Workforce Bulletin

As featured in #WorkforceWednesday: This week, we’re learning more about the Occupational Safety and Health Administration’s (OSHA’s) final rule on safety inspections, new COVID-19 guidance from the Centers for Disease Control and Prevention (CDC), and minimum wage updates from California (CA), New York City (NYC), and Virginia (VA).

As featured in #WorkforceWednesday: This week, we’re running down the U.S. Department of Labor’s (DOL’s) recently released final rule on worker classification under the Fair Labor Standards Act (FLSA), the challenges faced by the National Labor Relations Board’s (NLRB’s) joint-employer rule, and SpaceX’s groundbreaking suit against the NLRB.

As featured in #WorkforceWednesday: This week, we’re detailing the National Labor Relations Board’s (NLRB’s) request for Starbucks to reopen shuttered stores; how big tech is retreating from diversity, equity, and inclusion (DEI) programs; and why employers may start scrapping college requirements for certain positions in 2024.

As featured in #WorkforceWednesday:  This week, we’re elaborating on the National Labor Relations Board’s (NLRB’s) controversial joint-employer rule:

The joint-employer rule published by the NLRB on October 26 expanded the definition of the rule in ways that will likely have a major impact on the workplace. However, a recent postponement means that the rule will not take effect until February 26, 2024.

Epstein Becker Green attorneys Steven M. Swirsky and Erin E. Schaefer tell us the implications this rule may have for employers and how a flurry of legal challenges ...

As featured in #WorkforceWednesday: This week, we’re detailing the National Labor Relations Board’s (NLRB’s) expanded “joint employer” definition, the recent confirmations of the Equal Employment Opportunity Commission’s (EEOC’s) General Counsel and the Department of Labor’s (DOL’s) Wage and Hour Administrator, and President Biden’s executive order on artificial intelligence (AI).

NLRB Expands Definition of “Joint Employer" 

The NLRB recently published its long-awaited final rule, setting a new test for determining joint-employer ...

On October 26, 2023, the National Labor Relations Board (NLRB or “Board”) issued its Final Rule (the “Rule”) on Joint-Employer status under the National Labor Relations Act (NLRA). Slated to take effect on December 26, 2023, the Rule returns to and expands on the Obama era Browning-Ferris test, scrapping the NLRB’s 2020 Joint Employer test and setting up a potential showdown with the Supreme Court over the “major questions” doctrine and the scope of the NLRB’s administrative authority.

The Final Rule Summarized

 Under the new Rule, any entity that shares or ...

As featured in #WorkforceWednesday:  This week, we’re breaking down recent actions by the National Labor Relations Board (NLRB) that are impacting both union and non-union employers:

The NLRB is continuing its labor-friendly push with increased protections for unions, new limitations on employer rights, and significant changes that are likely to make it easier for unions to secure bargaining rights. Epstein Becker Green attorneys Steven M. Swirsky and Erin E. Schaefer tell us more about the current labor landscape and how the NLRB’s actions apply to more ...

As a result of a recent Fifth Circuit decision, some employers in Texas will now face a tougher hurdle when defending against Title VII disparate treatment discrimination claims in federal court. The United States Court of Appeals for the Fifth Circuit recently held that in order to establish an actionable claim for disparate treatment discrimination under Title VII, plaintiffs need not plead an “ultimate employment decision” related to hiring, granting leave, terminations, promotions, or pay. In a significant departure from decades-old precedent, the Fifth Circuit held ...

As featured in #WorkforceWednesday:  This week, we’re analyzing the National Labor Relations Board’s (NLRB’s) recent Stericycle decision, the Equal Employment Opportunity Commission’s (EEOC’s) proposed rule on pregnant workers’ rights, and the EEOC’s first-ever artificial intelligence (AI) anti-discrimination lawsuit settlement.

The nationwide growth of the “gig economy” has provoked the enactment of laws aimed at providing economic protection to freelance workers. In May 2023, the Columbus  City Council joined this national trend by amending the City’s “wage theft”  Ordinance to add obligations upon a “hiring party” that engages a “freelance worker.”  

The Ordinance broadly defines a “hiring party” to be “any person, including the City of Columbus, who retains a freelance worker to provide any service” and excludes only governmental entities other than Columbus. A “freelance worker” is an individual, whether or not the person has incorporated or is using a trade name.

As featured in #WorkforceWednesday:  This week, we bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law:

On May 31, 2023, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo stating her position that non-compete agreements violate the National Labor Relations Act. So, what does this mean for employers?

Michigan is the latest state to expand its legal definition of race as a protected class to include hairstyle descriptors. As we recently explained, legislation with the acronym for “Creating a Respectful and Open Work for Natural Hair” is intended to protect from discrimination individuals with hairstyles often associated with race.

On June 15, 2023, Governor Gretchen Whitmer signed Michigan’s version of the CROWN Act – S.B. 90 – into law, once again amending the state’s increasingly broad anti-discrimination statute, the Elliott-Larsen Civil Rights Act (“ELCRA”). The Michigan CROWN Act represents the third amendment to ELCRA this year: prohibitions on discrimination based on sexual orientation, gender identity, and gender expression were added in March, and protections for individuals who have an abortion were provided by amendments enacted in May.

