December 2023 E-Update

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EEOC Provides Guidance to Employers on Accessible Workplaces

The Equal Employment Opportunity Commission has published an article, “Providing an Accessible Workplace,” in response to President Biden’s 2021 Executive Order 14035 on “Diversity, Equity, Inclusion and Accessibility in the Federal Workforce.”  For more, click here.

NLRB GC Memo Reinforces Shorter Timelines, Quicker Elections Coming Under New Election Rule

This month, National Labor Relations Board (NLRB or the Board) General Counsel issued a guidance memo (GC Memo 24-02) discussing how the final rule effectively reinstating the “quickie election” procedures (which we discuss here) will be implemented.  For more, click here.

 

Prohibition of BLM Apparel Did Not Violate the NLRA.  An administrative law judge for the National Labor Relations Board rejected the NLRB General Counsel’s argument that Whole Foods’ dress code, under which apparel with “Black Lives Matter” messaging was prohibited, violated the National Labor Relations Act’s protections for workers engaged in concerted activity regarding their terms and conditions of employment (i.e. “protected concerted activity” or PCA).  For more, click here.

Hiring Managers – Be Careful of What You Write Down!  That was the lesson from a recent case from the U.S. Court of Appeals for the Eleventh Circuit, where a hiring manager’s written comment in connection with the selection of a new faculty member became an issue. For more, click here.

An Employee’s Own Experience Does Not Establish a Pattern of Discrimination.   This seemingly obviously point was decisive on an employee’s reverse sexual orientation claim, according to the U.S. Court of Appeals for the Sixth Circuit.   For more, click here.

Eleventh Circuit Holds that “But-For” Standard Applies to FMLA Retaliation Claims.   And in so holding, the U.S. Court of Appeals for the Eleventh Circuit deepens the circuit split, with several sister circuits holding that a “motivating factor” standard should apply. For more, click here.

How to Fire Employees In the Midst of a Union Organizing Campaign.   Make sure that there is a legitimate, documented, reasonable and non-union-related reason for doing so, as demonstrated by the employer in a recent case before the U.S. Court of Appeals for the Eighth Circuit. For more, click here.

The EEOC Is Making It Easier to File Charges of Discrimination.   The Equal Employment Opportunity Commission has announced the launch of E-File for Attorneys, which enables attorneys to file charges of discrimination electronically on behalf of their clients, either by uploading a signed charge or creating a charge that their client can sign and submit through the EEOC Public Portal. For more, click here.

DOL Issues Final Rule on Nondisplacement of Service Contract Workers by Federal Contractors.   The U.S. Department of Labor announced a final rule implementing Executive Order 14055, which requires federal contractors and subcontractors on certain successor federal service contracts (those that follow any other contract for the same or similar work) to offer employment to service employees on predecessor contracts. For more, click here.

 

Although the federal minimum wage remains $7.25 per hour, with a tipped wage rate of $2.13, most Mid-Atlantic states have implemented higher minimum wage rates. (The tipped wage rate for tipped employees, together with any tip credit, must meet the minimum wage, with employers making up any shortfall.) The minimum wage rate in several states, as well as that for certain federal contractors and subcontractors, increases on January 1, 2024.  For more, click here.