Over the last two years, the National Labor Relations Board (“NLRB”) has been aggressively trying to expand its coverage in a manner that has taken many employers of non-unionized employees by surprise. Many rules and concepts that have been in place for decades without challenge have been turned on their heads and are now construed to be illegal. One example is a decision by the NLRB earlier this year in McLaren Macomb ruling that common confidentiality and non-disparagement provisions in settlement and separation agreements are illegal, as a matter of law, because they could – at least theoretically – chill a worker’s right to engage in concerted activity  protected under  the National Labor Relations Act (“NLRA”). The takeaway from these actions by the NLRB and its General Counsel is that all policies and practices of every employer – unionized and non-unionized – will be scrutinized under the NLRB’s new highly powered microscope. In other words, employers watch out!Continue Reading Employee Handbooks: The Pendulum Swings Back Questioning the Legality of Many Common Policies

On August 4, 2023, Governor Pritzker signed into law a recent overhaul of the Illinois Day and Temporary Labor Services Act (the “Act”). Since the Act was passed in 2000, the number of low-wage day or temporary laborers (“Temporary Workers”) in Illinois has more than doubled, rising from approximately 300,000 to 650,000. The recent amendments to the Act impose new responsibilities on staffing agencies and companies utilizing temporary workers to meet their staffing needs.Continue Reading Sweeping Changes to Illinois Day and Temporary Labor Services Act Now in Effect

As legal markets for recreational marijuana continue to open up in the U.S., and public opinion about responsible marijuana use slides towards acceptance, the requirements for employment-related drug testing are slowly evolving to meet the moment. News articles and blog posts about changes to employment related drug testing laws typically have a standard caveat that employers with workers covered by the U.S. Department of Transportation’s regulations are likely not impacted by whatever change in the law is being discussed. This blog post, however, addresses a recent change to the DOT’s rules. Specifically, the DOT announced a new testing option that employers subject to its regulations can use in order to get a more accurate picture of workers’ recent marijuana use.Continue Reading Workplace Drug Testing Update

On July 17, 2023, the California Supreme Court issued an opinion in Erik Adolph v. Uber Technologies, Inc., settling the issue of whether a Plaintiff’s non-individual PAGA claims must be dismissed if the Plaintiff’s individual PAGA claims are compelled to arbitration.Continue Reading The California Supreme Court Rules on PAGA Standing

The United States Supreme Court issued an opinion in Groff v. DeJoy, clarifying its earlier opinion in Trans World Airlines v. Hardison, 432 U.S. 63 (1977) that described an employer’s obligation to an employee seeking an accommodation based upon their religious beliefs. The Plaintiff in the case, Gerald Groff, worked for the U.S. Postal Service as a rural carrier associate, covering for full-time workers who were absent. Groff was a long-time Evangelical Christian who, for religious reasons, believes that Sundays should be devoted exclusively to worship and rest, not secular labor, and could therefore not work on Sundays.Continue Reading Religious Accommodation Standard Under Title VII Reformed by U.S. Supreme Court Ruling in Groff v. DeJoy

While more and more states move to legalize various uses of cannabis, a recent decision on an application for U.S. citizenship demonstrates its possession, use, and distribution remain illegal under federal law and can have significant consequences.Continue Reading Cannabis Continues to Demonstrate Major Differences Between State and Federal Law

The USCIS has announced it has begun investigations into what it terms “extensive fraud” during the FY2023 and FY2024 H-1B Registration processes (in March 2022, and March 2023, respectively).

U.S. employers wishing to sponsor a foreign national for H-1B status are required to submit a registration request on behalf of that person. If the request is selected, the employer can then submit an actual H-1B application for adjudication.Continue Reading USCIS Investigating Extensive Fraud in FY2024 H-1B Registration Process

The United States Fifth Circuit Court of Appeals recently published an opinion addressing reassignment of an employee with a disability to a vacant position as a reasonable accommodation pursuant to the Americans with Disabilities Act (“ADA”). EEOC v. Methodist Hospital of Dallas.Continue Reading Reassignment as an Accommodation Under the Americans with Disabilities Act – Reasonable or Not

In a case decided by the National Labor Relations Board (“NLRB” or “Board”) on February 23, 2023, provisions in separation and settlement agreements regarding non-disparagement and confidentiality may run afoul of the National Labor Relations Act (“NLRA” or “Act”). On March 22, 2023, in an effort to provide guidance as to the scope and impact of the decision, the NLRB’s General Counsel issued a Guidance for how its regional offices should evaluate these agreements going forward. The Guidance suggests that the decision has even broader ramifications than initially thought. As described below, the decision along with the Guidance should cause employers to pause before inserting many commonly used provisions in these types of agreements.Continue Reading Non-Union and Union Employers Beware: Basic Provisions in Separation and Settlement Agreements Are Now Illegal