregnant women.

employment
TITLE VII PROHIBITS DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION AND GENDER IDENTITY

On June 15, 2020, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay, lesbian and transgender persons in their employment. Prior to the Supreme Court’s ruling, the law had no specific protection for sexual orientation or gender identity. The Court’s decision has resolved a conflict among several federal circuits as to whether Title VII prohibits employment discrimination on the basis of sexual orientation and gender identity.

employment
INTERPLAY OF THE ADA AND RETURNING HIGH RISK EMPLOYEES TO WORK DURING COVID 19

The Equal Employment Opportunity Commission (“EEOC”) has clarified a question that has been playing on the minds of employees and employers alike: during the COVID-19 pandemic, how does the ADA apply to workers who do not want to return to the workplace because they are “high risk?”  If an employee, who has a medical condition identified by the Center for Disease Control (“CDC”) that puts him or her at greater risk of severe illness from COVID-19 infection, requests a reasonable accommodation, the employer should provide the reasonable accommodation. If the employee does not request a reasonable accommodation, the ADA does not require that the employer take action.

employment
PRESIDENT SIGNS CARES ACT ATTACHING STRINGS TO BUSINESS LOANS

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which is a $2 trillion relief package aimed to help diminish the economic impact of the COVID-19 pandemic. The Act includes certain provisions particularly relevant to employers.





employment
OSHA AND CDC GUIDANCE TO EMPLOYERS REGARDING THE CORONAVIRUS

Both the Occupational Safety and Health Administration (“OSHA”) and the Center for Disease Control and Prevention (“CDC”) published guidance for employers on planning for and protecting their workplaces from exposure to and infection from COVID-19, or coronavirus.





employment
DEPARTMENT OF LABOR ISSUES FINAL RULE ON JOINT EMPLOYER STATUS UNDER THE FLSA

On January 16, 2020, the U.S. Department of Labor published in the Federal Register the Final Rule regarding joint employer status under the Fair Labor Standards Act (“FLSA”). These changes to the rule are the first meaningful revisions to the regulations in more than 60 years.





employment
EMPLOYERS MAY REQUIRE CONFIDENTIALITY IN WORKPLACE INVESTIGATIONS

The National Labor Relations Board (“NLRB”) ruled that an employer may now require confidentiality from employees involved in open workplace investigations.  This resolves a conflict between the NLRB and the Equal Employment Opportunity Commission (“EEOC”) and provides clarity for employers.





employment
ELEVENTH CIRCUIT DISMISSES EQUAL PROTECTION CHALLENGE TO ALABAMA MINIMUM WAGE LAW

After a recent Eleventh Circuit decision in Lewis v. Governor of Alabama 896 F.3d 1282 (11th Cir. 2018), the Eleventh Circuit Court of Appeals agreed to a full-court review to decide the validity of a 2016 Alabama Law prohibiting cities or other local municipalities from adopting their own laws concerning minimum wages. The law was originally enacted in response to an ordinance by the Birmingham City Council that increased the minimum wage for all employees within the Birmingham City’s boundaries from the current federal minimum of $7.25 to $10.10.  The day after this ordinance was enacted to increase the minimum wage, the Alabama Legislature enacted and the Governor signed the Alabama Minimum Wage Act, voiding Birmingham’s wage increase after one day of operation.





employment
TENTH CIRCUIT COURT OF APPEALS HOLDS ADA PLAINTIFFS DO NOT NEED EXPERT TESTIMONY TO PROVE DISABILITY

On November 8, 2019, a unanimous three-judge panel of the Tenth Circuit Court of Appeals issued an opinion in Tesone v. Empire Marketing Strategies holding that employees who sue their employers for violations of the Americans with Disabilities Act (“ADA”) do not necessarily need to submit expert medical testimony to establish they have a disability. 





employment
U.S. DEPARTMENT OF LABOR ISSUES FINAL OVERTIME RULE

On September 24, 2019, the Department of Labor released its Final Rule, modifying the Fair Labor Standards Act’s (“FLSA”) overtime regulations. The Final Rule results in fewer employees being exempt, and more employees being eligible for overtime pay. As such, employers should budget to include additional expenditures in overtime for the coming year. 





