Ogletree Deakins

Quick Hits Nebraska voters approved marijuana use for medical purposes, but legal challenges remain. Ballot measures to legalize recreational marijuana failed in Florida, North Dakota, and South Dakota. A ballot measure to legalize psychedelic drugs was defeated in Massachusetts. On November 5, 2024, voters in Nebraska approved a ballot measure to legalize medical marijuana use, while voters in Florida, North Dakota, and South Dakota rejected measures to legalize recreational marijuana…

Quick Hits Missouri voters approved a ballot measure to enact a law that will require employers to allow employees to use up to fifty-six (56) or forty (40) hours of earned paid sick time per year depending on the size of the employer. Employees will be entitled to start accruing paid sick time on May 1, 2025, and employers must provide written notice of the paid sick time by April…

Quick Hits The Working for Workers Five Act, 2024 amended the Occupational Health and Safety Act’s definition of “industrial establishment” to exclude any office in a private residence, and the definitions of “workplace harassment” and “workplace sexual harassment” to include virtual activities. Under the Employment Standards Act, 2000, as amended, employers can require evidence for sick leave, but cannot demand a certificate from a qualified health practitioner. Key provisions of…

Quick Hits The Colorado Attorney General’s Office recently proposed draft amendments to the Colorado Privacy Act (CPA) Rules. The draft amendments are largely focused on consumer data and implement recent changes to the CPA that reflect increased regulation of entities that collect and use biometric information and personal information relating to children under the age of eighteen. The amendments also include a new process for entities and individuals to request,…

Quick Hits Two German federal ministries have drafted legislation that would provide more legal certainty for employers regarding how to handle employee data. The legislature also wants to allow the use of AI applications, but within certain limits. The draft legislation would provide a detailed regulation on the basics of employee data processing. The aim of the legislation is to provide more legal certainty for employers. They inevitably collect and…

Quick Hits The NJDPA goes into effect on January 15, 2025, with its opportunity to cure provision sunsetting six months later on July 15, 2025. The NJDPA’s “sensitive data” definition encompasses more than is typical in comparable laws. The NJDPA applies to non-profit organizations and institutions of higher education in addition to for-profit businesses. Scope The NJDPA applies to companies that: conduct business in New Jersey OR produce products or…

Quick Hits A recent GAO report includes several recommendations for how OSHA should evaluate its national emphasis program on warehousing and distribution centers to “more fully protect workers” from ergonomic hazards. The GAO found that three major hazards—falls, slips, and trips; objects and equipment; and overexertion/bodily reaction—were the leading causes of most injuries and illnesses in general warehousing and last-mile delivery services. The GAO recommendations include revising the OSHA Form…

Quick Hits Under SB 729, effective July 1, 2025, certain health insurance policies in California will be required to cover the diagnosis and treatment of infertility. Insured health plans with at least 101 participants will be required to provide coverage for the diagnosis and treatment of infertility; insured plans with up to 100 participants will be required to offer coverage. SB 729 does not affect employers that “self-fund” their health…

Quick Hits Voters in three states—Alaska, Missouri, and Nebraska—will have a chance to vote on establishing paid sick leave in their states. The states could join the eighteen states and Washington, D.C., that already have paid sick leave laws. Election day is Tuesday, November 5, 2024. Each state has proposed measures to ensure workers have access to paid time off for health-related needs, reflecting a growing national trend toward expanding…

Quick Hits A group of H-4 and L-2 visa holders filed a lawsuit against the secretary of homeland security in April 2021, alleging that USCIS unlawfully delayed adjudicating their I-539 and I-765 applications, resulting in loss of employment. A settlement was reached in January 2023 in which USCIS agreed to return to its pre-March 2019 practice of simultaneously adjudicating bundled I-539 and I-765 applications after approving the principal’s I-129 petition,…

Quick Hits New FOIA request noticed: A new FOIA request has been filed with OFCCP, seeking the release of federal contractors’ 2021 Type 2 Consolidated EEO-1 Reports in OFCCP’s possession. Deadline for objections: Contractors have forty days from the date of publication of OFCCP’s notice to object to the disclosure of their 2021 EEO-1 data. Separate from previous request: This is a new request for 2021 Consolidated EEO-1s; the most…

