Photo of Amanda Brown

On February 27, 2024, U.S. District Judge James Wesley Hendrix of the Northern District of Texas, Lubbock Division blocked enforcement of the Pregnant Workers Fairness Act (PWFA) against the state of Texas and its divisions and agencies, finding passage of the PWFA violated the U.S. Constitution’s quorum requirement. Below we discuss the terms of the PWFA, its enactment, and the subsequent legal challenge.Continue Reading Texas federal court blocks enforcement of Pregnant Workers Fairness Act

Governmental entities play a vital role in upholding federal labor and employment regulations and would face significant disruption in the event of a government shutdown. In September, we provided a brief review on how a shutdown would affect the government agencies that enforce federal labor and employment laws — the U.S. Equal Employment Opportunity Commission

On February 8, 2024, the U.S. Supreme Court issued Murray v. UBS Securities LLC, No. 22-660, which addressed the proper framework for establishing a whistleblower claim under the Sarbanes-Oxley Act of 2002 (SOX). Under SOX, an employee who works for a covered company is protected from retaliation if they disclose information that the employee reasonably believes shows a violation of federal securities law, SEC rules, or any federal law related to fraud against shareholders. In Murray, the Court held that an employee is not required to prove that their employer acted with animus when it engaged in an adverse action against the employee.

In Murray, a research strategist at a securities firm voiced concerns to his supervisor about leaders of the firm’s trading desk purportedly engaging in unethical and illegal efforts to skew his independent reporting on commercial mortgage-backed securities. Despite receiving a strong performance review, the employee was subsequently terminated, which the employer alleged was a result of reduction in force. The employee then filed a SOX complaint with the Department of Labor (DOL) and, after the 180-day waiting period passed without a final decision from the DOL, subsequently filed suit in federal district court.Continue Reading Supreme Court eases employees’ burden to establish SOX retaliation claims and possibly other whistleblower claims

In a series of press releases throughout September 2023, the Securities and Exchange Commission (SEC) announced enforcement orders against three separate companies for using employment agreements and separation agreements that violated the SEC’s whistleblower protection rule. The orders reflect the SEC’s increased scrutiny of employment agreements and separation agreements under the whistleblower protection rule.

New

Government agencies are integral to the enforcement of federal labor and employment laws and will be dramatically impacted by a government shutdown. Below is a synopsis of the impact on the main government agencies responsible for enforcing federal labor and employment laws—the U.S. Equal Employment Opportunity Commission (EEOC); the Department of Labor (DOL); and the

Next up in the series, Reed Smith lawyers continue the discussion regarding the OSHA ETS that requires companies in the U.S. with 100 or more employees to implement either a mandatory vaccination policy or a policy that allows employees to choose between vaccination or COVID-19 testing. Specifically, the chat focuses on the current status of

Reed Smith’s Labor & Employment group is proud to announce the launch of our video chat series, Employment Law Watch: Real Time. The series will focus on new developments and hot topics that employers around the world need to know about. Tune in for regular 10 to 15 minute chats led by the firm’s labor

Under the Occupational Safety and Health Act (OSH Act or the Act), employees who raise concerns regarding safety or health in the workplace are protected against retaliation from their employer. With the publication of the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS), employers should be mindful that the Act’s whistleblower protections extend to employees who raise concerns about their employer’s compliance with the ETS.

OSHA ETS 

On November 5, 2021, OSHA published its much-anticipated ETS designed to minimize the risk of COVID-19 transmission in the workplace. We have previously discussed the requirements of the ETS, but generally speaking, the ETS requires employers with 100 or more U.S. employees to implement a policy that either (i) mandates COVID-19 vaccination for all employees, or (ii) encourages vaccination for all employees and requires testing of unvaccinated employees. The ETS also requires paid time off for vaccination and recovery from the side effects of vaccination, and it imposes recordkeeping obligations on employers.