Employers subject to the City of Chicago’s Sexual Harassment Ordinance must comply with the updated training requirements by June 30th or risk penalty.  As we previously advised, the amended Chicago Human Rights Ordinance requires all employers with at least one employee working within the geographical boundaries of the City of Chicago to provide the following annual training:

As featured in #WorkforceWednesday:  This week, we recap the continued rise in unfair labor practice (ULP) charge filings reported by the National Labor Relations Board (NLRB); New York City’s new prohibitions against size discrimination in employment, housing, and public accommodations; and Florida’s forthcoming E-Verify requirements for public and private employers with 25 or more employees.

As featured in #WorkforceWednesday:  This week, we examine how several recent pronouncements and actions by the National Labor Relations Board (NLRB) and its General Counsel’s office are creating new challenges for employers, both union and non-union.

As featured in #WorkforceWednesday:  This week, we’re showcasing the National Labor Relations Board (NLRB) General Counsel’s memo on non-disparagement and confidentiality provisions in severance agreements, Illinois’ new law permitting Illinois employees to take paid leave “for any reason,” and New Jersey’s upcoming implementation of the “Temporary Workers’ Bill of Rights.”

Approximately a month after the Board issued McLaren Macomb, 372 NLRB No. 58, which left employers scrambling to decipher its unclear impact on both unionized and non-unionized workplaces, Jennifer Abruzzo, the General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or “Board”) released guidance outlining her views on the decision’s implications and meaning in Memorandum GC 23-05 on March 22, 2023. The GC’s Memo contains an FAQ in response to inquiries the NLRB has received about the McLaren Macomb decision and outlines Abruzzo’s plans for enforcement of the decision.

The U.S. Department of Labor (DOL) recently published new resources regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). As we previously explained in detail, the PUMP Act amended the Fair Labor Standards Act (FLSA) to mandate that, unless an employer is specifically exempted under the law, the employer must provide reasonable break time to allow an employee to express breast milk, and must permit the employee to do so in a reasonably private location other than a bathroom.

As featured in #WorkforceWednesday:  This week, we’re highlighting the National Labor Relations Board’s (NLRB’s) crackdown on confidentiality and non-disparagement provisions in severance agreements, a U.S. Supreme Court decision opening overtime to high-earning daily-rate workers, and a U.S. Court of Appeals for the Ninth Circuit decision in favor of mandatory arbitration in California.

As we previously reported, the US Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) announced back in August 2022, that it had received a Freedom of Information Act (“FOIA”) request from the Center for Investigative Reporting (“CIR”), for any and all Type 2 Consolidated EEO-1 Reports for 2016-2020 (“Consolidated Reports”) filed by federal contractors (“Covered Contractors”).  In response to the request, OFCCP has provided Covered Contractors with the opportunity to object to the release of the Reports and on February 15 extended the deadline for objections to March 3, 2023.  

On December 28, 2022, New York Governor Kathy Hochul signed into law Senate Bill 9450, which added new enforcement provisions to the New York Health And Essential Rights Act’s (NY HERO Act) workplace safety committee requirements. The new law went into effect immediately upon the Governor’s signature.

On October 31, 2022, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released Memorandum GC 23-02 urging the Board to interpret existing Board law to adopt a new legal framework to find electronic monitoring and automated or algorithmic management practices illegal if such monitoring or management practices interfere with protected activities under Section 7 of the National Labor Relations Act (“Act”).  The Board’s General Counsel stated in the Memorandum that “[c]lose, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights,” and urged the Board to find that an employer violates the Act where the employer’s electronic monitoring and management practices, when viewed as a whole, would tend to “interfere with or prevent a reasonable employee from engaging in activity protected by the Act.”  Given that position, it appears that the General Counsel believes that nearly all electronic monitoring and automated or algorithmic management practices violate the Act.

As featured in #WorkforceWednesday:  This week, we look at labor law and pay developments from the National Labor Relations Board (NLRB) and in California.

On August 18, the US Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) announced that it had received a Freedom of Information Act (“FOIA”) request from the Center for Investigative Reporting (“CIR”), for all Type 2 Consolidated EEO-1 Reports filed by federal contractors from 2016-2020 (“Covered Contractors”) and that OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial or financial information and trade secrets. Accordingly, OFCCP has provided Covered Contractors with 30 days, i.e., until September 19, 2022, to submit written objections to the public release of their Type 2 EEO-1 Reports.

[UPDATE: As of September 15, 2022, the deadline to submit objections is extended to October 19, 2022.]

CIR’s FOIA request asks for a spreadsheet of all consolidated Type 2 EEO-1 reports for all federal contractors, including “first-tier subcontractors,” i.e., subcontractors that contracted directly with a prime federal contractor. Type 2 EEO-1 reports are one of several different types of reports that multi-establishment employers must file annually, which consist of a consolidated report of demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category.

As featured in #WorkforceWednesday:  This week, we update you on national trends relating to pay data collection, non-compete restrictions, and joint-employment rules.

