Maryland’s New Harassment Definition and Extended Tolling Period Pose Increased Challenges for Employers

Two recent developments out of Annapolis pose new challenges for Maryland employers confronted with claims of harassment. Effective October 1, 2022, Maryland’s employee-friendly Senate Bill (S.B.) 450 and S.B. 451 lowered the applicable legal standard required to establish a harassment claim and extended the period within which a person may bring a civil action alleging an unlawful employment practice.

If There Is a Constitutional Right to Earn a Living, What Happens to OSHA?

Though the Fifth Circuit affirmed the district court’s judgment in its entirety in Golden Glow Tanning Salon, Inc. v. City of Columbus, Mississippi, Judge James C. Ho’s concurrence raised an interesting issue of whether there is an unenumerated constitutional right to work that could limit the government’s ability to regulate business.

DOL Notifies Government Contractors That It Intends to Disclose EEO-1 Data for Nonobjectors

We recently reported on a Freedom of Information Act (FOIA) request covering government contractors’ 2016–2020 Type 2 EEO-1 reports announced in the Federal Register, pursuant to which contractors had until October 19, 2022, to object to the disclosure of their data. The requesting investigative reporter and nonprofit news organization subsequently sued the U.S. Department of Labor (DOL) under FOIA, alleging that the DOL’s Office of Federal Contract Compliance Programs (OFCCP) violated FOIA in response to the FOIA requests. OFCCP began contacting companies for which it claims to have no record of objections to the FOIA request, via email on November 22, 2022.

Work Visas and One International College Athlete’s Slam Dunk on His Name, Image, and Likeness Rights

A basketball player from the Dominican Republic could be the first prospective National Collegiate Athletic Association (NCAA) athlete to secure an O-1 temporary work visa for those with “extraordinary ability” in athletics to allow him to profit from his name, image, and likeness (NIL) while in school. The move comes as brands are looking to sign college athletes under the NCAA’s interim NIL policy, though international athletes have limited ability to do so under student visas.

New York Enacts Law Prohibiting Discipline for Legally Protected Absences

On November 21, 2022, Governor Kathy Hochul signed into law Senate Bill S1958A, which amends section 215 of the New York Labor Law (NYLL) to enhance protections for employees who take legally protected absences. The law takes effect on February 19, 2023.

World Cup Heat a Reminder for Employers on Heat-Related Illness

The 2022 FIFA World Cup in Qatar kicked off on November 20, 2022, in a special late fall edition of the quadrennial tournament—highlighting the dangers of high-heat work environments. Typically held in June and July, the 2022 World Cup is being held in November and December this time to avoid the high summer temperatures in the Persian Gulf country—which average more than 100°F during the summer months—that can make it dangerous or difficult for players.

Guns in the Workplace After the Supreme Court’s Bruen Decision: What Has Changed, and What Can Employers Expect?

On June 23, 2022, the Supreme Court of the United States issued a 6–3 decision in New York State Rifle & Pistol Association v. Bruen that expanded the right of Americans to bear arms as guaranteed by the Second Amendment of the U.S. Constitution. More accurately, the Court significantly curtailed a state’s ability to restrict citizens’ right to carry firearms publicly for their self-defense.

Maryland and Missouri Pass Recreational Marijuana, Missouri Adds Medical Marijuana Cardholder Employment Protections

On November 8, 2022, voters in Maryland and Missouri overwhelmingly approved ballot measures to legalize recreational marijuana, becoming the 20th and 21st states to do so. And, as part of the ballot initiative in Missouri, the existing medical marijuana law was amended to include express employment protections for medical marijuana cardholders.

Nondisclosure and Nondisparagement Agreements in Sexual Harassment and Assault Cases: Speak Out Act Heads to President’s Desk

On November 16, 2022, the U.S. Congress passed a bill that would limit enforceability of nondisclosure and nondisparagement provisions in pre-dispute agreements with employees and independent contractors relating to sexual harassment and sexual assault allegations. The bill, S. 4524, or the “Speak Out Act,” passed the U.S. House of Representatives with a vote of 315–109, the vote coming after the U.S. Senate passed the bill on September 29, 2022.

