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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.

Amy Quick Glenos Birmingham Author

CDC Updates Quarantine, Isolation, and Close Contact Guidance: Is It the End of Quarantine for Asymptomatic Close Contacts?

On August 11, 2022, the U. S. Centers for Disease Control and Prevention (CDC) updated its guidance in light of the “high levels of vaccine- and infection-induced immunity and the availability of effective treatments and prevention tools.”

Christine Bestor Townsend Milwaukee
Chicago Author

The Latest in Multi-Jurisdictional Compliance With Employment Application Laws

A growing number of states and municipalities are restricting the types of inquiries employers can make during hiring, creating concerns with what employers can include or must include on job applications and job postings.

Charles E. McDonald, III Greenville Author

Zachary V. Zagger New York Author

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).

Shaina E. Hicks Dallas Author

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.

Christine Bestor Townsend Milwaukee
Chicago Author

Katlyn Q. McGarry Milwaukee Author

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.

Gregory R. Hawran Miami Author

Brian A. Aslin Austin Author

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.

Kelly S. Hughes Charlotte Author

Alan J. Brozovich Denver Author

Zachary V. Zagger New York Author

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.

Suzanne L. Martin Las Vegas Author

Zachary V. Zagger New York Author

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.

Adam T. Dougherty Dallas Author

Tiffany Cox Stacy San Antonio Author

Recognizing Juneteenth and Strengthening Commitment to Diversity

June 2022 marks one year since President Joe Biden signed the Juneteenth National Independence Day Act on June 17, 2021, designating Juneteenth as the 11th federally recognized public holiday in the United States.

Danielle Ochs San Francisco Author

Brandon M. Shelton Charlotte
Indianapolis Author

Zachary V. Zagger New York Author

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.

Andrew P. Burnside New Orleans Author

Tiffany Cox Stacy San Antonio Author

Charging Party Who Did Not Timely Open Link in EEOC Email Loses Her Chance to Sue

The day that a plaintiff receives the U.S. Equal Employment Opportunity Commission’s (EEOC) notice of his or her right to sue starts the running of the ninety-day period to file a lawsuit—not the date the plaintiff (or the plaintiff’s lawyer) opens the link to the right-to-sue letter, according to the U.S. District Court for the Eastern District of Pennsylvania.

Ellen Toth Cleveland Author

California Courts Strike Down Laws Requiring More Women and Diversity on Boards

The California courts have cast doubt on the legality of laws mandating the number of women and individuals from “underrepresented communities” on the boards of directors of publicly traded corporations based in California.

Betsy Johnson Los Angeles Author

Zachary V. Zagger New York Author

#MeToo and the Workplace: Five Years and a Pandemic Later

It feels like a lifetime has passed since the #MeToo movement gained significant traction in October 2017 and began reshaping the workplace. The movement helped sexual harassment victims speak out and be heard and resulted in a marked uptick in filed sexual harassment claims.

Kelly M. Cardin New York
Stamford Author

Evan B. Citron New York Author

California’s Draft Regulations Spotlight Artificial Intelligence Tools’ Potential to Lead to Discrimination Claims

California is considering new regulations on the use of technology or artificial intelligence (AI) to screen job candidates or make other employment decisions. If the regulations become law, California would be the first state to adopt substantive restrictions specifically addressing this emerging, and often misunderstood, technology.

Danielle Ochs San Francisco Author

Jennifer G. Betts Pittsburgh Author

Zachary V. Zagger New York Author

EEOC, DOJ Warn Artificial Intelligence in Employment Decisions Might Violate ADA

The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ), on May 12, 2022, issued guidance advising employers that the use of artificial intelligence (AI) and algorithmic decision-making processes to make employment decisions could result in unlawful discrimination against applicants and employees with disabilities.

Jennifer G. Betts Pittsburgh Author

Danielle Ochs San Francisco Author

Zachary V. Zagger New York Author

Cal/OSHA’s Third Revision to COVID-19 ETS to Be Approved by May 6, 2022

As we previously reported, the California Occupational Safety and Health Standards Board recently voted to adopt the proposed revisions to California’s COVID-19 emergency temporary standards (ETS). Reports initially stated that the Office of Administrative Law would likely approve the language for implementation by May 5, 2022. This date has since changed to May 6, 2022.

Karen F. Tynan Sacramento Author

Major Cities Keep Public Transit COVID-19 Mask Mandates Despite Federal Order

Despite a federal court ruling in April 2022 striking down federal mask mandates, major cities in the United States are keeping them in place amid a new wave of COVID-19 cases raising new considerations for private employers that have implemented workplace mask mandates.

Zachary V. Zagger New York Author

Fifth Circuit Rules Age-Related Comments Must Be Specific to Defeat Summary Judgment

The Fifth Circuit Court of Appeals recently issued a ruling concerning the discharge of Michael Harris from his position with the City of Schertz, Texas, as the city marshal. In doing so, the Fifth Circuit gave a bit more clarity on the situations in which comments made by an employer or agent of an employer amount to discriminatory pretext.

