April 2023 E-Update

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What the End of the COVID-19 National Emergency Means for Employers

President Biden has signed legislation that ends the COVID-19 national emergency. Separately, the public health emergency that was declared by the U.S. Department of Health and Human Services will end on May 11, 2023. The end of these two emergency declarations have impacts on certain employee benefits (which is outside the scope of this article) – but what does it mean for employers beyond that? For more, click here.

NLRB Will Target Repeat Offenders With Stronger Sanctions

An April 20, 2023 decision by the National Labor Relations Board (“NLRB” or the “Board”) detailed potential remedies the Board will consider in cases involving employers or unions that have demonstrated repeated or egregious disregard for employee rights under the National Labor Relations Act.  For more, click here.

EEOC Identifies “Promising Practices for Preventing Harassment”

The Equal Employment Opportunity Commission has issued guidance to assist federal agencies in preventing and remedying harassment in the workplace – but specifically observed that “many of the practices identified may also be helpful to practitioners outside of the federal government.” For more, click here.

Federal Agencies Issue Joint Statement on AI Bias in the Workplace.  The heads of the Equal Employment Opportunity Commission, the Federal Trade Commission, the Consumer Financial Protection Bureau, and the Justice Department’s Civil Rights Division joined together to issue a statement on their enforcement efforts against discrimination and bias in the use of automated systems or artificial intelligence (AI) in the workplace. For more, click here.

An Accommodation, Unlike a Diamond, Need Not Be Forever. A recent case illustrates the point that employers can “test drive” a religious (or medical) accommodation to see if it is, in fact, feasible or whether it poses an undue hardship. For more, click here.

“Fractioning” a Job May Still Result in Liability Under Federal Anti-Discrimination Laws. An employer cannot automatically escape liability under federal anti-discrimination laws, including Title VII or the Age Discrimination in Employment Act, by dividing up an employee’s duties among others, according to the U.S. Court of Appeals for the Fifth Circuit. For more, click here.

Another Federal Appellate Court Broadly Defines “Adverse Action” Under Title VII. In order to assert a discrimination claim under Title VII, an employee must show, among other things, that they suffered some “adverse employment action.” For more, click here.

“Not a Good Fit” Might Be Grounds for Termination – But You Must Be Able to Back It Up. Employers sometimes assert that an employee is “not a good fit” for the company. Such vague terminology may be problematic when the employee claims that their termination was actually because of illegal discrimination or harassment. For more, click here.

Don’t Forget to Provide Another WARN Notice If the Employees’ Separation Date is Delayed. The federal Worker Adjustment and Retraining Notification Act requires certain employers to give 60 days’ written notice of mass layoffs and plant closings to impacted employees. A recent case reminds employers that if the original separation date is delayed, an updated WARN notice must be provided. For more, click here.

OFCCP Updates Hiring Benchmark for Protected Veterans. The Office of Federal Contract Compliance Programs released its annual update of the hiring benchmark for protected veterans – 5.4%, effective March 31, 2023, based on recently-released data from the Bureau of Labor Statistics. For more, click here.

Under the Fair Credit Reporting Act, employers that use a third-party provider to conduct a consumer report or investigative consumer report (i.e. background check) are required to provide notices and communications to the applicant/employee. This includes a notice published by the Consumer Financial Protection Bureau (CFPB), “A Summary of Your Rights Under the Fair Credit Reporting Act,” which was updated with non-substantive changes to contact information on March 17, 2023. In connection with informing employers about the updated mandatory notice, we thought this would be a good time to remind employers of the very technical requirements of the FCRA. For more, click here.