Ogletree Deakins

Quick Hits The First Amendment generally applies to governmental actors, but private employers still must comply with the NLRA, which protects employees’ right to engage in concerted activity related to their working conditions. Several states, including California, Connecticut, Colorado, and New York, provide additional protections for speech, off-duty conduct, and political affiliations and beliefs for private-sector employees. Employer strategies for maintaining positive, productive workplaces include developing and updating workplace speech…

Quick Hits In answering a question certified from the U.S. Court of Appeals for the First Circuit, the Massachusetts Supreme Judicial Court held that under Massachusetts law, certain business-to-business relationships in which franchisees have chosen to operate their independent businesses using a business format franchise, the franchisees are not employees of the franchisor. In so holding, the court determined that the plaintiff franchisees at issue were not employees because they…

Quick Hits A recent decision from the NLRB found that consent orders undermine the NLRB general counsel’s prosecutorial authority and fail to facilitate a mutual resolution of labor disputes. For now, the NLRB will no longer accept consent orders, which are settlement terms unilaterally proposed by a respondent (typically an employer) without the consent of the general counsel or the charging party. Moving forward, only bilateral settlement agreements may be…

Quick Hits The right to switch off would give workers the right to not have to engage with work correspondence (including emails, phone calls, and work-based messaging services) outside their contracted working hours. This right is intended to give “workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.” How will the right to “switch off” operate?…

Quick Hits On September 4, 2024, Governor Kathy Hochul signed into law the New York Retail Worker Safety Act, a comprehensive measure intended to increase worker safety and address the hazard of workplace violence in retail settings. The act, which applies to retail employers with at least ten employees and requires, among other things, assessments of potential workplace violence hazards, adoption of written workplace violence prevention policies, and workplace violence…

Quick Hits California’s SB 399 would limit an employer’s ability to communicate with employees regarding political or religious matters during mandatory meetings. The bill’s definition of “political matters” includes matters relating to union organizing. The act provides employees with a private right of action that includes punitive damages. If signed by the governor, SB 399 would limit an employer’s ability to communicate with employees regarding political or religious matters during…

Quick Hits A federal district court in New Jersey denied a motion to partially enjoin the New Jersey Temporary Workers Bill of Rights, which seeks to equalize pay for temporary workers to that of permanent workers. The court ruled that while the plaintiffs have the potential to ultimately succeed on the merits of their ERISA preemption argument, on the current record, they failed to show a likelihood of success on…

Some laid-off workers are becoming social media influencers, telling their layoff stories to thousands of followers and outsiders. Former employees generally are not prohibited from criticizing their former employer on social media if their comments are true and not defamatory. To protect their brand and public image, companies can offer severance agreements, including nondisparagement clauses, to laid-off workers. Hundreds of thousands of employees were laid off in 2023, especially in…

To technically comply with new return-to-office requirements, some workers are entering their physical offices, clocking in, and leaving just a few hours later. To understand how frequently this is occurring, employers are permitted to use technology to verify on-site attendance and duration of attendance. Corporate leaders and managers can align as to how many hours in the office are sufficient to meet the company’s requirement for on-site work. In the…

Quick Hits Illinois’s new AI regulations under HB 3773 take effect on January 1, 2026, giving employers a limited window to prepare for compliance. The law broadly defines “artificial intelligence” to include any machine-based system that generates outputs influencing employment decisions, with no specific exemptions provided. Employers must provide notice to employees if AI is used in recruitment, hiring, promotion, or other employment-related decisions. HB 3773 represents an additional AI-related…

Quick Hits Voter turnout for the November 2024 elections is expected to be high, meaning many employees will be taking time off to exercise their right to vote. Most states require employers to provide unpaid leave to vote or do not have specific requirements, while some states require paid leave. Employers may want to start considering each state’s specific voting leave requirements and whether their employees will be impacted. The…

Quick Hits Many state and federal laws apply to seasonal workers the same way they do to full-time, year-round employees. These include antidiscrimination, antiharassment, wage-and-hour, workplace safety, and child-labor laws. About half of the states raised their minimum wage for 2024, which could impact many seasonal workers. Highlighting timekeeping practices and corporate policies during onboarding may help to prevent future legal hassles. Most—but not all—employment laws apply to both regular…

Quick Hits On July 3, 2024, the U.S. District Court for the Northern District of Texas had granted a limited preliminary injunction staying enforcement of the FTC’s final rule prohibiting non-compete clauses, but only as to the parties in the case, pending a final ruling on the merits. On August 20, 2024, the court issued a significantly broader ruling, finding that in issuing the non-compete rule, the FTC had exceeded…

Quick Hits The Second Circuit Court of Appeals held that for claims subject to the “continuing violation doctrine,” such as hostile work environment claims, accrual occurs with each new act that is part of the ongoing pattern of misconduct. Because the plaintiff alleged retaliatory acts occurring after March 3, 2022, her claims were found to have “accrued” after the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act’s effective…

