Workforce Bulletin

Under the Americans with Disabilities Act (ADA), employers do not have to excuse an employee from performing an essential function of a job as a reasonable accommodation. Several courts have found that a job duty is an essential function where an employee performs it up to twenty percent of the time, particularly where the job description suggests that an employee must be able to perform it.  The Eleventh Circuit has recently gone in a different direction.  In Brown v. Advanced Concept Innovations, Inc., the Eleventh Circuit held that such a function was not essential, and thus, an employer violated Florida’s anti-discrimination law (which courts interpret consistently with the ADA) by failing to excuse an employee from performing it. While Brown may arguably be an outlier, it reinforces the importance of maintaining accurate and up-to-date job descriptions.

In June 2022, the California Division of Occupational Health and Safety (“Cal/OSHA”) proposed initial non-emergency standards for COVID-19 prevention in the workplace that were intended to replace the current COVID Emergency Temporary Standards (“ETS”) set to expire on December 31, 2022.  Following oral and written comments received from the public, the Cal/OSHA Standards Board (the “Board”) made further updates to the proposed non-emergency standard as of December 2, 2022 (the “Anticipated New Regulation”).  It is expected that the Board will vote on the Anticipated New Regulation, with no further modifications, at its upcoming meeting on December 15, 2022.  The Anticipated New Regulation would then become effective from January 1, 2023 through December 31, 2024.

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.

Laws protecting whistleblowers generally afford anti-retaliation protections when employees “step out of their role” to report discrimination and dangerous or illegal activity, but not to employees when they are performing their issue spotting job duties.  Employers who understand this distinction are well positioned to manage underperforming employees in sensitive issue-spotting roles such as information technology, compliance, internal audit and even in-house counsel without running afoul of anti-retaliation laws.  The Second Circuit Court of Appeal’s recent decision affirming the Southern District of New York’s dismissal of whistleblower retaliation claims in Johnson v. Board of Education Retirement System of City of New York illustrates this distinction.

[UPDATE: On December 7, 2022, President Biden signed the Speak Out Act (the “Act”) into law. This bipartisan legislation, passed by the U.S. Senate on September 29, 2022 and by the House of Representatives on November 16, 2022, limits the enforceability of pre–dispute nondisclosure and nondisparagement clauses relating to sexual assault and sexual harassment claims.]

On November 16, 2022, the U.S. House of Representatives passed the Speak Out Act (the “Act”), which President Biden is expected to sign into law. The bipartisan legislation, passed by the Senate on September 29, 2022, limits the enforceability of pre-dispute nondisclosure and nondisparagement clauses relating to sexual assault and sexual harassment claims.

As featured in #WorkforceWednesday:  This week, we break down the Equal Employment Opportunity Commission’s (EEOC’s) recent commissioner charges surrounding abortion travel benefits, potential changes to employer policies due to midterm election results, and the U.S. Supreme Court’s (SCOTUS’s) decision not to review whether COVID-19 justifies a violation of the Worker Adjustment and Retraining Notification (WARN) Act.

Effective November 16, 2022,  non-governmental health care entities must offer eligible employees continued employment for at least four months following a change in control without any reduction in their wages and benefits – including paid time off, health care, retirement, and education benefits in accordance with Senate Bill No. 315 (the Law).  Change in control includes sales, transfers, assignments, mergers, and reorganizations and is deemed to “occur on the date of execution of the document effectuating the change.”

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 bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law.

On November 1, 2022, in Dusel v. Factory Mutual Ins. Co., the First Circuit Court of Appeals held that “close temporal proximity” alone does not establish pretext as this evidence “must be considered alongside the . . . record.” Nor does mere close temporal proximity establish pretext where the employer has a legitimate business reason for taking adverse action against the employee, and more particularly, where the employer subsequently discovers the employee’s misconduct in a separate, unrelated matter. Dusel is a win for employers because it signals that engaging in protected activity will not immunize an employee from the consequences of misconduct that violates company policy if the employer enforces its policy consistently and documents the reasons underlying the employee’s discipline.