As featured in #WorkforceWednesday:  This week, we update you on new COVID-19 guidance and union organizing and non-compete trends at the federal and local levels.

Since 2019, the Illinois Lodging Services Human Trafficking Recognition Training Act (820 ILCS 95/, “the Act”) has required Illinois lodging establishments (such as hotels, motels, and casino hotels) to provide employees with training on how to recognize human trafficking and protocols for reporting suspected human trafficking to authorities.  Recent amendments, which became effective January 1, 2022, have ostensibly expanded the scope of covered employers to include other businesses that serve transient populations:  restaurants and truck stops.

As featured in #WorkforceWednesday:  This week, we update you on two major developments from the National Labor Relations Board (“NLRB” or “Board”) and this year’s abridged timeline to submit EEO-1 data.

Employers in New York State should be aware of recent new laws as well as some pending bills, all of which seek to bolster harassment and discrimination protections for employees.  As detailed below, New York Governor Kathy Hochul recently signed several bills into law that expand harassment and discrimination protections, while the New York Senate recently passed more bills that would further bolster safeguards for employees and independent contractors in the state.

While the fate of two COVID-19 vaccination rules by federal agencies were decided in January by the Supreme Court of the United States, millions of employees working for the federal government, whether directly or as a contractor, have been waiting for clarity in the wake of court orders halting Presidential efforts to promote vaccination.  Here is a brief update on the status of litigation challenging the extent of the President’s authority to command the Executive Branch.

On January 26, 2022, legislation (“Amendments”) amending and significantly expanding the scope of New York’s whistleblower laws will take effect.

As our previous Insight explained in more detail, the Amendments make it much easier for individuals to bring a retaliation claim under New York Labor Law § 740 (“Section 740”) and increase coverage for workers who allege that they have been retaliated against for reporting suspected employer wrongdoing to include former employees and independent contractors.

On December 22, 2021, the New York State Department of Labor (NY DOL) issued the long-awaited proposed rule (Proposed Rule) regarding the workplace safety committees that are required by the New York HERO Act (HERO Act). While there is no current effective date for the Proposed Rule (which is first subject to a public comment period and a February 9, 2022 hearing), employers should become familiar with, and consider taking actions to timely comply with the Proposed Rule should it be adopted as currently drafted.

The HERO Act

In May of 2021, New York responded to workplace safety and health issues presented by the COVID-19 pandemic by enacting the HERO Act.  Since that time, the State has amended the HERO Act to allow the NY DOL additional time to create model safety standards for infectious disease exposure plans (“safety plans”) mandated by the HERO Act and to allow employers additional time for compliance.

As featured in #WorkforceWednesday:  This week, we’re recapping some of the biggest changes that impacted employers in 2021. We also look ahead to what’s in store in the new year.

President Biden’s $6 trillion 2022 budget proposal focuses on worker protections—including the American Jobs Plan and the American Families Plan. Both of these plans contain labor and numerous employment initiatives. The budget proposes increased funding for the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB” or “Board”).

The 2022 budget calls for $2.1 billion, an increase of $304 million, in DOL’s worker protection agencies. Over the past four years, those agencies ...

As featured in #WorkforceWednesday:  This week, we look at the potential “game changing” legal and policy shifts coming to labor relations.

The Protecting the Right to Organize (PRO) Act, if enacted, would make the most significant changes to the National Labor Relations Act since the National Labor Relations Board (NLRB) was created in 1935. The PRO Act is a top priority of the union movement in the United States and is supported by President Biden, who claims to be the most pro-union president in U.S. history.  Attorney Steve Swirsky discusses the potential impact the PRO Act ...

As featured in #WorkforceWednesday:  This week, we look at the increase in mandatory vaccination policies, a new rule for tipped workers, and a Supreme Court decision against organized labor.

Employers Implement Mandatory Vaccination Policies

Mandatory vaccine policies are on the rise. A month after the Equal Employment Opportunity Commission released updated guidance on mandatory vaccination policies, an increasing number of employers have started introducing these mandates. Courts are also weighing in—a Texas District Court recently affirmed a hospital’s ...

As featured in #WorkforceWednesday: This week, we look at the return to Obama-era employment and labor policies, with a key difference: unionization.

As featured in #WorkforceWednesday:  This week on our special podcast series, Employers and the New Administration, we look at what President Biden’s support for unions throughout his political career might mean for labor management relations.

In this episode, Glenn Spencer, Senior Vice President of the Employment Policy Division at the U.S. Chamber of Commerce, and attorney Steve Swirsky discuss what employers can expect from the NLRB under the Biden administration. Attorney David Garland leads the conversation.

See below for the video edition and the extended ...

As we recently reported, as of March 12, 2021, all private employers in New York must provide their employees with up to four hours of paid leave to get each COVID-19 vaccination shot. The State has now released guidance on the new law (“Law”) in the form of Frequently Asked Questions (“FAQs”). Most importantly, the FAQs clarify that the Law does not create any retroactive benefit rights to paid vaccination leave. Accordingly, while an employer is free to apply the law retroactively if it wishes, the Law mandates that “only employees receiving vaccinations on or after March ...