Elisabeth K. Hall

The U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking (NPRM) last month for its proposed rule on joint employment, where multiple employers simultaneously employ the same employee. The proposed rule aims to clarify joint-employer status under the Fair Labor Standards Act (FLSA) and would align DOL’s Family and Medical Leave Act (FMLA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA) joint-employer analysis with DOL’s FLSA analysis. Joint employment has been recognized by DOL since the FLSA was enacted

Two states on opposite coasts are reshaping the rules governing noncompete agreements in their jurisdictions. Virginia has amended its law to prohibit enforcement of noncompetes against employees who are terminated without cause in the absence of certain severance benefits, while Washington has gone further by enacting a near-total ban on noncompete agreements for all workers. Together, these laws reflect a broader national trend of restricting noncompetes and may call for businesses with employees in either state to review their current agreements

President Donald Trump signed an Executive Order (EO) on March 26, “Addressing DEI Discrimination by Federal Contractors,” reinforcing the Trump Administration’s stance on DEI programs and escalating the related restrictions on what the Administration considers “racially discriminatory DEI activities.” The Executive Order, which took effect immediately, mandates that all federal government prime contracts, “contract-like” instruments and subcontracts, including lower-tier subcontracts, include a specific contract clause, requiring contractors to comply with the clause or risk potential False Claims Act (FCA) liability. Contractors

Miles and Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 24th annual Hot Topics in Employment Law Seminar last week to business executives, human resources professionals and in-house counsel. Topics included navigating the use of AI in the workplace, updates from the National Labor Relations Board, immigration policy shifts, DEI policy enforcement and the importance of properly drafted employment documents. Here are highlights from the three interactive sessions. Adjusting to an AI-influenced Workplace AI continues to be a driving issue in

Beginning in April, state and local governments will be required to comply with a new final rule published by the U.S. Department of Justice updating regulations for Title II of the Americans with Disabilities Act. The Rule establishes specific requirements, including technical standards, for all digital services provided by public entities, such as websites, mobile applications, online learning platforms, registration systems and financial aid information to ensure that such services are accessible to people with disabilities. Title II of the ADA

The U.S. Court of Appeals for the Fourth Circuit has expanded its view of what a hostile work environment looks like and lowered the bar in terms of what a plaintiff must show to sufficiently allege a race-based hostile work environment claim under Title VII. Marie Laurent-Workman, an African American and former career civilian employee of the United States Army initially filed suit in U.S. District Court for the Eastern District of Virginia alleging multiple counts of discrimination, including on the

The Council of the District of Columbia passed the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”), one of the strictest bans on employee non-compete agreements in the country, approximately two years ago. After several delays and modifications, the amended Act – aptly named the Non-Compete Clarification Amendment Act of 2022 (D.C. Act 24-526) – was signed into law July 27, 2022 and finally took effect Oct. 1, 2022. Unlike the original 2020 Act, which sought to impose

In a decision on July 13, 2022, Maryland’s highest court held that the federal Portal-to-Portal Act has not been adopted or incorporated into Maryland wage laws or regulations. As a result, “what constitutes ‘work’ under Maryland law is not limited to what is compensable work under the [federal] PPA and FLSA” and Maryland employers may be required to pay their employees additional wages for time spent under a broader state definition of work that is not otherwise compensable at the

For those of you who may have missed this important update, Maryland law now requires employers with 15 or more employees to permit the use of existing accrued paid leave for bereavement purposes. Effective October 1, 2021, Maryland’s Flexible Leave Act (“MFLA”) was amended to allow employees to use paid leave for bereavement purposes related to the death of an immediate family member. For purposes of bereavement leave, “immediate family member” is broadly defined as the employee’s spouse, parent, or

On March 24, 2022, Washington’s Silenced No More Act (formally known as Engrossed Substitute House Bill 1795) was signed into law by Governor Jay Inslee. As a result, Washington has become the second state to declare certain nondisclosure and nondisparagement provisions in employment and independent contractor agreements illegal. California passed its own version of the Silenced No More Act last year. The Washington Silenced No More Act is scheduled to take effect on June 9, 2022. Once enacted, the law will

On October 12, 2021, the Occupational Safety and Health Administration (OSHA) delivered a draft of the emergency temporary standard (ETS) requiring COVID-19 vaccination or weekly testing of workers for private employers with 100 or more employees to the White House for final review and approval. The ETS is being issued in response to President Biden’s six-pronged Action Plan, announced on September 9, 2021, aimed at addressing the nation’s most recent surge of coronavirus cases. As part of his Action Plan, Biden specifically

The deadline for employers to submit and certify 2019 and 2020 EEO-1 Component 1 Data to the Equal Employment Opportunity Commission (EEOC) is Monday, August 23, 2021. Covered employers therefore have a little over one month to complete and submit an EEO-1 Report containing their respective workforce data in accordance with the reporting requirement. The original deadline of July 19, 2021 was extended to August 23 by the EEOC in late June 2021. What is required? Pursuant to Title VII of the

Under the American Rescue Plan Act of 2021 (ARPA), which was passed by Congress on March 11, 2021, the cost of health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) is fully subsidized from April 1, 2021 until September 30, 2021 for individuals who lost their health coverage due to an involuntarily termination or a reduction in hours. The ARPA requires employers to notify eligible individuals about the new COBRA subsidy by May 31, 2021.

