Workforce Bulletin

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?

On June 30, 2023, the Supreme Court of the United States declined to weigh in on whether gender dysphoria can qualify as a disability under the Americans with Disabilities Act (“ADA”), allowing to stand the Fourth Circuit’s decision in Williams v. Kincaid, which extended ADA protection to transgender people experiencing gender dysphoria.  

As the first federal appellate decision of its kind, Williams had — and will continue to have — a significant impact on employers (covered by Title I of the ADA), and places of public accommodations (covered by Title III of the ADA).

As featured in #WorkforceWednesday:  This week, we break down the enforcement of the Pregnant Workers Fairness Act (PWFA), the U.S. Equal Employment Opportunity Commission’s (EEOC’s) EEO-1 report filing delay, and the U.S. Department of Labor’s (DOL’s) recent opinion on the Family and Medical Leave Act (FMLA).

Summer in the Ocean State brings with it familiar novelties: the beach, clam cakes, and the end of the General Assembly’s legislative session. In this Insight, we summarize three employment-related bills that Rhode Island Governor Daniel McKee signed into law late last month, note bills that garnered attention but ultimately did not pass, and explain what employers should do now to remain in compliance.

New Laws

It is time, again, to update your workplace posters. Coinciding with the effective date of the Pregnant Workers Fairness Act (“PWFA”), the U.S. Equal Employment Opportunity Commission (“EEOC”) released a revised “Know Your Rights” poster on June 27, 2023. The new poster replaces the one that was issued in late 2022, to add information regarding the PWFA.

On July 13, 2023, the White House issued the first iteration of its National Cybersecurity Strategy Implementation Plan (the “Implementation Plan”), which will be updated annually. The two overarching goals of the Implementation Plan are to address the need for more capable actors in cyberspace to bear more of the responsibility for cybersecurity and to increase incentives to make investments in long-term resilience. The Implementation Plan is structured around the five pillars laid out in the White House’s National Cybersecurity Strategy earlier this year, namely: (1) defend critical infrastructure; (2) disrupt and dismantle threat actors; (3) shape market forces to drive security and resilience; (4) invest in a resilient future; and (5) forge international partnerships to pursue shared goals. The Implementation Plan identifies strategic objectives and high-impact cybersecurity initiatives under each pillar and designates the federal agency responsible for leading the initiative to meet each objective. The following summarizes some of the key initiatives included in the Implementation Plan that will directly impact critical infrastructure organizations, including healthcare, energy, manufacturing, information technology and financial services.

As featured in #WorkforceWednesday:  This week, we’re recapping recent contentious rulings by the Supreme Court of the United States (“SCOTUS” or the “Court”) that are expected to take a toll on employers across the nation.

The State of Texas infrequently regulates the workplace. This summer, however, Texas enacted two notable workplace laws about which employers should be aware.

Texas Regulatory Consistency Act

On June 13, 2023, Governor Greg Abbott signed House Bill 2127, the Texas Regulatory Consistency Act (the “Act” or “H.B. 2127”), which amends various Texas statutory codes, including the Labor Code, and preempts local lawmaking in various statutorily governed areas to assert Texas’s “sovereign regulatory powers.” Referred to by its opponents as the “Death Star Bill,” the Act is slated to take effect on September 1, 2023, and effectively prevents cities and counties from passing local ordinances beyond the scope of existing state laws in numerous fields of regulation, including labor and employment, agriculture, and finance.

As we previously reported, on July 5, 2023, the New York City Department of Consumer and Worker Protection (DCWP) began enforcing Local Law 144 of 2021 (the “Law”) regulating the use of automated employment decision tools (AEDT).  In preparation for the July 5 enforcement date, last week, the DCWP published Frequently Asked Questions (FAQ) concerning the use of AEDTs on its fact page for the Law.  The FAQ contain an overview of the Law and general information and guidance regarding bias audit requirements, data requirements, independent auditors, responsibility for bias audits, notice requirements, and complaints.

As explained in the FAQ, the Law applies to employers and employment agencies that use AEDT:

The Supreme Court delivered its highly anticipated consolidated decision yesterday in the two affirmative action cases on its docket, Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (collectively, the “SFFA” cases). At issue in the SFFA cases is whether Harvard and the University of North Carolina (“UNC”) violate the Equal Protection Clause of the Fourteenth Amendment (and, in turn, Title VI of the Civil Rights Act of 1964) in their consideration of race in their admissions processes. In answering this question in the affirmative, the Court’s majority opinion significantly restricts – and, some would argue, eliminates – affirmative action programs in higher education.