Labor, Employment, Benefits & Immigration

Employers: Don’t throw out your open-door policy just because your employees are unionizing. That’s the message the National Labor Relations Board shared this week in cautioning companies against telling their employees that they cannot maintain a direct relationship with management if they vote for a union. Under a 1985 case called Tri Cast, Inc., 274 NLRB 377, the Board set a broad standard for what employers were allowed to say about the future of the employment relationship to convince employees not

A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled earlier this month that the National Labor Relations Board violated the Administrative Procedure Act (APA) in 2019 by issuing certain rules governing union election procedures without seeking public comment. The 2019 Rule – issued by a Trump Board – modified what is colloquially known as the Obama Board’s 2014 “quickie election” rules. The AFL-CIO challenged the 2019 Rule and in 2020, now-Supreme Court Justice Ketanji Brown

Miles & Stockbridge is preparing for what we hope will be a fortuitous H-1B lottery season for cap-subject petitions. The United States Citizenship and Immigration Services (“USCIS” or the “Service”) announced last week the H-1B cap registration period for FY 2024 (Oct. 1, 2023 to Sept. 30, 2024) will run from March 1 through March 17. The H-1B registration program, as it has been administered since FY21, allows employers to register with USCIS for the H-1B lottery without incurring substantial

The Federal Trade Commission (FTC) proposed a rule last week that would ban employers from requiring workers to sign non-compete provisions in employment contracts. The rule also would prevent employers from entering into new non-compete agreements with workers and require employers to rescind existing non-compete agreements. Non-compete provisions limit workers from leaving an employer to work for a competitor or starting a competing business after their employment ends. Most states have statutes that restrict or prohibit non-compete provisions. Except in states

Maryland health care employers and J-1 physicians who commit to serve the underserved in Maryland and who missed the Dec. 1 J-1 Conrad 30 waiver application deadline 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 for the two-year home residence requirement to provide medical services in Maryland. MDH received 24 Conrad waiver applications prior to the

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 National Labor Relations Board’s Los Angeles Regional Office (LA Regional Office) decided last week that the University of Southern California, the Pac-12 Conference and the National Collegiate Athletic Association (NCAA) are violating federal labor law by failing to treat student basketball and football players as employees. This move sets the stage for student athletes to unionize and may have broader implications for members of the NCAA. The LA Regional Office’s decision is not surprising given NLRB General Counsel Jennifer Abruzzo’s

The National Labor Relations Board issued a flurry of employee-friendly decisions last week, continuing its move away from the more employer-friendly rulings by the Trump Board and, in many cases, returning to or reaffirming, precedent developed during the Obama administration. The decisions came just before the end of Republican Member John Ring’s term. Going into the New Year, the Board now is composed of a 3-1 Democratic majority. Below is a summary of the Board’s decisions. Failure to Give Employees Certain

The past year has brought many challenges, including those associated with rising inflation and cost-of-living increases. With such concerns top of mind, many states are increasing their required minimum wage rates. Employers should be aware of the following minimum wage increases set to take effect at the end of this year or in 2023. The increases discussed below do not cover tipped workers, other special classes of employees or those mandated by local law. Employers should review their current compensation

The National Labor Relations Board on Wednesday revived an Obama-era standard that will make it easier for unions to organize employees and win elections. In a 3-2 decision in American Steel Construction Inc., the Board resurrected the standard developed in a 2011 case called Specialty Healthcare for analyzing appropriate bargaining units. This framework applies when a union seeks to represent some – but not all – job classifications in a particular workplace and makes it easier for unions to organize

The National Labor Relations Board announced Tuesday that it was expressly expanding the scope of its traditional “make whole” remedy to require employers to compensate wrongfully terminated employees for all “direct or foreseeable pecuniary harm.” Historically, the Board’s remedy for unfair labor practices has been limited to lost wages and benefits; reinstatement to the employee’s former position or a substantially similar position; and, more recently, search-for-work and interim employment expenses incurred because of an unlawful discharge. Now, the Board also will

Earlier this year, the Southeast Crescent Regional Commission (SCRC), a federal-state partnership to alleviate economic and poverty issues, opened a J-1 waiver program, accepting applications for physicians of all medical specialties and subspecialties for positions at sites in designated underserved areas across the southeastern United States. This program significantly increases access to medical care in all of Florida and parts of Alabama, Georgia, Mississippi, North Carolina, South Carolina, and Virginia. Selection for a waiver spot is the first step to securing