Quick Hits At least six federal courts have issued injunctions barring enforcement of the U.S. Department of Education’s 2024 Title IX rule, which applies to complaints of sex discrimination occurring on or after August 1, 2024. Many of the injunctions lack clarity as to which institutions are covered. The Department issued guidance specifying the states and schools subject to the enforcement injunction due to a student or parent’s membership in…

Quick Hits A federal district court rejected challenges to a Florida law that makes it more difficult for public-sector teachers unions to collect dues and recertify. The court held that the Florida Legislature’s changes did not impair the validity, construction, or enforcement of collective bargaining contracts. The court left remaining for a jury trial the unions’ challenge regarding the prohibition on direct payroll dues deductions and assessments. Last year, following…

Quick Hits At least six federal courts have issued injunctions barring enforcement of the U.S. Department of Education’s 2024 Title IX rule, which applies to complaints of sex discrimination occurring on or after August 1, 2024. Many of the injunctions lack clarity as to which institutions are covered. The Department issued guidance specifying the states and schools subject to the enforcement injunction due to a student or parent’s membership in…

Quick Hits Texas reached a $1.4 billion settlement with a social media company over technology that allegedly unlawfully captured the facial geometry of millions of users in the state. The settlement comes after a $650 million settlement for similar claims under Illinois law in 2021. The settlements point to a broader trend of increased scrutiny and enforcement of privacy laws concerning biometric information. On July 30, 2024, Texas Attorney General…

Quick Hits Effective January 1, 2025, all employers that have thirty or more employees in Minnesota will be required to provide salary ranges and a general description of benefits in job postings—seemingly, including Minnesota recruiting and staffing companies seeking workers to work for employers in other states. The law is silent as to general solicitations and positions with low base salaries but high potential commissions. Under Minn. Stat. 181.173, included…

Quick Hits In Perez v. Barrick Goldstrike Mines, Inc., the Ninth Circuit joined the Second, Fourth, Sixth, and Eighth Circuits in holding that an employer’s right to obtain a second opinion is permissive, not mandatory, under the FMLA. A jury may consider an employer’s nonmedical evidence in determining whether an employee had a “serious health condition” under the FMLA. Background In Perez v. Barrick Goldstrike Mines, Inc., the Ninth Circuit…

Quick Hits On July 31, 2024, Governor Maura Healey signed into law legislation requiring Massachusetts employers with twenty-five or more employees to disclose pay ranges. Employers with one hundred or more employees and subject to EEO-1 reporting obligations will be required to report aggregated wage data by race, ethnicity, sex, and job category annually as a supplement to the EEO-1 report to the state. Compliance failures could result in penalties…

Quick Hits OFCCP updated its guidance on protected veterans hiring obligations and affirmative action policies encouraging contractors to provide apprenticeship opportunities to protected veterans. OFCCP said protected veterans must be provided equal opportunity to participate in apprenticeship opportunities and that providing such opportunities can help contractors meet their obligations to recruit and hire protected veterans. The guidance comes after OFCCP set the national veteran hiring benchmark at 5.2 percent on…

Quick Hits DHS recently added Environmental/Natural Resources Economics to the STEM list of qualifying fields of study. More F-1 nonimmigrant students will be eligible for the twenty-four-month extension of their post-completion OPT. The STEM Designated Degree Program List is “a complete list of fields of study that DHS considers to be science, technology, engineering or mathematics (STEM) fields of study for purposes of the 24-month STEM optional practical training extension.”…

The first article in this series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; the fifth article addressed OSHA’s recordkeeping requirements; the sixth article covered employees’ and employers’ respective rights; the seventh article addressed whistleblower issues. In this, the eighth article in…

Quick Hits The 2024 VETS-4212 reporting platform will open on August 1, 2024. All 2024 VETS-4212 filings are due by September 30, 2024. Federal contractors and subcontractors with a single covered contact of $150,000 or more are required to file VETS-4212 reports. The same data can be used for both the 2023 EEO-1 and 2024 VETS-4212 reports provided conditions are met. While there have been some updates to the U.S.…

Quick Hits Cal/OSHA released a revised discussion draft of a proposed workplace violence prevention standard for general industry (non-healthcare settings). The draft proposal includes definitions of engineering controls and work practice controls, and it would require employers to communicate with “authorized employee representatives” and employees regarding workplace violence matters. Comments on the proposed standard are due by September 3, 2024, and an advisory committee hearing will be scheduled later this…

Quick Hits The U.S. District Court for the Northern District of Florida recently upheld an injunction against part of Florida’s Individual Freedom Act, also known as the Stop WOKE Act, which regulated the types of content that employers could include in employee training. The court found that a section of the law was unconstitutional because it violated employers’ First Amendment rights to free speech. Florida cannot enforce the part of…