DOL Sued Over FOIA Request for Contractors’ EEO-1 Reports

On November 15, 2022, an investigative reporter and a nonprofit news organization sued the U.S. Department of Labor (DOL) under the Freedom of Information Act (FOIA). The investigative reporter previously submitted multiple FOIA requests for federal contractors’ and first-tier subcontractors’ Type 2 Consolidated EEO-1 Report data to the DOL’s Office of Federal Contract Compliance Programs (OFCCP).

Canada Introduces Legislation to Combat Modern Slavery in Supply Chains

Canada is considering implementing new laws regarding supply-chain due diligence and other obligations relating to forced labour and child labour. In late 2021, Canadian Senator Julie Miville-Dechêne introduced Bill S-211, An Act to enact the Fighting Against Forced Labour and Child Labour in Supply Chains Act and to amend the Customs Tariff. It has since passed the Senate, and moved to the House of Commons where it is likely to pass and receive Royal Assent, becoming law.

NLRB Proposes Rescission of Recently Issued Rules on Elections

On November 4, 2022, the National Labor Relations Board (NLRB) published a notice of proposed rulemaking (NPRM) seeking to rescind the “election protection” rule published on April 1, 2020, and to restore the prior protocols, including holding the processing of an election petition in abeyance if a union files an unfair labor practice (ULP) charge—often referred to as a “blocking charge”—alleging an employer’s interference with the election process.

Overemployed? The Growing Trend of Remote Workers Secretly Working Multiple Jobs

The COVID-19 pandemic forced countless businesses to transition their employees to remote work, and through this process, many learned that remote work can offer multiple advantages, including increased employee productivity and morale and decreased expense associated with commercial office space and employee parking. Even those companies continuing to prefer an in-person presence have permitted at least some remote work on a hybrid basis, if only to remain competitive in a tight labor market. Lurking in the background is the unavoidable suspicion that at least some remote workers are taking advantage of the situation, and, indeed, some are—and in a surprising way. An increasing number of remote employees are working multiple jobs at the same time, so much so that the phenomenon is now referred to as “overemployed.”

DashCam Developer Insulated From BIPA Liability

On November 3, 2022, an Illinois circuit court judge dismissed a Biometric Information Privacy Act (Privacy Act or BIPA) putative class action against Samsara, Inc., a DashCam developer. DashCam is a safety technology for trucking companies such as Samsara’s customer and co-defendant, Beelman Truck Co. The DashCam device points an internet-connected dashboard camera at the driver to detect risky driving behaviors.

Employing Veterans: Insights for Hiring Veterans and Supporting Veterans in the Workforce

Happy Veterans Day to all who served in the military—whether in combat or not, overseas or state side, officer or rank and file, or in any other capacity. We owe you our respect and gratitude. In the United States, Veterans Day is a federal holiday observed on November 11 every year. In addition to honoring veterans for their service, Veteran’s Day also offers the opportunity to reflect on employment challenges facing veterans and what employers can do to improve opportunities to those who have served.

U.S. Department of Education Ends Recognition of ACICS as National Accrediting Agency: the Effect on Immigration Benefits

The U.S. Department of Education has terminated federal recognition of the Accrediting Council for Independent Colleges and Schools (ACICS) as a national accrediting agency. The loss of recognition will affect certain immigration beneficiaries because many immigration benefits are available only in cases in which a beneficiary has a degree from, or is currently enrolled in, a nationally accredited institution.

Federal Court Finds In-Home Caregivers Were Employees, Not Independent Contractors, Under ‘Economic Realities/Control’ Test

Issues related to whether individuals are independent contractors or employees receive significant attention by employers and governmental entities because of the critical impact of misclassification. The U.S. Department of Labor’s (DOL) recently published proposed rule restricting when individuals can be considered independent contractors is an example of this scrutiny.