November 2023 E-Update


Click here to view entire E-Update as a PDF


Court Rejects NLRB’s Decision that Company Uniforms Are Presumptively Unlawful

Employers have watched with dismay as the National Labor Relations Board, under an admittedly pro-union President, issued opinions and rules that significantly promote the interests of unions over those of employers. For more, click here.

“Unlimited Sick Time, Without Penalty, Is Not a Reasonable Accommodation”

At least, not when in-person attendance is an essential function of the job, according to the U.S. Court of Appeals for the Seventh Circuit (which further noted that it is generally an essential function of many jobs). Accordingly, requiring an employee to use her existing sick time to cover disability-related absences did not violate the law.  For more, click here.



And Unlimited Unpaid Leave May Not Be Reasonable Either.  Elsewhere, in this E-Update, we discussed how unlimited paid sick leave was not a reasonable accommodation under the Americans with Disabilities Act where in-person attendance is an essential function of the job. For more, click here.

“Service Animals Need Not Be Accommodated Under Every Circumstance.”     Although federal law offers strong protections for the use of service dogs (and miniature horses!), such use is not entirely without limitations, as the U.S. Court of Appeals for the Sixth Circuit recently found. For more, click here.

When Do an Employer and Union Reach Impasse?  The answer to this question is important because, under the National Labor Relations Act, an employer and union must bargain in good faith with regard to matters to be covered by a collective bargaining agreement, and the employer can change the conditions of employment only when agreement is reached or when the parties reach impasse.   For more, click here.

The NLRB Postpones the Effective Date of Its Expanded Joint Employer Rule.  As we discussed in our October 26, 2023 E-lert, the National Labor Relations Board recently issued a final rule that will result in more findings that two entities are joint employers. Originally scheduled to take effect on December 26, 2023, the Board has now announced that the effective date will be extended to February 26, 2024. For more, click here.

DOL Issues Sample Employment Agreements for Domestic Workers.   The Women’s Bureau of the U.S. Department of Labor has created sample employment agreements for cleaners, home care workers, and nannies to assist both the workers and employers in understanding their rights and obligations, and to clarify the terms and conditions of employment. For more, click here.

More Federal Agency Cooperation – the NLRB and OSHA.   As we have noted over the past several months, including in our September 2023 E-Update, the federal workplace agencies have been entering into Memoranda of Understanding that will allow them to cooperate on workplace investigations, resulting in an expansion of possible liability for employers. For more, click here.


TOP TIP: Employers – Be Careful with Those Mandatory EAP Referrals!

As part of the corrective action process, some employers require employees to go to a company-provided Employee Assistance Program (EAP). Such programs are intended to offer resources and support to employees for their personal issues on a confidential basis, at no cost to the employee.  For more, click here.