Kirsten M. Eriksson

The U.S. Department of the Treasury and Internal Revenue Service have proposed regulations that would make racial nondiscrimination an express condition of federal tax-exempt status for various primary and secondary schools, including private K-12 schools. The proposal treats race-conscious policies as discriminatory even when intended to promote diversity or remedy disadvantage. If finalized in their current form, a school's use of race as a criterion—even for a remedial or diversity-related purpose—could jeopardize its federal tax-exempt status. The proposed regulations would place in jeopardy schools’ loss of tax-exempt status under Section 501(c)(3)

The State of Maryland processed nearly two million unemployment claims during the COVID-19 pandemic. A large number of those claims were fraudulent, with the full extent of the fraud yet to be understood. A significant amount of the fraud involved identity theft, where fraudsters applied for benefits in the names of individuals whose personal information had been compromised. During the pandemic, many employers received calls from anxious employees who had received notices that unemployment benefits had been applied for or awarded

On Feb. 5, National Girls & Women in Sports Day, President Donald Trump signed an executive order titled “Keeping Men Out of Women’s Sports” declaring “it is the policy of the United States to oppose male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity, and truth.” The directive is aimed at prohibiting transgender women and girls from competing in women’s sports. The order directs the Education Department to carry out the policy by changing its

A federal judge in Kentucky on Thursday ruled the 2024 Title IX regulations were “arbitrary and capricious” and in violation of the Administrative Procedures Act (APA). Unlike other courts that had issued injunctions preventing the regulations from being implemented in certain states or by certain schools, this court ordered the rule to be vacated, which means that it now may not be enforced by the Department of Education anywhere in the nation. The 2020 regulations that were in place prior

The U.S. District Court for the Northern District of Texas issued its decision Tuesday that the business world had been awaiting with bated breath, striking down the Federal Trade Commission's (FTC) final rule making unlawful virtually all noncompete agreements. Unlike the preliminary injunction granted by the court last month, which was limited only to the parties, the court this week “set aside” the FTC rule, which now may not be enforced by the federal agency anywhere in the nation. The Court’s

On July 3, 2024, the U.S. District Court for the Northern District of Texas issued a limited stay and preliminary injunction of the Federal Trade Commission's (FTC) final rule making unlawful virtually all non-compete agreements. This is an important decision and a win for business groups seeking to invalidate the rule. However, it does not put an end to the rule, as the court specifically rejected the request by plaintiffs for a nationwide injunction, instead limiting the application of the

Miles & Stockbridge attorneys participated today in a call with the U.S. Chamber of Commerce for an update on litigation the Chamber has filed to stay or enjoin the effectiveness of the FTC rule banning almost all employee non-competes. (Click here to read our summary of the rule.) Here are some key takeaways from the call: The Chamber filed a lawsuit in U.S. District Court for the Eastern District of Texas challenging the rule and seeking to stay or enjoin the effectiveness of

Schools that have been anxiously awaiting the U.S. Department of Education’s final regulations enforcing and interpreting Title IX need wait no longer. The department issued final regulations last week that will govern sex discrimination complaints relating to conduct that occurs after Aug. 1, 2024. The new regulations include significant changes from prior Title IX regulations issued in 2020. The final regulations, among other changes, raise the bar for schools’ compliance, change the definition of sexual harassment, expand protections for LGBTQ+ and

The New York State Assembly, during a special legislative session last month, passed a bill that, if signed by the governor, will prohibit nearly all noncompete agreements for workers. With the passage of the bill, New York is poised to join California and a handful of other states that have banned noncompetes regardless of salary level or job function. Broad Ban on Noncompetes The bill contains a near-total ban of noncompete agreements for employees, and potentially independent contractors, based in New York. On

In a stunning decision that has the potential to change the way independent private schools operate, a federal district judge recently ruled in Conrad v. Baltimore Lutheran High School Association d/b/a Concordia Preparatory School that an education institution’s § 501(c)(3) tax exemption constitutes “federal financial assistance” that brings private independent K-12 schools under the auspices of Title IX. To say that this decision is a “game changer” for private schools is an understatement, as the implications are wide and far-reaching. A similar