employment
EEOC ISSUES NEW GUIDANCE REGARDING REPORTING NON BINARY EMPLOYEES

The Equal Employment Opportunity Commission (“EEOC”) and the Office of Federal Contract Compliance Programs (“OFCCP”) both provide protections against discrimination on the basis of gender identity.  OFCCP’s frequently asked questions define gender identity as referring to a person’s internal sense of their own gender and that this internal sense may or may not correspond to the sex assigned at birth and may not be visible to others.  Despite these regulations, employers who are required to submit EEO-1 reports face challenges in reflecting gender identity diversity in their workforce because the federal reporting forms reflect a binary gender framework.






employment
SCOTUS SET TO RULE WHETHER TITLE VII PROHIBITS DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION AND GENDER IDENTITY
The United States Supreme Court recently granted certiorari in a group of three cases challenging the scope of Title VII of the Civil Rights Act of 1964’s (“Title VII”) prohibition on discrimination on the basis of sex. This decision will resolve a conflict among federal circuits as to whether Title VII prohibits employment discrimination on the basis of sexual orientation and gender identity. This topic is currently the subject of uncertainty as many circuits differ on whether the term “sex” encompasses sexual orientation.




employment
EEOC UPDATES INFORMATION REGARDING NEW PAY DATA REPORTING RULE
In 2016 the Equal Employment Opportunity Commission (“EEOC”) adopted a controversial rule requiring employers with over 100 employees to report pay data and hours worked broken down by sex and race as part of annual EEO-1 reporting obligations. On July 2, 2019, the EEOC updated its website to provide additional information and about new pay data reporting requirements and provided sample forms. (https://eeoccomp2.norc.org/ ) The website portal opened to employers to begin submissions on July 15, 2019.  The deadline for employers to submit the data is September 30, 2019.

employment
ALABAMA ENACTS NEW EQUAL PAY ACT TO PREVENT WAGE DISPARITY
On June 11, 2019, Alabama Governor Kay Ivey signed a new law that prohibits employers from paying less for the same work on the basis of gender or race. The new law, titled the Clarke-Figures Equal Pay Act (the “Act”), makes Alabama the 49th state to enact a state law against wage inequality, with only Mississippi remaining. The Act will go into effect on September 1, 2019.


employment
ELEVENTH CIRCUIT AFFIRMS APPLICATION OF MOTOR CARRIER EXEMPTION TO INTRASTATE DRIVERS
The Motor Carrier Exemption of the Fair Labor Standards Act (“FLSA”) provides a defense to many overtime claims by interstate truck drivers and others involved in the interstate shipment of goods.  The exemption is not, however, limited to drivers who cross state lines.  Rather, the exemption also applies to intrastate drivers as long as the drivers complete one leg of a larger interstate transport of goods.
employment
ATTORNEYS FROM LGWM SUPPORT CAHABA VALLEY HEATH CARE SEE MORE SMILES BANQUET
Attorneys from LGWM’s Birmingham office attended Cahaba Valley Health Care’s annual See More Smiles Fundraising Breakfast. LGWM’s Brittany Herring serves as a board member for Cahaba Valley Health Care.  The organization provides free dental and vision services for low-income individuals in Jefferson and Shelby Counties. Taffi Stewart, Sarah Redmond and Hannah Stokes also attended the fundraising event.
employment
ELEVENTH CIRCUIT TO CLARIFY 2015 SUPREME COURT RULING IN UPCOMING PREGNANCY BIAS CASE
In February of 2019, a team of lawyers from the ACLU filed an opening brief in a new Eleventh Circuit pregnancy bias action. This new action involves an Alabama EMT named Kimberlie Durham (“Ms. Durham”), who has sued her company for alleged pregnancy discrimination. She alleges that her employer did not assign her to a less strenuous job during her pregnancy.
employment
ELEVENTH CIRCUIT CLARIFIES COMPARATOR STANDARD IN TITLE VII CASES
On March 21, 2019, the full en banc U.S. Court of Appeals for the Eleventh Circuit clarified that in order to establish a prima facie case of workplace discrimination through alleged preferential treatment of a comparator outside of the plaintiff’s protected class...