Given OSHA’s limited number of workplace safety inspectors and the large number of employers subject to the ETS, employees will be key in enforcement of the ETS as suggested by recent remarks by the Biden administration. Jim Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, recently stated that OSHA will focus on job sites “where workers need assistance to have a safe and healthy workplace … [t]hat typically comes through in the form of a complaint.” And, on November 10, 2021, in the announcement of a joint initiative between the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) to increase protections for whistleblowers, Solicitor of Labor Seema Nanda remarked: “[i]n the U.S. Department of Labor’s fight against … unsafe or unhealthy workplaces, and other unlawful employment practices, we will use all tools available to protect workers from retaliation.”

Further, while employees previously could file complaints with OSHA raising workplace safety and health concerns related to COVID-19 under the Act’s General Duty Clause, the ETS makes it easier for OSHA to establish a violation of the Act. Unlike the amorphous General Duty Clause, the ETS sets out specific standards for employers and penalties for failure to comply. Moreover, the ETS obviates the need for OSHA to establish a recognized hazard – that is, the workplace condition or practice to which employees are exposed has the potential for death or serious physical harm – for each General Duty clause violation since OSHA has already determined that COVID-19 constitutes a recognized hazard determination in issuing the ETS.
Continue Reading Employers subject to OSHA ETS must be mindful of OSH Act whistleblower protections

Most Texas employers are likely already familiar with Texas Governor Greg Abbott’s Executive Order GA-39 that prohibits state and local governments from requiring (1) individuals to receive a COVID-19 vaccine, or (2) documentation proving vaccine status (that is, “vaccine passports”) as a condition to receive any service or enter any place.

Building upon Executive Order GA-39, on October 11, 2021, Governor Abbott issued Executive Order GA-40 (the Texas EO), which prohibits private employers in Texas from requiring that employees receive a COVID-19 vaccination. Specifically, the Texas EO prohibits any Texas entity from “compel[ling] receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Texas entities that violate the Texas EO can be fined up to $1,000 (it is unclear whether the fine will be per violation). The Texas EO does not create any private cause of action, nor does it call for retroactive application.

The Texas EO creates three bases for employees to object to vaccination: (1) personal conscience; (2) religious belief; and (3) medical reasons. The Texas EO also specifically states that prior recovery from COVID-19 is a valid basis for an individual to object to a COVID-19 vaccine. The objections permitted under the Texas EO go far beyond the religious and medical exemptions to vaccine mandates under Title VII of the Civil Rights Act and the Americans with Disabilities Act, respectively. Moreover, the Texas EO does not contain an undue burden exception or mention any other grounds that would permit an employer to deny an employee’s objection to a mandatory COVID-19 vaccine that is made under the three bases in the Texas EO.Continue Reading Texas executive order restricts mandatory vaccination policies for employers

On September 24, 2021, the Safer Federal Workforce Task Force issued guidance for federal contractors and subcontractors concerning various safety protocols (the Guidance) as required by President Biden’s Path Out of the Pandemic and Executive Order 14042 (the Order). The stated purpose of the safeguards set forth in the Guidance are to decrease the spread of COVID-19, which will decrease worker absences, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.

As a threshold matter, the Order does not apply to all federal contractors. Specifically, the Order applies to contracts for services, construction, or leasehold interest in property; services covered by the Service Contract Labor Standards; concessions; and work relating to federal property lands and related to offering services for federal employees, their dependents, or the general public. The Order specifically excludes grants, contracts or contract-like instruments with Indian Tribes, contracts with a value equal to or less than the FAR simplified acquisition threshold (currently $250,000), employees performing work outside the United States, and subcontracts solely for the provision of products. However, the Guidance also strongly encourages agencies to incorporate clauses requiring compliance with the Order into contractors that are not covered or directly addressed by the Order.

Further, the requirements apply only to a covered contract, which is defined as one that includes a provision that the contractor will “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” Stated differently, simply being a federal contractor does not mean all employees must be vaccinated by the deadline.  Instead, the requirements apply to any new solicitations issued on or after October 15, 2021, the option to extend an existing contract on or after October 15, 2021, and new federal contracts awarded on or after November 15, 2021. However, agencies are again strongly encouraged to incorporate a clause requiring compliance with the Order into existing contracts and contract-like instruments prior to the date upon which the Order requires inclusion of the clause.Continue Reading Federal contractors and subcontractors receive guidance on President Biden’s vaccine mandate, including December 8, 2021 compliance date