August 2024 E-Update

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The Latest Regulation to Fall by the Wayside – The DOL’s 80/20 Tipped Employee Rule.  The Department of Labor’s final rule governing tipped employees has a tangled history, but the U.S. Court of Appeals for the Fifth Circuit has now struck down the rule, which has been in place since 2021. For more, click here.

Employers – Be VERY CLEAR When Including Arbitration Agreements in Online Applications. Employers must pay particular attention to “the realities of the digital realm” when requiring arbitration agreements as part of an online application process.  For more, click here.

 

Yes, the FMLA Paperwork Matters.  And “[e]mployers must be able to investigate and address plausible allegations that employees have been dishonest in their medical leave claims,” according to the U.S. Court of Appeals for the Fourth Circuit.  For more, click here.

Pay Attention to the EEOC’s Emails about Uploads to the Portal.  In last month’s E-Update, we discussed a case in which the EEOC’s upload of the dismissal and notice of right to sue, without more, was not sufficient notice to the charging party or her attorney, which meant that the 90-day period for filing suit did not begin to run until later. For more, click here.

Remember that It’s Easier to Prove Retaliation than Harassment.  As most employers know, Title VII prohibits not only discrimination or harassment based on race, ethnicity, religion or gender, but also retaliation for opposing any unlawful practice (e.g. complaining about discrimination or harassment).  For more, click here

A Religious Accommodation Claim May Be Based, in Part, on Non-Religious Terms.  In the context of religious exemptions to COVID vaccine mandates, several U.S. Courts of Appeals have addressed the standard by which a claim based on employee’s mingled personal/religious belief should be evaluated under Title VII.  For more, click here.

NLRB Will No Longer Accept Disputed “Consent Orders.” In the latest u-turn, the National Labor Relations Board states that it will no longer accept “consent orders” where an Administrative Law Judge resolves an unfair labor practice case on terms proposed by the Respondent (typically an employer) but objected to by both the Charging Party (typically a union) and the NLRB’s General Counsel.  For more, click here.

Maryland’s Wage Laws Do Not Apply to Workers Outside the State.The U.S. Court of Appeals for the Fourth Circuit has confirmed that only employees performing at least some work in Maryland are covered by Maryland’s wage laws. For more, click here.

Many employers have chosen to require employees to sign arbitration agreements, in which the employer and employee agree to arbitrate most employment disputes. As we discussed in our blog post on arbitration agreement issues, such a choice may or may not be optimal for a particular employer.   For more, click here