Workforce Bulletin

On April 19, 2023, in Gulden v. Exxon Mobil Corp., a federal district judge in New Jersey concluded that federal courts lack subject matter jurisdiction to enforce preliminary orders to reinstate former employees under the Sarbanes-Oxley Act of 2002 (“SOX”).  In so doing, the district judge declined to enforce OSHA’s preliminary orders requiring ExxonMobil to reinstate two former employees to their jobs for the remainder of the agency’s investigation into the pair’s whistleblower complaint, reasoning that the statutory text only confers federal district courts authority to enforce final orders.  Gulden is a win for employers because it joins the growing chorus of federal district courts that have concluded that the Department of Labor may not force a company to preliminarily reinstate an alleged whistleblower before the Secretary of Labor’s final order. 

As featured in #WorkforceWednesday:  This week, we turn our focus to the conclusion of the COVID-19 Public Health Emergency (PHE) on May 11, 2023:

What does the end of the COVID-19 PHE mean for employers? Epstein Becker Green attorneys Brianna Richardson and Eric I. Emanuelson Jr. describe the challenges employers may encounter as they navigate crucial decisions regarding policies, procedures, and benefits during the ongoing transition process.

Some of the most notable recent mass shootings in the United States have been perpetrated by current or former employees in their workplaces.  For example, on April 10, 2023, an employee of a bank in Louisville, Kentucky, who had been notified that he was going to be terminated, shot and killed five bank employees and wounded many others who were attending a morning staff meeting.  In 2021, a Santa Clara Valley Transportation Authority employee shot and killed nine of his fellow employees in a San Jose, California railyard.  In its publication, “Active Shooter Incidents in the United States in 2022”, the FBI reported that of the 50 active shooter incidents in the United States in 2022, 14 of them, comprising 28 percent of the total, occurred in “commerce” settings. 

On Thursday May 4, 2023, the Biden-Harris Administration announced its plan to implement artificial intelligence (“AI”) safeguards to “protect people’s rights and safety.” 

Given the rapid development of AI in workplaces, public health, education, and security, the Administration seeks to underscore related risks and opportunities.  Vice President Kamala Harris and senior Administration officials have met with leaders at the forefront of AI innovation to call attention to “responsible, trustworthy, and ethical innovation with safeguards that mitigate risk and potential harms to individuals and our society.”

As featured in #WorkforceWednesday:  May is Mental Health Awareness Month, and employers are taking the opportunity to examine their policies and procedures around employee mental health. 

Epstein Becker Green attorney Shira M. Blank tells us more about the role employers can play in promoting and supporting mental health in the workplace.

Columbus has joined Toledo, Cincinnati, and a number of states and locales around the country, in banning employers from asking job applicants about their salary history.

Effective March 1, 2024, covered employers in Ohio’s capital will be prohibited from:

• inquiring about an applicant’s salary history,
• screening applicants based on their salary history,
• relying solely on salary history when deciding whether to offer an applicant employment or determining their compensation, and
• retaliating against applicants for not disclosing their salary history.

Salary History

Currently, neither the federal Fair Labor Standards Act (FLSA) nor the Equal Pay Act (EPA) prohibit employers from screening applicants based on prior salary, requesting an applicant’s salary history, or conditioning an applicant’s employment on providing their salary history. However, salary history bans, which are intended to eliminate the perpetuation of discriminatory pay disparities, have become increasingly common both at the state and local level. As of April 2023, more than 40 states and localities have adopted some form a salary history ban.

As featured in #WorkforceWednesday:  This week, we unpack the major updates the New York State Department of Labor (NYSDOL) incorporated into its model sexual harassment prevention policy:

The NYSDOL recently released major updates to its model sexual harassment prevention policy. The updates cover issues such as gender identity and remote work. What do employers need to know?

On Tuesday, April 25, 2023, the Equal Employment Opportunity Commission (“EEOC”), Consumer Financial Protection Bureau (“CFPB”), Justice Department’s Civil Rights Division (“DOJ”), and the Federal Trade Commission (“FTC”) issued a “Joint Statement on Enforcement Efforts Against Discrimination and Bias in Automated System” (“Joint Statement”).  According to a press release from the EEOC, by the Joint Statement, the federal agencies pledged to uphold America’s commitment to the core principles of fairness, equality, and justice as emerging automated systems, including those sometimes marketed as “artificial intelligence,” or “AI,” become increasingly common in people’s daily lives – impacting civil rights, fair competition, consumer protection, and equal opportunity.

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:

The inevitable disclosure doctrine, expected to be a widely used tool to protect trade secrets after the famous PepsiCo, Inc. v. Redmond case in 1995, has not been as commonly employed as anticipated. But is the legal landscape about to change?

As featured in #WorkforceWednesday:  This week, we examine the decision of a Texas district court to strike down an Affordable Care Act (ACA) mandate on preventive medical services and look at the U.S. Department of Justice’s (DOJ’s) third trial loss in prosecuting wage-fixing and no-poach agreements. We also discuss the recent termination of the COVID-19 national emergency and the upcoming end of emergency benefits for employers on May 11, 2023.