Quick Hits A Massachusetts appellate court found that a retention bonus did not constitute “wages” within the definition of that term set forth in the Massachusetts Wage Act. The court acknowledged that there are no Massachusetts cases that have held that a retention bonus is a “wage” within the meaning of the Massachusetts Wage Act. The court noted that the Massachusetts Supreme Judicial Court has not construed the Wage Act…

Quick Hits OFCCP recently released a new construction scheduling letter and itemized listing, corresponding frequently asked questions (FAQs), and a renewed and revised Form CC-314, for covered construction contractors to notify OFCCP of new federal or federally assisted contracts or subcontracts in excess of $10,000, also known as the Notification of Construction Contract Award Portal (NCAP). But the agency has more in store for construction contractors. On September 30, 2024,…

Quick Hits Employers may not inquire about an applicant’s conviction history before the applicant is determined to be otherwise qualified for a position, except when required by local and federal law. Employers are barred from asking, seeking from any source, or using as a factor in determining any condition of employment information regarding an applicant’s criminal record until the applicant has been given a conditional offer of employment. In the…

Quick Hits Documenting both the business reasons for a RIF and the objective criteria used to select employees for termination is crucial to mitigating the risk of discrimination claims and other legal challenges. Employers may want to note the various federal and state legal requirements, such as the WARN Act and any applicable mini-WARN acts when planning and executing a RIF. According to recent figures released by the U.S. Bureau…

Quick Hits A female employee was not entitled to an “all the way to the top” compensation adjustment in a gender discrimination case, where the comparator was the highest-paid colleague worldwide, a German Regional Labor Court ruled. However, the female employee was awarded higher remuneration in accordance with the discrepancy between the medians of the comparison groups of men and women. The court determined that the discrepancy between the employer’s…

Quick Hits As Election Day—Tuesday, November 5, 2024—draws near, employers are considering their leave obligations. Various state, local, and municipal election-related laws have implications for multistate employers’ compliance plans. Notice posting and political speech laws also have implications for employers’ compliance plans. Leave Obligations There are three key issues employers may need to address when considering voting and election leave—posting notices, types of leave, and requests for leave. Posted Notices…

Quick Hits On November 1 and November 2, Mexico celebrates Día de Muertos, but this festivity is not considered under the FLL as a mandatory holiday. Under certain circumstances, November 1 and/or November 2 can be deemed as mandatory rest days. Día de Muertos Is Not a Mandatory Holiday As mentioned above, November 1 and/or November 2 are not established in Article 74 of the FLL as mandatory holidays that…

Quick Hits Key steps for managing a data breach incident include understanding what constitutes an incident, applying the organization’s framework and policies, and effectively communicating with the organization’s privacy officer and employees. Additional measures include promptly and proactively managing data breaches and reviewing and updating policies. The effectiveness of HR’s response to a breach of employee data can greatly influence employees’ confidence in the organization’s commitment to data privacy. 1.…

Quick Hits The November 2024 Visa Bulletin shows no change from last month’s bulletin for employment-based categories for both final action dates and dates for filing, except for fourth preference for Certain Religious Workers. USCIS will honor dates for filing for I-485 Adjustment of Status applications filed in November 2024. USCIS recently confirmed that the annual limit for fiscal year (FY) 2025 will be higher than pre-pandemic numbers but lower…

Quick Hits The Maryland Department of Labor released FAQs regarding the state’s Wage Range Transparency Act, which took effect on October 1, 2024. The law applies to remote jobs for companies headquartered elsewhere if the employer seeks workers based in Maryland. Employers that do not handle their own job postings are still required to comply with the law. This article outlines some of the key points concerning the act for…

Quick Hits Effective October 10, 2024, private employers must comply with the county’s Fair Chance Ordinance, which restricts the timing and use of criminal history in employment decisions. The ordinance applies to positions that involve performing at least two hours of work on average each week within the unincorporated areas of the county. Employers may not inquire about an applicant’s criminal history before making a conditional job offer, and must…

