Update: The vaccination deadline for covered federal contractors has been extended until January 18, 2022.

The federal government’s complicated multi-pronged approach to implementing COVID-19 safeguards related to federal contractors has left many confused.  We offer this brief guide to help contractors understand their obligations and the timelines for implementation.

On October 11, 2021, Texas Governor Greg Abbott issued Executive Order GA-40, which states that no entity in Texas can “compel” any individual, including any employee or consumer, to receive a COVID-19 vaccination who objects “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”  The order also establishes a maximum criminal penalty of $1,000 but expressly exclude

The White House on November 4 announced that the deadline for employers covered by the federal contractor vaccine requirement to comply with the vaccine mandate will be extended from December 8, 2021 to January 4, 2022.

As outlined in our August 22 Insight, OFCCP announced an intention to produce federal contractors’ Type 2 EEO-1 data in response to a FOIA request from the Center for Investigative Reporting (CIR).  Employers were given until September 19, 2022, to file their objections. On September 15, 2022, OFCCP extended the deadline for filing objections to October 19, 2022.

On February 14, 2023, OFCCP announced that it was again extending the deadline for employers to file objections to the disclosure of their EEO-1 data in response to a FOIA request from the Center for Investigative Reporting. The deadline for submitting objections is now March 3, 2023. 

Last August OFCCP published a notice in the Federal Register advising employers that in response to a Freedom of Information Act (FOIA) request, the agency was planning to produce confidential information that is ordinarily protected from dis

David Christlieb talks about the Supreme Court striking down affirmative action, as well as its decision in siding with an employee who refused to work.

WGN Radio

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Alexander MacDonald says that in the wake of Chevron, existing regulations will not be thrown out, but there will be closer scrutiny over regulations, and there may be fewer of them to come.

HR Dive

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Ben Sandahl discusses a Minnesota case that raises several issues for companies working with independent contractors.

Westlaw Today

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Kathryn Siegel, Rachel Satinsky and Dru Selden assess the current landscape of restrictive covenants and the trend of federal agencies and states toward limiting noncompete provisions.

Law360

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Alexander MacDonald discusses the filing of an amicus brief with the U.S. Supreme Court asking the court to clarify a prior 1984 decision which, if successful, could weaken a new form of “exclusive representation” for unions.

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Anne C. Sanchez and Briana M. Swift explain what employers need to know about the San Francisco Health Care Security Ordinance (HCSO), a local ordinance that requires employers to make certain healthcare expenditures on behalf of their San Francisco-based employees.

SHRM

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The recently enacted Anti-Money Laundering Act significantly increases the potential value of awards for whistleblowers under the Bank Secrecy Act. The challenge for a financial services employer is to establish that discipline against an employee in a compliance role is supported by evidence that the decision was based on the employee's incompetence or other inappropriate behavior, and that any whistleblowing activity he or she engaged in was not a consideration. Philip M. Berkowitz explores the issues in this edition of his Employment Issues column.

Steve Biddle examines the recently expanded Arizona Civil Rights Act (ACRA) as well as new ordinances passed by Arizona cities that expand protected categories and coverage.

SHRM Online

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Michael Royal and Alyssa Peterson discuss two new laws that will bring changes for employers in Texas by expanding protections for employees who assert claims of sexual harassment under the Texas Labor Code.

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Natasha Adom weighs in on racism experienced by former cricket player Azeem Rafiq.

Personnel Today

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On April 1, 2022, a Los Angeles County Superior Court ruled that California Assembly Bill 979—a bill designed to increase diversity and improve the persistently low number of underrepresented groups on corporate boards—violated the Equal Protection Clause of the California Constitution and was therefore unenforceable. In its ruling, the court acknowledged the pitfalls of homogeneity in business and communities, but it cautioned against quotas and specific number requirements.

On December 29, 2022, President Biden signed a new whistleblower law that significantly increases the risk and cost of whistleblower claims for domestic and overseas financial services institutions that must be cognizant of anti-money laundering (AML) laws and regulations. This covers 26 categories of institutions, including banks, branches and agencies of foreign banks, broker-dealers, insurance companies, operators of credit card systems, mutual funds, certain casinos, and travel agencies.

The Massachusetts legislature has expanded the reasons employees can use Massachusetts Earned Sick Time through provisions in a larger bill entitled, “An Act Promoting Access to Midwifery Care and Out-of-Hospital Birth Options.”  Employees may now use Massachusetts Earned Sick Time to “address the employee’s own physical and mental health needs, and those of their spouse, if the employee or the employee’s spouse experiences pregnancy loss or a failed assisted reproduction, adoption or surrogacy.”

The Euless, Texas Fair Overtime and Scheduling Standards Ordinance that imposed predictive scheduling obligations on covered employers is no more.   

The Unusual Origin of the Ordinance 

Marshall v. Mercantile Exchange Corporation, 2024 CanLII 71128  (ONSC), is an action for wrongful dismissal where the employee claimed he could not mitigate his damages by seeking alternative employment indefinitely because of a mental health condition (i.e., stress and depression) allegedly arising out of his termination. He claimed a 26-month notice period. The employer sought an independent medical examination (IME) of the employee pursuant to s.

The City Council of Atlanta, Georgia recently passed an ordinance that amends its existing anti-discrimination law to include protection on the basis of “criminal history status” as well as “gender expression.”  The ordinance is effective immediately.

With regard to gender expression, the law simply amends existing law to include “gender expression” as an additional protected characteristic.