Federal supply and service contractors and subcontractors have long been required to create and maintain written affirmative action plans (“AAP”) if they meet certain contracting thresholds. Unless and until a contractor was audited by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”), however, there was no real mechanism for the government to confirm that contractors were in compliance with these obligations. Even though contractors are required to certify compliance in order to contract, OFCCP’s experience through

What You Need to Know The injunction on the ETS has been lifted and the rules are currently in effect OSHA has offered a brief non-enforcement holiday for violations OSHA will not enforce regulations until January 10 OSHA will not issue citations for employers taking good faith steps to get into compliance prior to February 9 Petition for a further stay has been filed with the SCOTUS Friday evening, the 6th U.S. Circuit Court of Appeals delivered a welcome decision to the Biden Administration and dissolved

As an employer, you might be thinking about implementing a mandatory vaccine policy for your workforce. There are many issues to consider when developing a mandatory vaccine policy, and it is hard to keep up with fast-developing federal, state, and local requirements. Before putting a policy into place, what are some of most pressing issues that you should be thinking about? State Law Considerations It is important to consider the state(s) where you have employees. Several states, including Florida and Texas, passed

The COVID-19 pandemic changed the way many employers view remote work. Those who had a positive experience may be considering making telecommuting a permanent part of their workplace, but must be aware of the dangers lurking for employers who fail to take into consideration employment and tax compliance associated with remote work. Many states have overlooked temporary remote arrangements necessitated by the pandemic, but will not excuse compliance if remote work continues going forward. Many aspects of the employment relationship are

Since vaccines have become readily available, employers have been grappling with whether they should mandate vaccines for employees. Most companies have chosen to “strongly encourage” employees instead of mandating, and many companies have even provided incentives such as gift cards or additional benefits as one way to encourage vaccinations. Earlier this year, one Texas employer, Houston Methodist Hospital, however, established a mandatory vaccination policy. In opposition to the mandatory policy, over one hundred employees of the hospital sued, alleging that the

As various COVID-19 vaccines become more readily available, employers continue to struggle to address issues relating to the impact of a vaccine on their workplaces.  Real legal and practical risks remain for unwary employers.  In recent surveys, only a small percentage of employers are currently planning to mandate a vaccine for employees to return to work; a much higher percentage intend to encourage or incentivize vaccination; but many are still working on their plan.  This four-part blog post addresses some

As news of a COVID-19 vaccine increased during the late fall, employers were anxiously awaiting EEOC guidance as to whether they could require employees to get vaccinated. While it will be several more months before the vaccine will be available to the general public, employers are thinking ahead and have been looking for guidance about their ability to require vaccination. In addition, health care employers and employers in essential businesses will be among the first to have to make these

Background   On August 8, 2020, a Presidential Memorandum was issued that allowed employers to defer withholding and payment of certain payroll tax obligations of their employees. To implement the Presidential Memorandum, the IRS issued Notice 2020-65 (“Notice”) on August 28, 2020, which gave employers the option to defer withholding of employee-side Social Security taxes from employee paychecks. The Notice allowed for the deferral of such withholding for wages paid from September 1, 2020 to December 31, 2020, if the wages were

With just a few weeks left in FY 2020, the OFCCP has published new lists of 2,450 establishments for audit. Federal contractors and subcontractors are highly encouraged to check the lists—one for supply and service contractors (which includes universities/colleges for the first time in three years), and one for construction contractors. The lists can be found here. The CSAL lists reflect a number of changes at OFCCP that are new. First, in a new era of remote audits, OFCCP District Offices

On September 16, 2020, the U.S. Department of Labor published emergency regulations (making them effective as of the day of publication) revising certain portions of the Families First Coronavirus Response act (FFCRA) in response to a decision from a federal court in New York finding certain portions of the previous regulations invalid. The court had struck down four important provisions of the existing regulations relating to: The work-availability requirements Employer consent to intermittent leave The definition of “health care provider” Documentation required for leave The court’s

On August 24, 2020, the U.S. Department of Labor released a Field Assistance Bulletin to provide guidance addressing how employers should track the number of hours worked by employees who are working remotely. While the guidance was issued to respond to current conditions caused by the COVID-19 pandemic, the guidance is a summary of existing law and applies to all remote working arrangements, not just those resulting from the pandemic. Under the federal Fair Labor Standards Act, employers have an obligation