Quick Hits Certain requirements of the amended NYDFS cybersecurity regulations will take effect on November 1, 2024. Covered entities may need to update their policies and procedures, including with respect to corporate governance, encryption, incident response and business continuity plans, system testing, and employee training. On March 1, 2017, the NYDFS enacted comprehensive cybersecurity regulations for financial services companies and other covered entities. The cybersecurity regulations were most recently amended…

Construction contractors undergoing compliance reviews after October 1, 2024, will be required to comply with expanded initial data and document requests contained in the revised letter. Contractors on a recent Corporate Scheduling Announcement List (CSAL)—a courtesy notification from OFCCP listing contractors selected for compliance evaluation—that have not yet been scheduled for compliance reviews may want to ensure they can produce the information requested. Quick Hits The letter imposes additional data…

Quick Hits The UK’s electronic travel authorisation (ETA) will soon apply to all nationals who do not currently require a visa to travel to the UK and who do not hold any other UK immigration status. From 27 November 2024, the scheme will initially be applicable to a number of non-European travellers, including those from the United States, Singapore, and Canada. On 5 March 2025, ETAs will be rolled out…

Quick Hits Five critical areas HR may want to assess for potential risks related to data breaches include inadequate privacy frameworks, training for employees regarding their data privacy duties, data flowing out of the organization, internal data transfers, and key employee life cycle moments. Even organizations with established policies may struggle with their implementation and enforcement. Well-designed training programs, including refresher courses, can help clarify employees’ data privacy and security…

Quick Hits The Equality and Human Rights Commission (EHRC) published technical guidance for employers on 26 September 2024, after a short consultation on a draft version earlier this year. Alongside the full guidance, the EHRC produced the Employer 8-step guide: Preventing sexual harassment at work. Under the act, employers will be held accountable for addressing sexual harassment after it occurs and for proactively mitigating the risk of such conduct occurring.…

Quick Hits A Pennsylvania company dropped its lawsuit challenging the FTC’s noncompete rule after a judge refused to enjoin it. The move leaves the fate of the rule to litigation stemming from Florida and Texas federal courts that have ruled against it. The rule is currently enjoined nationwide based on the Texas court’s order. The FTC’s noncompete rule would effectively ban all noncompete agreements between employers and employees. On October…

AccessDefinition: The ability and means to communicate with or otherwise interact with a system, to use system resources to handle information, to gain knowledge of the information the system contains, or to control system components and functions.Air GapDefinition: To physically separate or isolate a system from other systems or networks (verb).AnonymizersDefinition: An anonymous proxy is a tool that attempts to make activity on the Internet untraceable [by making data anonymous…

Quick Hits Contracts for freelance work of $250 or more must be in writing and contain certain specific information regarding services to be provided and dates for contract completion, among other things. Payment for freelance work must be made on time or within thirty days after the completion of the work if no due date is specified in the contract. The FWPA prohibits discrimination or adverse action against freelance workers…

Quick Hits Newly enacted AB 2499 expands the FEHA by making it unlawful to discriminate or retaliate against an employee for taking time off from work for jury duty or to comply with a subpoena or other court order as a witness in a judicial proceeding, or, if the employee is a victim (i.e., an individual against whom a “qualifying act of violence” has been committed) or has a family…

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; and the eighth article covered the…

Quick Hits The Washington Court of Appeals affirmed a lower court’s decision requiring a hospital to compensate employees for missed meal periods, not only with the time worked but also with an additional thirty minutes of pay per missed break, as a remedy for depriving them of their statutory break rights. The ruling emphasizes the importance of employers in Washington adhering to statutory obligations regarding breaks during meal and rest…

Quick Hits A Supreme Court of Korea opinion provides employers with useful insights into just cause for dismissing an employee based on poor performance. The court found that a former employee, who had been with the employer for more than twenty-five years, had received poor performance reviews for more than ten years before being dismissed, and had failed to meet the requirements of a performance improvement plan seven out of…

Quick Hits The bill would have required developers of large AI models made available to the public to take specific steps to ensure that they did not cause critical harm. It would have imposed employment protections for developers’ employees who blew the whistle about potential dangers. The legislation was one of several AI bills presented to the governor during the year’s regular legislative session as California looks to be a…

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…