Employment & Labor (U.S.)

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In July of this year, a Texas federal district court judge denied the state of Texas’ request to vacate the Equal Employment Opportunity Commission’s (EEOC) most recent guidance relating to gender identity discrimination. In doing so, the federal court held that the state could not bring the challenge in a previously filed lawsuit regarding prior EEOC guidance but, instead, must file a new lawsuit.

The state of Texas first took issue with the EEOC’s 2021 guidance, which required bathroom, dress code, and pronoun accommodations for employees based on gender identity. Texas filed suit against the EEOC in the United States District Court for the Northern District of Texas, requesting the court vacate the 2021 guidance (2021 Lawsuit). On October 1, 2022, the court vacated the 2021 guidance and issued a declaratory judgment that the guidance was unlawful on several grounds, holding that it: (1) was contrary to law because Title VII, even after the Supreme Court’s decision in Bostock v. Clayton County, does not require employers to provide accommodations regarding bathrooms, dress codes, or pronoun usage based on gender identity; and (2) unlawfully extended Bostock’s “non-discrimination holding” beyond statutory limits imposed by Congress. The EEOC did not appeal the district court’s judgment.Continue Reading Federal judge requires state of Texas to file new lawsuit to challenge recent EEOC guidance on gender identity discrimination

As we previously reported, the U.S. Equal Employment Opportunity Commission’s (EEOC) final rule on the Pregnant Workers Fairness Act (PWFA) went into effect on June 18, 2024. The final rule provides guidance on how the EEOC will interpret and enforce the PWFA, including with respect to conditions that may qualify for accommodation, examples of what constitutes an accommodation, and clarification on the process through which employers and employees engage in the interactive process to obtain an accommodation.

Legal challenges to the final rule

The final rule has been the subject of several legal challenges. Recently, a U.S. District Judge in Louisiana issued a preliminary injunction that partially blocks the provision in the final rule requiring workplace accommodations for “purely elective abortions.” In the final rule, the EEOC takes the position that a person’s choice to have (or not have) an abortion qualifies as a medical condition that falls under the PWFA’s purview. The constitutionality of the final rule was challenged by the attorneys general of Louisiana and Mississippi, along with four religious organizations.Continue Reading EEOC’s final rule on the Pregnant Workers Fairness Act in flux

On July 1, 2024, the first phase of the U.S. Department of Labor (DOL)’s updated overtime rule went into effect, raising the minimum salary threshold for employees who are classified as “exempt” under the white-collar exemptions to the Fair Labor Standards Act (FLSA). The rule is subject to legal challenges but, as detailed below, remains in effect for now (other than for the State of Texas as a government employer).

A full summary of the rule is available here. In short, as of July 1, 2024, employees must be paid $844 per week ($43,888 annualized) to satisfy the salary threshold for the executive, administrative and professional exemptions. To satisfy the highly compensated” exemption salary threshold, employees must be compensated at least $132,964 per year (and a minimum of $844 per week). Effective January 1, 2025, the minimum salary threshold is set to increase to $1,128 per week ($58,656 annualized) for the executive, administrative, and professional exemptions, and to $151,164 per year for the highly compensated employee exemption. From there, the rule provides for updates to the minimum salary threshold every three years, starting July 1, 2027.Continue Reading Federal court challenges to DOL overtime rule yield mixed results while foretelling a merits ruling before end of year

On Tuesday, Governor Gavin Newsom signed Assembly Bill 2288 and its counterpart Senate Bill 92 into law, which amend California’s Private Attorneys General Act (PAGA). While the amendments are expansive in nature, eight major changes under this new version of PAGA are detailed below:Continue Reading California enacts eight noteworthy changes to controversial Private Attorneys General Act

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

During the height of the #MeToo movement, New York lawmakers passed a host of workplace-related legislation. This included adoption of Section 5-336 of the New York General Obligations Law, which governs the use of nondisclosure provisions in agreements resolving claims of discrimination, harassment, or retaliation. On November 17, 2023, Empire State legislators passed several key amendments (the “Amendment”) to the existing law, which took effect immediately.

By way of background, Section 5-336 was originally passed to protect nondisclosure provisions in agreements resolving claims of sexual harassment. Under Section 5-336 and prior to the Amendment, the law prohibited employers from including nondisclosure provisions in such agreements unless it was the employee’s preference and the employer complied with certain procedural requirements, including: (i) the inclusion of the provision is the employee-complainant’s preference; (ii) employee’s receipt of 21 days to consider the nondisclosure provision, a period that could not be shortened or waived (even if the employee wanted to); (iii) a 7-day revocation period; and (iv) employee’s preference for confidentiality memorialized in a separate written agreement.Continue Reading Reminder to New York employers: Amendments to nondisclosure rules will require updates to separation and settlement agreements

On October 26, 2023, the National Labor Relations Board issued a final rule that dramatically lowered the standard for companies to qualify as joint employers. You can read more about the rule here. In short, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more of the rule’s seven enumerated terms or conditions of employment is sufficient to establish joint employment. There is no doubt that implementation of the new rule will drastically expand when companies will be considered joint employers and create additional costs and obstacles for employers.Continue Reading Dueling challenges to NLRB’s new joint employer rule succeed in extending effective date of rule

We previously alerted employers to California employment law bills that were still alive toward the end of the most recent legislative session. That session ended on September 14, 2023 and Governor Newsom had until October 14, 2023 to either sign, approve without signing, or veto the bills that survived. Below is an update on the fate of these employment law bills so employers will know which ones are slated to become law. The Governor vetoed several noteworthy bills that would have expanded the state’s protected classes, employee work-from-home rights and CalWARN notice requirements. On the other hand, the Governor signed multiple significant employment law bills into law, including those creating increased paid sick leave requirements, expanded re-hiring rights, a new reproductive loss leave, and a new requirement that employers establish a workplace violence prevention plan. Unless otherwise noted, the approved bills will take effect January 1, 2024.Continue Reading California employment law legislative update: bills that will become law in 2024 and beyond

On October 26, 2023, the National Labor Relations Board issued a final rule to replace and essentially reverse the joint employer test issued under the Trump Administration. The new test drastically lowers the standard for companies to qualify as joint employers, making them responsible for labor violations and saddling them with obligations with respect to union negotiations. The final rule, which rescinds and replaces the prior regulation, is set to take effect on December 26, 2023, on a prospective basis only.

The 2020 rule required that a company have “substantial direct and immediate control” over the “essential terms or conditions” of a worker’s employment in order to be held liable as a joint employer. In a major “about face”, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more terms or conditions of employment is sufficient to establish joint employment. The Board published an “exhaustive list” of seven categories of terms or conditions that it will consider “essential” for purposes of the joint employer inquiry:

  • Wages, benefits, and other compensation;
  • Hours of work and scheduling;
  • Assignment of duties to be performed;
  • Supervision of the performed duties;
  • Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
  • Tenure of the employment, including hiring and discharge; and
  • Working conditions related to the safety and health of employees.

Continue Reading NLRB Issues Final Rule Replacing Joint Employer Test

Effective March 13, 2024, the salary threshold for certain exemptions under Article 6 of the New York Labor Law (NYLL) will increase from $900 to $1,300 per week. By way of background, Article 6 of the NYLL sets forth employer obligations with respect to pay practices in New York, many of which afford certain wage…