November 2022 E-Update


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What Employers Need to Know About the New “Speak Out Act’s” Prohibitions on Nondisclosure and Nondisparagement Provisions

Congress has passed and President Biden is expected to sign the “Speak Out Act” into law, thereby prohibiting nondisclosure and nondisparagement provisions in pre-dispute employment agreements. While symbolic, the practical effect of this law for employers is quite limited. For more, click here.

NLRB General Counsel Targets Employers’ Use of Electronic Monitoring and Algorithmic Management Technologies

National Labor Relations Board (“NLRB”) General Counsel (“GC”) Jennifer Abruzzo announced that she will crack down on employers’ increasing use of automated technologies and electronic management systems. For more, click here.

Remote Work May Be a Reasonable Accommodation Where the Employee Has Been, Well, Working Remotely

In the context of the COVID-19 pandemic, many employees suddenly began working remotely – and as we move into a new normal, many employees would like to continue telecommuting. For more, click here.



Federal Agencies Partner on New Anti-Discrimination Resources for Veterans. In connection with Veterans’ Day, the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) and Veteran’s Employment and Training Service (VETS), and the Department of Justice Civil Rights Division have issued an omnibus resource, “Protections Against Employment Discrimination for Service Members and Veterans,” to help veterans and service members determine which laws and federal agencies are responsible for enforcing their workplace rights and where to seek assistance if they believe those rights have been violated. For more, click here.

FMLA Notice Requirements for Employees. Employers may require employees to comply with both the Family and Medical Leave Act’s regulatory notice requirements and the company’s policy notice requirements, and a recent case from the U.S. Court of Appeals for the Sixth Circuit provides guidance on both. For more, click here.

An Employee’s Mental Health Condition Does Not Necessarily Prevent Their Release of Claims. The U.S. Court of Appeals for the Second Circuit rejected an employee’s argument that she lacked the mental capacity to sign the separation agreement that contained a release of claims against her employer. For more, click here.

A Discrimination Complaint Does Not Protect the Employee from All Adverse Employment Actions. While employees are protected from retaliation for making a discrimination complaint, they are not automatically insulated from all adverse employment actions, and can be held accountable for separate misconduct, as the U.S. Court of Appeals for the Eighth Circuit recently held. For more, click here.

Do Not Retaliate for EEO Complaints Against a Former Employer.  It might seem reasonable that an employer might not want to hire someone that they know has sued a prior employer. For more, click here.

When Transfer Is Not Required Under the ADA.  Transfers to another job position may be a reasonable accommodation under the Americans with Disabilities Act, but a transfer is not required under all circumstances, as the U.S. Court of Appeals for the Eleventh Circuit recently explained. For more, click here.

When Is the Accommodation Duty Triggered? The U.S. Court of Appeals for the Eleventh Circuit addressed this question under the Rehabilitation Act (which applies to federal agencies, contractors and subcontractors, but applies the same standards of analysis as the Americans with Disabilities Act), stating, “The type and extent of information that an employee must provide will depend, of course, on the particulars of the case.” But there are general rules that will apply. For more, click here.

TOP TIP: Recreational Marijuana in Maryland? What Employers Need to Know

Voters in Maryland approved recreational marijuana (which Maryland refers to as “cannabis”). While many employees may be happy about this development, employers are perhaps not quite so excited – and may be confused about what that actually means for the workplace. While there are still many questions related to the actual implementation of this initiative, we provide some preliminary answers below. For more, click here.