Labor, Employment, Benefits & Immigration

Miles & Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 22nd annual Hot Topics in Employment Law seminar April 11 to clients from throughout Maryland and beyond. Topics covered included diversity, equity and inclusion programs, federal and state leave law updates and myriad employment issues raised on a day-to-day basis with human resources professionals, including disability and religious accommodations in the workplace, the impact of changing cannabis and clean slate laws on employers. Here are some highlights from

A New York law recently went into effect significantly limiting employers’ ability to make inquiries regarding employees’ personal social media accounts. Specifically, the new law makes it unlawful for an employer to request, require or coerce any employee or job applicant to: disclose any username and password, password or other authentication information for accessing a personal account through an electronic device[1]; allow the employer to access the employee's or applicant’s personal account in the presence of the employer; or reproduce pictures, videos or other

A federal judge in Vermont last month ruled a plaintiff’s medical marijuana use was not protected by the Americans with Disabilities Act. In Skoric v. Marble Valley Regional Transit District et al., the plaintiff was fired by his employer for failing a random drug test by testing positive for marijuana despite having a valid, state-issued medical marijuana card and being prescribed medical marijuana to treat his chronic pain and depression. In granting the motion to dismiss, the court considered whether the

New York Gov. Kathy Hochul in December vetoed a bill passed by the New York Legislature that would have prohibited nearly all noncompete agreements in the state regardless of the context, salary level or job function of the employee signing it. The ban would have applied equally to all employees and managers alike, regardless of rank or position.  In particular, the vetoed bill would have barred employers from imposing contract language that prohibits New York employees or other “covered individuals” from

The Department of Homeland Security (DHS) announced Friday key changes to the H-1B lottery for Fiscal Year 2025, including a beneficiary-centric selection process for H–1B registrations; start-date flexibility for certain H–1B cap-subject petitions; and codification of the agency’s ability to deny or revoke H-1B petitions where the underlying registration or petition contained a false attestation or was otherwise invalid. The United States Citizenship and Immigration Services (USCIS) is authorized to grant up to 85,000 H-1B cap-subject petitions per fiscal year, of

The Department of Homeland Security published a final rule Jan. 31 adjusting the filing fees for applications for immigration benefits submitted to U.S. Citizenship and Immigration Services (USCIS). For most application types — and particularly for most employment-based requests — the fees will increase, in some cases substantially. The new fees will go into effect on April 1 unless implementation is delayed or otherwise impacted due to legal challenges. Notable Changes The most notable changes in the fee structure for common employment-based

The National Labor Relations Board (NLRB) is chipping away at employment agreements and other restrictive covenants one clause at a time. In a recent memorandum, the General Counsel said she believes restricting employees from holding outside or secondary employment violates federal labor law, and she intends to urge the NLRB’s Democratic-appointee-controlled Board to reach the same conclusion. The General Counsel was providing a regional office advice about the lawfulness of various provisions in a company’s employment agreement when she took issue with

Thursday was the deadline for all Washington, D.C., employers to post the new paid family leave notice/poster, which was recently issued by the district’s Department of Employment Services (DOES). The notice must be posted in a “conspicuous place,” and must be provided to employees on or before Feb. 1, 2024. The new notice became effective last October and is identical to the previous notice in effect from October 2022, except the new notice increases the maximum weekly benefit from $1,049

Washington Mayor Muriel Bowser signed legislation earlier this month that would require employers to disclose pay ranges in job postings and prohibit employers from screening prospective employees based on their salary history. The new law will apply to all employers with at least one employee in the District of Columbia, excluding the federal government, and will go into effect June 30, subject to congressional approval. Under existing law, D.C. employers are prohibited from: (1) requiring that employees refrain from inquiring about, disclosing,

The Maryland Department of Labor (MDOL) issued proposed regulations last month to the Economic Stabilization Act. Also known as the Maryland Mini-WARN Act, it provides notice requirements and guidance to employers faced with a shutdown of a plant, factory, or office or a major reduction in their workforce. The proposed regulations amend definitions, time and notice requirements to the act and implement compliance and penalty requirements. The public-comment period closed Tuesday, while a public hearing to review the proposed regulations has

