Insights Archive

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.

Robert R. Niccolini Washington D.C. Author

Owen J. Peters Washington D.C. Author

Minnesota Set to Increase Minimum Wage Rates in 2023, Minneapolis and St. Paul Also Raising Minimum Wage Rates

Every year, the commissioner of the Minnesota Department of Labor and Industry announces the inflation-adjusted minimum wage rate.

Colin H. Hargreaves Minneapolis Author

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.

John D. Surma Houston Author

Brandon E. Strey San Antonio Author

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.

T. Scott Kelly Birmingham Author

Morgan Pike Epperson Birmingham Author

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.

Bethany S. Wagner Pittsburgh Author

Marissa E. Cwik Denver Author

Zachary V. Zagger New York Author

CBP Expands Pilot Program Eliminating Entry Stamps on Admission to the United States

U.S. Customs and Border Protection (CBP) recently announced that it is expanding a pilot program to eliminate admission stamps in passports. The record being eliminated is the ink stamp and not the “visa stamp” that a U.S. embassy or consulate affixes to passports.

Leigh N. Ganchan Houston Author

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.

Kelly M. Cardin New York
Stamford Author

Simone R.D. Francis St. Thomas
New York Author

Jessica R. Schild New York Author

Jenny Xia New York Author

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.

Phillip B. Russell Tampa Author

Zachary V. Zagger New York Author

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.

Jeff S. Mayes Houston Author

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.

M. Tae Phillips Birmingham Author

Zachary V. Zagger New York Author

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.

Justine L. Abrams Morristown Author

Phillip A. Kilgore Greenville Author

Zachary V. Zagger New York Author

Beltway Buzz, November 18, 2022

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.

James J. Plunkett Washington D.C. Author

Ontario CUPE Strike 2022: A Sign of Things to Come?

A collision between the Ontario government and unionized education workers escalated into one of the most significant moments in recent Canadian labour relations history.

Stephen Shore Toronto Author

John T. Wilkinson Toronto Author

Justice Department Memo Raises the Stakes for Workplace Safety–Related Investigations

On September 9, 2015, then U.S. Deputy Attorney General Sally Quillian Yates issued a memo, “Individual Accountability for Corporate Wrongdoing,” that sent shivers down the spines of those in the workplace safety community.

John D. Surma Houston Author

Jeff T. Leslie Dallas Author

EEOC Proposes Streamlined EEO-1 Filing

On November 10, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued proposed revisions to its Employer Information Report (EEO-1) Component 1 data collection to streamline the process for large employers with multiple establishments.

Kiosha H. Dickey Columbia Author

James A. Patton, Jr. Birmingham Author

Zachary V. Zagger New York Author

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).

Lauren B. Hicks Atlanta
Indianapolis Author

Emily M. Halliday Washington D.C. Author

Colorado Voters Pass Proposition to Allow Regulated Use of Psychedelic Mushrooms

On November 8, 2022, voters in Colorado passed a ballot initiative to decriminalize possession of and legalize limited use of psychedelic mushrooms and other plant- and fungi-derived psychedelic drugs by those 21 years of age or older.

Roger G. Trim Denver Author

Zachary V. Zagger New York Author

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.

Hugh A. Christie Toronto Author

Michael Comartin Toronto Author

John T. Wilkinson Toronto Author

New Hampshire’s Paid Family and Medical Leave Plan: Breaking Ground in the Granite State

The New Hampshire Paid Family and Medical Leave (NH PFML) Plan, otherwise known as the Granite State Paid Family Leave Plan, is the nation’s first and only voluntary, state-sponsored paid leave plan.

Aimee B. Parsons Portland (ME)
Houston Author

Melanie C. Cormier Boston Author

Beltway Buzz, November 11, 2022

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.

James J. Plunkett Washington D.C. Author

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.

Harry J. Secaras Chicago Author

Zachary A. Pestine Chicago Author

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.”

Gordon L. Blair Birmingham Author

Tiffany Cox Stacy San Antonio Author

Veterans Day And a Reminder of Employers’ Military Leave Obligations

On November 11, 2022, the United States will celebrate Veterans Day, an annual holiday honoring military veterans of the United States Armed Forces. The date was first recognized as Armistice Day, a holiday to celebrate the end of World War I.

Zachary V. Zagger New York Author

Amy Quick Glenos Birmingham Author

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.

Anne E. Larson Chicago Author

Zachary V. Zagger New York Author

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.

Bernard J. Bobber Milwaukee Author

2022 Midterm Elections Early Results: Control of Congress, Minimum Wage, and Legalized Marijuana

Millions of voters across the United States went to the polls on November 8, 2022, for the midterm elections, but as of November 9, 2022, control of both chambers of Congress for the second half of President Biden’s first term still hangs in the balance.

Zachary V. Zagger New York Author

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.

Rebecka E. Reibe Raleigh Author

Melina V. Villalobos Raleigh Author

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.

Lawrence D. Smith San Antonio Author

Mexico’s Senate Approves Granting More Vacations to Employees

After several months of discussion and uncertainty, on November 3, 2022, Mexico’s Senate of the Republic approved a bill that would modify articles 76 and 78 of Mexico’s Federal Labor Law (FLL) to entitle employees to more paid vacation days.

Pietro Straulino-Rodriguez Mexico City Author

Natalia Merino Moreno Mexico City Author

Uncertain Economy Could Raise Reduction in Force Issues for Many Businesses

With the rise of inflation and other negative economic indicators, most news reports are suggesting that the U.S. economy is facing uncertain times. Some economists predict that the economy is headed for a recession or that the United States has already entered one, while others are more optimistic.

Trina Ricketts Kansas City Author

Zachary V. Zagger New York Author

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