Rachel P. Kaercher, Wendy Buckingham and William J. Simmons examine a new ordinance passed by the Atlanta City Council that amends its existing anti-discrimination law to include protections on the basis of criminal history status and gender expression.

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For nearly a decade, Chicago has maintained a “ban-the-box” ordinance restricting employer’s use of criminal records in employment screening. This ordinance largely mirrored the requirements of Illinois’ state-wide Job Opportunities for Qualified Applicants Act (JOQAA), albeit with some important differences.

Pennsylvania and Philadelphia recently enacted changes that impact employer criminal background screening.

State Law

Enacted on December 14, 2023, and effective February 12, 2024, Pennsylvania’s House Bill No. 689 amends Pennsylvania law relating to the expungement of certain criminal record information and employer immunity when hiring individuals with expunged records. 

On March 14, 2024, the Massachusetts House of Representatives passed legislation that would add a new provision to the Massachusetts Consumer Protection law and would bar the use of true credit reports for employment purposes, i.e., for the purpose of evaluating an individual for employment, promotion, reassignment, or retention as an employee.  The legislation, entitled An Act Reducing Barriers to Employment Through Credit Discrimination (H.1434), is expected to be adopted by the Massachusetts Senate and promptly signed into law by Governor Maura Healy.  Once adopted, th

The Lehigh County Human Relations Ordinance was enacted February 26, 2024, establishing county-specific non-discrimination requirements for employment, housing, education, health care and public accommodations.  The ordinance also creates a Lehigh County Human Relations Commission charged with investigating and enforcing claims of discrimination.  The ordinance becomes effective June 1, 2024.

Expanded Protected Characteristics and Employer Coverage

On January 7, 2022, Mexico’s National Institute of Statistics and Geography (INEGI by its acronym in Spanish) published the new values for the Updated Metric Unit (Unidad de Medida y Actualización or UMA) that will take effect on February 1, 2022, as provided by Article 5 of the Law to determine the value of the UMA. The UMA serves as the basis for calculating the payments, obligations, or penalties that are owed to the government, whether under federal or state law. Its updated value is published on an annual basis.

The values of the UMA for 2022 will be as follows:

In an opinion issued on June 20, 2023, the United States Court of Federal Claims reminded taxpayers that they must obtain a certificate of coverage in order to claim an exemption from Social Security and Medicare taxes (FICA) under a totalization agreement.

Sarah Bryan Fask says a decision clarifying when employers can exit union-brokered pension plans “potentially opens up the floodgates for a lot of employer uncertainty.”

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Joy Rosenquist discusses what California employers should watch for after the state’s AI bias bill failed and its Civil Rights Department continues work on proposed regulations that could be game-changing.

Law360 Employment Authority

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James A. Paretti Jr. and Melissa McDonagh offer insights into the implications of the court’s rejection of the Federal Trade Commission’s (FTC) proposed nationwide ban on noncompete agreements.

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In Aponte Valentín v. Pfizer Pharmaceuticals, CC-2018-748,¹ the Puerto Rico Supreme Court reinforced the strong public policy favoring arbitration agreements in Puerto Rico, validating continued employment as implicit consent for such agreements.

Rhonda B. Levy and Douglas Sanderson examine Northern Regional Health Authority v. Horrocks, in which the Supreme Court of Canada decided that in Manitoba, human rights disputes arising from the interpretation, application or alleged violation of a collective agreement fall within the exclusive jurisdiction of a labour arbitrator.

Human Resources Director Canada

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In light of President Biden signing the Speak Out Act, Elizabeth A. Lalik, Lauren M. Bridenbaugh and Jim Paretti say this is a good time for employers to review their policies and practices for handling sexual harassment incidents that fall under all applicable federal and state statutes.

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On April 12, 2024, the U.S. Supreme Court addressed whether the Federal Arbitration Act’s (FAA) transportation exemption—meaning the FAA would not apply—only relates to workers within the transportation industry. In Bissonnette v. LePage Bakeries Park St., LLC,¹ the Supreme Court unanimously held Section 1 of the FAA exempts classes of workers who are actively engaged in interstate transportation, even if the individuals are not employed by a company in the transportation industry (the “Transportation Exemption”).

Two days before the United States Supreme Court ruled in Bissonnette v. LePage Bakeries Park St., LLC,¹ that the Federal Arbitration Act’s (FAA) transportation worker exemption (meaning the FAA would not apply) extends beyond the transportation industry, the U.S. Court of Appeals for the Ninth Circuit addressed whether the exemption applies to “contracts of employment” between business entities. In Fli-Lo Falcon, LLC v.

Puerto Rico Governor Pedro R. Pierluisi recently issued back-to-back executive orders (EO) regarding COVID-19. It appears that the third EO was stuck in holiday traffic. This latest EO, like her sisters, amends November’s EO-2021-075 to curtail COVID-19 infections.

In celebration of the 50th anniversary of Title IX of the Education Amendments of 1972 (Title IX), on June 23, 2022, the U.S.

Since 2006, public employers in New York have been required to implement programs to prevent and minimize workplace violence.¹ Public school employers, including public school districts, New York City public schools, Boards of Cooperative Education Services (BOCES), and County Vocational Education and Extension Boards, were previously exempted from the law.

Tyler A. Sims says student athletes shouldn’t be classified as employees under the National Labor Relations Act.

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Devjani Mishra discusses findings from Littler’s 2024 Annual Employer Survey Report that show an increase in workplace requests for leaves of absence or other accommodations for mental health.

Corporate Counsel

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