Hunton Employment & Labor Perspectives

In an amicus brief filed before the Third Circuit, the EEOC has taken the position that claims of harassment based on gender identity and sexual orientation fall within the scope of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”).

On August 9, 2024, Illinois Governor J.B. Pritzker signed H.B. 3773 into law, requiring all Illinois employers to notify employees and applicants when they use artificial intelligence (A.I.) to make employment decisions.

The Consumer Financial Protection Bureau (the “CFPB”) has added itself to the list of agencies that view broad confidentiality agreements given to employees with scepticism. In a Circular published on July 24, 2024, the CFPB stated that requiring employees to sign a broad confidentiality agreement could violate Section 1057 of the Consumer Financial Protection Act (the “CFPA").

Although there is no federally-mandated paid leave for U.S. employees in the private sector, states have increasingly required that employers provide various forms of paid leave to their employees.  That trend continues as several states began imposing requirements upon employers to permit employees to accrue and use paid sick leave for certain medical situations for employees or members of employees’ immediate families.  Paid sick leave for employees in the private sector is now required by 17 states, the District of Columbia, and various municipalities around the country.

Washington, D.C. is the latest in a growing list of jurisdictions to require employers to have “pay transparency” in job postings. Starting in June of 2024, Washington, D.C. will require all employers with at least one employee in the District to post the minimum and maximum projected salary in all job listings or advertisements. The salary projections must be the lowest and highest salary or hourly pay the employer “in good faith believes” it would pay for the role.

The U.S. Department of Labor's (DOL) recently published a final rule on the definition of “independent contractor” under the Fair Labor Standards Act (FLSA) on January 9, 2024. This rule introduces a six-factor "economic realities" test, replacing the 2021 rule and aiming to bring clarity to the classification of workers as independent contractors or employees.

On December 6, 2023, the US Supreme Court heard arguments for Muldrow v. City of St. Louis, which may have significant implications for discrimination cases under Title VII of the Civil Rights Act. Specifically, the Supreme Court in this case could clarify whether Title VII of the Civil Rights Act requires a clear showing of significant disadvantage or tangible harm to have an actionable claim.

The Texas Supreme Court has issued an opinion holding that “third-party testing entities hired by an employer do not owe a common-law negligence duty to their clients’ employees.”  Houston Area Safety Council, Inc, v. Mendez, 671 S.W.3d 580, 590 (Tex. 2023) (“Mendez”).  In a positive development for employers that drug test their employees, the Mendez opinion also supports prior Texas Supreme Court precedent that employers who conduct in-house drug testing do not owe a duty to employees.  Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. 2003) (“Solomon”).  In other words, it logically follows that if an employer does not owe a duty to employees for results of drug tests administered in-house, a third-party tester hired by that employer does not owe a legal duty to employees for drug tests. 

A recent opinion out of the Texas 14^th Court of Appeals has raised the bar for employers trying to enforce arbitration agreements electronically signed by employees.  See Houston ANUSA, LLC d/b/a AutoNation USA Houston v. Shattenkirk, No. 14-20-00446-CV, 2023 WL 5437714 (Tex. App.—Houston [14th Dist.] Aug. 24, 2023, no pet. h.).

On June 14, 2023, Texas Governor Greg Abbott signed HB 2127, the Texas Regulatory Consistency Act (“TRCA”), into law. Once the TRCA goes into effect on September 1, 2023, it will preclude all municipalities and counties in Texas from adopting or enforcing ordinances regulating conduct with respect to certain subject matters, including labor.

The U.S. Supreme Court’s landmark 2020 decision granting anti-discrimination protections for LGBTQ+ workers left room for future challenges by religious employers.

Avid readers of this blog will recall three prior postings about a wage and hour dispute under the Fair Labor Standards Act (“FLSA”) between an off-shore tool-pusher, Michael Hewitt, and his prior employer, Helix Energy Solutions Group, Inc.  As background, those articles can be found here: 

• Supreme Court Will Consider Helix Day Rate Pay Case
• Cert Filed in Hope Supreme Court Will Reevaluate Fifth Circuit’s FLSA OT Ruling
• Upcoming Fifth Circuit Hearing to Address FLSA Day-Rate Issues

At the core of the dispute was whether Hewitt was entitled to receive an overtime rate for hours ...

In Hamilton v. Dallas County, 2020 U.S. Dist. LEXIS 223831, 2020 WL 7047055, at *2 (N.D. Tex. Dec. 1, 2020), a federal district court judge dismissed a lawsuit by female Dallas County detention officers alleging that a gender-based decision related to weekend work schedules violated Title VII of the Civil Rights Act of 1964.  At the root of that case was the fact that, although male and female officers received the same number of days off during a workweek, only male officers were permitted to take both weekend days off.  The female officers complained about the scheduling policy, but the County maintained the policy, citing safety concerns. 

The Department of Labor’s Wage and Hour Division is expected to propose new rules on independent contractor classification and overtime entitlement requirements in the coming weeks.  The proposals would alter the qualifications for certain employees to receive overtime payments under the Fair Labor Standards Act when they work in excess of 40 hours in one week.

Last Thursday, the U.S. Department of Labor (“DOL”) published in the Federal Register its newly-proposed rule regarding independent contractor vs. employee classification under the Fair Labor Standards Act (“FLSA” or the “Act”).  Businesses have anticipated the release of this proposed rule from the Biden administration’s DOL since the DOL withdrew a more employer-friendly, Trump-era independent contractor rule in May 2021 that had not yet gone into effect.