Two bills took effect in California earlier this month imposing further limitations on restrictive covenants in employment agreements, one of which voids noncompete agreements even if they are signed outside of the state. While noncompete agreements are largely void in California, Senate Bill 699 expands the ways in which employees can challenge noncompete agreements. Specifically, the bill makes any agreement that restricts an employee’s ability to engage in a lawful profession, trade or business unenforceable regardless of where and when it

The U.S. Department of Labor (DOL) announced a final rule last week revising its guidance to employers and workers to help determine if a worker qualifies as an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The new rule, which was published in the Federal Register on Wednesday and takes effect March 11, rescinds the DOL’s previous Independent Contractor Rule that was published three years ago.  The final rule’s analysis for determining employee or independent contractor status

Last year continued the trend of rising inflation, interest rates and borrowing costs, as well as cost-of-living increases. With these concerns top of mind, many states continued to increase their required minimum wage rates. Employers should be aware of the following minimum wage increases that took effect at the end of 2023 or the beginning of 2024. Because these increases do not apply to tipped workers and other special classes of employees, and may be superseded by local mandates, employers should

Roughly 20 states and 30 local jurisdictions have implemented paid sick leave laws. Several of these states and jurisdictions amended their paid sick leave policies in 2023, with the amendments taking effect Jan. 1, 2024. Additionally, Minnesota has enacted its first statewide paid sick and safe time law, which also takes effect Monday. Below is a summary of these new or updated laws. California California’s paid sick leave law applies to any employer that employs at least one employee in California

The Supreme Court earlier this month declined to address who has standing to sue a business whose website violates the Americans with Disabilities Act (ADA). In Acheson Hotels, LLC v. Laufer, the justices unanimously remanded the case back to the lower court with instructions to dismiss it as moot, sidestepping an examination of the merits of a case with national implications for hotels and potentially other public accommodations as well.  Background Deborah Laufer is a prolific litigant with physical disabilities and

It’s the most wonderful time of the year, full of holiday cheer but, unfortunately for some employers, also legal risks and potential liability. A company’s annual holiday party, gala or event can quickly turn from a celebration into a headache. That’s why now is a good time for employers to ensure they have policies in place on the overconsumption of alcohol and harassment. Additionally, employers should consider their possible exposure and ways to reduce liability based on the actions of

Maryland health care employers and J-1 physicians who commit to serve the underserved in Maryland and who missed Conrad 30 waiver application deadline Dec. 1 are in luck: The Maryland Department of Health (MDH) has reopened its application period! Physicians who completed graduate medical education in J-1 status now have additional time to secure a clinical service waiver of the two-year home residence requirement to provide medical services in Maryland. MDH received fewer than 30 Conrad waiver applications prior to the

The National Labor Relations Board (NLRB) issued a controversial decision last year significantly limiting a company’s ability to implement and enforce uniform and dress code policies. In Tesla, Inc., 317 NLRB No. 131 (2022), the NLRB said Tesla could not prohibit employees from wearing pro-union shirts at work absent “special circumstances” justifying the prohibition. The Board reached its decision even though Tesla’s dress code policy was content-neutral (requiring only that employees wear Tesla-issued shirts) and even though employees could still

As the Covid-19 pandemic drifts further into the rearview, many companies are rolling back work-from-home policies and requiring employees to return to the office on a schedule similar to pre-pandemic office hours, with renewed attendance requirements. Many executives say their companies are more innovative and collaborative when employees are physically present in the office, which in turn increases revenue, productivity and employee retention. After several years of work-from-home, however, some employees are opposed to return-to-office mandates. Employees seeking an exemption from

The National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) recently entered into a new Memorandum of Understanding (MOU) under which the two agencies have agreed to work together to foster interagency cooperation and coordination through information sharing, referrals, training and outreach, with a particular focus on enforcement of the anti-retaliation provisions of the National Labor Relations Act (NLRA) and Occupational Safety and Health Act (OSH Act), as well as other whistleblower provisions under laws falling

