Same-Sex, Interracial Marriages Federal Bill Takes Step Toward Approval

On November 29, 2022, the U.S. Senate passed the Respect for Marriage Act, which would guarantee marriage equality, including for interracial and same-sex couples, under federal law. The bill, H.R. 8404, passed the Senate in a 61-36 vote with bipartisan support. The bill must still be voted on by the U.S. House of Representatives, which passed a similar version in July, before it goes to President Biden’s desk for approval.

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.

1 More Hour of Sleep but 4 More Wage and Hour Problems as Daylight Saving Time Ends

On Sunday, November 6, 2022, at 2:00 a.m., daylight saving time will end. This World War I–era practice of turning back the clock one hour in the fall became a federal law in the United States when President Lyndon Johnson signed the Uniform Time Act in 1966. The jury is still out on whether “falling back” is beneficial. Claims that it helps to conserve energy are dubious. Most people probably don’t get an extra hour of sleep that night. And, the time change doesn’t actually increase the number of hours of sunlight per day. However, it does present a good opportunity for employers to examine their timekeeping practices with regard to nonexempt employees.

EEOC Issues Important Update to Required Rights Poster

On October 19, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released a new poster that covered employers are required to display in their workplaces entitled “Know Your Rights: Workplace Discrimination is Illegal,” which updates and replaces its previous “Equal Employment Opportunity is the Law” poster. According to the EEOC, the poster uses plain language and bullet points that will make it easier for employers and employees to understand their rights and obligations.

Eleventh Circuit Finds That Postal Worker’s Failure to Amend EEOC Charge Spells End to Discrimination Suit

On October 3, 2022, the United States Court of Appeals for the Eleventh Circuit held in Ellison v. Postmaster General, United States Postal Service that a plaintiff bringing a claim for retaliation failed to exhaust his administrative remedies under Title VII of the Civil Rights Act of 1964 by failing to amend his U.S. Equal Employment Opportunity Commission (EEOC) charge when the alleged retaliatory conduct occurred.

Recent Scandals Highlight Issues for Employers in Navigating Workplace Romances

A professional sports team head coach recently found himself in hot water over a romantic relationship with another employee of the franchise. The team’s management suspended him for an entire season for purported violations of workplace policies. What allegedly started as a consensual relationship escalated into the employee claiming that she was subjected to inappropriate comments and advances from the head coach. Media reports suggest he could ultimately lose his job as a result of this controversy. The scandal is one of the latest in the sports and entertainment industry involving potentially inappropriate romantic relationships. However, the team’s quick move to discipline highlights how employers across workplaces in the United States are treading carefully with workplace romances in the wake of the #MeToo movement.

Key Considerations for Employers When Workplace Issues Go Viral: Lessons Learned From the Try Guys Scandal

Just weeks ago, it was hard to open any social media application without seeing a post or news article concerning popular content creators The Try Guys. The internet stars have been trending since mid-September after online rumors began circulating that one of the group’s founders was having an extramarital affair with a subordinate employee. While few instances of office indiscretions will be subject to the spotlight or backlash of the internet, the Try Guys scandal highlights important considerations for employers facing allegations of workplace misconduct by company leaders.

Top Multistate Compliance Challenges as Remote Work Rises at the End of the Pandemic

Multistate employers face the daunting task of keeping up with a growing patchwork of employment laws on the federal, state, and local levels. According to Ogletree Deakins’ second annual benchmarking survey report, Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers, multistate compliance ranks as one of the most challenging issues for employers. Survey respondents report that leaves of absence—including paid sick leave mandates, Family and Medical Leave Act requirements, and other state leave laws—present the most difficult multi-jurisdictional compliance issues, with wage and hour law compliance and handbook/policy concerns following close behind.

Pennsylvania Federal Judge Tosses Challenge to Employer Jab or Swab Mandate

On August 26, 2022, Chief U.S. District Judge Matthew Brann for the United States District Court for the Middle District of Pennsylvania dismissed a putative class action representing approximately 100 healthcare company employees brought against their employer, Geisinger Clinic. In the suit, the employees challenged their employer’s policy requiring employees to either be vaccinated for COVID-19 or agree to regular testing and quarantining. In dismissing the complaint, the court rejected the employees’ religious discrimination, constitutional, and state law claims, calling the employees’ evidence “a collection of distorted statements and anti-vaccine hocus-pocus.”

