NEWS

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.

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.

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.

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. 

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.

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).

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”).

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. 

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.

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).

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.

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).

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.
   

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).

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.

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”).

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).

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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. 

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. 

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.

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.

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).

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.

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.

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.

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. 

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. 

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.

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.

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.

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. 

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.

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.

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.

     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.

 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.