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In the most recent indication of what employers can expect from the National Labor Relations Board under President Trump’s second term, the acting General Counsel for the Board, William Cowen, recently rescinded a series of memoranda issued by his predecessor, Jennifer Abruzzo, that employers regarded as overprotective of employee rights under the National Labor Relations…

Since 2019, employers have relied heavily on the management rights clauses in collective bargaining agreements to make unilateral workplace changes involving operational decisions.  They did so with the protection of the “contract coverage” standard established by the National Labor Relations Board (“Board”) in the 2019 case MV Transportation Inc., 368 NLRB No. 66, where…

On October 30, 2024, a Texas federal court issued a preliminary injunction to halt an enforcement action by the Office of Federal Contract Compliance Programs (OFCCP) against ABM Industry Groups, LLC, a federal contractor. This case, while directly impacting only one contractor, could have significant implications for the broader landscape of OFCCP enforcement through Administrative…

The Pregnant Workers Fairness Act (PWFA) requires employers to provide reasonable accommodations to pregnant workers and protects workers from discrimination and retaliation for seeking accommodations. The PWFA has been in effect since June 27, 2023, and the EEOC issued a final rule to implement the PWFA, which took effect on June 18, 2024.

Here’s what…

Two administrative agencies within the federal government have been busy lately publishing new rules that govern important aspects of employers’ relationships with their employees.  Read more below for further updates.

DOL Rolls Out Final Rule Increasing Minimum Salary For Exempt Employees

The U.S. Department of Labor (“DOL”) has rolled out its long-awaited update to the…

Federal contractors and subcontractors must certify the status of their Affirmative Action Programs (AAPs) to the Office of Federal Contract Compliance Programs (OFCCP) by July 1, 2024.

Who Must Certify?

The certification requirement applies to all federal supply and service contractors and subcontractors (at any tier) that meet jurisdictional thresholds of 50 or more…

Environmental, Social, and Governance (“ESG”) principles are becoming increasingly prominent tools for managing risk and creating value in the corporate world. ESG-focused decision making can define business priorities that support a company’s financial goals and long-term enterprise sustainability. ESG-focused leaders can help companies identify business risks and opportunities, then implement and maintain responsive, responsible, and measurable forward-looking business practices.

While the “E” and “G” in ESG have received much attention, the “S” factor is also significant for leading sustainable organizations. And employees, current and future, are important elements of the social aspect.

Identifying the business risks and opportunities within the social aspect of ESG includes looking at a company’s treatment of its employees (for example, education, advancement, compensation), its diversity, equity, and inclusion policies and practices, and its discrimination and harassment policies and practices. Businesses that rely on recruiting and retention of a human workforce face the risks of securing a strong team, maintaining it, and creating a pipeline of suitable workers. These same businesses can create opportunities to mitigate those risks with practices and policies that support a healthy workplace and prepare a pipeline of future employees. Continue Reading Employment Law in an ESG World: The Activision Blizzard Story

The General Counsel of the National Labor Relations Board (NLRB), Jennifer A. Abruzzo, issued guidance on March 22, 2023, about the NLRB’s McLaren Macomb, 372 NLRB No. 58, decision from February 21, 2023, which reinstated a limit on the confidentiality, non-disclosure, and non-disparagement clauses that employers may include in severance agreements with most of their lower-level employees.[1]  While not law, the General Counsel’s guidance is intended to address the uncertainty among employers regarding what language is deemed acceptable to include in severance agreements and what language may create liability under the National Labor Relations Act (NLRA) following McLaren Macomb.[2]

The McLaren Macomb decision specifically held that employers may not condition severance on the employee’s waiver of rights protected by the NLRA and that agreements between employers and employees that restrict employees from engaging in activity protected by the NLRA or from filing unfair labor practice (ULP) charges with the NLRB, helping other employees in doing so, or assisting during the Agency’s investigatory process are unlawful. The NLRB observed that the employer’s offer is itself an attempt to deter employees from exercising their statutory rights, at a time when employees may feel they must give up their rights in order to get the benefits provided in the agreement. It also provided that the conduct of an employer is irrelevant to assessing the lawfulness of a severance agreement, and the plain language of the severance agreement alone can constitute a violation.  While the Maclaren Macomb decision has been described as a return to the standard applied in earlier cases, many speculate that it indicates that the NLRB intends to take a broader view of how severance agreements infringe on employees’ rights under Section 7 of the NLRA.Continue Reading NLRB Returns to Longstanding Position Limiting Use of Confidentiality, Non-Disclosure, and Non-Disparagement Clauses in Employee Severance Agreements

The U.S. Court of Appeals for the Ninth Circuit, the federal appellate court with jurisdiction over much of the western United States (including Washington, Oregon, California and Idaho), ruled last week that an employee’s temporary impairment can qualify as a disability under the Americans with Disabilities Act (“ADA”). The Ninth Circuit’s decision resolves an important…