When the weather outside is frightful, company holiday party season can be so delightful. The soirees are a great opportunity for colleagues to celebrate everyone’s hard work and get to know one another better. But the mixture of excitement, alcohol and the resulting lowered inhibitions can result in a legal headache for employers, who can be held vicariously liable for the actions of their staff. A determination of an employer’s liability for the conduct of its employees following the consumption of

Maryland voters earlier this month overwhelmingly supported a constitutional amendment to legalize recreational marijuana, joining 19 other states and the District of Columbia. (Missouri also approved legalization of recreational marijuana on Election Day.) While the voice of the electorate might not come as a surprise, the constitutional amendment may leave Maryland employers with more questions than answers. The passage of the amendment does not immediately impact employers but serves as an opportunity for them to evaluate their current drug testing

With Election Day around the corner on Nov. 8, employers may be wondering if their employees are entitled to leave to vote and, if they are, whether it needs to be paid. Here is a breakdown of what is required in the DMV: Maryland Employers must provide employees who are registered voters two hours of paid leave if employees do not otherwise have two hours of continuous off-duty time to vote during the period that polls are open. An employee should provide

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 recent years, employers adapted workplace policies and trainings to conform with changing state laws legalizing medical marijuana use. The landscape is continuing to evolve as many states have now prohibited adverse employment actions for employees’ recreational use of marijuana. New Jersey is one of those states. In February 2021, the New Jersey Cannabis Regulatory Enforcement Assistance, and Marketplace Modernization Act (the “Act”) legalized adult use of recreational marijuana which prohibits employers from taking adverse employment action solely based on

Today (October 13, 2022), the Department of Labor (“DOL”) issued a proposed rule that would provide guidance on classifying workers as employees or independent contractors under the Fair Labor Standards Act (the “FLSA”). The FLSA requires employers to pay non-exempt employees at least the federal minimum wage and overtime pay for all hours worked beyond 40 hours in a work week. The FLSA does not apply to independent contractors. In other words, this proposed rule would be a "practical guide"

On September 27, 2022, California Governor Gavin Newsom signed into law the Pay Transparency for Pay Equity Act, a new pay transparency law imposing increased payroll reporting requirements on large employers and placing additional requirements on employers of all sizes related to salary history inquiries and pay scale disclosures. What Does the Bill Require? Additional Pay Reporting Requirements for Large Employers The new law amends and imposes new payroll reporting requirements for large employers relating to workforce demographics and pay. Under existing law, private employers

In a recent decision, the Maryland Court of Appeals reversed lower rulings related to federal preemption of state law and Maryland’s educational malpractice doctrine. The ruling could have significant implications for students bringing negligence claims and educators defending against them. Case Facts and Procedural History Over the course of the 2016-2017 school year, Dorchester County sixth grader—referred to as “S.”—endured several instances of physical and verbal assault at the hands of classmates, resulting in varying injuries. When S. shared with her

The Maryland Department of Health (MDH) recently released its July 2022 Maryland Conrad 30 (J-1 Visa Waiver) Program Policy and Procedures. This policy is effective October 1, 2022 for the 2023 fiscal year. The Conrad 30 (J-1 Visa Waiver) program allows qualified foreign medical graduate (FMG) physicians to apply for a waiver of the 2-year foreign residence requirement. Recipients of a Conrad waiver remain in the United States to provide essential healthcare services in underserved areas of the United States. The

On September 6, 2022, the National Labor Relations Board (“NLRB” or “Board”) issued a much anticipated proposed rule that would broaden the circumstances under which two companies may be held responsible for labor law violations and union bargaining obligations under federal labor law. The rule has the potential to create labor law obligations and liability for companies that contract with staffing agencies to supply their labor, as well as franchisors.   Two companies are joint employers if they “share or codetermine” employees’ essential

This week, the National Labor Relations Board (“NLRB” or “Board”) ruled that employers may not stop employees from wearing union insignia in the workplace without good reason. This decision, involving Tesla, Inc.’s dress code policy, is the first of what is sure to be a number of precedent-shifting decisions from Biden’s NLRB.  In a 3-2 decision, the Board reaffirmed longstanding U.S. Supreme Court precedent that employees have the right to display union insignia in the workplace, and held that when an employer

