June 2022 E-Update


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Roe v. Wade Is No More – Some Thoughts for Employers

Although the Supreme Court’s decision overturning the constitutional right to abortion set forth in Roe v. Wade is not an employment case, there may be employment implications for many employers, ranging from workplace speech/activities to employee benefits and workplace policies. Here are some points to consider…For more, click here.

Sabbath Accommodations – Shift Swaps and Days Off?

Some employees observe Sabbath, a religious day of worship and rest. This poses an issue when their job positions require them to work on their Sabbath. The U.S. Court of Appeals for the Third Circuit recently addressed two possible accommodations under an employer’s Title VII’s reasonable accommodations obligation for religious needs. For more, click here.

NLRB GC Pushes Additional Remedies Against Employers

In September 2021, the National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo issued two GC memos directing Regional Offices to seek the “full panoply of remedies available” when an employer has violated the National Labor Relations Act (NLRA), which we discussed in our September 2021 E-Update. GC Abruzzo has now issued another memo updating the remedies that Regions have included in settlement agreements. For more, click here.


The EEOC Adds a New Gender – X – to Its Charge Process.  Following the release of its Equity Action Plan (as discussed in our April 2022 E-Update), in which the Equal Employment Opportunity Commission asserted that it would update its charge-related forms related to gender self-identification, it has now announced the addition of a non-binary gender option: X. For more, click here.

No Violation of Title VII in Discipline for Black Lives Matter Masks. The U.S. Court of Appeals for the First Circuit found that Whole Foods did not engage in race discrimination when it disciplined employees for wearing Black Lives Matter masks at work, since there was a plausible non-discriminatory reason for its actions – to prevent the mass display of a controversial message in its stores. For more, click here.

No Natural Disaster Exception to WARN Act Requirements for COVID-19. The U.S. Court of Appeals for the Fifth Circuit held that COVID-19 does not qualify for the natural disaster exception to the notice requirements for mass layoffs under the Worker Adjustment and Retraining Notification (WARN) Act. For more, click here.

Loss of Job Over Religious Vax Refusal ≠ Irreparable Harm. At least according to the U.S. Court of Appeals for the Seventh Circuit, in rejecting a doctor’s request for an order to reinstate him to his position at a hospital pending resolution of his discrimination lawsuit. For more, click here.

Discouraging the Use of FMLA is a Violation of the Law. “Denial of [Family and Medical Leave Act] benefits is not required to demonstrate an FMLA interference violation,” stated the U.S. Court of Appeals for the Seventh Circuit in a recent case. For more, click here.

Employers – Do Not Ignore Co-worker Horseplay and Pranks. The U.S. Court of Appeals for the Seventh Circuit found that an employee may have been constructively discharged – meaning that he was effectively fired by being subjected to unbearable harassment – based on extensive co-worker conduct that the employer characterized as “horseplay” and failed to address in a timely and effective manner. For more, click here.

Discriminatory Job Transfers May Be an Actionable Adverse Action Under Title VII. Title VII makes it “an unlawful employment practice . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” among other things, “because of such individual’s race, color, religion, sex, or national origin.” The federal courts have typically required some additional showing of tangible harm – the D.C. Circuit characterized this as “objectively tangible harm” – in order to sustain a discrimination claim under Title VII. But that is no longer the case in the D.C. Circuit, which recently addressed this issue in the context of a discriminatory job transfer claim. For more, click here.

Minimum Wage Increases in the Mid-Atlantic (Including a New Increase in Howard County).  Although the federal minimum wage remains $7.25, with a tipped wage rate of $2.13, most states in the mid-Atlantic region have implemented higher minimum wage rates. (The tipped wage rate for tipped employees, together with any tip credit, must meet the minimum wage. Employers are responsible for making up any shortfall.) Increases for Maryland, New Jersey, Delaware, and Virginia, as well as for certain federal contractors took effect on January 1, 2022, as discussed in our December 2021 E-Update, while other increases are occurring now, as follows…For more, click here.

TOP TIP: Keeping Your Cool OSHA’s Heat Illness Prevention Suggestions for Employers

This summer has already seen heat records shatter across the U.S. The Occupational Safety and Health Administration has a Heat Illness Prevention campaign, which includes a website that collects resources on working in the heat. With regard to employers, OSHA offers extensive guidance, including the following points…For more, click here.