The U.S. Department of Labor on Tuesday unveiled a six-step “economic realities” test that looks to narrow the ability of employers to classify workers as independent contractors. The changes have broad implications as to whether, under federal law; workers are entitled to minimum wage and overtime pay; employers must comply with recordkeeping requirements for such employees; and payroll taxes such as FICA, workers’ compensation, and unemployment must be paid with respect to these workers. The misclassification of workers as independent contractors also can have dire consequences for employers based on the potential assessment of liquidated (double) damages and attorney’s fees under the Fair Labor Standards Act, particularly where such claims are brought as collective actions. The Department suggests that 10-30% of employers in the private sector are, per the proposed rule, misclassifying employees as contractors. …
Continue Reading Employees in Disguise: Proposed Rule Would Roll Back Trump-era Independent Contractor Rule

The U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022), overruling Roe v. Wade, raised more questions than answers for U.S. employers. As a result of Dobbs, abortion is no longer a constitutionally protected right in the United States. As such, each state is left to determine how to legislate with regard to abortion. …
Continue Reading Employers Face Uncertainty After SCOTUS Abortion Rights Decision in Dobbs v. Jackson Women’s Health Organization

On Thursday, July 28, 2022, the Michigan Supreme Court issued its opinion in Rouch World, LLC v. Department of Civil Rights, finding in a 5-2 decision that Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”) protects against discrimination based on gender identity and sexual orientation. While so holding, the Court overturned precedent set nearly 30 years ago by the Michigan Court of Appeals in Barbour v. Department of Social Services. That court had relied upon then analogous federal precedent in holding that the same statute did not extend protection on the basis of sexual orientation, as “sex” in the context of ELCRA meant only “gender discrimination, not discrimination based on sexual orientation.”…
Continue Reading Michigan Supreme Court Recognizes Protection Under State Law Against Discrimination Based on Gender Identity and Sexual Orientation

As infections during the worldwide COVID pandemic have waxed and waned, and as vaccinations and new treatments for COVID infection have been introduced, employers have begun to see a substantial increase in the number of employees that have returned to work. That, in turn, has caused many employers to re-evaluate their COVID testing protocols to determine who may return to the office and when. …
Continue Reading EEOC Limits Permissible Workplace COVID Testing In Its Most Recent Guidance

Chicago has adopted a first-of-its-kind ordinance that requires employers doing business in the City to provide separate “bystander” sexual harassment training to their employees. The ordinance seeks to combat workplace misconduct in Chicago and may serve as a model for other municipalities seeking to expand worker protections. …
Continue Reading See No Evil, Hear No Evil: Chicago Ordinance Requires New Sexual Harassment and Bystander Training

On Wednesday, June 15, 2022, the United States Supreme Court issued an opinion that severely limits California’s right to enlist employees as private attorneys general to enforce California labor law by allowing employers to use mandatory arbitration provisions to defeat such representative claims. …
Continue Reading In a Big Win for California Employers, SCOTUS Limits the Reach of the Golden State’s Private Attorneys General Act of 2004

On June 9, 2022, the Austin City Council unanimously voted to pass what is known as a CROWN Act, a law prohibiting discrimination based on a person’s hair texture or hairstyle. CROWN stands for “Creating a Respectful and Open World for Natural Hair.” Consequently, the Austin City Code will be revised to prohibit discrimination based on protective hairstyle in housing, public accommodations, and employment. Protective hairstyles are those necessitated by, or resulting from, the characteristics of a hair texture or hairstyle commonly associated with race, national origin, ethnicity, or culture, and include but are not limited to afros, Bantu knots, braids, cornrows, curls, locs, twists, or hair that is tightly coiled or tightly curled.
Continue Reading Austin City Council Passes First CROWN Act Applicable to Private Employers in Texas

All too often, employers find this out the hard way—they get audited by the U.S. Department of Labor or they get sued, and vis-à-vis a class action, to boot. On June 13 and 14, during the Society of Human Resource Management’s (SHRM) Annual Conference in New Orleans, I’ll address a number of compliance issues and also discuss recent initiatives on the wage and hour front from inside The Beltway. Among the issues that we’ll  dive into are: …
Continue Reading Wage and Hour Compliance: It’s Not as Simple as it May Look!

Religious Exemptions to Mandatory Vaccine Policy

Employees who refuse to take the COVID-19 vaccine for religious reasons are protected by Title VII. Therefore, religious accommodations for the COVID-19 vaccine should be treated like any other religion-based accommodation request. Employers should continue to provide employees with a clear and accessible process for requesting an accommodation and should continue to analyze requested accommodations on a case-by-case basis and offer accommodations when required pursuant to the law and its policies. Importantly, employees requesting such an accommodation need not use any specific phrase, or “magical words,” in order to trigger an employer’s obligations. Employers should keep in mind that all sincerely held religious beliefs may give rise to an accommodation obligation, not only “mainstream” or commonly-known religions. …
Continue Reading Granting Religious Accommodations for COVID-19: What Employers Need to Know

Telecommuting is not a new phenomenon. Whether on a full-time, part-time or sporadic basis, telecommuting has been voluntarily offered by employers, and in some cases, required as an accommodation for an employee with a disability for many years. And of course, for many employers telecommuting became a necessity during the pandemic. As employers are returning to more traditional work arrangements, however, many are faced with employees who wish to continue working from home. The push to normalize remote work is not, however, limited to employees. Many employers are taking the initiative to make this option more permanent as well in an effort to attract and retain talent.

Whether the impetus is employee or employer driven (or both) employers should review their policies and practices to avoid risks associated with telecommuting. Remote work, like other flexible work options, should be governed by a formal policy that addresses legal issues that can arise with a remote workforce including the following: …
Continue Reading Telecommuting – The Reality of Employee Expectations