October 1 in Maryland is the time when the leaves are changing, there is a chill in the air, and many of the Maryland General Assembly’s bills that were passed in April take effect. Two upcoming laws should be on employers’ radar: the expanded definitions of illegal harassment and reasonable accommodations for applicants with disabilities. 1. Definitions of Harassment and Sexual Harassment Have Expanded (SB450) Maryland’s antidiscrimination law will vastly expand the liability of employers under state law. Previously, the definition of “harassment”

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

A federal appeals court this week ruled that “gender dysphoria” qualifies as a disability under the Americans with Disabilities Act (“ADA”). This decision will give broader protection to transgender and other individuals seeking workplace and public accommodations for gender dysphoria.  The lawsuit  was brought by former inmate Kesha Williams, who sued a Virginia prison for violations of the ADA and other civil rights laws. Williams was born male but identifies as female. Prior to her incarceration, she was living as a woman for nearly 15

The Occupational Safety and Health Administration (“OSHA”) recently unveiled a new National Emphasis Program (“NEP”) for outdoor and indoor heat-related hazards. To best protect workers in hot working environments, particularly in a climate of ramped up enforcement, employers are wise to devote considerable attention to understanding heat-related hazards, appreciating OSHA’s planned expansion of heat-related inspections, and preparing workplaces in response to the rollout of the heightened enforcement program. Especially during a summer of record-breaking temperatures, it is never too late

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

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

More and more, employers have considered using surveillance within the workplace, whether it is to prevent theft, measure productivity, or simply monitor what employees are doing when they are on the clock. While these are legitimate business concerns, employers should be mindful of varying state laws on surveillance and an employee’s reasonable expectation of privacy.  An employer has a legitimate interest in maintaining an efficient and safe workplace operation. However, this interest is not without limitation. One aspect of that interest is

J-1 exchange visitors, often Foreign Medical Graduates ("FMGs"), who receive graduate medical education or training in the U.S. are subject to the two-year foreign residence requirement under Section 212(e) of the Immigration and Nationality Act ("INA"). This requirement means that, upon completion of medical training, the J-1 physician must return to their country of nationality (or country of last permanent residence) for a period of at least two years in the aggregate before becoming eligible for certain nonimmigrant work visas, such

As is now well known both inside and outside of the legal community, the Supreme Court of the United States recently decided Dobbs v. Jackson Women’s Health Organization, where the Court analyzed a Mississippi law that restricted pre-viability abortions. The Supreme Court upheld the Mississippi statute and overturned the constitutional right to abortion established in the 1973 landmark case, Roe v. Wade. The Court emphasized that the precedent set in Roe and affirmed in Planned Parenthood v. Casey was “egregiously

On May 13, 2022, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its twentieth annual Hot Topics in Employment Law seminar to clients from throughout Maryland and beyond. Topics covered included remote work; tax issues, FMLA, and federal and state leave laws; and the myriad issues raised on a day-to-day basis with Human Resources professionals, including coronavirus and mental health concerns, and more. Here are some highlights: Hidden Dangers of Remote Work Meg Manchester presented the potential tax consequences

On May 4, 2022 a Temporary Final Rule (TFR) published by the US Citizenship and Immigration Service (USCIS) of the Department of Homeland Security (DHS) increased the automatic extension period for certain categories of work authorization to up to 540 days. This is a welcome relief for certain categories of foreign nationals who are at risk of losing work authorization due to USCIS’s processing delays.  Below is a summary of this important rule: Who: This rule applies to foreign nationals whose employment

Maryland will join the nine states and the District of Columbia in enacting its own paid family and medical leave. Maryland Sen. Antonio L. Hayes (D-Baltimore City) and Del. Kris Valderrama (D-Prince George’s County) sponsored the Time to Care Act of 2022 (the “Act”).  On March 31, 2022, Senate Bill 275 (the Act) passed the legislature and was submitted to Governor Hogan, who ultimately vetoed the bill on April 8, 2022. However, on April 9, 2022, legislators in the Maryland General Assembly

