Ogletree Deakins

Quick Hits The Illinois legislature passed SB2979 to clarify that multiple alleged collections or disseminations of an individual’s biometrics constitute only a single violation of the Privacy Act and the individual is limited to only one recovery of statutory damages. Once signed, the bill will reverse a holding by the Illinois’s high court that had opened the door to potentially excessive damages awards against employers. The bill confirms that BIPA…

Quick Hits The DOL is enforcing child labor laws through two key mechanisms: (1) preventing employers from shipping or profiting from “hot goods” and (2) assessing aggregate civil money penalties. An August 2023 DOL field assistance bulletin advises field agents on identifying violations of “oppressive child labor” and applying the “hot goods” provision—on top of assessing civil penalties. In November 2023, the DOL announced it would no longer be assessing…

Quick Hits With Governor Jared Polis’s signing into law SB 24-205, Colorado becomes the first U.S. state to enact comprehensive legislation regulating the use and development of AI systems. The law addresses, among other things, the risk of algorithmic discrimination “arising from the intended and contracted uses of … high-risk artificial intelligence system[s].” The Colorado AI Act will take effect on February 1, 2026. Colorado’s AI Act, SB 24-205, is…

Quick Hits The Supreme Court held that Section 3 of the FAA requires federal courts to grant stays of lawsuits after claims are sent to arbitration, if a stay is requested. The ruling resolves a 6–4 circuit split regarding whether federal district courts must stay lawsuits pending arbitration or whether they have discretion to dismiss them. The unanimous decision in Smith v. Spizzirri reversed and remanded a ruling by the…

Quick Hits OFCCP released its first detailed guidance on federal contractors’ use of AI and automated systems. The guidance instructs federal contractors to routinely monitor whether AI and automated systems have a disparate or adverse impact on protected groups and take actions to reduce those impacts or use different tools. The guidance further clarifies that federal contractors are ultimately responsible for meeting nondiscrimination and affirmative action obligations regardless of whether…

Quick Hits The New Jersey Supreme Court invalidated an otherwise valid settlement agreement solely because the agreement contained a “non-disparagement provision,” the scope of which the court found “would bar individuals from describing an employer’s discriminatory conduct” in violation of NJLAD. The court held that the non-disparagement provision was broad enough to violate the NJLAD and that the defendants had used the provision to silence the plaintiff’s protected conduct. The…

Quick Hits June 2, 2024, and October 1, 2024, are mandatory holidays due to federal elections in Mexico and the presidential inauguration day. Employees who work on mandatory holidays are entitled to two times their daily wage in addition to their normal salary for that day. Employers must respect and grant employees time to exercise their voting rights, in order to comply with the FLL. Under Article 74 of the…

 Current LawExpansion Under Public Act No. 24-8 Effective January 1, 2025 (Unless Otherwise Noted)Covered EmployeesThe current law applies to “service workers,” who are defined as employees in certain occupations identified in the U.S Bureau of Labor Statistics’ Standard Occupational Classification system.The expanded law applies to all employees, including seasonal employees who work 120 days or fewer during a year.Covered EmployersThe current law applies to employers with 50 or more service…

Quick Hits The EB-1 and EB-2 final action dates remain unchanged for all countries of chargeability. The EB-3 final action date for India retrogressed eight days, while all other countries of chargeability remain unchanged. USCIS has confirmed it will accept employment-based adjustment of status applications based on the final action dates chart for the June 2024 Visa Bulletin. Family-based applications may continue to use the dates for filing chart. Based…

Quick Hits Comprehensive workplace safety legislation proposed in the New York State Senate would require retail employers to assess potential workplace violence hazards and develop and implement comprehensive written workplace violence plans. Among other requirements, retail employers with fifty or more employees nationwide would have to install panic buttons to immediately dispatch local law enforcement when pressed. The bill, S8358B, has a companion bill pending in the New York State…

Quick Hits The DOL’s Wage and Hour Division published new field assistance guiding its field staff on the implications of employers’ increasing use of automated systems and AI technologies. The guidance cautions that while such technologies have workplace benefits, human oversight is necessary to avoid results that violate federal labor laws. The guidance comes after President Biden issued an executive order (EO) calling on federal agencies to coordinate their approach…

Quick Hits On April 29, 2024, three separate lawsuits were filed challenging the 2024 Title IX regulations: (1) Louisiana, Mississippi, Montana, and Idaho filed one lawsuit in the Western District of Louisiana; (2) Alabama, Florida, Georgia, and South Carolina filed a second lawsuit in the Northern District of Alabama; and (3) Texas filed a third lawsuit in the Northern District of Texas. On April 30, 2024, Tennessee, Kentucky, Ohio, Indiana,…

Quick Hits Retailers with at least 300 or more employees worldwide and that have employees in the County of Los Angeles will be required to provide their employees with predictable schedules. The county ordinance is similar to a City of Los Angeles ordinance that took effect in April 2023. The ordinance takes effect on July 1, 2025. Like the Los Angeles Fair Work Week Ordinance that took effect approximately one…

