February 2024 E-Update


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Supreme Court Clarifies and Expands Statutory Whistleblower Protections

In a case under the Sarbanes-Oxley Act but applicable to certain other federal whistleblower laws, the U.S. Supreme Court held that, in order to establish a retaliation claim, a whistleblower must prove that their protected whistleblowing activity was a contributing factor in the employer’s decision to take an adverse employment action, but they need not prove that the employer acted with “retaliatory intent.  For more, click here.

Don’t Automatically Dismiss the Ever-Complaining Employee

Employers can become frustrated with employees who constantly complain about every little thing (often in a rude manner) and end up brushing off the complaints. They may even terminate the employee for their “inappropriate” communications. But a recent case from the U.S. Court of Appeals for the Sixth Circuit highlights the risks of doing so without careful consideration.  For more, click here.



Delay in Effective Date of the NLRB’s Joint Employer Rule.  As we reported in our October 26, 2023 E-lert, the National Labor Relations Board has issued a final rule that rescinds and replaces the Trump Administration’s 2020 rule for determining whether two entities are joint employers.  For more, click here.

Reasonable Accommodation Is Not Required to Go Beyond Essential Job Functions.  Because the request to waive an educational requirement for a pay increase would not enable the employee to do his essential job functions, the U.S. Court of Appeals for the Seventh Circuit found that the employer was not obligated to provide a reasonable accommodation.  For more, click here.

Yes, You May Fire an Alcoholic Employee for Shooting Himself While Drunk on the Job.  That is even if his disability was the reason for the conduct, according to the U.S. Court of Appeals for the Eleventh Circuit.  For more, click here.

Do Not Unilaterally Stop Dues Checkoff When the Union Contract Expires.  On an issue that has gone back and forth with changes in Presidential administrations, the U.S. Court of Appeals for the Ninth Circuit has recently upheld the National Labor Relations Board’s current position that employers must continue dues checkoff after expiration of a collective bargaining agreement.  For more, click here.

Government Contractor Update – Proposed Pay Transparency Rule, New Compensation FAQs, Construction Contractor Audits.   There were several developments of interest to government contractors and subcontractors this past month.  For more, click here.

Maryland Paid Family and Medical Leave Insurance Program FAQs.  The Maryland Department of Labor’s Division of Family and Medical Leave Insurance (FAMLI) has released a Frequently Asked Questions document for employers about the forthcoming program.  For more, click here.


TOP TIP: Employers – Be Careful with Physical Assessment Requirements

A recent announcement from the Equal Employment Opportunity Commission warns employers to be thoughtful about any routine use of physical examinations. The EEOC found that a company provider of housekeeping, food and facilities support violated the Americans with Disabilities Act (ADA) in its use of a so-called Essential Functions Test (EFT) for its employees.  For more, click here.