March 2021 E-Update

Click here to view entire E-Update as a PDF

The Biden DOL Seeks to Overturn Employer-Friendly Final Rules on Independent Contractor and Joint Employment Status

Continuing its retreat from the Trump administration’s pro-business positions on certain issues under the Fair Labor Standards Act, the U.S. Department of Labor has announced its intention to withdraw its recently-issued regulations on independent contractor status and to rescind its joint employment regulations. Click here for more.

EEOC Announces EEO-1 Filing Period – From April 26 through July 19, 2021

The Equal Employment Opportunity Commission has announced that the filing period for the (typically) annual submission of EEO-1 workforce demographic information (Component 1 data) will be April 26 – July 19, 2021. Because last year’s submission was postponed due to the COVID-19 pandemic, those employers subject to the filing requirement will need to submit data for both 2019 and 2020. Click here for more.

Customer Engagement Alone Does Not Justify Banning Union Insignia on Uniform, says NLRB

The National Labor Relations Board recently held that an employer’s enforcement of its apparel guidelines to ban the wearing of union insignia violated the National Labor Relations Act (NLRA). In Indiana Bell Telephone, the Board found that an employer manager unlawfully directed an employee to remove a union button prior to leaving its garage and going to customer homes, and then threatening the employer with discipline up to termination if the employee failed to comply with the directive. Click here for more.

OSHA Announces Increased Enforcement Efforts Related to COVID-19

This past month, the Occupational Safety and Health Administration announced a new national emphasis program and an Updated Interim Enforcement Plan as part of its efforts to address workplace safety issues associated with the COVID-19 pandemic. Click here for more.

Supreme Court’s Seminal Bostock Decision “In No Way Altered the Pre-existing Standard for Sexual Harassment.” 

So asserted the U.S. Court of Appeals for the Fifth Circuit in rejecting a female police officer’s claim of same-sex harassment, following the Supreme Court’s decision in Bostock v. Clayton County, in which it ruled that Title VII’s prohibition on “sex discrimination” in employment encompasses sexual orientation and gender identity. Click here for more.

“Regular Worksite Attendance Is an Essential Function of Most Jobs.” 

Some disabilities may prevent employees from showing up regularly for work. According to the U.S. Court of Appeals for the Fifth Circuit, that may mean the employee is not qualified for the position and, therefore, is not entitled to protection under the Americans with Disabilities Act. Click here for more.

The ADA Does Not Prohibit Employers From Asking All Health-Related Questions

Although the Americans with Disabilities Act does circumscribe an employer’s ability to make medical inquiries, employers may still ask questions about an employee’s health as long as such questions are job-related and consistent with business necessity, as the U.S. Court of Appeals for the Tenth Circuit recently reiterated. Click here for more.

And Yes, Employees Really Must Respond to Employers’ Questions About Their Medical Status  And, moreover, they cannot insist that their employers communicate only through the employee’s attorney. These were the lessons from the U.S. Court of Appeals for the Fourth Circuit in a recent case, Thomas v. City of Annapolis. Click here for more.

Retention Raises and Equal Pay Claims

While most equal pay cases involve starting pay and annual salary increases, a recent case focuses on another compensation practice used by many employers – retention raises – and their possible discriminatory impact. Click here for more.

Employees Must Give Employers Reasonable Time to Investigate Harassment Complaints

No liability for a hostile work environment will be found if an employee fails to give the employer a reasonable time to address a complaint of harassment. Click here for more.

Maryland Law Implicitly Adopted the Portal-to-Portal Act

Maryland’s intermediate appellate court held that it is unnecessary for the State to specifically express that it has adopted an amendment to a federal statute where the General Assembly has enacted the State’s equivalent of the federal statute. Click here for more.

Several recent cases offer employers some tips on trade secret issues – both in terms of protecting those trade secrets and, if necessary, in filing suit for breach of those trade secrets under the federal Defend Trade Secrets Act (DTSA).  Click here for more.