Equal Employment Opportunity Commission (EEOC)

On January 12, 2020, the U.S. Department of Labor (DOL) issued its final rule updating and revising its interpretation of joint employer status under the Fair Labor Standards Act (FLSA). The new rule simplifies the FLSA joint employer analysis with a four-factor test for determining whether workers are jointly employed by associated businesses or persons. The DOL’s changes are the first meaningful revisions since the department’s interpretive regulation was issued 60 years ago. According to the department, the purpose of the rule is “to promote certainty for employer and employees, reduce litigation, promote greater uniformity among court decisions and encourage innovation in the economy.” Although application of this final rule is limited to FLSA wage and hour issues, the National Labor Relations Board and the Equal Employment Opportunity Commission are expected to similarly revisit the joint employer analysis in their respective contexts.

History

The new DOL rule replaces an interpretation that had broadened liability for joint employment under the FLSA. In 2016, former head of the Wage and Hour Division David Weil issued guidance that increased scrutiny of situations in which multiple companies might employ workers jointly. In 2017, the DOL rescinded Weil’s interpretation and in April 2019, provided a “Notice of Proposed Rule Making” relating to the joint employer test.   The final rule adopted on January 12, 2020, makes certain changes to and clarifications of the April 2019 proposed version. The rule takes effect on March 16, 2020.Continue Reading DOL makes historic, pro-business changes to FLSA joint employer test

On Tuesday, December 17, 2019, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the National Labor Relations Board (the Board or NLRB) held that requiring employee confidentiality during workplace investigations does not constitute an unfair labor practice under the National Labor Relations Act (the Act or NLRA). This is yet another employer-friendly decision in a series of recent rulings overturning Obama-era Board precedent.

Back in 2015, the Board held that employers could require confidentiality during workplace investigations only where they demonstrated that confidentiality was necessary to preserve the integrity of the investigation. See Banner Estrella Med. Ctr., 362 NLRB 1108 (2015), enforcement denied on other grounds 851 F.3d 35 (D.C. Cir. 2017). This standard created a difficult situation for employers, placing the burden on them to determine if there was a need for confidentiality that outweighed any potential impact on workers’ NLRA rights. Moreover, the standard also conflicted with guidance from the Equal Employment Opportunity Commission (EEOC), which encourages employers to keep investigations confidential to protect victims and to encourage reporting.Continue Reading NLRB greenlights employer rules requiring employee confidentiality during workplace investigations

Amanda Haverstick and Tsedey Bogale wrote a new article on Forbes.com discussing the recently issued Equal Employment Opportunity Commission (EEOC) Fact Sheet and Question-and-Answer Guide (the Guides). In the Guides, the EEOC reinforces its long-held, hard stance on employers’ duty to accommodate employee religious expression and appearance in the workplace.

To read the full article,

EEOC Publishes Long-Awaited Regulations Under the ADA Amendments Act

More than two years after the Americans with Disabilities Amendments Act (“ADAAA”) became effective, the EEOC has issued Final Rules and Regulations (“Regulations”) that were published in the March 25, 2011 Federal Register. The Regulations, which become effective May 24, 2011, further demonstrate the ADAAA’s objective

The United States Supreme Court has unanimously held that an employee may bring Title VII retaliation claims where he or she is subject to an adverse employment action, because someone else “closely related” to the employee engaged in protected activity, such as filing a charge of discrimination or opposing discrimination.

In Thompson v. North American

The United States Bankruptcy Code prohibits an employer from taking adverse action against an existing employee because of a bankruptcy filing.

In December, the United States Court of Appeals for the Third Circuit refused to extend that same protection to applicants for employment. In Rea v. Federated Investors, the court ruled that the phrase

On January 10, 2011, employers will become subject to new regulations issued by the U.S. Equal Employment Opportunity Commission (“EEOC”) that interpret the Genetic Information Nondiscrimination Act of 2008 (“GINA”). Employers must now comply with GINA’s tough restrictions on the acquisition, use, and disclosure of genetic information about applicants, employees, former employees, and all such individuals’ family members. In particular, employers must take affirmative steps to avoid receiving genetic information about applicants, employees, or any of their family members.

The following addresses some key questions about how the new EEOC regulations will affect employers.Continue Reading New EEOC Rules Require U.S. Employers To Revise Procedures for Acquiring and Using Medical Information

This past weekend, with the Easter Congressional recess just under way, President Barack Obama wasted no time in announcing the recess appointments of his two proposed Democratic nominees to serve as members on the National Labor Relations Board (NLRB). One appointment was Buffalo union-side attorney Mark Pearce; the other was the highly controversial Craig Becker

U.S. employers with 15 or more employees must post workplace notices to inform applicants and employees about their rights under federal anti-discrimination laws. The Equal Employment Opportunity Commission (EEOC) has recently published an updated version of its required “Equal Employment Opportunity is The Law” poster, updated to refer to the employment provisions of the Genetic

The U.S. Supreme Court begins its 2008-09 term with several cases related to labor and employment, raising issues that include the protection afforded employees who participate in sexual harassment investigations, management’s right to require union employees to arbitrate discrimination claims rather than raise them in court, and whether employers calculating pension benefits must credit employees for the time they missed work for pregnancy leaves taken before pregnancy discrimination was outlawed. These cases are summarized below.
Continue Reading U.S. Supreme Court Faces Variety of Employment Issues