Quick Hits Minnesota lawmakers are attempting to secure enough votes ahead of this year’s legislative session deadline to place numerous bills on the governor’s desk, many of which, if enacted, will affect employers. Bills address drug testing, earned sick and safe time, pay transparency in job postings, wage deductions for credit card charges for tipped employees, restrictive employment covenants in service contracts, and employee misclassification. Senate Democrats have a one-vote…

On April 11, 2024, the Illinois Senate passed Senate Bill (SB) 2979, which would stop statutory damages under the Privacy Act from accruing for each unlawful collection or dissemination of an individual’s biometric information. Quick Hits The Illinois legislature is considering a bill that would amend the Privacy Act to prohibit statutory damages per violation from accruing per scan. The bill comes in response to an Illinois Supreme Court decision…

The pilot program, entitled “Pilot Program on Voluntary Self-Disclosures for Individuals,” increases transparency regarding the circumstances under which prosecutors will offer leniency to cooperating witnesses and other individuals through use of a non-prosecution agreement (NPA) when they report potential criminal misconduct involving corporations. Quick Hits The DOJ launched a new pilot program that will allow individuals who report certain criminal conduct to federal authorities to avoid prosecution under certain circumstances.…

Quick Hits Final privacy rules under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) set basic limitations on the use or disclosure by covered entities (such as employer health benefit plans) and their business associates of reproductive health care information. The final rules state that reproductive care is, for HIPAA purposes, presumed to be legal unless the employer health benefit plan or its business associate has “actual knowledge”…

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; and the fourth article discussed the general duty clause. This article addresses OSHA’s recordkeeping requirements. Quick Hits The OSH Act’s recordkeeping provisions require employers to “make, keep and preserve, and make available” any records OSHA may…

Quick Hits Beginning April 1, 2024, USCIS service centers stopped accepting paper-filed I-129 petitions requesting H-1B and H-1B1 classification, instead requiring petitioners to file at designated lockbox facilities. As a result, the filing volume at USCIS lockboxes has increased, and USCIS has now confirmed that it is experiencing delays in issuing receipt notices. Employers may wish to consider these delays when preparing time-sensitive filings that require a receipt notice for…

Quick Hits Restrictions on contact have been modified to eliminate mutual no-contact orders as the default. Supportive measure decisions are appealable. Procedures for emergency removal of a student respondent and placement of an employee respondent on administrative leave have been clarified. The final regulations take effect on August 1, 2024. § 106.44—Recipients’ Duty to Address Sex Discrimination Knowledge and Notice Section 106.44 provides specific requirements for the institution’s response to…

Quick Hits The EEOC issued a final version of new guidance for employers clarifying its positions on the applications of federal laws prohibiting harassment and retaliation. The new guidance is the first update to the EEOC’s workplace harassment guidance since 1999 and incorporates several new developments in the law and modern workforces. Key to the new guidance is that it recognizes unlawful harassment against LGBTQ+ individuals and addresses workplace protections…

Quick Hits DHS announced relaxed employment authorization standards for Ethiopian and Palestinian F-1 students who are eligible for work authorization. During the school year, work-authorized Ethiopian and Palestinian F-1 students may increase the number of hours worked and reduce their school course load. Students who utilize this benefit will still be maintaining their status despite not having a “full course of study.” On April 12, 2024, Secretary of Homeland Security…

Quick Hits The Massachusetts Supreme Judicial Court upheld a lower court’s ruling that a retailer’s commission-based compensation plan violated the Massachusetts Wage Act by paying commission-based sales employees their overtime and Sunday premium pay out of their earned commissions. The retailer used a compensation plan that functioned like an advance on sales employees’ future commissions, with sales employees being paid three different types of advances and charged with a “negative…

Quick Hits A surge in NJ WARN notices issued in the months prior to the April 10, 2023, effective date of the amendments suggests employers expedited terminations to avoid the new mandatory severance requirements of the amended law. At least three significant NJ WARN lawsuits are pending that may resolve open questions addressing remote work, statewide aggregation, technical terminations in the sale of business context, and other uncertainties. NJ DOL…

Quick Hits The Supreme Court heard oral arguments in a case over whether federal courts have discretion to dismiss lawsuits once the claims are compelled to arbitration. The decision could resolve a 6-4 circuit split with the majority holding that district courts must stay lawsuits pending arbitration, and a minority holding that district courts may dismiss. The Supreme Court held oral arguments in Smith v. Spizzirri, a case asking the…

Quick Hits Washington State enacted a law that regulates employers’ use of production quotas or standards for workers at warehouse distribution centers. The law applies to employers that employ or otherwise engage, whether directly or indirectly, more than (1) 100 or more nonexempt employees in a single warehouse distribution center, or (2) 1,000 or more nonexempt employees in one or more warehouse distribution centers in Washington. The law takes effect…