employment
DEPARTMENT OF LABOR DISCLOSES PROPOSED UPDATED OVERTIME RULES
The United States Department of Labor (“DOL”) issued a long-awaited proposed overtime rule and new exemption threshold under the Fair Labor Standards Acts (“FLSA”) on March 7, 2019.  The proposed rule raises the salary threshold for overtime eligibility from $23,660.00 to $35,308.00, or $679.00 per week.  As such, employees earning under $35,308.00 a year must be paid overtime for hours worked in excess of 40 each week.  Above this salary level, eligibility for overtime varies based on job duties.
employment
ELEVENTH CIRCUIT REVERSES DISCRIMINATION CLAIM LEADING TO A FULL COURT REVIEW OF CHALLENGE TO ALABAMA LAW
After a recent Eleventh Circuit decision in Lewis v. Governor of Alabama 896 F.3d 1282 (11th Cir. 2018), the Eleventh Circuit Court of Appeals has agreed to a full-court review to decide the validity of a 2015 Alabama Law prohibiting cities or other local municipalities from adopting their own laws concerning minimum wages, leave benefits, collective bargaining and other employment related issues. The law was originally enacted in response to an ordinance by the Birmingham City Council that increased the minimum wage for all employees...



employment
NINTH CIRCUIT HOLDS TIP CREDIT CANNOT APPLY TO CERTAIN TYPES OF WORK
The Fair Labor Standards Act of 1938 (“FLSA”) establishes minimum wage, overtime pay, record keeping requirements and child labor standards.  It also allows employers to take a “tip credit,” in certain tipped occupations, such as a server, in order to offset the employer’s obligation to pay hourly minimum wage.  Employers can pay as little as $2.13 per hour to tipped employees, but if the employee’s wages and tips combined do not meet the minimum wage, the employer must make up the difference.




employment
ELEVENTH CIRCUIT EXPANDS APPLICATION OF THE FLSA
After a recent Eleventh Circuit decision in Asalde v. First Class Parking Systems LLC 894 F.3d 1248 (11th Cir. 2018), more employers are subject to the requirements of the Fair Labor Standards Act (“FLSA”). In Asalde, Plaintiffs were valet car drivers who sued their employer alleging violations of the FLSA. The trial court granted summary judgment for the employer, reasoning that because parking cars in Florida is a local activity, there is no interstate commerce and, therefore, no FLSA coverage.




employment
SUPREME COURT HOLDS ADEA STILL APPLIES TO SMALL COUNTY EMPLOYER
The United States Supreme Court resolved a split among Circuit Courts on the question of whether the Age Discrimination in Employment Act (“ADEA”) applies to state and federal political entities with fewer than 20 employees.  In Mount Lemmon Fire Dist. v. Guido, 586 U.S. ____ (2018), the Court unanimously held that the ADEA applies to all federal and state entities, regardless of the size of those entities’ workforce.




employment
TENTH CIRCUIT AFFIRMS COURTS CAN HEAR SUITS WITHOUT EEOC CHARGES
Most cases involving allegations of workplace discrimination under the federal anti-discrimination statutes are first brought to light through a plaintiff’s filing of a Charge with the Equal Employment Opportunity Commission (“EEOC”).  Through Title VII, Congress established a procedure requiring an individual seeking to file an employment discrimination claim to first file a charge with the EEOC. Id. §2000e-5(e)(1).  If plaintiffs do not fulfill this requirement before filing suit under the federal anti-discrimination statutes, their suits are typically dismissed.




employment
ELEVENTH CIRCUIT AFFIRMS CONVINCING MOSAIC STANDARD
Most cases involving allegations of discipline or discharge based on discrimination are brought under the disparate treatment theory.  In a case of disparate treatment under Title VII, an individual initially establishes a prima facie case of intentional discrimination.  In the Eleventh Circuit, a plaintiff may establish a prima facie case of discrimination by showing: (1) they are qualified; (2) they suffered an adverse employment action such as termination or discipline; and (3) similarly situated employees outside of their protected class were treated more favorably.
employment
DEPARTMENT OF LABOR ISSUES NEW GUIDANCE REGARDING NURSES AND CAREGIVERS AS INDEPENDENT CONTRACTORS
Health care registry companies provide matchmaking and referral services for qualified, pre-screened and vetted home caregivers.  They often also provide administrative services.  As part of the "gig economy," health care registries often tread a fine line between classifying caregivers as independent contractors or employers.
employment
SUPREME COURT STRIKES DOWN FAIR SHARE FEES FOR PUBLIC SECTOR UNIONS
On June 27, 2018, the United States Supreme Court decided in a 5-4 decision that public sector unions may no longer collect “fair share” fees from non-members.  The decision in Janus v. American Federation of State, County and Municipal Employees, Council 31, has broad implications for public sector unions and employers.




