Ogletree Deakins

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…

Quick Hits Louisiana’s Act No. 556 allows employers to establish policies concerning when an employee earns a commission, incentive payment, or bonus. Examples include adjusting such compensation where the employer does not receive payment from a customer and adjusting commissions when there is a change order. Act No. 556 extends the time by which an employer must determine an employee’s eligibility for a bonus under a bonus plan that utilizes…

Quick Hits Employers doing business in Philadelphia will want to be aware of several key employment-specific ordinances—including laws governing fair criminal record screening standards (“ban the box”), sick leave benefits, predictive scheduling, pre-employment drug testing, and transit benefits—that provide rights and protections for employees and compliance responsibilities for employers in the city. Philadelphia’s “Promoting Healthy Families and Workplaces” ordinance, for example, requires that employers allow eligible employees to accrue sick…

Quick Hits California’s governor recently signed two bills to reform PAGA to enable workers to sue their employers or former employers over California Labor Code violations. The new legislation caps penalties on employers that “quickly take steps to fix policies and practices, and make workers whole, after receiving a PAGA notice, as well as on employers that act responsibly to take steps proactively to comply with the Labor Code before…

Quick Hits Mexico’s Human Trafficking Law has been amended to define overtime work generated beyond legal limits as a form of labor exploitation. When overtime is generated, employers will have to pay for it and may be liable for fines and penalties. The Human Trafficking Law establishes a penalty of three to ten years of imprisonment and a fine of 5,000 to 50,000 fine days. The penalties increase to four…

Quick Hits The employer had not engaged in “meaningful consultation” with the employee, rendering the dismissal “procedurally unfair.” A fair redundancy process requires that employers adhere to a thoughtful and well-documented pooling and consultation process, which includes clear communication with affected employees. Background Zubair Valimulla worked for Al-Khair Foundation as a masjid liaison officer (MLO) employed at the charity’s Bolton branch. Three other employees performed the same or similar roles…

Quick Hits Workers in Rhode Island will receive up to seven weeks of paid time off to bond with a new child or care for a sick family member in 2025. That number will increase to eight weeks in 2026. Domestic workers are now eligible for minimum wage and overtime protections. Independent contractors must file an annual notice of designation under the workers’ compensation law for every entity that retains…

Quick Hits Minnesota’s new ban on the use of nonsolicitation agreements by service providers or staffing agencies takes effect on July 1, 2024. The law will prohibit service providers from restricting in any way its employees from being solicited or hired by user companies. The law will render such provisions void and enforceable. The new law, which was contained in Minnesota’s Labor and Industry Policy Omnibus bill signed by Governor…

Quick Hits The Superior Court of Arizona ruled Arizona municipalities cannot set prevailing wage ordinances. The court struck down prevailing wage ordinances enacted by Phoenix and Tucson affecting construction contractors. On June 21, 2024, the Superior Court of Arizona Maricopa County ruled in favor of three trade associations challenging the Phoenix and Tucson prevailing wage ordinances. The court found the state’s 2006 Minimum Wage Act did not effectively repeal the…

Quick Hits Act No. 273 modifies La. Rev. Stat. § 23:921, Louisiana’s noncompete statute, to limit the noncompete restrictions allowed in contracts with physicians. Any contract that restrains a primary care physician from practicing medicine expires three years after the effective date of the contract and all other physicians five years after the effective date of the contract. Any subsequent contract may not include a noncompete provision. The noncompete agreement…

Quick Hits Act No. 273 modifies La. Rev. Stat. § 23:921, Louisiana’s noncompete statute, to limit the noncompete restrictions allowed in contracts with physicians. Any contract that restrains a primary care physician from practicing medicine expires three years after the effective date of the contract and all other physicians five years after the effective date of the contract. Any subsequent contract may not include a noncompete provision. The noncompete agreement…

Quick Hits On June 21, 2024, two bills were introduced in the California Legislature to reform PAGA, which could provide a measure of relief to California employers and much-needed increased court oversight. Notably, the proposed amendments would allow an employee to bring PAGA claims only for Labor Code violations the employee “personally suffered” within the statute of limitations. For several claims, the proposed legislation would adjust PAGA penalties based on…

Quick Hits Following the lead of California, Colorado, Hawaii, New York, Washington, and the District of Columbia, Maryland’s Equal Pay for Equal Work – Wage Range Transparency Act will require employers to disclose certain wage information in both public and internal job postings. The law was signed into law by Governor Wes Moore on April 25, 2024. The law will take effect on October 1, 2024. The legislature passed the…

Quick Hits The Oregon Bureau of Labor and Industries issued a proposed rule that would impose new requirements for employers responding to allegations of harassment. The proposal introduced five factors for evaluating what constitutes “appropriate corrective action” and “promptly correcting harassing behavior.” Currently, determining whether an employer took an appropriate corrective method depends in large part on whether the harassment stopped, but BOLI’s proposal might open employers to criticism of…

Quick Hits Federal district courts in Kentucky and Louisiana have issued injunctions blocking the implementation and enforcement of the U.S. Department of Education’s new Title IX regulations in ten states. The U.S. District Court for the Eastern District of Kentucky held that the U.S. Department of Education had exceeded its statutory authority by redefining “sex” to include “gender identity.” The federal district court also ruled that the new Title IX…

Quick Hits A California appellate court found an employer’s arbitration agreement with an eyewear store employee to be unenforceable for being both procedurally and substantively unconscionable. The appellate court noted several issues with the arbitration agreement—including finding that it was a contract of adhesion—that placed it “high on the scale of substantive unconscionability.” Employers may want to scrutinize their arbitration agreements for provisions that may tip the scale in favor…

Quick Hits Governor Pritzker is expected to sign SB3650, legislation amending Illinois’s Day and Temporary Labor Services Act (DTLSA). Third-party clients would not be required to provide comparator pay information until the worker has worked for the same third-party client for more than 720 hours within a twelve-month period and the temporary agency requests this information. SB3650 revises the DTLSA’s “equivalent benefits” language to provide for “substantially similar benefits.” Overview…

Quick Hits As part of a proposed consent judgment to resolve an antitrust charge brought by the DOJ and several states, the NCAA agreed to drop its rule requiring certain Division I college athletes who transfer schools to sit out a year. The DOJ and the states alleged that the transfer rule unlawfully restricted athletes from engaging in the market for their labor as college athletes. This litigation highlights state…