On May 8, 2020, the Office of Federal Contract Compliance Programs (“OFCCP”) announced the issuance of a new form that federal contractors must use to ask job applicants and employees to self-identify as disabled. This is the first revision to the form since March 2014, when the regulations implementing Section 503 of the Rehabilitation Act of 1973 were revised, and contractors were required to perform data collection regarding applicants and employees with disabilities. The 2014 regulations require federal contractors subject

Until recently, employers had largely ignored unemployment claims other than to contest an occasional claim. Now, however, as employers consider different options to address the impact of the COVID-19 pandemic on their business, they find themselves struggling to understand the system and the impact it may have on their operations. While unemployment rules and regulations will vary on a state-by-state basis, there are some general principles that employers should understand to help them develop the best business plan for their

On March 24, 2020, the Department of Labor issued its first published guidance relating to the Emergency Paid Sick Leave (EPSL) and Emergency FMLA (EFMLA) established under the Families First Coronavirus Response Act (FFCRA). For a full explanation of the FFCRA, please see our prior blog.  The three guidance documents from the DOL are available here, here and here. The most notable piece of information is that the law is going into effect a day earlier than anticipated—on April 1, 2020.

Many employers purchase Employment Practices Liability Insurance (EPLI) to insure against loss as a result of employment claims. However, employers who do not carefully read their policies could be surprised by what is (or is not) covered and end up with buyer’s remorse when they realize they didn’t get what they thought they were getting. EPLI policies may vary in coverage. Employers should read the coverage provisions closely to make sure that they are receiving coverage for claims that are important

The DOL recently released its Fall Regulatory Agenda, signaling its intent to act on some important issues under the Fair Labor Standards Act (“FLSA”). Three items of note are on the agenda with upcoming dates: changes to the salary level for the overtime exemption; a joint employer rule; and clarification of regular rate and basic rate requirements. FLSA Salary Test In 2016, a Texas court struck down the Obama administration’s changes to the FLSA overtime regulations governing the standard for determining when an

Last week, we reported that the General Assembly had overridden Governor Hogan’s veto of the Maryland Healthy Working Families Act, and that employers in Maryland would be required to provide paid sick leave as soon as February 11, 2018. An emergency bill was introduced yesterday to delay the implementation of that Act for 60 days, which would give employers some breathing room to revise and implement their policies. Senate President Mike Miller had previously indicated a willingness to consider a

Last year, we reported that Governor Hogan had vetoed legislation that would have required most employers in Maryland to provide paid sick leave.  In one of its first actions in 2018, the General Assembly overrode the Governor’s veto of House Bill 1 (the “Act”) on January 12, 2018.  The law will now go into effect on February 11, 2018, per legislative guidelines.  While the Maryland Chamber of Commerce and others plan to seek an extension of the time for implementation, employers

Bill O'Reilly. Harvey Weinstein. Kevin Spacey. Charlie Rose. Matt Lauer. It seems that every day the news covers one more explosive incident of sexual harassment in the workplace, with many allegations indicating that the harassment had been occurring for years before action was taken. Companies across the country are wondering:  “How do we keep this from happening to us?” While there is no “silver bullet” to preventing sexual harassment in the workplace, these recent cases demonstrate the importance of creating a

As the number of states legalizing the use of marijuana for medical purposes has steadily grown, employers have been anxiously asking whether they are required to accommodate the use of medical marijuana if the use is related to an employee’s disability. Employers have felt comfortable that the use of medical marijuana is not protected under the federal Americans with Disabilities Act. Courts have routinely concluded that that because the ADA does not cover employees who use illegal drugs, and because

In the past few years, there has been a significant focus by lawmakers on closing the “gender gap” in the pay earned by men and women. Although state and federal law have prohibited gender-based discrimination in pay for many years, the new focus has been upon salary history. Advocates claim that basing an applicant’s salary upon his or her prior earnings perpetuates pay discrimination and leads to women being systematically paid less than men. In order to address this disparity, state