For those employers who have not yet modified their Minnesota employment and non-compete templates, the time is now. Pursuant to MN SF 3035, as of July 1, 2023, Minnesota employers are prohibited from entering into post-employment non-compete agreements with employees and individual independent contractors.
Continue Reading Time for Employers to Modify Minnesota Protective Covenant Templates
On July 13, 2023, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced the launch of a three-year National Emphasis Program meant to prevent workplace hazards in warehouses, processing facilities, distribution centers, and high-risk retail establishments. OSHA’s announcement explains that warehousing and distribution centers have experienced tremendous growth over the past 10 years, with over 1.9 million people currently employed in the related industries. OSHA also notes that data from the Bureau of Labor and Statistics shows the injury and illness rate for warehousing and distribution centers is higher than the overall rate for private industry.
Employers’ burgeoning use and reliance upon artificial intelligence has paved the way for an increasing number of states to implement legislation governing its use in employment decisions. Illinois enacted first-of-its-kind legislation regulating the use of artificial intelligence in 2020, and as previously discussed, New York City just recently enacted its own law. In 2023 alone, Massachusetts, Vermont and Washington, D.C. also have proposed legislation on this topic. These legislative guardrails are emblematic of our collective growing use of artificial intelligence, underscore the importance of understanding the legal issues this proliferating technology implicates, and need to keep abreast of the rapidly evolving legislative landscape. Below is a high-level summary of AI-related state legislation and proposals of which employers should be aware.
On August 2, 2023, the National Labor Relations Board (the “NLRB” or “Board”) issued its decision in Stericycle Inc., 372 NLRB No. 113 (2023) (“Stericycle”) overruling the standards established in The Boeing Company, 365 NLRB No. 154 (2017) (“Boeing”) and LA Specialty Produce Co., 368 NLRB No. 93 (2019) (“LA Specialty Produce”) for determining whether facially neutral work rules violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”). The standard the Board sets forth in Stericycle applies to union and non-union workplaces and goes far further than simply overruling cases decided during the Trump Administration. Under the new standard, a work rule is presumptively unlawful if it has a reasonable tendency to chill employees from exercising their rights when viewed from the perspective of the reasonable employee, even if a contrary interpretation of the rule is also reasonable. Once established, the employer must prove that 1) the rule advances a legitimate and substantial business interest, and 2) that the employer is unable to advance that interest with a more narrowly tailored rule.
Continue Reading NLRB Adopts Volatile New Standard for Evaluating Work Rules
On August 1, 2023, the Department of Homeland Security (“DHS”) released a new Form I-9. The previous one was issued in 2019 and expires on October 31, 2023.
On July 17, 2023, the California Supreme Court decided an important state law issue raised by the United States Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022). Viking River Cruises held that the Federal Arbitration Act (FAA) requires enforcement of an agreement to arbitrate California Private Attorneys General Act (PAGA) claims arising from alleged California Labor Code violations against the named plaintiff, notwithstanding the prior California authority that PAGA claims cannot be “split” into “representative” and “individual” components. In a short paragraph at the end of its decision in Viking River Cruises, the U.S. Supreme Court held that a PAGA plaintiff lacks statutory standing to pursue PAGA claims arising out of alleged Labor Code violations committed against other employees when the claims arising from violations against the named plaintiff have been “pared away” to arbitration. However, because statutory standing is an issue of state law, state courts were not bound by the U.S. Supreme Court’s interpretation, a point that Justice Sotomayor flagged in a concurrence. In Adolph v. Uber Techs., Inc., No. S274671, 2023 WL 4553702 (2023), the California Supreme Court disagreed with the U.S. Supreme Court’s interpretation of PAGA’s standing requirement and held that a PAGA plaintiff retains standing to sue for alleged Labor Code violations committed against non-party employees when the claims arising from alleged violations against the plaintiff have been compelled to arbitration.
The Department of Homeland Security (“DHS”) announced on July 21, 2023 they will publish a revised version of Form I-9 on August 1, 2023. DHS also announced an enhanced remote verification flexibility using video for E-Verify employers, both for clean-up of I-9s created during the pandemic and going forward.
Continue Reading DHS Announces New Form I-9 and Remote Verification for E-Verify Employers
On July 11, 2023, the California Court of Appeal in Thai v. IBM held that whether an employer is obligated to reimburse expenses incurred by an employee working from home turns on whether the expenses were a direct consequence of the discharge of the employee’s job duties, not on whether the expenses were directly caused by the employer. This case is important for all employers whose workforce suddenly began working from home as a result of the COVID-19 pandemic, and employers who continue to permit employees to work from home today.
At the end of June, the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows Of Harvard College, Nos. 20-1199 & 21-707, 2023 WL 4239254 (U.S. June 29, 2023), outlawed race-based affirmative action in higher education. Splitting along ideological lines, the Court’s conservative supermajority ruled, 6-3, the college admissions programs of Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment. The monumental decision, which dispensed with 45 years of precedent allowing race-conscious admission policies to achieve a diverse student body, has upended the world of higher education.
Continue Reading What Does Affirmative Action’s Death Knell Mean for Employers?
On June 29, 2023, the U.S. Supreme Court issued a rare unanimous ruling in Groff v. DeJoy, and set a higher standard for employers to meet when denying religious accommodations under Title VII of the Civil Rights Act of 1964 (“Title VII”). Prior to Groff, employers were free to deny a religious accommodation where it imposed “more than a de minimis cost” on the employer’s business. Following Groff, however, employers must now show that the burden of granting a religious accommodation “would result in substantial increased costs in relation to the conduct of its particular business.” This case has implications for all employers evaluating employee requests for religious accommodations, and should be carefully considered when granting or denying such requests.
Continue Reading Supreme Court Raises the Bar for Title VII Religious Accommodations