Brandon E. Strey San Antonio Author

Ogletree Deakins’ Annual Benchmarking Survey: The Biggest Concerns for Today’s Employers

What’s top of mind for today’s employers in a post-pandemic era? According to Ogletree Deakins’ second annual benchmarking survey report, Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers, remote work and the tight labor market are at the top of the list.

James M. McGrew New Orleans Author

EEOC Roundup: Top 5 Takeaways for Employers on the 2021 Enforcement and Litigation Statistics

On March 28, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released its Annual Performance Report and Enforcement and Litigation Statistics for fiscal year (FY) 2021 (October 1, 2020–September 30, 2021). As employers navigate the “new normal” of 2022, they might benefit from a glimpse into the agency’s enforcement efforts during the past year, with five top takeaways.

Katie S. Bayt Indianapolis Author

Sixth Circuit: Employee-Driven Talk About Retirement Does Not Prove Employer’s Discriminatory Pretext

Talking to an employee about her retirement plans when considering the termination of her employment as discipline for a policy violation is not per se age discrimination, according to the U.S. Court of Appeals for the Sixth Circuit.

Ellen Toth Cleveland Author

Mexico’s COVID-19 Traffic Light Monitoring System: News for March 21–April 3, 2022

For the first time since Mexico’s federal government rolled out its pandemic monitoring system in June 2020, all of the nation’s thirty-two states have been given the green light to conduct social and business activities without restriction, although face masks are still required while using public transportation.

Pietro Straulino-Rodriguez Mexico City Author

O. Iván Andrade Castelán Mexico City Author

Mexico’s COVID-19 Traffic Light Monitoring System: News for March 7–20, 2022

Mexico’s federal government has indicated that the National Health Council will soon decree the end of the pandemic in Mexico. The expected announcement comes on the heels of signs that COVID-19 cases are significantly waning, with community transmission levels low enough for the government to designate all but one of Mexico’s thirty-two states in green status under the biweekly pandemic monitoring system.

Pietro Straulino-Rodriguez Mexico City Author

O. Iván Andrade Castelán Mexico City Author

Ontario Provides Timeline to Lift All COVID-19–Related Restrictions

On March 9, 2022, the Ontario government announced a plan to bring an end to all COVID-19 restrictions by April 27, 2022. Here is a summary of the upcoming employment-related changes.

Michael Comartin Toronto Author

Gloria Ilunga Toronto Author

OSHA Announces Intent to Focus Inspections in Healthcare Facilities With Attention on COVID-19 Healthcare ETS

The Occupational Safety and Health Administration (OSHA) remains focused on the pandemic in certain workplaces as indicated by its announcement of a new National Emphasis Program (NEP) related to COVID-19. Interestingly, the focus of the NEP includes checking to confirm that certain elements of the COVID-19 healthcare emergency temporary standard (ETS) are in place.

John D. Surma Houston Author

Mexico’s COVID-19 Traffic Light Monitoring System: News for February 21–March 6, 2022

Half of Mexico’s thirty-two states have been cleared by the federal government to fully reopen for business and social activities, a remarkable change from early February, when only four states were given the green light under the nation’s four-tiered pandemic traffic light monitoring system.

Pietro Straulino-Rodriguez Mexico City Author

O. Iván Andrade Castelán Mexico City Author

Los Angeles County and City COVID-19 Masking Orders Move Closer to California Department of Public Health Rules

On February 23, 2022, the Los Angeles County Department of Public Health (LACDPH) issued an order, effective February 25, 2022, that slightly loosened the rules for wearing COVID-19 masks in the county. One day after the LACDPH order, on February 24, 2022, Los Angeles Mayor Eric Garcetti issued the interim “Public Order Under City of Los Angeles Emergency Authority” that mirrored the new Los Angeles County order. While these revisions make the orders from both the county and city much more similar to the California state masking rules currently in effect, they remain stricter than the current state rules.

Charles L. Thompson, IV San Francisco Author

Leslie E. Wallis Los Angeles Author

Massachusetts COVID-19 Emergency Paid Sick Leave Act to End on March 15, 2022

On May 28, 2021, Massachusetts Governor Charlie Baker signed into law an act requiring eligible Massachusetts employers to provide emergency paid sick leave to employees who are unable to work for COVID-19–related reasons. On September 29, 2021, Governor Baker approved an extension of the law, titled “An Act Providing for Massachusetts COVID-19 Emergency Paid Sick Leave,” and increased its funding.

Rachel Reingold Mandel Boston
Stamford Author

Melanie C. Cormier Boston Author

New York City Will Lift Mask and ‘Key to NYC’ Requirements

On February 27, 2022, New York City Mayor Eric Adams announced that if COVID-19 indicators continue to display low risk levels, the “Key to NYC” will be lifted, effective March 7, 2022. Individuals will no longer be required to show proof of vaccination to enter certain covered establishments, such as indoor dining, entertainment, and fitness establishments. Former New York City mayor Bill De Blasio implemented the Key to NYC through Emergency Executive Order 225 on August 17, 2021.

Kelly M. Cardin New York
Stamford Author

Jessica R. Schild New York Author

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