employment
SUPREME COURT AFFIRMS VALIDITY OF EMPLOYMENT AGREEMENTS CONTAINING WAIVERS FOR CLASS OR COLLECTIVE ACTIONS
On May 21, 2018, in Epic Systems Corp. v. Lewis, the Supreme Court upheld the enforceability of arbitration agreements containing class and collective action waivers of wage and hour disputes.  In deciding the case, the majority held that the Federal Arbitration Act (“FAA”) mandates the enforcement of arbitration agreements and the right to pursue class or collective relief is not a protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”).




employment
RECENT CHANGES IN DEPARTMENT OF LABOR TIP POOL RULE
The recently passed Consolidated Appropriations Act (“CAA”) put an end to an ongoing controversy over the status of a proposed Department of Labor (“DOL”) tip rule and the underlying dispute over whether employers who do not claim the tip credit against the federal minimum wage may be prohibited from including non-tipped employees in mandatory tip pools. In 2017, the DOL moved to roll back an Obama-era regulation extending this restriction to employers that pay their tipped employees the full minimum wage.
employment
THE SUPREME COURT ADOPTS A BROADER VIEW OF FLSA EXEMPTIONS REJECTING THE LONGSTANDING NARROW CONSTRUCTION PRINCIPLE
On April 2, 2018, the Supreme Court of the United States issued a ruling in Encino Motorcars, LLC v. Navarro, 584 U.S. ___ (2018), holding that auto dealership service advisors are exempt from the Fair Labor Standards Act’s (“FLSA”) overtime pay requirement.  The case began in 2012 in a California District Court, and was later appealed to the Ninth Circuit Court of Appeals, when Encino Motorcars’ service advisor employees brought suit seeking time-and-a-half compensation for overtime hours. 




employment
FURTHER CIRCUIT SPLIT REGARDING SEXUAL ORIENTATION DISCRIMINATION UNDER TITLE VII

In recent years, a Circuit Court split has emerged regarding whether Title VII prohibits discrimination based solely on sexual orientation.  On February 26, 2018, the Justices of the Second Circuit Court of Appeals heard an appeal seeking reinstatement of a Title VII claim brought by the estate of a former employee, Donald Zarda (“Mr. Zarda”).  The estate alleged that Mr. Zarda was fired from his job as a skydiving instructor after he told a customer he was gay.  Zarda v. Altitude Express addressed a narrow question: whether Title VII prohibits discrimination on the basis of sexual orientation.  The Second Circuit overturned its earlier precedent and held that Title VII does prohibit discrimination on the basis of sexual orientation.





employment
DEPARTMENT OF LABOR ALIGNS ITSELF WITH ELVENTH CIRCUIT BY ANNOUNCING THE PRIMARY BENEFICIARY TEST AS THE DEFINITIVE TEST FOR ASSESSING WHETHER INTERNS QUALIFY AS EMPLOYEES UNDER THE FEDERAL LABOR STANDARDS ACT

The U.S. Department of Labor (“DOL”) announced that the “primary beneficiary” test is the definitive test for analyzing intern-employer relationships under the Federal Labor Standards Act (“FLSA”).  That test has been promulgated by several Circuit Courts, including the Second, Sixth, Ninth and Eleventh Circuit Courts of Appeal. See Benjamin v. B & H Educ., Inc., 877 F.3d 1139 (9th Cir. 2017); Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, (2d Cir. 2016); Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199 (11th Cir. 2015); Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518,529 (6th Cir. 2011).


employment
RECENT CHANGES TO NATIONAL LABOR RELATIONS BOARD LAW
Since taking office, President Trump has appointed three new members to the five-member board of the National Labor Relations Board (“NLRB”), who will each serve a five year term.   This has resulted in big changes to Obama-era rulings. 
employment
EEOC SUCCEEDS IN BRINGING SEXUAL ORIENTATION DISCRIMINATION LAWSUIT UNDER TITLE VII

More and more plaintiffs are testing the judicial waters by bringing claims for discrimination based on sexual orientation under Title VII. Just recently, the Equal Employment Opportunity Commission (“EEOC”) celebrated its first success in a sexual orientation discrimination lawsuit.