On November 18, 2020, the United States Court of Appeals for the Fourth Circuit upheld a decision that retailer Lowe’s Home Centers LLC (“Lowe’s”) did not violate the Americans with Disabilities Act (ADA) when it removed a disabled store manager from his position and declined to reassign him to a similarly situated vacant managerial position.   The Plaintiff, Charles Elledge, was a long time employee of Lowe’s and had worked in a demanding position managing multiple store locations and working long

On August 3, 2020, a federal court in the Southern District of New York overturned key provisions of the Families First Coronavirus Response Act (FFCRA)—the federal law requiring certain employers to provide eligible employees with emergency paid sick leave (EPSL) and expanded family and medical leave (EFML) for specified reasons related to COVID-19—significantly broadening employee eligibility to receive emergency leave under the Act. The unexpected decision came in response to a challenge by the state of New York, which sought

In a seminal 6–3 decision for LGBTQ rights on Monday, June 15, 2020, the Supreme Court of the United States held plainly: An employer who fires an individual merely for being gay or transgender defies the law. The Opinion by Justice Gorsuch, issued more than eight months after the Supreme Court heard oral arguments in the three consolidated cases at the center of this action, provides that an employer who intentionally treats a person worse because of sex—such as by

On April 17, 2020, the EEOC updated its guidance initially published on March 17, 2020, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to address additional employment concerns in the wake of the COVID-19 pandemic. Notable new topics addressed by the guidance, including issues related to temporary accommodations, undue hardship and returning to work, are discussed below. For a summary of the topics previously addressed by the EEOC in this guidance,

On October 8, 2019, the United States Supreme Court heard two oral arguments in three highly anticipated cases centered on the controversial issue of whether sexual orientation and transgender status fall within the protected class of “sex” under Title VII, a 1964 civil rights law protecting employees against discrimination. The first argument consolidated two cases with gay male plaintiffs who alleged they were fired because of their sexual orientation, Altitude Express, Inc. v. Zarda and Bostock v. Clayton County. The second argument was

As attracting and retaining employees grows increasingly critical to a business’s success, the pressure is mounting for employers to ensure accurate and consistent execution of leave policies, sometimes across multiple corporate locations nationwide. However, it is becoming more and more difficult for employers to keep up and comply with the changing regulations regarding employee leaves of absence. With additional state and local leave and paid leave laws coming into effect and with the trend of more jurisdictions considering adopting such

On June 4, 2018, the United States Supreme Court issued its long-awaited opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, ultimately siding with the baker who refused to make a wedding cake for a gay couple. Voting 7-2, the majority found that the lower court had inappropriately dismissed the baker’s religious beliefs and in doing so violated his First Amendment right to the free exercise of religion.  However, the majority opinion was narrow and focused largely on the Commission’s

With its en banc decision on February 26, 2018 in Melissa Zarda v. Altitude Express, Inc., No. 15‐3775 (2d Cir. Feb. 26, 2018), the Second Circuit Court of Appeals became the second federal appeals court to hold that sexual orientation discrimination is prohibited sex discrimination under Title VII of the federal Civil Rights Act of 1964, which expressly prohibits discrimination based on sex, but not sexual orientation. Last year in Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. Apr. 4, 2017), the

As 2017 and Chairman Phillip Miscimarra’s term drew to an end, the National Labor Relations Board (“NLRB” or “Board”) issued a flurry of decisions overturning several Obama-era NLRB decisions. Because Board members are appointed by the President, the political make-up of the Board (5 members), and its overall view of employer-employee-union behavior, changes on a fairly regular basis. However, the scope of the recent decisions is unusually broad and has resulted in many labor practitioners telling their clients, “Remember when

Given the flood of public sexual harassment accusations in recent months, a bipartisan coalition of lawmakers and celebrities have come together to introduce legislation that would eliminate forced arbitration clauses in employment agreements, which advocates say reduce negative exposure for businesses and discourage women from speaking out about sexual harassment and gender discrimination claims. If enacted, the “Ending Forced Arbitration of Sexual Harassment Act” would prevent businesses from enforcing mandatory arbitration agreements with regard to complaints of sexual harassment and gender discrimination

On November 8, 2017, Suzzanne W. Decker, a Principal in the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group, and Sandra McLelland, Managing Counsel at Under Armour, presented a webinar to members of the Association of Corporate Counsel (“ACC”) on preserving the attorney-client privilege in corporate investigations and the extent to which internal communications may be protected by the attorney-client privilege or the attorney work-product doctrine.   Companies routinely perform internal investigations in response to employee grievances, whistleblower complaints

Inevitably, all businesses must deal with employee turnover and the departure of key employees. Such departures have become more frequent of late, as the economy is again on the rise, more jobs are available, the unemployment rate is at an almost decade low 4.4% and wages have increased. Indeed, the average wage growth for full-time workers aged 25-34 who changed jobs in the first quarter of this year was 10.2%, versus a 6.8% increase for job holders. As a result,