January 2023 E-Update


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Hey Employers – This Is What Federal Agencies Are Planning to Do in 2023!

Happy New Year – or is it for employers? The federal agencies are planning a slew of actions that will impact the workplace, some of which may pose interesting challenges for businesses. For more, click here.

The EEOC Updates Its Resource Document for Hearing Disabilities in the Workplace

The Equal Employment Opportunity Commission has a series of Q&A documents addressing particular disabilities in the workplace, one of which is an updated Hearing Disabilities in the Workplace and the Americans with Disabilities Act. For more, click here.

D.C. Circuit Strikes Down Three Provisions of NLRB’s 2019 Election Rule

A divided panel of the U.S. Court of Appeals for the D.C. Circuit struck down three provisions of the National Labor Relations Board’s (“NLRB”) 2019 election rule (the “2019 Rule”) that amended policies and procedures related to union elections. In AFL-CIO v. NLRB, however, the D.C. Circuit, upheld two provisions and concluded that the rule, as a whole, was not arbitrary and capricious. The upheld provisions will be remanded to the federal district court where it will hear the AFL-CIO’s other arguments against the two provisions. For more, click here.

The EEOC’s Proposed Strategic Enforcement Plan – What Employers Can Expect for the Next Four Years

On January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) released its draft Strategic Enforcement Plan for 2023-2027, which gives employers valuable insight into the Commission’s top priorities in the coming years. While the draft plan is open for comment through February 9, (and you may submit comments here) the final plan is likely to look very similar to the current draft, which outlines four key subject matter priorities, in addition to numerous operational priorities. For more, click here.


Employees May Be Held Accountable for Failing to Follow Employer’s FMLA Protocols. In a helpful case for employers, another federal appellate court has reiterated that employees who fail to comply with the employer’s notice and information protocol for leave will not be protected under the Family and Medical Leave Act. For more, click here.

An Employee Is Protected by the FMLA, Even If the Requested Leave Did Not Actually Qualify. The Family and Medical Leave Act protects employees who request unpaid leave for family illness, even if the request does not lead to actual FMLA leave, according to the U.S. Court of Appeals for the Sixth Circuit. For more, click here.

The Job Duties – Not the Job Title – Matter for Equal Pay Claims.  The Equal Pay Act requires equal pay for work requiring “equal skill, effort and responsibility” under “similar working conditions,” regardless of sex. Two different cases this month make the point that it is an employee’s actual responsibilities, and not just the job title, that is critical to a claim of pay discrimination under the EPA. For more, click here.

Employers, Do Not Delay in Responding to a Request for Reasonable Accommodation. When dealing with a request for reasonable accommodation, “an indeterminate delay has the same effect as an outright denial,” as the U.S. Court of Appeals for the Second Circuit recently noted. For more, click here.

Inadequate Training May Be an Adverse Action Under Title VII. While discrimination claims under Title VII typically require some “ultimate employment decision,” the U.S. Court of Appeals for the Fifth Circuit found that a training decision can constitute an adverse action in violation of the law. For more, click here.

Reasonable Accommodations Do Not Involve Violating a Collective Bargaining Agreement. A recent case reminds employers that, under the Americans with Disabilities Act, they are not required to grant a reasonable accommodation that would violate the terms of a collective bargaining agreement. For more, click here.

The DOL’s Annual Penalty Increase – the 2023 Edition.  The Department of Labor has announced its annual penalty increases. Due to the passage of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, federal agencies must issue regulations annually to adjust for inflation the maximum civil penalties that they can impose. For more, click here.

TOP TIP: Why Do You Need a Handbook Disclaimer and What Should Be In It Anyway?/Subcontractors

A recent Alabama state court decision offers valuable lessons to all employers with employee handbooks (not just those in Alabama) on the importance of a properly drafted handbook disclaimer.  For more, click here.