On March 14, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document providing guidance when it comes to claims of discrimination against employees and applicants with caregiving responsibilities in connection with the COVID-19 pandemic (“Guidelines”).  The Guidelines, entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws”, examine discrimination against employees and applicants based on pandemic caregiving responsibilities, noting that such discrimination may violate Title VII of the Civil Rights Act of 1964 (Title VII), Titles I and V of the Americans with Disabilities Act of 1990 (ADA) or Sections 501 and 505 of the Rehabilitation Act of 1973 (Rehabilitation Act), or other federal laws.

On September 9, 2021, the Fifth Circuit issued a 12-6 opinion in Hewitt v. Helix Energy Solutions Group, Inc., 15 F.4th 289 (5th Cir. 2021) that clarified the requirements for day rate workers to fall within one of the FLSA’s exemptions from overtime payment.  This ruling was hotly-contested because it made clear that employers must take additional steps to properly classify their day rate workers as exempt employees, even when those employees clearly exceed the financial threshold of the highly compensated exemption.  Many expect the decision to substantially affect the course of day rate FLSA litigation in the Fifth Circuit, especially misclassification disputes within the energy industry.

On October 11, 2021, Governor of Texas, Greg Abbott, issued Executive Order GA-40, which proscribes entities from compelling individuals to receive the COVID-19 vaccine who object “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Offending entities can be fined up to $1,000 for failing to comply with this order.

In the first four months of 2021, Virginia, New Mexico, New York and New Jersey passed laws legalizing or decriminalizing, in some form, recreational marijuana.  Exactly how these laws will affect employers in these states is still an open question, but for now, employers should understand the nuances of the laws so they can prepare for the emerging reality that is legal marijuana.

Most employers know the Fair Labor Standards Act (“FLSA”) requires employees to be paid time-and-one-half for all hours worked over 40 in a workweek unless an exemption applies.  But what some employers don’t realize is, for the most-commonly-used overtime exemptions to apply, employees must not only satisfy various “duties” tests, but they must also be paid on a “salary basis” at not less than $684 per week.  Payment on a salary basis means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis.

The U.S. Department of Labor recently issued guidance to state unemployment insurance agencies, expanding the categories of workers that are eligible for Pandemic Unemployment Assistance. The PUA program was created in March 2020 to provide payments to certain people affected by COVID-19, as well as independent contractors and gig workers who do not usually qualify for unemployment insurance.  While funded by the federal government, states are responsible for administering it.

New Eligibility Categories

This new DOL guidance expands eligibility to three categories of ...

On November 17, 2020 the Equal Employment Opportunity Commission (“EEOC”) released proposed updates to its Compliance Manual on Religious Discrimination (“Manual”). The draft revisions are available for public input until December 17, 2020, after which the EEOC will consider the public’s input, make any changes, and publish the finalized Manual.

A proposed rule  published by the Equal Employment Opportunity Commission (“EEOC”) on October 9, 2020 (the “Proposed Rule”) offers the possibility of expanded information-sharing with respondents/employers in connection with the agency’s conciliation efforts.  The proposed expanded disclosures may enhance the value of conciliation to those parties.

When the EEOC makes a finding that there is reasonable cause to believe discrimination occurred based on a charge filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. (“Title VII”), it must offer the employer an opportunity to resolve the dispute through the “informal methods of conference, conciliation and persuasion.”  42 U.S.C. § 2000e-5(b). The agency may not commence a civil action against an employer unless it is unable to secure satisfactory remedies through the conciliation process.  42 U.S.C. § 2000e-5(f).  According to the Proposed Rule, approximately one-third of employers who receive a reasonable cause finding decline to participate in conciliation, and only 41.2% of conciliations between fiscal years 2016 and 2019 were successful. The Proposed Rule characterizes this as a “widespread rejection” of the conciliation process.

As most employers are well aware, the Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex national origin, age, disability or genetic information. After an individual submits a charge of discrimination to the EEOC—and if the parties cannot come to an agreement to settle the charge through the EEOC’s mediation process—the EEOC investigates the allegations to determine whether there is reasonable cause to believe that discrimination has occurred. Generally, the EEOC does not make a finding, and instead issues a “Dismissal and Notice of Rights” (more commonly known as a “right-to-sue” letter) notifying the charging party that they have 90 days to file a discrimination lawsuit, or their right to sue based on the charge will be lost.

As Texas begins to reopen, some employers are recalling employees placed on furloughs or leaves of absences due to the COVID-19 pandemic. As we previously reported, the Department of Labor recently issued guidance to clarify that an individual who is able and available to work, but refuses to take a job offer or return from a furlough, absent one of the COVID-19-related criteria, will not be eligible for the federal Pandemic Unemployment Assistance benefit under the CARES Act. On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance stating that, depending upon the reason for refusal, these employees may remain eligible for receipt of state unemployment benefits.

This month, California Governor Gavin Newsom signed several employment-related bills into law. The laws go into effect January 1, 2020, and include an extension to the deadline to file certain state discrimination claims and address harassment training and prevention, as well as mandatory arbitration agreements.

On February 5, 2018, the American Bar Association (ABA) adopted Resolution 302, which “urges all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity.”

Resolution 302 was unanimously passed by voice vote of the ABA’s House of Delegates, the 601-member governing body of the country’s largest legal association, after further edits by employment lawyer Mark Schickman to strengthen its language.

In the #MeToo era, Resolution 302 is a reminder to all employers of harassment policy best practices, and should be of particular interest to employers in the legal industry.