May 2022 E-Update


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The DOL Issues Guidance on Mental Health and the FMLA

Marking National Mental Health Awareness Month, the U.S. Department of Labor issued several resources addressing employee use of leave under the Family and Medical Leave Act for mental health conditions, including a fact sheet, FAQs, and a blog post. For more, click here.

The EEOC and DOJ Offer Suggestions to Employers on Avoiding Disability Discrimination When Using AI Technologies

The Equal Employment Opportunity Commission and the U.S. Department of Justice each issued guidance about possible discrimination in violation of the Americans with Disabilities Act when employers make employment decisions based on their use of artificial intelligence and other software tools. They further suggested “promising practices” to help avoid such discrimination. For more, click here.

Supreme Court Holds that Prejudice Is Not Required to Find Waiver of Right to Arbitration

According to the U.S. Supreme Court, it is not necessary to find that an employee has been prejudiced by the employer’s delay in invoking an arbitration agreement in order to determine whether the employer has waived the right to arbitration. For more, click here.


NLRB General Counsel Announces New Protocol to Protect Immigrant Workers. Following her announcement of an initiative to ensure the rights of immigrant workers under the National Labor Relations Act (as discussed in our November 2021 E-Update), the National Labor Relations Board’s General Counsel, Jennifer Abruzzo, issued a memo earlier this month that sets forth a new protocol for Board agents working with immigrant witnesses, including the use of a new Immigrant Worker fact sheet. For more, click here.

The Scope of an EEOC Charge Defines the Scope of a Lawsuit. The U.S. Court of Appeals for the Fourth Circuit recently reminded employers (and employees) of this principle when it rejected the claims that an employee failed to include in her charge of discrimination before the Equal Employment Opportunity Commission. For more, click here.

Work Restrictions Cannot Prevent an Employee from Actually Performing a Job. While the Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with health-related work restrictions, the employee must still be able to demonstrate that they can perform the essential functions of the job (including any job to which the employee might be transferred as part of the reasonable accommodation obligation). For more, click here.

Just Because an Employer’s Termination Reason Is False Doesn’t Necessarily Mean It’s Discrimination. Highlighting an interesting point in the analysis of a discrimination claim, the U.S. Court of Appeals for the Fifth Circuit stated that an employee must do more than prove the employer’s asserted justification for termination is false in order to sustain a discrimination claim – there must be evidence that the actual reason was discriminatory. For more, click here.

Is “Tenure” a Euphemism for Age? Although acknowledging the possibility, the U.S. Court of Appeals for the Fifth Circuit nonetheless found that a manager’s stated refusal to hire “tenured employees” was not direct evidence of age discrimination in this particular case. For more, click here.

OFCCP Update for Government Contractors – Impending Contractor Evaluations, Upcoming Contractor Portal Deadline. On May 20, 2022, the Office of Federal Contract Compliance Programs published its latest Corporate Scheduling Announcement List (CSAL), identifying those supply and service contractors who have been selected for a Compliance Review (Establishment Review), Corporate Management Compliance Evaluation, or Functional Affirmative Action Program Review. For more, click here.

TOP TIP: Non-Competes in the Context of the Sale of a Business

Many employers require certain of their employees to execute non-competition agreements as a condition of employment at the time of hire.  Similarly, in many business acquisitions, there is an agreement by the seller of a company not to compete with the purchasing business for a period of time.  While courts closely scrutinize non-competition agreements in the context of employment, they offer much greater latitude in the context of the sale of a business.  Which standard applies is not always clear, however. For more, click here.