The Equal Employment Opportunity Commission (EEOC) released earlier this month updated proposed guidance on harassment in the workplace, largely based on developments in applicable case law and societal trends coming out of the #MeToo movement and the rise of social media. (The guidance was first released in 2017 but was never finalized.) Expansions on Protected Classes The proposed guidance expressly references the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII’s prohibition on employment discrimination “because of

Gov. Gavin Newsom vetoed a bill earlier this month that would have made California the first state to ban caste-based discrimination. Senate Bill No. 403 would have expanded the definition of “ancestry” under the California Fair Employment and Housing Act (FEHA), California Education Code and the Unruh Civil Rights Act (California Civil Code Section 51) to include “lineal descent, heritage, parentage, caste, or any inherited social status” as protected sub-classes. Newsom deemed the bill unnecessary, reasoning that discrimination based on

The potential government shutdown Sunday would impact a host of federal government programs and agencies, and immigration is no exception. Here’s a look at the potential impact of a shutdown on immigration-related programs and what employers and foreign workers can expect. USCIS U.S. Citizenship and Immigration Services (“USCIS”) is a fee-based agency — as opposed to having its funding appropriated by Congress — and, therefore, many of its operations will continue as normal. USCIS should continue to accept, process and adjudicate petitions

In July, we wrote about a bill passed by the New York State Assembly which, if signed by the governor, will prohibit nearly all noncompete agreements for workers in New York. We also wrote about a Minnesota law that went into effect in July, banning nearly all post-employment noncompetes entered into on or after July 1, 2023. As the attack on noncompetes continues at the federal and state levels, California Gov. Gavin Newsom recently signed legislation to amend California’s noncompete

The Equal Employment Opportunity Commission (“EEOC”) and the Wage and Hour Division of the Department of Labor (“WHD”) entered into a far-reaching Memorandum of Understanding (“MOU”) last week under which the two agencies agreed to work together to increase enforcement of the federal laws administered by the two agencies through information sharing, joint investigations, training and outreach. Key Elements Information Sharing Under the MOU, the WHD and the EEOC may share any information or data that supports the other agency’s enforcement activities, whether the

Employers in New York can no longer discipline employees who opt not to attend “captive audience” meetings under a new state law. Employers generally hold these mandatory meetings to express their views on unionization to their workforce. The new law amends Section 201-d of the New York State Labor Law, which already prohibited employer discrimination on the basis of an individual’s political activities, off-duty use of cannabis and union membership. The amendment specifically prohibits employers from requiring attendance at meetings where

The National Labor Relations Board in August broadened the scope of what constitutes “protected concerted activity” under federal labor law with two key decisions. In Miller Plastic Products, Inc., 372 NLRB No. 174 (2023), the Board returned to a “totality of the circumstances” approach to evaluating whether an employee’s activity is concerted within the meaning of the National Labor Relations Act (“the Act”). In American Federation for Children, Inc., 372 NLRB No. 137 (2023), the Board held that advocacy efforts

The National Labor Relations Board (NLRB) issued companion decisions last month that significantly limit an employer’s ability to change the working conditions of their unionized staff without bargaining with the union. Wendt Corporation In Wendt Corporation, 372 NLRB No. 135 (2023), the Board reaffirmed the Supreme Court decision in NLRB v. Katz, 369 U.S. 736 (1962). Under Wendt and Katz, employers are prohibited from unilateral action informed by a large measure of discretion, even where the action is consistent with a longstanding

The U.S. Department of Labor (DOL) announced Wednesday a proposed rule that would increase the minimum salary threshold for exempt employees under the Fair Labor Standard Act (FLSA). DOL said the standard salary level for exempt employees would increase from $35,568 per year to $55,068 per year if the rule is implemented. Additionally, the total annual compensation threshold for highly compensated employees would increase from $107,432 to $143,988 per year. The proposal also includes a provision that would trigger automatic updates

