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.

On July 22, 2021 the Puerto Rico Department of Health (PRDOH) issued Administrative Order No. 2021-509 (AO) providing that, in order to physically attend school, post-school educational institutions, or universities, personnel and students age 12 and older must be vaccinated against COVID-19. According to the PRDOH, the vaccination requirement for in-person school attendance will play an essential role in controlling the pandemic and providing a safer educational environment for students.

On August 2, 2021, Denver, Colorado Mayor Michael B. Hancock announced that all city employees, as well as private-sector workers in certain “high-risk” settings, must be fully vaccinated against COVID-19 by September 30, 2021. After September 30, unvaccinated individuals covered by this mandate will not be permitted to work onsite or in the field. In order to meet this September 30 deadline, employees covered by this requirement must receive their final doses of the vaccine by September 15.

Who is Affected by the Vaccine Mandate?

David Gartenberg and Danielle Van Katwyk examine a new vaccine mandate in Denver and explain what it means for Colorado employers.

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On September 29, 2021, National Labor Relations Board (NLRB) General Counsel (GC) Jennifer A. Abruzzo released a nine-page memorandum taking the unequivocal position that “certain Players at Academic Institutions” are employees under Section 2(3) of the National Labor Relations Act (NLRA).  Refusing to call such players “student athletes,” Abruzzo asserts in the memorandum (GC 21-08) that:

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.

Anabel Rodríguez-Alonso and José L. Maymí-González examine Puerto Rico’s new back-to-back executive orders regarding COVID-19.

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In the midst of declining infection rates and increasing debate over mask and vaccine mandates, on February 7, 2022, Sangamon County Circuit Court Judge Raylene DeWitte Grischow temporarily enjoined COVID-19 mitigation measure mandates that had been imposed by order of Governor Pritzker and related administrative agency rules, affecting nearly 170 school districts. Echoing the concern expressed by the Eleventh Circuit, in its December 2021 Georgia v.

The National Institutes of Health (NIH) requires recipient institutions—i.e., any entity receiving funding from the NIH—to have policies that foster a harassment-free environment.

Florida’s most recent anti-“WOKE” legislation places diversity-related work and diversity-focused positions on state campuses under threat.

Governor Ron DeSantis has signed Senate Bill (SB) 266, officially prohibiting the state’s public colleges and universities from spending state or federal money on programs or campus activities that advocate for Diversity, Equity, and Inclusion (DEI).  The legislation aims to replace “niche subjects” like Critical Race Theory (CRT) and gender studies with “more employable majors,” according to the governor.  The law would also restrict public colleges from providing initiatives like anti-bias, DEI, and cultural competence training for educators, staff members, and students.

National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo filed a long-anticipated complaint on May 18, 2023 against the University of Southern California (USC), the Pac-12 Conference, and the National Collegiate Athletic Association (NCAA), alleging that their failure to use the term “employee” to refer to student-athletes in the university’s student athlete handbook and related social media policies intentionally discourages student athletes from exercising their alleged Section 7 rights as employees under the National Labor Relations Act (NLRA).

In a joint “Dear Colleague” letter (DCL) released May 19, 2023, the U.S. Department of Education’s Office of Civil Rights teamed up with the U.S.

PORTLAND, Maine (May 24, 2023) – Littler, the world’s largest employment and labor law practice representing management, has added James Thelen as of counsel in its Portland, Maine office. Prior to joining Littler, Thelen was a higher education consultant, as well as general counsel and chief legal officer at the University of Maine System, a statewide system of seven public universities. While there, he also served as vice chancellor for strategic initiatives and chief of staff.

The country’s colleges and universities will likely face significant labor cost pressures for the next year, according to a higher ed sector financial analysis released last week by Moody’s Investors Service. 

Jim Paretti says two U.S. Supreme Court rulings on discrimination law that changed how employers evaluate religious accommodation requests and ended affirmative action in higher education will affect employers for years to come.

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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 disagrees with a National Labor Relations Board (NLRB) regional director’s ruling that men’s college basketball players at Dartmouth College are employees for National Labor Relations Act (NLRA) purposes.

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While testifying at a congressional hearing, Tyler A. Sims said the potential consequences of unionizing could be damaging for athletes.

Inside Higher Ed

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Colleges and universities that employ their own students face conflicts about how to protect student information, as required by the Family Educational Rights and Privacy Act (FERPA), while disclosing information about student-employees who seek to unionize, as required by the National Labor Relations Act (NLRA).

On August 6, 2024, the National Labor Relations Board’s general counsel issued a memorandum with her advice about how higher education institutions should handle this dilemma.

Alka Ramchandani-Raj talks about California’s SB 553, which represents the nation's first general industry workplace violence prevention safety requirements for employers.

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On November 24, 2022, Bill 41 – 2022: Workers Compensation Amendment Act (No. 2), 2022 (Bill 41), which introduced changes to British Columbia’s Workers Compensation Act, received Royal Assent. Effective January 1, 2024, Bill 41 imposes certain duties on employers and employees following a workplace injury.

On March 1, 2024, the Centers for Disease Control and Prevention announced that it is updating its COVID-19 guidance and is no longer recommending that individuals who test positive for COVID-19 isolate for five days.  The agency is recommending a new, “unified approach” to respiratory viruses, including not only COVID-19 but also flu and respiratory syncytial virus (RSV). 

Janell Ahnert discusses OSHA’s expanded electronic recordkeeping rule and how it may change OSHA inspections going forward.

Birmingham Business Journal

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In a significant decision about workplace drug use, the Connecticut Appellate Court backed an employer’s right to terminate a worker who was impaired on the job by medical marijuana. The decision also clarified the factual basis an employer must possess to justify ordering a drug test based on suspicion of impairment.

On March 26, 2024, the Phoenix (Arizona) City Council unanimously passed an ordinance requiring all city contractors and subcontractors to develop and maintain a written heat safety plan to prevent heat-related illnesses and injuries in the workplace. Outdoor workers in Phoenix may be susceptible to heat-related illness and injury due to the extreme Arizona temperatures.

James McGehee and Bradford Kelley provide insight into the potential impact of AI on the construction industry. 

For Construction Pros

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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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Adam Fiss, Alka Ramchandani-Raj and David Dixon discuss California Labor Code Section 6401.9, which will implement the first general industry workplace violence prevention safety requirements in the U.S. 

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Alka Ramchandani-Raj says the Supreme Court’s Jarkesy decision could mean at least one type of OSHA case could see a change in venue in the future. 

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Alka Ramchandani-Raj says a proposed OSHA rule would direct OSHA inspectors to request to see an employer’s written heat plan as part of construction site inspections on days the temperature has reached the rule’s trigger point. 

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Felicia Watson discusses three concerns about a proposed OSHA rule that would protect indoor and outdoor workers from heat illness.

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Commenting on a SCOTUS decision, Alka Ramchandani-Raj said a type of OSHA matter that could see a future change in venue may be those involving certain General Duty Clause citations. 

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Alka Ramchandani-Raj discusses California’s new indoor and outdoor heat rule for employees and the ambiguity surrounding how the rule will be enforced.

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In R. v. Greater Sudbury (City), 2024 ONSC 3959, the Ontario Superior Court of Justice (OSCJ) dismissed an appeal of the trial judge’s decision in which she acquitted the City of Sudbury (City) of various charges under the Occupational Health and Safety Act (OHSA).

Grant Goerke and Jennifer Chierek Znosko discuss a recent federal court decision that agreed an Illinois employer had the right to enforce a zero-tolerance policy on marijuana use.

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