March 2023 E-Update


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Baby Steps – The EEOC Offers a Little Guidance on the New Pregnant Workers Fairness Act

Congress enacted the Pregnant Workers Fairness Act as part of the most recent federal omnibus funding bill. The Equal Employment Opportunity Commission has now issued rather limited guidance on that new law.  For more, click here.

The DOL Provides Guidance on Lactation Accommodations Under the New PUMP for Nursing Mothers Act

Congress recently enacted the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP” Act), which expands existing lactation protections for nursing mothers under the Fair Labor Standards Act.  Under the new law, employers are required to provide to nursing mothers a reasonable amount of break time and private space to express milk for up to one year after the child’s birth. The U.S. Department of Labor has now issued Frequently Asked Questions and updated its Fact Sheet on “pump” or lactation breaks. For more, click here.

NLRB GC Identifies Aggressive, Pro-Union Priorities and Desired Changes to Existing Law

On March 20, 2023, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued GC Memo 23-04, providing an update concerning her prosecutorial priorities. The memo follows up on GC Memo 21-04 – which was the GC’s first memo (we wrote about it here)– setting forth issues to be submitted to the NLRB’s Division of Advice concerning Board decisions that the GC believed should be overturned. For more, click here.


PTO ≠ Salary Under the FLSA. Addressing the question for the first time, the U.S. Court of Appeals for the Third Circuit held that paid time off is not part of an employee’s salary under the Fair Labor Standards Act and, thus, deductions from an exempt employee’s PTO bank are not improper reductions in salary. For more, click here.

Is Employee Entitled to a Transfer as a Reasonable Accommodation Regardless of a Most-Qualified-Applicant Policy? The Equal Employment Opportunity Commission says “yes,” but a number of federal appellate courts disagree, including most recently the U.S. Court of Appeals for the Fifth Circuit, which asserted that “the EEOC’s proposed course of action turns the shield of the ADA into a sword, casting the equally reasonable expectation of other workers to the side.” For more, click here.

The NLRB Is Providing More Resources to Workers – But What Are Employers’ Rights? Employers should be aware that the National Labor Relations Act is actively working to inform employees about their rights under that law, and not always in a neutral way. A recent initiative is a new “Know Your Rights” card series. These tri-fold cards, in English and Spanish, are available to employees to share with others in the workplace. But, unsurprisingly, they overlook employers’ rights. For more, click here.

“Failing to report is not a protected activity under Title VII.” A manager who chose to conduct her own investigation into a harassment complaint, rather than following her employer’s reporting protocol, did not have a valid retaliation claim, according to the U.S. Court of Appeals for the Seventh Circuit. For more, click here.

Can You Relate? The “Relational” Test for the FLSA Administrative Exemption.  The U.S. Court of Appeals for the 1st Circuit recently held that a “relational” analysis test must be used to determine if an employee meets the administrative exemption to the Fair Labor Standards Act’s minimum wage and overtime requirements, and clarified its application. For more, click here.

Federal Contractor Update –Religious Exemption Developments, Certification Portal, Mega Construction Project Program. The US Department of Labor and its Office of Federal Contract Compliance Programs announced several matters of significance to federal contractors and subcontractors this month.  For more, click here.

TOP TIP: The National Relations Act Protects (Union and Non-Union) Workplace Discussions of Racism

In a recently issued Advice Memorandum, the National Labor Relations Board’s (NLRB) Office of the General Counsel (OGC) offered guidance to employers – both union and non-union – regarding the protection of workplace discussions of racism. NLRB Advice Memoranda contain the recommendations of the OGC to Regional Offices on novel or complex issues. These memos may be publicly released years after issuance, but often contain helpful guidance for employers. For more, click here.