U.S. Department of Education Delays Release of Title IX Final Rules to October 2023

The much-anticipated release of the Biden administration’s final revisions to the regulations implementing Title IX of the Education Amendments of 1972 will be delayed to October 2023, the U.S. Department of Education recently announced.

Supreme Court Holds NLRA Does Not Preempt Claims for Intentional Property Damage Committed by Strikers

On June 1, 2023, the Supreme Court of the United States ruled that the National Labor Relations Act (NLRA) does not preempt an employer’s state court tort claims alleging a union intentionally destroyed the employer’s property during a strike. The ruling is significant for employers in that it could open the door for lawsuits against unions to protect their interests and recover the value of property destroyed during increasingly contentious labor disputes.

Four Key (and Surprising) Points for Navigating FMLA Leave

Complying with the various legal and practical requirements of the Family and Medical Leave Act (FMLA) and its regulations is an ongoing challenge for employers, particularly when it comes to questions about when an employee qualifies for leave. Here are some key points regarding the FMLA that employers may want to consider.

Minnesota Worker Safety Legislation for Meatpacking and Warehouse Industries Signed Into Law

On May 24, 2023, Governor Tim Walz signed Senate File No. 3035, which, among other provisions, amends the Packinghouse Workers Bill of Rights (Minn. Stat. § 179.86), creates new meatpacking workplace safety requirements with the Safe Workplaces for Meat and Poultry Processing Workers Act, and limits the use of quotas in the “Warehouse Distribution Worker Safety” law.

NLRB General Counsel Says Noncompete Agreements Violate Federal Labor Law

The National Labor Relations Board General Counsel (GC) issued a memorandum on May 30, 2023, declaring her opinion that the “proffer, maintenance, and enforcement’ of noncompete agreements in employment contracts and severance agreements violate the National Labor Relations Act (NLRA) “except in limited circumstances.”

Minnesota Extends Protections and Accommodations for Pregnant and Lactating Employees

On May 24, 2023, Governor Tim Walz signed into law legislation that further expands protections for nursing and pregnant employees in Minnesota. The amendment, included in Senate File 3035, builds on the changes that became effective in January 2022 to Minnesota’s nursing mothers and pregnancy accommodations law (Minn. Stat. § 181.939).

Majority of States Have Legalized Marijuana, but OSHA’s Post-Incident Drug-Testing Guidance Hasn’t Changed

Although marijuana has been legalized for medicinal or recreational use, or both, in thirty-eight states, it is still illegal under federal law, and drug testing is required to comply with a number of federal laws, including the Motor Carrier Safety Act. In addition, the Occupational Safety and Health Administration does not prohibit workplace safety incentive programs or post-incident drug testing.

New Washington State Law Will Protect Job Applicants From Discrimination Based on Off-Duty Marijuana Use

Employers in Washington will soon be prohibited from making hiring decisions based on preemployment testing for off-the-job cannabis use or test results showing nonpsychoactive cannabis metabolites in an applicant’s hair, blood, urine, or other bodily fluids. Washington’s new law, Senate Bill 5123, signed by Governor Jay Inslee on May 9, 2023, takes effect on January 1, 2024.

Minnesota Governor Signs Labor Funding, Noncompete Ban Bill Into Law

On May 24, 2023, Minnesota Governor Tim Walz signed into law a sweeping omnibus jobs and economic development and labor funding bill that will invest $500 million in a fund to match federal investments in infrastructure and large-scale development projects. This bill also fundamentally changes several areas of Minnesota employment law, including instituting a ban on employer-employee noncompete agreements signed after July 1, 2023, establishing new paid sick leave entitlements, providing employees with additional pregnancy and nursing accommodations, and adding new worker safety protections.

Minnesota Establishes State-Sponsored ‘Secure Choice’ Retirement Program for Private-Sector Employers Without Retirement Plans

On May 19, 2023, Governor Tim Walz signed into law House File No. 782, establishing the Minnesota Secure Choice retirement program. Minnesota has now joined California, Colorado, Oregon, Illinois, and other states in creating a state-run retirement savings program for employees working with small employers without their own retirement plans.

Minnesota Legislature Passes New Recreational Marijuana Bill

The Minnesota Legislature sent a recreational marijuana bill, House File 100, to Governor Tim Walz’s desk for his signature. Subject to various restrictions, the bill, allows individuals twenty-one years old and older to possess and transport various levels of cannabis products, consume cannabis in private/public areas, and grow it. Governor Walz is expected to sign the bill into law.

EEOC Issues New Guidance on Employer Use of AI and Disparate Impact Potential

On May 18, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued the latest federal guidance on employer use of artificial intelligence (AI) and automated decision-making tools. The new guidance reinforces the EEOC’s ongoing focus on the use of AI in the workplace and serves as an important reminder to employers of potential legal compliance issues associated with the use of such tools.

Sixth Circuit Adopts New Certification Process in FLSA Collective Actions

On May 19, 2023, in Clark v. A&L Home Care and Training Center, LLC., the U.S. Court of Appeals for the Sixth Circuit rejected the familiar two-step certification procedure in collective actions under the Fair Labor Standards Act (FLSA), instead requiring lead plaintiffs to demonstrate a “strong likelihood” that other employees they seek to represent are “similarly situated” to the original plaintiffs. In so ruling, the Sixth Circuit became just the second circuit court to expressly reject the familiar two-step certification procedure in FLSA collective actions.

OFCCP’s Mega Construction Project Program: OFCCP Continues Its Focus on the Construction Industry

As part of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs’ (OFCCP) continued focus on the construction industry amid the Biden administration’s infrastructure push, the agency is honing in on major construction projects funded by the 2021 Bipartisan Infrastructure Law (BIL).

H-1B and L-1 Maximum Periods of Stay—A Refresher for Employers on Timelines, Extensions, and Recapture

Employers may find it useful to have an understanding of the H-1B, L-1A, and L-1B maximum periods of stay. As a reminder, H-1B status is granted for certain specialty occupations and fashion models, L-1A status is granted for intracompany transfers of executives and managers, and L-1B status is granted for intracompany transfers of employees with specialized knowledge. Understanding the relevant periods of stay helps employers to timely initiate an employment-based green card process on behalf of an employee. It also allows employers to proactively plan their immigration policies to ensure business continuity and to reduce costs.