On Aug. 25, the National Labor Relations Board (NLRB) published a Final Rule that will reduce the time between the filing of a union election petition and the date the election occurs. The new rule largely reverses the 2019 election rules (“2019 Rule”) instituted by a then-Republican Board and returns to the Board’s election procedures in place since 2014, which critics have labeled “quickie election” rules. The Board previously rescinded parts of the 2019 Rule that were struck down last year

The National Labor Relations Board (NLRB) signaled last week its preference that employers voluntarily recognize unions based on “card check” rather than a secret ballot election. In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, the Board also turned the current union organizing framework on its head by making it an employer’s responsibility – rather than a union’s – to file an election petition with the NLRB. This decision, in conjunction with the Board’s final election rule that takes

We continue to track updates to the Pregnant Workers Fairness Act (“PWFA”) that took effect June 27.[1] On Aug. 7, the EEOC released its Notice of Proposed Rulemaking for implementing the PWFA (“Proposed Rule” or “Proposed Regulations”). The Proposed Regulations were published to the Federal Register on Aug. 11, starting the 60-day public comment period. In the interim, the Proposed Regulations provide employers with a glimpse into the EEOC’s enforcement strategy. While the PWFA is similar in some respects to

On Aug. 2, the National Labor Relations Board (NLRB)  set a new standard to evaluate facially neutral work rules in union and nonunionized workplaces  when it issued a much-anticipated decision in Stericycle, Inc., 372 NLRB No. 113 (2023). The new standard skews heavily in favor of employees and unions and overrules the more employer-friendly precedent in place since 2017. Unfortunately, however, Stericycle provides little, if any, guidance to employers about how to craft rules that will satisfy the new standard. The New

On June 30, 2023, the Supreme Court rendered its long-awaited decision in 303 Creative LLC v. Elenis, holding that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs that would conflict with her religious beliefs. Background Under the Colorado Anti-Discrimination Act (“CADA”), all “public accommodations” are prohibited from denying the “full and equal enjoyment” of its goods and services and may not refuse to serve a customer based on their race, gender, age, sexual orientation, or any

COVID-19-related temporary flexibilities for Form I-9 end July 31, and employers face the daunting task of completing in-person physical document inspections for employees whose documents were inspected remotely by Aug. 30. The newly announced alternative remote I-9 document examination procedure authorized by the Department of Homeland Security (DHS) provides much needed and welcome relief for qualified E-Verify employers. Effective July 31, the COVID-19 flexibilities that had permitted employers to remotely examine I-9 documents under certain circumstances since March 20, 2020 will

The Supreme Court ruled unanimously last month in favor of an evangelical Christian postal worker who refused to work on Sundays due to Sabbath observance. In Groff v. DeJoy, while declining to overturn its longstanding precedent for establishing undue hardship in the context of religious accommodations, the Supreme Court clarified its prior interpretation from 1977 in Trans World Airlines v. Hardison, holding that, to deny a religious accommodation on the basis of undue hardship, an employer must show that the

Earlier this month, we wrote about a bill passed by the New York State Assembly which, if signed by the governor, will prohibit nearly all noncompete agreements for workers in the state. Now, yet another state, Minnesota, has banned nearly all post-employment noncompetes entered into on or after July 1, 2023. Broad Ban on Noncompetes Gov. Tim Walz signed into law May 24 a bill prohibiting employers from entering into noncompete agreements with employees or independent contractors. The Minnesota law defines a

The National Labor Relations Board (“NLRB” or “the Board”) continued its course of reversing Trump-era law by issuing a decision last month that will make it easier for workers to establish “employee” – as opposed to “independent contractor” – status within the meaning of the National Labor Relations Act (“the Act” or “NLRA”), thereby giving more workers the right to unionize in private-sector workplaces. In The Atlanta Opera, Inc., 372 NLRB No. 95, the Board found that makeup artists, wig artists

The Supreme Court came down hard on unions last month when it held that a company may bring state law tort claims against a union for property damage caused during a strike. The court held that the federal law governing labor disputes – the National Labor Relations Act (“NLRA” or the “Act”) – did not preempt the company’s state law claims. In Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, 143 S.Ct. 1404, a concrete company brought

