Beltway Buzz, June 24, 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.
Blog
Medical Travel Reimbursement Benefits Under the Supreme Court’s New Dobbs Decision
On June 24, 2022, the Supreme Court of the United States issued its highly anticipated decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392. The Dobbs decision expressly overrules the two key precedents that established and upheld a constitutional right to abortion and gives states the authority to regulate abortion.
NLRB General Counsel Issues Memo on Securing Full Remedies in Settlements
On June 23, 2022, National Labor Relations Board General Counsel Jennifer A. Abruzzo issued Memorandum GC 22-06 advising Regions that they may seek a judgment to force employers to comply with the specific terms of settlement agreements in unfair labor practice (ULP) charges rather than a default judgment.
The Hazards of Remote Employee Layoffs: Wage and Hour Issues, Severance Agreements, and Unemployment Claims
Remote work has exploded since the COVID-19 pandemic began, with some employers hiring employees to work remotely anywhere in the United States. With the recent economic downturn, layoffs are beginning to occur, and for the first time a significant number of remote employees may be included in layoffs. Layoffs of remote employees present unique legal hazards for employers.
Eleventh Circuit Limits Reach of OSHA’s ‘HazWoper’ Standard
On June 15, 2022, the United States Court of Appeals for the Eleventh Circuit issued a decision limiting the reach of the emergency response provisions of 29 C.F.R. § 1910.120, the Occupational Safety and Health Administration’s (OSHA) Hazardous Waste Operations and Emergency Response Standard—the so-called “HazWoper” (or “HAZWOPER”) standard.
Seattle Enacts First-of-Its-Kind Ordinance to Provide Minimum Wage and Other Protections for App-Based Delivery Workers
On June 13, 2022, Seattle Mayor Bruce Harrell signed into law CB 120294, a measure intended to ensure app-based delivery drivers are paid a minimum wage plus tips and compensation for expenses, increase transparency related to offers for work, and preserve worker flexibility. The App-Based Worker Minimum Payment Ordinance is part of a collection of six legislative proposals known as “PayUp,” and it is the first in the policy package to pass.
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.
Bloomington, Minnesota, Passes Paid Sick and Safe Leave Ordinance
On June 6, 2022, after a year of public meetings and feedback, the Bloomington City Council unanimously approved an ordinance that will require employers in the city to provide paid sick and safe leave to most workers.
OSHA Reminds Arkansas, Louisiana, Oklahoma, and Texas Employers to Protect Workers From Heat-Related Illness
High temperatures in the Southwestern United States have and continue to break records. In Arkansas, Louisiana, Oklahoma, and Texas, the heat index could reach triple digits and in some cases exceed 110°F. These elevated temperatures pose a serious risk to employees exposed to heat due to the nature of their jobs. As a result, the Occupational Safety and Health Administration (OSHA) is aggressively enforcing its national and regional programs aimed at preventing heat-related illnesses and fatalities.
Eleventh Circuit Rules Forensic Photography Intern Is Not Entitled to FLSA Wages
On June 9, 2022, a divided panel of the United States Court of Appeals for the Eleventh Circuit decided an unpaid intern who participated in a forensic photography training program was not entitled to wages under the Fair Labor Standards Act (FLSA).
A Lesson from the Fifth Circuit About Louisiana Noncompete Agreements: Establish the Employment Relationship First
A recent opinion from the United States Court of Appeals for the Fifth Circuit applying Louisiana’s restrictive law governing noncompetition agreements, reminds employers of the importance of establishing an employee-employer relationship before entering into noncompetition agreement.
The Latest in Multi-Jurisdictional Background Check Compliance
Conducting criminal background checks on job candidates is a common practice for employers but one that raises a host of compliance concerns amid a series of federal, state, and local laws and regulations governing how and when background checks may be conducted.
Midyear 2022 State and Major Locality Minimum Wage Increases
Several state and local minimum wage rates will increase in the latter half of 2022, with most of these changes effective on July 1, 2022. Increases to minimum wage rates for nonexempt employees and tipped employees in Florida will occur later in the year, on September 30, 2022.
CDC Rescinds COVID-19 Testing Requirement for International Airline Passengers Entering the United States
The U.S. Centers for Disease Control and Prevention (CDC) recently announced that as of June 12, 2022, international airline passengers (regardless of citizenship or vaccination status) are no longer required to provide proof of a negative viral COVID-19 test result or documentation of recovery from COVID-19 before boarding a flight to the United States.
CDPH Issues Updated Order Drastically Changing Employers’ Obligations Under Cal/OSHA COVID-19 ETS
Currently, the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS) requires employers to review and use current California Department of Public Health (CDPH) guidance for persons who had close contact to an individual with COVID-19, including any guidance regarding quarantine or other measures after a close contact to reduce COVID-19 transmission. On June 8, 2022, the CDPH issued a revised order with new definitions. These revised definitions are therefore immediately incorporated in to the Cal/OSHA ETS requirements for exclusion of close contacts, which in turn impact employers’ obligations under the ETS.