The final regulations amend § 34 C.F.R. 106.1, et seq. According to a statement from the Department announcing the final rule, “The unofficial version of the final regulations is available here. In addition, the Department has released a fact sheet, a summary of the major provisions of the 2024 Title IX final rule, and a resource for drafting Title IX nondiscrimination policies, notices of nondiscrimination, and grievance procedures.” The final…

Quick Hits A judge of the U.S. District Court for the Northern District of Illinois entered a preliminary injunction enjoining actions to enforce the “equivalent benefits” provisions of DTLSA. The equal pay provisions of Section 42 of the DTLSA were not subject to the injunction and went into effect on April 1, 2024. On April 3, 2024, the district court stayed any further proceedings pending the appeal. On November 22,…

Quick Hits The Superior Court of New Jersey, Appellate Division, held that a former employee had “a viable claim” that his employer had “diverted a portion of his wages in violation of the [NJ]WPL by requiring he use his personal vehicle and not reimbursing him for costs associated with that use.” Prior decisions by the U.S. District Court for the District of New Jersey have taken seemingly inconsistent positions on…

Quick Hits Employer contributions to Maine’s Paid Family and Medical Leave Insurance Fund are set to begin on January 1, 2025. The Maine Department of Labor is expected to begin the rulemaking process in spring 2024. The state has given itself a deadline of January 1, 2025, to adopt final rules implementing the program. Maine’s PFML program, which was established in October 2023, will entitle qualified, eligible employees to up…

Quick Hits The FTC will hold an Open Commission Meeting on April 23, 2024, on its proposed rule that would ban noncompetes. The proposed rule would prohibit the use of noncompete clauses and preempt all state laws providing lesser protection than the proposed rule. The proposed rule would apply to any contractual term that functions to prevent a worker from seeking or accepting employment or operating a business, after leaving…

Quick Hits Minnesota lawmakers are working on bills addressing drug testing, earned sick and safe time, pay transparency in job postings, restrictive employment covenants in service contracts, and unemployment benefits for striking workers. The legislative session adjourns on May 20, 2024. In our March 27, 2024, legislative update article, several key bills were previewed, many of which have made it to an omnibus bills, along with other articles that may…

Quick Hits Federal financial regulators are targeting employers for employees’ use of personal text messages or off-channel communications to discuss business, alleging it may violate recordkeeping rules. The actions raise concerns for financial employers given the increased use of personal electronic communications platforms and of the popularity of bring-your-own-device policies. The actions further highlight federal regulators’ push to incentivize employers to self-report potential legal violations by providing leniency in penalties. …

Quick Hits The EB-1, EB-2, and EB-3 final action dates will remain unchanged for all countries of chargeability. USCIS has confirmed it will accept employment-based adjustment of status applications based on the final action dates chart for the May 2024 Visa Bulletin. The EB-4 Certain Religious Workers category is extended until September 29, 2024. The May 2024 Visa Bulletin does not show any advancement in final action dates and dates…

Quick Hits USCIS recently announced that it has updated its definition for “Schedule A, Group II” occupations. USCIS has now clarified that Schedule A, Group II “Sciences or Arts” occupations include occupations in any field of knowledge and/or skill for which colleges and universities commonly offer courses leading to a degree. This clarification aligns USCIS’s policy with DOL regulations. In connection with the current administration’s push to retain STEM talent,…

Quick Hits USCIS extended the automatic extension period for eligible EADs from up to 180 days to up to 540 days for applicants who timely and properly filed their Form I-765 applications. The eligible applicants are those who filed their Form I-765 1) on or after October 27, 2023 and if the application is still pending, on April 8, 2024; or 2) on or after April 8, 2024 and on…

Quick Hits Momentum to classify NCAA athletes as employees may impact international athletes’ immigration status and jeopardize their participation in NCAA sports. Most student visas limit holders’ ability to work while studying in the United States. Changes to U.S. immigration law may be necessary to allow international athletes to continue to participate in NCAA sports moving forward. In the Dartmouth College case, an NLRB regional director found that the players…

Quick Hits Washington’s legislature recently concluded a productive 2024 legislative session with approximately 340 bills receiving passage by both houses and moving on to the governor’s desk. Notable newly enacted pieces of legislation include a measure that restricts employers’ ability to speak to employees on political or religious matters, a statutory expansion of the classes protected by Washington’s Equal Pay and Opportunities Act, and amendments to the state’s paid sick…

The release of selections occurred less than a week after the conclusion of the H-1B cap registration period. This year’s H-1B lottery selections were conducted over a span of five days and concluded on April 1, 2024, when USCIS announced that it had received enough electronic registrations for unique beneficiaries during the initial registration period. Quick Hits USCIS has yet to disclose the total number of H-1B registrations received for…

Quick Hits Pennsylvania amended its tax law to make amounts contributed to dependent care assistance excludable for income tax purposes. The change aligns Pennsylvania with the federal treatment and is retroactive for the 2023 tax year. Employers may have withheld taxes on dependent care assistance contributions and may have issued Forms W-2 that overstated income. On December 13, 2023, Pennsylvania enacted House Bill (HB) 1300, which changed the state’s treatment…