Employment

The U.S. Supreme Court recently granted cert in a hotly contested case addressing the standards of proof applicable to reverse discrimination claims under Title VII.  The case comes on the heels of the court’s decision last term in Muldrow v. City of St. Louis, Mo., where it lowered the standard to prove that an employee suffered an adverse employment action (now, employees need only show that they suffered “some harm respecting an identifiable term or condition of employment”).  In the next term, in Ames v. Ohio Department of Youth Services, SCOTUS will turn its attention to so-called “reverse” discrimination and whether members of a majority group will be required to meet a heightened pleading standard to prove their claims.

Ontario recently passed Bill 190, Working for Workers Five Act, 2024, on October 28, 2024, building on earlier legislation of the same series and making further changes to employment rules in Ontario. Below are some of the key developments that employers with personnel in Ontario should be aware of.

New York’s Clean Slate Act is now effective.  The Act will lead to the automatic sealing of certain criminal records and will require greater disclosure by employers of the criminal history they can consider in connection with hiring or other employment decisions. 

A federal judge in Texas has vacated the U.S. Department of Labor’s final rule increasing the salary thresholds for the “white collar” overtime exemptions under the Fair Labor Standards Act (FLSA) and did so on a nationwide basis.  In a sweeping 62-page decision, U.S. District Judge Sean D. Jordan of the Eastern District of Texas declared that the DOL exceeded its rulemaking authority by attempting to raise the minimum salary for the executive, administrative, or professional (EAP) and highly compensated employee (HCE) exemptions under the FLSA.  

Effective November 21, 2024, Massachusetts employees may take earned sick time to “address the employee’s own physical and mental health needs, and those of their spouse, if the employee or the employee’s spouse experiences pregnancy loss or a failed assisted reproduction, adoption, or surrogacy.”  

Earlier this year, we highlighted that the Massachusetts Wage Act (the “Wage Act”), while providing powerful protections to Massachusetts workers, does not apply to a profit-sharing arrangement tied to an employer’s overall profits.  Now, another Massachusetts court—this time the District Court’s Appellate Division—has imposed an additional limitation in holding that the Wage Act does not apply to contingent retention bonuses.

It’s that time of year again—California employers need to prepare for a raft of new laws that become effective in the new year.  Below is a brief overview of some of those laws and how employers should prepare for them.  All of the laws discussed below become effective on January 1, 2025. 

The United States and Canada are each other’s largest trade partners with nearly C$3.6 billion/US$2.7 billion worth of goods and services crossing the border each day in 2023.  The United States is the single greatest investor in Canada and Canada was the largest source of foreign direct investment in the United States at the end of 2022.[1]  As commerce in general and employee mobility in particular increases, employers with operations in the United States and Canada may consider a “one-size-fits all” approach to employment, benefits and compensation arrangements. However, despite many similarities, employers should take heed of possible discrepancies across the two countries’ employment landscapes. In this Part II of our series on cross-border hiring, we discuss health benefits and retirement benefits.

The Equal Employment Opportunity Commission (EEOC) has initiated enforcement of the Pregnant Workers Fairness Act (PWFA) following the release of its final rule and interpretative guidance in April 2024

The Sixth Circuit Court of Appeals recently declined to comment on the National Labor Relations Board’s (the “Board”) McLaren Macomb decision which took aim at overbroad non-disparagement and non-disclosure agreements.  

In their webinar, “DEI & Affirmative Action – A Challenge with Consequences,” Member and ESG Co-chair Jen Rubin and Associate Nikki Rivers offered practical solutions for navigating these rulings, which are specifically geared toward in-house counsel and HR professionals.

Effective November 1, 2023, the Massachusetts Department of Family and Medical Leave (the “Department”) required employers to permit an employee, in the employee’s sole discretion, to supplement or “top off” their Massachusetts Paid Family and Medical Leave (“MA PFML”) benefit with any accrued paid leave (e.g., vacation, sick time, or other available paid time off) (together, “PTO”) so the employee could receive 100% of their regular wages during the MA PFML leave. This required employers whose Private Plans under MA PFML did not permit “topping off” to revise their plans accordingly.  We wrote about it here.

On September 13, 2024, the Massachusetts Supreme Judicial Court (the “SJC”) ruled that the Massachusetts Paid Family and Medical Leave Act (the “Act”) does not guarantee the accrual of benefits such as sick leave, vacation leave and length-of-service credit during a period of paid family or medical leave (“PFML”). Instead, the Act mandates only that employees return from leave to the same or equivalent position that they held at the commencement of leave.

As the workplace continues to take a new shape, the distinction between “workplace conduct” and “off duty” conduct continues to fade for many.  After a recent Ninth Circuit ruling, employers must be more vigilant than ever in monitoring and responding to employee social media postings, even when they are personal and “off duty.”

Political conflicts in the workplace will only grow as we near election day, and this means human resources professionals and in house counsel need to hone their conflict resolution skills.  Resolving political conflict in the workplace is a bit more nuanced than resolving ordinary workplace slights, requiring legally compliant de-escalation. We thought a few guidelines – tested against some real-life scenarios – would be a useful campaign stop for those charged with managing these issues.  Here’s a teaser: you learn a company supervisor has just invited the supervisor’s entire team to a weekend rally for [insert any candidate’s name here].  What if anything do you do that doesn’t place you (and the company) squarely within the bullseye of our sharply divided political environment?  

This article provides a checklist of action items for foreign companies making an initial expansion into the US, covering essential topics like choosing a business structure, navigating laws and regulations concerning immigration, employment, and taxes, and securing funding.

A judge in the Northern District of Texas issued an order setting aside the Federal Trade Commission’s rule banning non-compete agreements and ordered that the rule shall not be enforced or otherwise take effect on September 4, 2024.  This much-awaited decision comes after the judge already issued a limited preliminary injunction in the same case in early July as to the named plaintiffs there (discussed here).  Although multiple other courts have recently weighed in on the issue to mixed results, including federal courts in Pennsylvania and Florida (see here), the Texas judge’s ruling has resulted in the first nationwide prohibition on the FTC’s enforcement of the rule.  Accordingly, barring any intervening appellate activity, the FTC’s rule will no longer go into effect on September 4, 2024 (the original effective date), employers will not be required to void employees’ existing non-competes covered by the rule, and employers are no longer required to send employees notices regarding the status of any non-competes. 

On August 14th, a second federal judge, this time out of the Middle District of Florida, temporarily blocked the FTC’s rule banning non-compete agreements, but only as to the named plaintiff in that case.  

Massachusetts has passed into law An Act Relative to Salary Range Transparency (the “Act”), which means that pay transparency and pay data reporting requirements will soon become official.  In advance of the effective dates in 2025, covered businesses must understand and prepare for  new compliance obligations. 

We previously wrote about this Act in its legislation phase here.  In addition, information regarding other jurisdictions requiring wage transparency, such as California, New York, and Washington, are available in our previous articles here and here.

On July 3, 2024, the Federal District Court in the Northern District of Texas in Ryan LLC v. Federal Trade Commission granted a preliminary injunction staying the effective date of the FTC’s non-compete rule and enjoining the FTC from enforcing it against the specific plaintiffs who challenged it (Ryan, LLC, the US Chamber of Commerce, and a few other business groups which were previously permitted to intervene in the lawsuit).  The Court declined to enter a nationwide injunction, and, absent additional legal developments or a voluntary nationwide stay by the FTC, the non-compete rule is still set to go into effect on September 4, 2024 for all other covered employers.  In its decision, the Court indicated that it intends to rule on the merits of the case by August 30, 2024, in advance of the rule’s September 4, 2024 effective date.