Employment

In a recent opinion, Williams v. Kincaid (4th Cir. Aug. 16, 2022), the 4th Circuit Court of Appeals held that gender dysphoria is a covered disability under the Americans with Disabilities Act (ADA).  Mintz attorney Kevin Kim summarizes the opinion and discusses its impact.

Member and Chair of Mintz’s ESG practice group, Jennifer B. Rubin and Associate Greer Clem co-authored an article published by Corporate Counsel covering the crime-fraud exception to attorney-client privilege. The authors summarized, "An important and long-standing exception to the attorney-client privilege, the crime-fraud exception, bears examination in the post-Dobbs world. The crime-fraud exception divests attorney-client privilege of confidentiality when a lawyer’s advice facilitates a client’s crime...The crime-fraud exception to attorney-client privilege therefore merits attention for counsel, who should consider the potential areas of risk and some mechanisms to protect the confidentiality of these communications."

On August 11, 2022, the Centers for Disease Control and Prevention (CDC) once again revised its public health recommendations regarding COVID-19 prevention measures in general community settings, including non-healthcare workplaces.  In doing so, the CDC acknowledged that “COVID-19 is here to stay,” and seemed to shift its focus from viral containment to lessening the risk of severe illness and death associated with the virus.  Chief among these changes is the CDC’s removal of its quarantine recommendation – individuals are no longer advised that they should quarantine following close contact exposure to COVID-19, regardless of their vaccination status, where they do not experience symptoms or test positive. Mintz attorneys Corbin Carter and Michael Arnold discuss these new revised recommendations and its impact on employers.

In a span of a week the NLRB signed Memoranda of Understanding (“MOU”) with both the Federal Trade Commission and the U.S. Department of Justice’s Antitrust Division.  These agreements come just over a year after President Biden issued an “Executive Order on Promoting Competition in the American Economy,” which called on several federal agencies to address competition issues, and included a mandate for agencies to “coordinate, promote, and advance Federal Government efforts to address overconcentration, monopolization, and unfair competition in or directly affecting the American economy.”  While the NLRB was not explicitly identified in the Executive Order (and the DOJ and FTC were), these recent partnerships unmistakably indicate that labor issues and anti-competition issues are inextricably linked, and the NLRB’s willingness to collaborate with other federal agencies to carry out its mandate under the National Labor Relations Act.  Moreover, these recent efforts also represent a clear step by President Biden to follow through on his campaign promise to strengthen unions, worker organizing efforts, and collective bargaining.  Mintz attorneys Evan Piercey, Tinny Song and Richard Block discuss these MOUs in greater detail below and provide some takeaways for employers and business leaders. 

Earlier this year we wrote on the U.S. Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana that struck a major blow to California’s Private Attorneys General Act (“PAGA”). Now on the heels of the Viking River decision, California officials have announced that a proposed law to overhaul PAGA, called the California Fair Pay and Employer Accountability Act (“Act”), will be put on a referendum to the voters in November 2024. The Act proposes in large part to repeal PAGA, including PAGA’s mechanism that allows an employee to sue in civil court on the state’s behalf to enforce the California Labor Code and seek penalties for doing so. Mintz attorneys Jennifer Rubin and Mike Flesuras highlight why PAGA is under fire, what the Act would change, and some key takeaways for employers to combat PAGA lawsuits leading up to the 2024 ballot.  

In previous posts (available here and here) we reported on some of the legal consequences from Dobbs v. Jackson Women’s Health Organization on employer-sponsored group health plan coverage of abortion-related travel benefits. In this post, Mintz attorneys Alden Bianchi, Greer Clem, and Jen Rubin address the larger concern related to the legality of these benefits in the face of a burgeoning number of states seeking to extend their extra-territorial reach to bar or even criminalize individuals who provide abortion-related travel. 

