January 2021 E-Update


Click here to view entire E-Update as a PDF


Under the Biden Administration, Turbulence Awaits Employers at the NLRB

President Joe Biden wasted little time in making his mark on the National Labor Relations Board (“NLRB” or “the Board”) – a development of import to all employers, as the law it enforces, the National Labor Relations Act, protects the rights of all employees, not just union members, to engage in concerted activity regarding the terms and conditions of their employment (i.e. Section 7 rights). For more, click here.

It’s Going to Be a Bumpy Ride – The Changes (So Far) to DOL and EEOC Employment Standards Under President Biden

It should be a surprise to no one that the Biden Administration is taking immediate and decisive steps to reverse many of the business-friendly positions that were set forth by the U.S. Department of Labor and the Equal Employment Opportunity Commission under the Trump Administration. Here is a brief overview of the actions as of January 30, 2021…for more, click here.

“Workplace-based testing should not be conducted without the employee’s informed consent.”

So says the Centers for Disease Control and Prevention (CDC) in its  new guidance on workplace testing programs, which adds to its previous guidance, Testing Strategies: Considerations for Non-Healthcare Workplaces. In the new guidance, the CDC focuses on the need for informed consent for workplace testing by employees and discusses the required disclosures for such consent.  For more, click here.

NLRB Finds Social Media Rules Lawful – For Now

The National Labor Relations Board (the “Board”) concluded that an employer did not violate employees’ rights under the National Labor Relations Act (NLRA) to engage in concerted activity regarding their terms and conditions of employment by maintaining several contested provisions in its social media policy. For more, click here.


Non-U.S. Citizens Working Outside of U.S. Are Not Covered by ADEA Disclosure Requirements

Joining its sister agencies at the Department of Labor in the flurry of last minute guidance under the Trump Administration, the Equal Employment Opportunity Commission provided an opinion letter on the application of the Age Discrimination in Employment Act’s requirements to non-U.S. citizens working outside the U.S. For more, click here.

What Else Did the EEOC Do in January 2021?

In addition to the opinion letter and the rules on conciliation procedures and wellness programs discussed elsewhere in this E-Update, the Equal Employment Opportunity Commission also engaged in the following actions of interest to employers this past month…for more, click here.

Proper Calculation of Overtime Pay When An Employee Works Two Jobs for the Same Employer

The U.S. Department of Labor recently issued an opinion letter on how to properly calculate overtime pay for employees working two different jobs at two different rates of pay. For more, click here.

OFCCP Opines on Scope of Legal Protection for Religious Liberty in the Workplace.

The Office of Federal Contract Compliance Programs under the Trump Administration issued an opinion letter in response to a specific employer’s request for clarification on the scope of workplace legal protections for religious liberty. The letter, however, provides guidance to federal contractors generally on this issue – pending further action by the Biden Administration. For more, click here.

Fifth Circuit Provides Framework for Assessing Propriety of FLSA Collective Actions

Noting that courts “apply ad hoc tests of assorted rigor in assessing whether potential members are ‘similarly situated’” for purposes of establishing a wage-claim collective action under the Fair Labor Standards Act, the U.S. Court of Appeals for the Fifth Circuit has articulated a “workable, gatekeeping” framework to be applied at the outset of litigation. For more, click here.

“Building for the Future” Is Not Necessarily Age Discrimination

Noting that “[c]onduct that, standing alone, may raise questions about discrimination may turn out to be innocuous when viewed in context,” the U.S. Court of Appeals for the Seventh Circuit rejected a doctor’s failure to hire claim under the Age Discrimination in Employment Act, despite an interviewer’s note that the doctor was “at end of career.” For more, click here.

Courts Are Divided on Whether Employers and Employees Can Contractually Agree to Shorter Limitations Periods

Last month, as we discussed in our December 2020 E-Update, the U.S. Court of Appeals for the Fourth Circuit issued a case holding that employers and employees can contractually agree to shorten the statute of limitations (i.e. the time within which a claim must be filed) for statutory employment claims, such as discrimination. But this month, the Sixth Circuit reached the opposite conclusion. For more, click here.

Court Condemns Employer’s Attempt to Place the Burden of Responding to Customer Harassment on the Employee

A recent case provides a good reminder to employers that their response to an employee’s complaint of harassment must be prompt as well as effective – and that directing the employee to address the harasser herself is not appropriate. For more, click here.

D.C. Bans (Almost All) Non-Compete Agreements

The District of Columbia will soon impose what is arguably the most sweeping non-compete ban in the country. With a few limited exceptions, the Ban on Non-Compete Agreements Amendment Act of 2020 (“the Act”) prohibits the use of non-competition agreements across all income levels both during and after employment. For more, click here.

Worker Recall and Retention Mandates Imposed on D.C. Hospitality, Retail, and Service Contractor Employers

Like Baltimore City’s law that was passed last month, as discussed in our December 2020 E-Update, the District of Columbia City Council passed a law that imposes reinstatement and retention obligations on certain hospitality employers, as well as retail employers and service contractors. For more, click here.

TOP TIP: No, You May Not Pay Her Less Because Her Husband Works!

In Kellogg v. Ball State Univ., the school articulated several non-discriminatory reasons for why the female teacher was paid less than male counterparts, such as salary compression and qualification differences. Crediting these reasons, the district court threw out the claims on summary judgment, and the teacher appealed.   For more, click here.