Canadian Government Suspends Vaccination Mandate for Domestic Travel and Federal Workers
On June 14, 2022, the Government of Canada announced that it would suspend vaccination requirements for domestic travelers, certain federally regulated workers, and federal public service employees, effective June 20, 2022. In support of this measure, the government has cited the successful vaccination campaign and low COVID-19 case counts.
Updates to Illinois’s Bereavement Leave and Employee Sick Leave Laws
Illinois Governor JB Pritzker recently signed into law two bills addressing employee leave. The Family Bereavement Leave Act (FBLA) provides eligible employees with unpaid time off to grieve the death of a family member covered by the act, and it provides employees with time off due to certain pregnancy- or adoption-related events.
Illinois Governor Signs Bills Expanding Contractors’ Liability for Unpaid Wages of Subcontractors’ Workers
On June 10, 2022, Illinois Governor JB Pritzker signed House Bill 5412 and its trailer bill, House Bill 4600, into law. Both bills amend the Illinois Wage Payment and Collection Act (WPCA) to make certain primary contractors liable for any debt owed by a subcontractor—at any tier— relating to the wage claimant’s performance of labor for contracts entered into on or after July 1, 2022.
Supreme Court Sides With Viking River Over Arbitration of California PAGA Claims
On June 15, 2022, the Supreme Court of the United States ruled in favor of Viking River Cruises Inc. in a case over whether it could use an arbitration agreement to force a lawsuit brought under California’s Private Attorneys General Act (PAGA) on behalf of aggrieved employees into arbitration. In Viking River Cruises, Inc. v. Moriana, No. 20-1573, the Supreme Court’s highly anticipated decision, the Court reasoned that the Federal Arbitration Act (FAA) requires the enforcement of an arbitration agreement that waived an employee’s right to bring individual claims through PAGA and that once those individual claims are sent to arbitration there is no standing to bring representative claims for violations of the California Labor Code on behalf of other aggrieved employees.
Des Moines Passes ‘Ban the Box’ Law Prohibiting Criminal Inquiries on Job Applications
On November 15, 2021, the city of Des Moines, Iowa, passed a “ban-the-box” law that will limit employer inquiries and background checks into an applicant’s criminal history until after a conditional offer of employment. Though the law was passed and has already taken effect, it has received little fanfare and media attention despite its implications for employers.
Supreme Court Declines to Resolve Circuit Split on Exercise of Personal Jurisdiction in FLSA Collective Actions
On June 6, 2022, the Supreme Court of the United States declined to hear petitions seeking review of whether federal courts may exercise personal jurisdiction over claims of nonresident plaintiffs who join Fair Labor Standards Act (FLSA) collective actions when their claims are not connected to the defendant’s activities in the forum state.
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.
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.
U.S. Employment-Based Immigration Sponsorship Fees: Who Is Required to Pay?
Employers and employees alike often inquire as to who may pay immigration sponsorship fees for certain nonimmigrant petitions and the permanent residency (green card) process. The answer often depends on a few details, including the specific immigration process, who is requesting the fee, the visa type, and the specific expense.
New York Passes Bill Requiring Compensation Ranges in Job Postings
On June 1, 2022, the New York State Legislature passed Senate Bill S9427A, which would amend the New York Labor Law (NYLL) by requiring that employers disclose compensation ranges in job, promotion, and transfer advertisements. This bill comes on the heels of New York City’s recent enactment of a similar law.
The Right to Disconnect Under Mexico’s Telework Regulations—What Does It Mean for Employers?
On January 12, 2021, the right to disconnect (known in other countries as the “right to digital disconnection”) became an employment right in Mexico for employees in telework arrangements, with the publication of an amendment to the Federal Labor Law (FLL) in the Official Gazette of the Federation (Diario Oficial de la Federación) the day prior.
Seventh Circuit: Actual Denial of FMLA Benefits Is Not an Element of FMLA Interference
The Seventh Circuit Court of Appeals recently held that the Family and Medical Leave Act (FMLA) does not require actual denial of FMLA leave to find liability based on interference with FMLA rights.
Excusing False Positive Drug Test Caused by CBD Use May Be a Reasonable Accommodation, Says U.S. District Court in Louisiana
A federal district court in Louisiana, in Huber v. Blue Cross & Blue Shield of Florida, Inc., recently denied an employer’s motion for summary judgment in an Americans with Disabilities Act (ADA) and Louisiana Employment Discrimination Law (LEDL) case, finding, among other things, that accounting for and excusing a false positive drug test resulting from extended cannabidiol (CBD) use may be a reasonable accommodation.
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.
Beltway Buzz, June 10, 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.