Employee Arrests Outside of Work Hours: 4 Key Questions and Answers for Employers

When employees are arrested during their off-duty time and away from work, employers may need to make difficult choices balancing their various obligations. Among these are respecting the rights of arrested employees, ensuring the safety of workforces and workplaces, maintaining the continuity of business operations, and preserving brand integrity and corporate reputation—as well as considering how state and federal laws might relate to the conduct at issue and to any decision to retain, suspend, or discharge arrested employees. As with most things, process and risk assessment matter, and the way that decision-makers meet the moment may make the difference between an optimal outcome and an outcome that subjects employers to liability. Here are four questions and answers for employers weighing their options in these situations.

The Latest in Multi-Jurisdictional Compliance for Using E-Signatures

Electronic signatures or e-signatures are an increasingly essential tool in today’s technology-dependent workplace, especially for employers that are hiring remote workers. While state and federal law generally recognizes e-signatures to be as valid as traditional written or “wet” signatures, there are certain disclosures and processes that are required that may be challenging for employers.

Florida’s Stop Woke Law Is Sedated—Judge Blocks Law Limiting Workplace Bias Trainings

On August 18, 2022, U.S. District Judge Mark E. Walker issued a preliminary injunction blocking part of a Florida’s H.B. 7, known as the Individual Freedom Act (IFA), which prohibits employers from requiring employees to undergo a training “that espouses, promotes, advances, inculcates, or compels” employees to believe any of various sex- and race-based discrimination concepts.

Military Leave and USERRA Reemployment Rights: 3 Steps for Reading Orders to Determine Five-Year Cap Exemptions

Employers may be surprised to learn that certain employees with greater than five years of military leave may still have reemployment rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA has numerous exemptions to the statute’s five-year service limit, and employers may need to consult an employees’ orders and discharge documents (DD-214 or NGB 22) before denying an employee reemployment rights under USERRA.

Fifth Circuit Rules Sleepwalking Employee Who Crawled Into Bed With Coworker Cannot Prove Disability Discrimination

On July 15, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court’s ruling that a female employee who crawled into a male coworker’s bed while “sleepwalking” and was subsequently discharged failed to establish disability discrimination under the Americans with Disabilities Act (ADA) and the Texas Commission on Human Rights Act (TCHRA).

Business Necessity of COVID-19 Screening Testing No Longer Presumed Under EEOC Guidance

At the outset of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) took the position that the Americans with Disabilities Act (ADA) standard for conducting medical examinations (job-related and consistent with business necessity) was always met for COVID-19 viral screening testing. On July 12, 2022, the EEOC updated its position in light of the evolving nature of the COVID-19 pandemic.

Supreme Court Holds State Employers Can Be Sued for Discriminating Against Veteran Employees Under USERRA

On June 29, 2022, the Supreme Court of the United States decided that a veteran could sue his former employer, the Texas Department of Public Safety (DPS), under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) after the DPS would not accommodate his medical conditions by employing him in a different role.

Nonbinary Pronoun Usage in the Workplace: What Employers Are Doing to Promote Inclusivity

Using the correct pronouns and honorifics in the workplace has become an increasingly important part of maintaining an inclusive workplace. At the same time, the sensitive nature of this trend and the many variations of pronouns and honorifics in use may leave employers confused as to how to accomplish that goal. Moreover, employers may be concerned with how to comply with employees’ requests in an ever-evolving space and with the increasing use of nonbinary pronouns.

Employee Activism, Safety, and Support Amid Difficult Issues

Recent social and political controversies, such as rulings from the Supreme Court of the United States, international conflicts, and mass shootings, are likely to cause more employees to voice their opinions and frustrations both in and outside the workplace, whether through conversations, social media, or participation in marches, protests, and similar events.

Fifth Circuit Finds Specific Allegation of One-Time Use of Racial Slur Sufficient to Preclude Dismissal Under Rule 12(b)(6)

On March 24, 2022, the U.S. Court of Appeals for the Fifth Circuit reversed a district court’s Federal Rule of Civil Procedure 12(b)(6) dismissal for failure to state a claim on a pro se plaintiff’s hostile work environment claim in violation of Title VII of the Civil Rights Act of 1964, holding that the plaintiff’s specific allegation—that his supervisor, in the presence of other employees, called him a derogatory racial epithet—was sufficient to give rise to a viable claim.

Fifth Circuit Relied on ‘Next to No Evidence’ of Animus in Discrimination Suit

On May 13, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed summary judgment in favor of an employer, finding that a fired employee had failed to create a genuine dispute of material fact as to pretext. In Owens v. Circassia Pharmaceuticals, Inc., the court affirmed summary judgment despite its recognition that the former employee had presented “substantial evidence” that could lead a reasonable jury to conclude that the employer’s stated reason for termination—her poor job performance—was false.