March 2020 E-Update


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New Employment Laws in Maryland – COVID-19, Mandatory WARN Requirements, Salary History Ban, Hair Discrimination and More!

In the midst of the COVID-19 pandemic, the Maryland General Assembly managed to pass well over 600 bills in the three days before the session’s early adjournment. For more, click here.

U.S. Supreme Court Sets High Bar for Section 1981 Race Discrimination Claims

On March 23, 2020, the U.S. Supreme Court issued a decision in which it held that plaintiffs bringing claims under Section 1981 must show that race was the only reason, not just one of the reasons, for the challenged action. Although this case arose in a non-employment context, the holding is equally applicable to Section employment claims. For more, click here.

DOL Opinion Letters Address Whether Other Payments Must Be Included in the Employee’s Regular Rate

The U.S. Department of Labor released three new opinion letters on March 26, 2020, addressing whether certain payments – longevity bonuses, referral bonuses, and employer benefit contributions – must be included in the employee’s regular rate of pay for purposes of calculating overtime payments under the Fair Labor Standards Act. For more, click here.

NLRB Rules Severance Agreement Provisions Are Lawful; Boeing Work Rule Framework Not Applicable

The National Labor Relations Board held that two disputed provisions in the Employer’s severance agreements were not unlawful work rules. The Board reasoned that the agreements were optional and signing was not a condition of continued employment. Additionally, the agreements applied only to post-employment activities, had no impact on terms and conditions of employment, and did not affect pay or benefits accrued during employment.  For more, click here.

Drivers Who Leased Trucks From Shipping Company Are Employees, Not Independent Contractors, Says NLRB

In Intermodal Bridge Transport, the Board held that the Company did not meet its burden of establishing that delivery drivers were independent contractors. Applying its decision in SuperShuttle – which we discussed here – the Board concluded that drivers who leased their trucks are employees, and, thus, enjoy the protections of the National Labor Relations Act.  For more, click here.



Other Federal Agency COVID-19-Related Actions.   Several other federal agencies have announced COVID-19-related actions of interest to employers.  For more, click here.

An Actual Arbitration Agreement Is Required for Enforcement. An employer could not enforce an arbitration agreement, purportedly requiring its employees to arbitrate any work-related disputes, where it could not produce a signed copy of the agreement, according to the U.S. Court of Appeals for the D.C. Circuit. For more, click here.

FCRA Disclosure May Include “Concise” Explanation of Consumer Report. The U.S. Court of Appeals for the Ninth Circuit found that required disclosure to applicants and employees before obtaining a consumer report under the Fair Credit Reporting Act could include a brief explanation of what is a consumer report and how it would be used. It also found that the FCRA does not require employers to provide an opportunity to discuss the consumer reports directly with the employer.  For more, click here.

UberBLACK Drivers May Be Employees, Not Independent Contractors. In another case of interest regarding the gig economy, the U.S. Court of Appeals for the Third Circuit reversed a federal district court ruling that UberBLACK drivers were independent contractors, finding there to be a material dispute over the determination of such status. For more, click here.

Threat of Firing or Criminal Charges Not Required For Constructive Discharge Claim. The U.S. Court of Appeals for the Second Circuit found that the district court had imposed an “unduly stringent” standard for a constructive discharge claim in finding the plaintiff failed to show that she had been given an ultimatum to quit or be fired or threatened with criminal charges. For more, click here.

Staffing Company Liable for Low Level Employee’s FLSA Violations. In a warning to employers about their responsibility for the actions of low level employees under the FLSA, the U.S. Court of Appeals for the Ninth Circuit found that a staffing company was liable for the actions of its low level employee and, further, that there was no right to indemnification or contribution under the FLSA. For more, click here.

“Employees Cannot Mandate an Accommodation.”   As the U.S. Court of Appeals for the Sixth Circuit found, an employee must engage in the reasonable accommodation process and must provide medical documentation that actually supports his reasonable accommodation request. For more, click here.

An Alcoholic Employee May Not Come to Work Drunk.  As the U.S. Court of Appeals for the Fifth Circuit stated, “an employer can hold alcoholic employees to the same standards as other employees, even if the behavior in question is related to alcoholism.” For more, click here.

Discriminatory and Nondiscriminatory Comments Can Combine to Create Hostile Work Environment.  A hostile work environment can be created through a combination of both explicitly discriminatory and non-discriminatory (but offensive) comments, according to the U.S. Court of Appeals for the Second Circuit. It also held that the employee need not show that he was physically threatened or that the harassment interfered with his job performance in order to sustain a hostile work environment claim. For more, click here.

TOP TIP: Mid-Atlantic Employers – Your Governor(s) Just Issued a Shut-Down (or Other) Order. What Does This Mean?

In light of the COVID-19 pandemic, governors in Delaware, the District of Columbia, Maryland, New Jersey, New York, Pennsylvania and Virginia have issued various orders requiring certain business closures or restrictions, limiting travel, and imposing other restrictions that impact the workplace. For more, click here.