July 2023 E-Update

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EEOC Updates Its Guidance on Visual Disabilities in the Workplace

The Equal Employment Opportunity Commission has issued an updated version of its Visual Disabilities in the Workplace and the Americans with Disabilities Act technical assistance document. This document provides guidance to employers on when they may ask employees and applicants questions about a vision impairment, possible accommodations, safety concerns, and harassment prevention. For more, click here.

New Mandatory Form I-9 and Remote Verification Procedures

The U.S. Citizenship and Immigration Services (USCIS) has announced a new, streamlined Form I-9 that employers should use beginning August 1, 2023 to verify the employment eligibility of new hires. In conjunction with this announcement, the Department of Homeland Security issued a rule that continues to allow for remote verification of I-9 documentation (which started during the COVID-19 pandemic) in certain instances. For more, click here.

 

EEOC Postpones EEO-1 Deadline.  The Equal Employment Opportunity Commission has announced that the filing period for the annual submission of EEO-1 workforce demographic information (Component 1), which typically occurs in the summer, will be postponed until the fall. For more, click here.

Can Employers Still Use the FMLA Forms that Expired on June 30, 2023? Particularly observant employers may notice (and worry) that the U.S. Department of Labor’s model Family and Medical Leave Act forms and notices that they have been using have an expiration date of June 30, 2023, and that the forms now available on the DOL’s website have a new expiration date of June 30, 2026. For more, click here.

Employers – Don’t Get Too Cute In Interpreting Those Non-Disparagement Clauses. This was the lesson for employers from the U.S. Court of Appeals for the D.C. Circuit, which found the employer to have violated a mutual non-disparagement clause in an employee’s severance agreement For more, click here.

General Complaints By Other Employees Do Not Necessarily Provide Constructive Notice of Harassment. Although the employee argued that the employer should have known that she was being sexually harassed based on complaints by other employees, the U.S. Court of Appeals for the Tenth Circuit found that such complaints were not sufficiently similar or close in time to trigger liability for the employer. For more, click here.

OSHA Reinstates the Electronic Illness and Injury Reporting Requirements for High-Hazard Employers. The Occupational Safety and Health Administration has issued a final rule requiring certain employers to electronically submit injury and illness information (that they are already required to keep) to OSHA. This obligation is similar to one that was imposed under the Obama Administration but then largely rescinded under the Trump Administration.  For more, click here.

No Employer Liability for Take-Home COVID? Well, not in California, at least, but also potentially in other states. The Supreme Court of California and now the U.S. Court of Appeals for the Ninth Circuit have found that an employer owes no duty of care under state law to prevent the spread of COVID-19 to the members of an employee’s household. For more, click here.

An Employee’s Verbal Testimony May Be Enough to Support an Overtime Claim. A recent decision from the U.S. Court of Appeals for the Fifth Circuit emphasizes the need for employers to ensure that they are maintaining good records of the hours worked by employees, as the lack of such records means that an employee’s own assertions may be enough to create liability under the Fair Labor Standards Act. For more, click here.

Well, The DOL’s 80/20 Tipped Employee Rule Won’t Be Enjoined After All. As we reported in our May 2023 E-Update, the U.S. Court of Appeals for the Fifth Circuit reversed a district court’s decision denying a restaurant association’s request to enjoin a Department of Labor final rule that reinstated the 80/20 rule applicable to tipped employees and further limited the amount of an employee’s non-tipped work time for which the employer may take a tip credit. The Fifth Circuit sent the case back to the district court for further proceedings in accordance with its analysis – but the district court has once again refused to enjoin the rule. For more, click here.

For those of us who defend employers, some of the best weapons we have are an employee’s actual signature on a critically-important agreement, policy acknowledgement, or form. There is something powerful about a physical signature, which is very hard for an employee to deny. In our increasingly digital world, however, the physical signature is giving way to electronic ones – but employers need to be aware of potential issues that can arise For more, click here.