Ogletree Deakins

Quick Hits Governor Newsom recently signed into law legislation directing the California Occupational Safety and Health Standards Board, by March 1, 2027, to amend existing standards to require hospitals to implement weapons detection screening policies. The standards will also require hospitals to implement policies addressing personnel education and training, alternative search and screening protocols, response protocols for detected weapons, and public notification. Newly enacted Assembly Bill (AB) No. 2975 requires…

Quick Hits The FTC is appealing a Florida federal court’s preliminary injunction blocking its noncompete ban. The appeal comes after a Texas federal court, in a separate case, blocked the FTC’s rule on a nationwide basis, while a Pennsylvania federal court has backed the rule. The FTC’s final rule, published in May 2024, would effectively ban all noncompete agreements between employers and employees. On September 24, 2024, the FTC filed…

Quick Hits Employers have legitimate and substantial business interests in restricting employee use of recording devices in the workplace to protect privacy and trade secrets. Employers may want to consider policies that prohibit or restrict making recordings in the workplace. Such policies may need to account for potential issues under the NLRA and may need to include exceptions for recording conversations as part of protected activity and be narrowly tailored…

Quick Hits Missouri voters will vote this year on whether employers will be required to provide earned paid sick time (PST) to eligible employees. PST would accrue at a rate of one hour for every thirty hours worked; it would begin accruing for existing employees on May 1, 2025, or the first day of employment for employees hired after that date. Employers with fifteen or more employees maylimit an employee’s…

Quick Hits Tropical Storm Helene is expected to make landfall in Florida as a major hurricane as early as September 26, 2024. Governor Ron DeSantis has declared a state of emergency for sixty-one counties across the state. Employers may want to consider their obligations to protect workers and maintain a safe workplace and begin preparations for the hurricane response. After developing over the Caribbean, Tropical Storm Helene is expected to…

Quick Hits The Michigan Supreme Court issued an order mandating specific wage increases and gradually eliminating the tip credit by 2030. The new wage and tip credit adjustments take effect on February 21, 2025. The Michigan Legislature has introduced a bill that, if enacted, will scale back the scheduled wage increases while preserving the tip credit. In its September 18, 2024, order in Mothering Justice v. Attorney General, the Michigan…

Quick Hits Effective September 22, 2024, Law 25 provides employees and consumers in Québec in both the public and private sectors with the right to data portability. The purpose of this new right is to allow individuals to access their data and transfer it to another legally authorized organization of their choice. Private businesses have thirty days to respond to requests, and private-sector entities have twenty days, with a possible…

Quick Hits If Governor Newsom signs SB 1100, FEHA will prohibit employers from requiring job applicants to have a driver’s license, with limited exceptions. California already makes it a violation for an employer or other entity to discriminate against individuals with driver’s licenses issued to undocumented workers. SB 1100 would amend FEHA by adding Section 129454.8 to the California Government Code to prohibit an employer from including in “a job…

Quick Hits In 2018, in-store sales consultants, who are predominantly female, argued that their work was of equal value to Next’s predominantly male warehouse-based workers. Next argued that the difference in pay rates was in response to market forces driven by the wider labour market. The Employment Tribunal ruled that a number of the differences in pay could not be justified. The total amount payable to the claimants by Next…

Quick Hits Crafting effective multistate separation agreements can be challenging for employers amid an increasing number of state-specific requirements and restrictions. Employers may want to consider updating their template release agreements, confirming their agreements state sufficient and proper consideration for employees to release claims, and whether their separation agreements properly incorporate any desired restrictive covenants, arbitration agreements, or other agreements. While crafting effective separation agreements is a common issue for…

Quick Hits January 1, 2025, is the start date for payroll withholdings and submission of quarterly wage reports under the Maine Paid Family and Medical Leave Program. Employers may not apply for private plan substitutions until after April 1, 2025, and will be responsible for payroll contributions until their plans are approved. Employers with fifteen or more employees must contribute 1 percent of wages and may deduct up to half…

Quick Hits New Jersey’s labor department released responses to comments on its proposed TWBR regulations published last year. Following a review of the comments, the regulations appear to be moving forward without substantial changes. The final regulations are expected to be adopted and published on September 16, 2024. On August 21, 2024, the New Jersey Department of Labor and Workforce Development’s (NJDOL) Division of Wage and Hour Compliance issued its…

Quick Hits Germany’s Federal Labor Court held that posting a termination letter in a mailbox constitutes receipt as soon as the subsequent removal is expected, which the court said would be the day of posting. Employers that use registered mail for delivering employment termination notices may want to obtain proof of delivery immediately and routinely. Personal delivery, accompanied by thorough documentation of the entire process, provides greater legal certainty. Receipt…

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…