Eli Freedberg discusses New York’s controversial new pay transparency law.

Law360 Employment Authority

View (Subscription required.)

Iván López García de la Riva discusses Spain’s plan to raise severance payments in certain situations. 

CincoDías

View

A federal court in New Jersey recently applied the arbitrary and capricious standard of review for a denial of benefits claim despite the enactment of an anti-discretionary statute in Minnesota, which governed the benefit plan policy. Hocheiser v. Liberty Mut. Ins. Co., 2021 U.S. Dist. LEXIS 32154 (D.N.J. Feb. 22, 2021).

A recent federal appeals court case clarifies that, under ERISA, the regulations governing disability plans’ claims review procedures apply to claims that predate the 2018 changes to the regulations. The decision also serves as a reminder for plan administrators to review their claims review procedures to ensure compliance with the current requirements for a “full and fair review” benefits appeal process.

The Claims Review Regulations

Fiduciaries of retirement plans continue to be plagued by class actions brought under the Employee Retirement Income Security Act (ERISA) challenging their fiduciary management of investment options and participant fees. A recent federal court decision, however, shows that fiduciaries of ERISA retirement plans may be able to attack and defeat complaints alleging breaches of ERISA fiduciary duties at the pleading stage if the right arguments are made and if certain fact patterns are present. 

An increasing number of employers, especially those in the tech industry, are conducting layoffs or reductions in force. What happens to foreign workers in these situations, whose work visas are often tied to their jobs? What options are available to foreign nationals who are in the process of obtaining permanent residency or are seeking to retain employment so as not to jeopardize their visa status? What notification requirements do employers have in these situations?

In celebration of Disability Pride Month, Jennifer Duke, Littler Learning Group Director and attorney, talks with Anna Curry Gualano, Littler Principal and co-chair of the firm’s Individuals with Disabilities affinity group, about the importance of disability inclusion and its impact in the workplace for both employers and employees.
  

This podcast discusses the critical considerations when evaluating whether and how to terminate employees in Asia. Trent Sutton (U.S. qualified lawyer), Soowon Hong (Korean qualified lawyer) and Shiau Sang Tee (Hong Kong and Malaysia qualified lawyer), members of Littler’s APAC Regional Office based in Singapore, set out the general three approaches to terminations across Asia. They explore what grounds are generally defensible (or not) and the variation in the usage of negotiated exits.
 

Littler’s Anna Curry Gualano is joined by her father, Ashley Curry, to discuss their advocacy work in Alabama to update the traditional accessibility symbol to one that is more inclusive and empowering.
  

Following Disability Pride Month, we look to the past, present and future to examine how rights for people with disabilities in the workplace have developed in the UK and could develop further, before giving some practical steps for employers.

A brief history of disability laws

On July 26, 1990, the Americans with Disabilities Act (ADA) was signed into law. On the recent 34th anniversary of the ADA, U.S. Equal Employment Opportunity Commission (EEOC) General Counsel Karla Gilbride and U.S.

Bradford J. Kelley and Sean O'Brien discuss how, on the 34th anniversary of the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission and Justice Department emphasize their commitment to ensuring that emerging technologies and AI comply with ADA standards.

Westlaw Today

View (Subscription required.)

Ole Kristian Olsby and Nina Elisabeth Thjømøe explain the regulations around gender equality and discrimination in the workplace.

International Law Office (ILO)

View Article (Subscription required.)

Ole Kristian Olsby and Nina Elisabeth Thjømøe explain Norway’s new Anti-discrimination Tribunal.

International Law Office (ILO)

View Article (Subscription required.)

An effective way to increase diversity hiring is to require diverse candidate slates for interviewing. Such slates include at least two diverse or women candidates in the pool of finalists. Employers should take heed, however, because there are limits to which a recruiter or a staffing agency can go in building such a slate. Alyesha Dotson discusses the avenues to intentionally recruit for diversity in a fair and smart manner to avoid violating antidiscrimination laws.
  

Arizona recently expanded provisions of the Arizona Civil Rights Act (ACRA) to cover pregnancy and pregnancy-related conditions. Additionally, following a national trend in response to perceived state and federal inaction, cities in Arizona on their own passed new ordinances that expands protected categories and coverage.

ACRA Expansion

The Securities and Exchange Commission (SEC) has adopted a final rule requiring publicly traded corporations to disclose, to the SEC and shareholders, the ratio of CEO compensation to the "median compensation" of the corporation's employees (except the CEO).

Alexander T. MacDonald says predistributional labor policies do none of the things they’re supposed to do and, in fact, amplify the problems they’re supposed to solve.

The Federalist Society

View

Paweł Sych explains how an employee's actions on social media, even after working hours, can harm the entire organization and cause trouble for employers. 