Quick Hits Claudia Sheinbaum—the first woman to be elected president of Mexico—will begin her term of office on October 1, 2024. President-elect Sheinbaum has appointed Marath Baruch Bolaños Lopez to be Secretary of Labor and Social Welfare and a member of her cabinet. President-elect Sheinbaum’s labor and employment agenda includes, among other things, proposals to increase minimum wage rates and amend the Federal Labor Law to classify delivery app workers…

Quick Hits On July 31, 2024, the Michigan Supreme Court, in a 4–3 decision, ruled that the Michigan Legislature violated the Michigan Constitution in 2018 by adopting voter-initiated laws and later amending the previously adopted laws in the same legislative session. The high court’s ruling reinstates the 2018 voter-initiated versions of the Earned Sick Time Act, which generally provides for more paid sick leave time and requires smaller employers that…

Quick Hits Louisiana’s statute of limitations for employment-related tort actions has been doubled to two years from the day an injury or damage is sustained. The law took effect on July 1, 2024, and is prospective only. Employers must provide breaks to workers under sixteen years of age whose shifts last five hours or more. Employers are prohibited from requiring predispute arbitration pacts for sexual harassment. New Two-Year Statute of…

Quick Hits The King’s Speech of 17 July 2024 detailed the UK government’s upcoming priorities and proposals. This includes the Employment Rights Bill and draft Equality (Race and Disability) Bill. Among the proposed policies were several significant employment-related bills, and we have set out below the key proposals. If enacted, together these proposals would constitute the most significant reform in UK employment legislation in decades. We set out the key…

Quick Hits OSHA announced that it intends to release a proposed rule for a workplace violence prevention in healthcare and social service facilities in December 2024. The proposed rule will most likely apply to work performed in hospitals, medical centers, residential treatment centers, nursing homes, mental health centers, and private homes where home health aides or social workers visit clients. The agency is expected to publish a final rule in…

Quick Hits The NLRB unveiled a final rule that rescinds the Board’s 2020 rule and returns the Board to its blocking charge policy, voluntary recognition process, and aligns union recognition for construction industry employers. The rule will take effect on September 30, 2024, and apply to cases filed after that date. The NLRB unveiled its “Fair Choice-Employee Voice Final Rule,” which the agency said will make three key changes: restoring…

Quick Hits The Third Circuit affirmed a lower court’s ruling declining to block New Jersey’s Temporary Workers Bill of Rights Law, which seeks to equalize pay for temporary workers to that of permanent workers, in a challenge by industry groups. The appellate court ruled that the law does not unlawfully burden out-of-state businesses or exceed the state’s police power, and that it is not unlawfully vague.    The groups are…

Quick Hits A federal district court recently struck down a legal challenge to the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace, which provided guidance as to how federal law prohibiting sex discrimination also encompasses discrimination based on sexual orientation and gender identity. Texas sought to invalidate the EEOC’s 2024 guidance regarding how Title VII protects bathroom/locker room usage, dress codes, and pronouns for LGBTQ+ individuals in the workplace.…

Quick Hits Research shows that there can be a decline in job performance after an election, due to employees who experience strain and distraction. Employers can take several proactive steps to maintain productivity and a supportive work environment. Proactive measures include adjusting schedules, pointing employees to support resources, and promoting inclusion efforts. Employers can also bolster civil dialogue by showing respect, seeking understanding, and finding common ground. Research shows there…

Quick Hits On August 19, 2024, Cal/OSHA will hold an advisory committee meeting to solicit input on proposed rules on enterprise-wide and egregious violations on employee safety and health requirements. The California Department of Industrial Relations plans to amend the existing framework for citation classification and penalty calculations to accommodate new classifications and provide definitions and procedures for issuing enterprise-wide and egregious citations to California employers. The proposed regulation would…

Quick Hits Before an election, employers may want to take several measures to navigate potential workplace tensions, such as establishing clear guidelines that outline when and where political paraphernalia can be worn, the ground rules for appropriate workplace political discussions, the limitations on political speech in the workplace including bumper stickers, and political postings that help to foster a culture of respect. In addition, employers may want to consider conducting…

Quick Hits Federal district courts in Kansas and Texas issued preliminary injunctions blocking enforcement of the U.S. Department of Education’s new Title IX regulations against the states of Alaska, Kansas, Texas, Utah, and Wyoming. The courts held that the Department of Education did not have the authority to interpret Title IX’s prohibition of discrimination on the basis of sex to include discrimination based on sexual orientation and gender identity. The…

Quick Hits An advocacy organization recently submitted signatures to put forth a ballot measure to raise the state minimum wage to $18 per hour. Arizona voters will decide a separate ballot measure to alter way the minimum wage is calculated for tipped workers. If passed by voters, both measures would take effect immediately. Arizona voters appear poised to decide on two wage increases via voter ballot initiatives in November. Raise…