employment
ELEVENTH CIRCUIT HOLDS THAT BREASTFEEDING EMPLOYEES ARE ENTITLED TO PROTECTION UNDER THE PREGNANCY DISCRIMINATION ACT
Recently, the U.S. Court of Appeals for the Eleventh Circuit determined that breastfeeding is a related medical condition to birth, and different treatment based on an employee’s breastfeeding is prohibited under the Pregnancy Discrimination Act (“PDA”). In Hicks v. City of Tuscaloosa, 870 F.3d 1253 (11th Cir. 2017), the plaintiff was a police officer who took twelve weeks of unpaid leave under the Family Medical Leave Act (“FMLA”) following the birth of her son.



employment
REASONABLE ACCOMMODATIONS UNDER THE ADA BEYOND FMLA ENTITLEMENT

The Seventh Circuit Court of Appeals recently ruled in Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL 4160849 (7th Cir. Sept. 20, 2017) that the ADA does not require employers to accommodate employees by granting them leave well beyond the employee’s leave entitlement under the FMLA.  The Court addressed what amount of leave constitutes a reasonable accommodation under the ADA and concluded that employers are not required to provide multiple months of additional leave, despite a stipulation of definite duration, to employees who have already exhausted their 12 weeks of FMLA leave. The Court’s decision was premised on the fact that long periods of leave render employees practically unable to work and unable to be “qualified individuals” under the ADA.  The Court, however, indicated that short periods of additional leave would continue to be a reasonable accommodation under the ADA given the proper factual circumstances.

employment
ELEVENTH CIRCUIT HOLDS GENDER NONCONFORMITY CLAIMS TO BE A DISTINCT AVENUE OF RELIEF UNDER TITLE VII

An Eleventh Circuit Court of Appeals panel held that a “gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’” but is instead a “separate, distinct avenue for relief under Title VII.” The majority opinion explained that Title VII recognizes discrimination based on a failure to conform to a gender stereotype (i.e., discrimination based on gender non-conformity) as a type of sex-based discrimination, but declined to hold that Title VII can provide relief for an individual claiming sex-based discrimination on the basis of their sexual orientation alone.




employment
UPS PAYS $2 MILLION TO SETTLE DISABILITY CLAIMS

The United Parcel Service (“UPS”) recently agreed to pay $2 million to settle the claims of approximately 90 disabled employees.  Approximately 70 employees were parties to a lawsuit filed by the EEOC and the remaining 20 had pending administrative Charges. 




employment
DEPARTMENT OF LABOR RECONSIDERING MINIMUM SALARY FOR WHITE COLLAR EXEMPTION

Since November 2016, a nationwide injunction has prevented the Obama Administration’s new overtime rule for white collar workers from going into effect.  The Obama-era rule, which increase the minimum annual salary required to support exempt status from $23,660.00 to $47,476.00, was poised to convert millions of employees from exempt to non-exempt from the FLSA’s overtime rules.  Many employers re-classified employees, increased salaries or both in an effort to comply with the new standard, which was scheduled to take effect in December 2016.  Since the injunction, those same employers have awaited clarification on whether the rule, or a modified version, would go into effect. 




employment
NINTH CIRCUIT’S OUTLOOK ON EQUAL PAY LAWS AND COMPETITIVE HIRING

Recent decision issued by the Ninth Circuit Court of Appeals held that an employer may defend a claim under the Equal Pay Act by proving that its pay structure was based on employees’ prior salaries, so long as this structure was reasonable and effectuated a business policy. This decision parts ways with other Circuits that have discouraged using an employee’s prior pay, by itself, to justify pay decisions.

employment
THE RISE OF BAN THE BOX LAWS

The National Employment Law Project (“NELP”) partnered with several other organizations to spearhead a grassroots movement to encourage employers to change their policies to consider the qualification of job applicants without consideration of their criminal history.  Prior to the efforts of NELP, it was commonplace for an employer to ask a job applicant whether the applicant has been convicted of a crime.