Prawo.pl

View

The SEC recently issued imposed significant and costly sanctions against companies that require employees to sign non-disclosure agreements containing certain language either limiting employees from disclosing company confidential information without company approval, or representing that they have not filed complaints with government entities.

By Philip M. Berkowitz | November 08, 2023 at 10:00 AM

On August 19, 2022, OFCCP published a notice in the Federal Register for the stated purpose of advising employers that in response to a Freedom of Information Act (FOIA) request, it is planning to produce confidential information that is protected from disclosure pursuant to a statutory exemption.

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.

OFCCP issued yet another notice today regarding its handling of a FOIA request for production of all federal contractors’ EEO-1 Type 2 data from 2016 through 2020.

The request keeps in place a February 17, 2023, deadline for submitting objections, but expands the grounds upon which employers may object, but only if the contractor includes an explanation as to why it did not object “in response to previous notices that we have issued, and why there is good cause for us to accept the objection at this point.”

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

On April 25, 2023, the Office of Management and Budget approved the Office of Federal Contract Compliance Programs’ (OFCCP) updated form prospective and current employees must use to voluntarily self-identify as an individual with a disability.  The form is applicable to federal contractors and subcontractors subject to Section 503 of the Rehabilitation Act, which requires contractors to invite applicants to self-identify as disabled at the pre-offer stage, and to invi

Shawn Matthew Clark discusses the basics of noncompetes and what employers need to consider regarding noncompetes, as well as why the FTC wants to ban them and how recent SCOTUS decisions may affect the FTC’s rule.

New York County Lawyers Association

View

Javier Molina discusses the challenges of employers giving employees gifts for Christmas.

Expansión

View

Compliance or internal audit departments frequently carry out audits intended to assure that business partners in an organization, such as human resources or legal departments, have in place policies and procedures that are effective for maintaining corporate compliance and consistent with the myriad laws with which the organization must comply, including employment, whistleblower, and anti-bribery and corruption.  These reviews are often not confined to policies but may also seek review of actual compliance events and sensitive contemporaneous records.  For example, in the case of an inte

Raoul Parekh and Natasha Adom write in support of updating laws to help give employers more freedom to create the real change that so many want and promote more diversity and equality in workplaces.

The Law Society Gazette

View

Libby Henninger offers tips for employers paying disabled workers lower wages.

Law360 Employment Authority

View (Subscription required.)

On October 4, 2024, the U.S. Supreme Court granted certiorari in Ames v. Ohio Department of Youth Services (Case No. 23-1039) to decide whether plaintiffs who are members of historically majority communities asserting “reverse discrimination” claims under Title VII must show there are “background circumstances” that support the inference that the defendant is the “unusual employer who discriminates against the majority.”

The “Background Circumstances” Requirement

The Wisconsin Fair Employment Act (WFEA) prohibits employers from discriminating against applicants and employees on the basis of their arrest and conviction records.¹  Generally, an employer cannot make decisions on the basis of an arrest or conviction record unless the crimes “substantially relate” to the circumstances of the job at issue.²  For many years, the state agencies responsible for enforcing this law—the Wisconsin Department of Workforce Development (DWD) and the Labor and Industry Review Commission (LIRC)—have taken the view that crimes of domestic violen

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.

SHRM Online

View (Subscription required.)

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

The U.S. Department of the Treasury has released a document to explain the revenue proposals included in President Biden’s FY 2023 proposed Budget.

Starting in January 2025, California’s Fair Employment & Housing Act (FEHA) will prohibit employers from including a statement in a job advertisement, posting, application, or other material that an applicant must have a driver’s license unless the employer “reasonably” anticipates driving to be an essential job function that cannot be comparably performed by alternative means. The stated purpose of the new FEHA amendment is to help facilitate employment for non-drivers who rely on ride hails, public transportation, biking, and walking as their primary means of transportation.

Rod M. Fliegel discusses California legislation that further amends the Fair Employment and Housing Act to prohibit discrimination in the hiring process based on the applicant’s lack of a driver’s license.

SHRM

View (Subscription required)

Michael Lotito offers insight on the Protecting the Right to Organize Act (or PRO Act), which includes a change to a standard known as “joint employer.”

Entrepreneur

View 

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

View 

On May 12, 2022, the “Employee and Retiree Access to Justice Act” was introduced in the House of Representatives by Mark DeSaulnier (D-CA).  Senator Tina Smith (D-MN) introduced a companion bill in the Senate. The bill seeks to ban arbitration and discretionary clauses in employer-sponsored benefit plans governed by the Employee Retirement Income Security Act (ERISA).

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.

Alyesha Dotson says the Supreme Court’s upcoming decision on whether to overrule a 2003 decision that upheld affirmative action in student admissions won’t set new precedent for employers, but may have repercussions in how diversity, equity and inclusion programming is conducted moving forward.

Law360 Employment Authority

View (Subscription required.)

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.