EEOC Releases Comprehensive Guidance Regarding Job Applicants and Employees With Hearing Disabilities

On January 23, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document aimed at providing guidance on how the Americans with Disabilities Act (ADA) applies to job applicants and employees with hearing disabilities. The comprehensive document addresses (1) when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures, (2) what types of reasonable accommodations applicants or employees with hearing disabilities may need, (3) how an employer should handle safety concerns about applicants and employees with hearing disabilities, and (4) how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

EEOC Hears Testimony Concerning Employment Discrimination in Artificial Intelligence and Automated Systems

On January 31, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) held a public hearing, titled, “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier,” to receive panelist testimony concerning the use of automated systems, including artificial intelligence, by employers in employment decisions.

District of Columbia’s New Human Rights Enhancement Amendment Act Changes Definitions of ‘Harassment’ and ‘Employee’

The District of Columbia recently amended the D.C. Human Rights Act (DCHRA) by adding a new protective status, broadening who is covered under the act. The District also modified the DCRHA to redefine how plaintiffs may prove harassment claims within the District. The new law, which took effect on October 1, 2022, is entitled the Human Rights Enhancement Amendment Act of 2022 (DCHREAA).

Congress Eases Criminal Offense Restrictions for Employment With Financial Institutions

Included in the defense spending bill signed by President Biden in December 2022 is a section with key provisions for financial institutions that will ease restrictions on hiring candidates with criminal records. Section 5705 in the National Defense Authorization Act (NDAA) for Fiscal Year 2023, titled “Fair Hiring in Banking,” further narrows convictions that would constitute a bar to employment under Section 19 of the Federal Deposit Insurance Act (Section 19) absent a written waiver by the Federal Deposit Insurance Corporation (FDIC).

California’s New Pay Transparency Law: Pay Data Reporting Obligation Changes for 2023

California recently enacted a landmark pay transparency law that requires employers to disclose pay ranges in job postings, joining a growing number of states and municipalities that impose such requirements aimed at improving pay equity. But beyond the pay scale requirements, Senate Bill (SB) 1162, signed in September 2022 by Governor Gavin Newsom, further broke new ground in expanding pay data reporting processes and requirements for California employers, and thus increasing employers’ compliance burden.

Supreme Court to Assess Attorney-Client Privilege When Legal and Business Advice Intertwine

The attorney-client privilege protects confidential communications between clients and their attorneys made for the purpose of obtaining or providing legal advice. In Upjohn Co. v. United States, a seminal 1981 decision addressing this topic in the corporate context, the Supreme Court of the United States noted: “[i]n light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations … ‘constantly go to lawyers to find out how to obey the law.’” This reality in part led the Supreme Court in Upjohn to reject a narrow view of the persons within a corporation to whom communications with an attorney are privileged.

South Carolina Human Affairs Commission Releases Prohibition Against Employment Discrimination Poster

On November 14, 2022, the South Carolina Human Affairs Commission revised its employment anti-discrimination poster. The poster serves to inform employees and applicants of the protected classes of individuals covered by the South Carolina Human Affairs Law regarding the types of employment actions prohibited by the law, how to report discrimination, and the commission’s role in enforcement.

U.S. Virgin Islands Supreme Court Affirms Compensatory Damages Award to Former Employee Claiming Age Discrimination

On December 5, 2022, the Supreme Court of the Virgin Islands upheld a 2019 jury verdict, which found that Caribbean airline LIAT (1974), Ltd., had discharged its former area manage because of his age in violation of the Virgin Islands Civil Rights Act (VICRA).

Federal Law Recognizing Same-Sex, Interracial Marriages Under Federal Law Signed

On December 13, 2022, President Joe Biden signed H.R. 8404, known as the Respect for Marriage Act, into law, guaranteeing marriage equality for same-sex and interracial couples under federal law. The law passed both houses of the U.S. Congress with bipartisan support, and the signing took place two weeks after the U.S. Senate voted 61–36 to approve it.

 

Supreme Court Hears Arguments on Whether Wedding Website Creator Can Refuse Same-Sex Couples

On December 5, 2022, the Supreme Court of the United States heard oral arguments in a case on whether a wedding website creator may legally refuse to make websites for same-sex couples based on First Amendment grounds. During the nearly two-and-a-half hour oral arguments in 303 Creative LLC v. Elenis, the high court justices peppered sides with a series of hypotheticals questioning where to draw the line between the First Amendment rights of a business that provides expressive services to not be compelled to provide speech with which they disagree and a public accommodations law that prevents businesses open to the public from discriminating against protected classes, including on the basis of sexual orientation.

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.