employment
SEXUAL ORIENTATION AND THE PROTECTIONS AFFORDED BY TITLE VII: RIPE FOR SUPREME COURT REVIEW

In early April, the United States Court of Appeals for the Seventh Circuit became the first Federal Circuit Court to hold that discrimination on the basis of sexual orientation is a form of sex discrimination and, therefore, prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”).  The Seventh Circuit’s decision sides with the position taken by the EEOC, which has been pushing to extend Title VII’s protections to include sexual orientation.




employment
PUSHING BACK AGAINST EEOC REQUESTS FOR INFORMATION AND SUBPOENAS

A recent decision issued by the Tenth Circuit Court of Appeals provides support for employers seeking to avoid broad and seemingly irrelevant Requests for Information by the Equal Employment Opportunity Commission (“EEOC”).  While an employer’s response to Requests for Information is usually an avenue to support its defenses, in the rare instance of overreaching or an apparent fishing expedition, employers have additional authority with which to negotiate a compromise regarding the scope of the EEOC’s requests. 




employment
THE EEOC UNDER A TRUMP ADMINISTRATION
President Donald Trump appointed Victoria Lipnic (“Ms. Lipnic”) as the new Chairwoman of the Equal Employment Opportunity Commission (“EEOC”).   Ms. Lipnic is not new to the EEOC.  She has been an EEOC Commissioner since 2010 and was a President Obama appointee.
employment
SUPREME COURT TO RULE ON LEGALITY OF ARBITRATION AGREEMENTS PRECLUDING COLLECTIVE PURSUIT OF CLAIMS BY EMPLOYEES
As anticipated in light of the split among the Circuits, the Supreme Court agreed to consider whether arbitration agreements in employment contracts may preclude collective pursuit of claims.  In a growing trend, employers have included what are effectively class action bans within employment arbitration agreements.
employment
NLRB SEEKS SUPREME COURT’S INTERVENTION TO RESOLVE CIRCUIT SPLIT OVER ENFORCEABILITY OF ARBITRATION AGREEMENTS PROHIBITING CLASS ACTION

The National Labor Relations Board (“NLRB”) filed a petition for certiori earlier this month asking the United States Supreme Court to consider the enforceability of class-action waivers in employee arbitration agreements.  The arbitration agreements at issue are those that require employees to waive their right to bring or join a class action, instead requiring the employees to submit to individual arbitration.  The NLRB’s position is that such agreements are invalid because they are contrary to the National Labor Relations Act’s protection of concerted activity.

employment
FEDERAL COURT ADDRESSES WHETHER SEXUAL ORIENTATION IS A PROTECTED CLASS UNDER TITLE VII

Last month, in Kimberly Hively v. Ivy Tech Community College, South Bend, the United States Court of Appeals for the Seventh Circuit dismissed Plaintiff Kimberly Hively’s (“Ms. Hively”) lawsuit against her employer for sexual orientation discrimination and harassment under the Civil Rights Act of 1964 (“Title VII”).  Ms. Hively alleged she was denied full-time employment and promotions based on her sexual orientation.

employment
EEOC PROPOSES ADDITIONAL CHANGES TO EEO 1 REPORTING

On July 13, 2016, the Equal Employment Opportunity Commission (“EEOC”) proposed additional changes to EEO-1 data reporting requirements, modifying its original proposal from January 2016.  The original proposal, intended to enforce the prohibitions on pay discrimination in Title VII, the EPA and Executive Order 11246 regarding Equal Employment Opportunity, required employers to begin reporting pay data.

employment
11TH CIRCUIT SAYS SLUR DOESN’T CREATE A HOSTILE WORK ENVIRONMENT

     This week the Eleventh Circuit Court of Appeals provided greater clarity as to what comments can establish a racially hostile work environment under Title VII.  In Mahone v. CSX Transportation, Inc., Case No. 2:14-cv-00535-AKK (June 13, 2016), the Court affirmed the lower court’s grant of summary judgment for the employer finding that that a coworker’s use of the term “homeboy” was insufficient to establish a racially hostile work environment.

employment
NEW SALARY THRESHOLD FOR FLSA WHITE COLLAR EXEMPTION

 On May 18, 2016, the U.S. Department of Labor issued its final version of the overtime exemption rule applicable to white collar employees.  The rule exempts from the Fair Labor Standards Act’s overtime requirements employees earning above a set salary threshold per year.  The new version promulgated by the Department of Labor significantly raises that salary threshold to the new figure of $47,476.

NEWSLETTER
VISIT US