The wait is over! The Pregnant Workers Fairness Act (“PWFA”) took effect June 27. Employers who haven’t already done so should familiarize themselves with the law’s requirements and take any steps necessary to ensure they are following the new law, including giving proper consideration to requests for reasonable accommodations raised by pregnant employees. We are still waiting on exact guidance from the Equal Employment Opportunity Commission (EEOC) as to what could be considered a reasonable accommodation, which the agency should issue

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 continued effort to crack down on provisions in employment agreements, the National Labor Relations Board’s General Counsel (“GC”) announced that she will find most noncompete agreements between private sector employers and non-supervisory employees unlawful, absent special circumstances justifying the noncompete. In the memo, which was released to the NLRB’s field offices May 30, Jennifer A. Abruzzo concluded that noncompete agreements hinder employees in the exercise of Section 7 rights – that is, their right under the National Labor Relations

Over the past three years, employers have navigated various workplace issues impacted by the COVID-19 pandemic, including remote work, vaccination, contraction of COVID-19 in the workplace and workplace accommodations, among many others. Since March 2020, the Equal Employment Opportunity Commission (“EEOC”) has maintained and updated guidance to assist employers with this process. Last month, the federal Public Health Emergency for COVID-19 (“PHE”) – which had been in place since early 2020 – officially ended. In its most recently updated guidance,

As we noted on the blog in February and discussed during our annual Hot Topics in Employment Law Seminar on April 25, the Pregnant Workers Fairness Act (“PWFA”), which will require employers subject to Title VII to provide covered employees with reasonable accommodations necessitated by pregnancy, childbirth or related medical conditions, will take effect June 27, and the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act, which expands existing employer obligations to include providing pumping breaks for exempt employees covered

Employers are increasingly relying on electronic systems to supplement – and, at times, supplant – the work of actual human employees relating to certain hiring, retention and employee-management practices. Such systems are often utilized or viewed as a measure to increase efficiency, reduce human error, decrease costs and optimize performance metrics. Of particular note in this arena is algorithmic decision-making tools, such as artificial intelligence (“AI”). At its essence, AI leverages computers and machines to mimic the problem-solving and decision-making capabilities of

One year after Maryland’s Paid Family and Medical Leave Insurance Program (“FAMLI”) was established by the Time to Care Act of 2022 (the “Act”), the General Assembly passed SB 828, which modifies multiple provisions of the program. (An overview of FAMLI as initially enacted can be found here.) Gov. Wes Moore signed the bill into law May 3. Notable Changes to the FAMLI Program The Act initially required covered employers — those with 15 or more employees — to begin contributing to

The National Labor Relations Board has reverted to decades-old standards for assessing whether employee misconduct during the course of protected activity should be protected under federal labor law. The Board’s move will make it more difficult for employers to discipline employees for bad behavior at work if the behavior occurs in the context of discussions or protests over working conditions. The decision applies to private sector employers in union and non-unionized work environments. In Lion Elastomers LLC, 372 NLRB No. 83,

Miles & Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 21st annual Hot Topics in Employment Law seminar April 25 to clients from throughout Maryland and beyond. Topics covered included employee pay updates; the proposed federal ban on non-competes; attacks on confidentiality clauses in employment agreements; federal and state leave law updates; and the myriad issues raised on a day-to-day basis with human resources professionals, including health and safety issues in the workplace, the impact of changing cannabis

In an era of fluctuating obligations, ramped-up enforcement and increased penalties, employers are wise to ensure they are fully compliant with current Occupational Safety and Health Administration (OSHA) recordkeeping and electronic reporting requirements. Current Requirements Employers with more than 10 employees have long been required to maintain a record of work-related fatalities, injuries and illnesses using OSHA 300, 300A, and 301 forms (or equivalent forms for establishments not partially exempt based on industry). For covered employers, severe injuries and fatalities must be

The COVID-19 pandemic spurred countless businesses to transition to a remote workforce. Today, despite the public health emergency ending May 11, many of those workforces remain fully or partially remote. To that end, the U.S. Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin in February regarding telework under the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA). The Bulletin discusses what FMLA and FLSA compliance looks like when a business employs teleworkers and how