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

The Supreme Court has recently taken the challenge of assessing the scope and breadth of workplace arbitration provisions under the Federal Arbitration Act (“FAA”) in Viking River Cruises, Inc. v. Moriana, and Southwest Airlines Co. v. Saxon, both of which stand to have far-reaching impacts for employers seeking to resolve disputes with employees outside of court. The Viking River Cruises case involves a controversy between Viking and its employee Angie Moriana. Ms. Moriana signed an arbitration agreement in which she and

U.S. Citizenship and Immigration Services (USCIS) published a final rule on March 30, 2022 that will increase access to its premium processing service, under which applicants for certain immigration benefits can obtain expedited processing by paying additional fees. Through the new rule, USCIS seeks to address the budget shortfalls, backlogs, and ever-increasing processing times that have plagued the agency and frustrated applicants, especially during the Covid-19 pandemic. USCIS intends to introduce the increased access to premium processing in the following

Mandatory arbitration agreements for all employment claims will no longer be enforceable under a newly passed law. On March 3, 2022, President Biden signed the Ending Forced Arbitration Act (the “Act”), which invalidates previously agreed upon arbitration clauses to resolve sexual harassment or sexual assault disputes, a bill that had previously passed with wide bipartisan support in the House and Senate. Now, regardless of when an arbitration agreement was signed, mandatory arbitration will not be enforced for claims that arise

On February 24, 2022, the Fourth Circuit restored a $1,186,975.00 arbitration award for a North Carolina securities wholesaler (“Warfield”) who alleged that his former employer ICON Advisers Inc. (“ICON”) unlawfully fired him without cause. Warfield v. Icon Advisers, Inc., No. 20-1690, __ F.4th__, 2022 WL 552029, (4th Cir. Feb. 24, 2022). North Carolina, like most states in the United States, is an at-will employment jurisdiction. At-will employment means that an employer can terminate an employee at any time for any

Nearly one year ago to the date, I wrote in my blog post that the “the path to qualifying in [for the O-1A visa classification] is far from transparent.” At that time, I noted that the request for evidence (“RFE”) rate was on an upward swing in this temporary, non-immigrant visa classification. Today, we are pleased to discuss the Biden Administration’s recent steps to increase clarity and predictability for foreign nationals seeking this classification, with a focus upon those in

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

After hearing oral argument on January 7, 2022, on January 14, 2022, the Supreme Court issued a  ruling staying the Biden administration’s vaccine or testing mandate for large employers. As many doubtless know, on September 9, 2021, the Biden administration announced a sweeping six-pronged plan aimed at addressing the pandemic, which included a requirement that all employers with 100 or more employees have their employees vaccinated or tested weekly for COVID-19. In setting forth his plan, the president charged the Occupational Safety and Health

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

On November 12, 2021, Stephanie Baron, Kirsten Eriksson, Suzzanne Decker, Veronica Jackson, and Paolo Pasicolan of Miles & Stockbridge’s Labor, Employment, Benefits, & Immigration Practice presented a webinar about the OSHA’s recent Emergency Temporary Standard (“ETS”). Here’s what you missed if you were unable to attend: Challenges to OSHA’s ETS As you may have heard in the news, there have already been several challenges to the legality of the ETS. The 5th Circuit issued a temporary injunction against enforcement of the ETS,

On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers and employees regarding religious objections to COVID-19 Vaccine Mandates. With many employers implementing COVID-19 vaccine requirements, (discussed in our October 8, 2021 blog post), employees may be requesting religious accommodations. As such, this updated guidance is helpful for employers seeking to ensure compliance with Title VII. Title VII, in part, prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request

After much anticipation, on November 4, 2021, the Occupational Safety and Health Administration (OSHA), issued its long-awaited Emergency Temporary Standard (ETS), requiring mandatory COVID-19 vaccination or weekly testing for private employers with 100 or more employees. Shortly after the ETS was issued, a lawsuit was filed to enjoin the enactment and enforcement of the ETS.  The Fifth Circuit Court of Appeals ruled to temporarily enjoin the ETS.  As the case proceeds employers should keep watch for updates.  In the interim, we

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

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 Maryland Court of Special Appeals held on September 7, 2021 that Maryland public school teachers cannot be held liable in negligence for the injuries of students under their supervision at the hands of other misbehaving students. Gambrill v. Board of Dorchester County, et al., No. 0886, September Term 2019 (September 7, 2021). The Court upheld the trial court’s summary judgment decision in favor of the Board of Education of Dorcester County related to the treatment of a sixth grade