After several months, the EEOC has once again updated its guidance and answers regarding the ongoing COVID-19 pandemic’s interaction with anti-discrimination laws, with a particular focus on the workplace screening, testing, and mandatory vaccination policies.  This guidance, updated on July 12, 2022, provides important clarifications to Section A (Disability-Related Inquiries and Medical Exams), Section C (Hiring and Onboarding), Section G (Return to Work), and Section K (The ADA and COVID-19 Vaccinations).  Mintz Employment Attorney Danielle Bereznay discusses the key details.

Dobbs impacts employer-sponsored group health plan coverage for abortion services in states where abortion is, or becomes, illegal, and abortion-related travel benefits.  While our earlier post focused on coverage of abortion and abortion-related travel services under a group health plan, and related ERISA preemption considerations, in this post Mintz attorneys Alden Bianchi, Michelle Capezza and Patricia Moran examine other approaches available to employers that seek to make these benefits available, such as HRAs, health FSAs, excepted benefit EAPs and HSAs.

The Massachusetts Department of Family and Medical Leave (DFML) recently posted proposed changes to its Paid Family and Medical Leave (MAPFML) regulations.  For the time being, these changes are presented as a “draft markup”, with DFML stating its intent to offer a public comment period and/or public hearing at dates to be announced in the coming weeks. Mintz attorney Patricia Moran breaks down what employers need to know in light of these recent updates.

The Dobbs decision have left consumers, providers and insurers with questions on how it  will impact abortion services under health plans. To address this issue, Mintz Employment attorney Marc Aspis discuss the new guidance issued by the Department of Health and Human Services ("HHS") and the HHS Office for Civil Rights regarding access and coverage of reproductive health care and patient privacy and how to incorporate the new guidance into employer group health plans.

Interest in cryptocurrency investments has been increasing at a rapid pace and employers don't want to be left behind. In this webinar, team members from Mintz’s Employee Benefits & Executive Compensation Practice break down key considerations employers face towards designing compensation programs to pay employees in the form of cryptocurrencies.

With the Supreme Court’s decision reversing Roe v. Wade, employers may find themselves navigating complex benefits and tax-related issues. Our Employment, Labor & Benefits team examines what employers will confront if they seek to amend group health plans, or adopt new plans, programs or arrangements, in an effort to facilitate employee reproductive choice in a post-Roe v. Wade environment.

For the first time since the early days of the COVID-19 pandemic, employers are implementing a new wave of layoffs, particularly in the tech world, and it is anticipated that there are more to come as recession worries loom. Mintz attorney Emma Follansbee provides a brief refresher on how the WARN Act applies to plant closings and mass layoffs, and what, if anything has changed since 2020.

The U.S. Supreme Court has given businesses with California employees the option (at least for now) to avoid employee-initiated court proceedings under California’s Private Attorneys General Act (PAGA). The California-based members of Mintz’s Employment, Labor & Benefits team share what California employers need to know.

Jen Rubin, chair of Mintz’s ESG practice group, explains how two recent court decisions striking down California’s endeavor to diversify corporate boards is a perfect time to rethink—and possibly reframe—such efforts. The focus should be more on disclosure, and not mandates, and be transparent, she says.

This alert covers the key components, concerns, and considerations of the United States Equal Employment Opportunity Commission’s (“EEOC”) recently issued technical guidance, addressing how an employer’s use of software, algorithmic decision-making tools and AI to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment could violate the Americans with Disabilities Act (“ADA”). 

California's statutory governance initiatives were dealt another blow after both corporate governance diversity efforts — a female representation mandate and underrepresented community mandates — were struck down.  Now that both statutes have been invalidated corporate boards and the stakeholders and communities those boards serve are asking what is next for statutory governance initiatives?

The New York City Council has amended the New York City Salary Range Transparency Act.  The Mayor has 30 days to sign the amended law.  The Act amended the New York City Human Rights Law, creating an obligation on employers to disclose salary ranges in job advertisements for any position located in New York City. 

The Massachusetts Supreme Judicial Court (“SJC”) recently held in Devaney v. Zucchini Gold that employees who prove only a violation of the federal Fair Labor Standards Act (“FLSA”) are not entitled to the automatic treble damages under the Commonwealth’s untimely wage payment statute, the Massachusetts Wage Act (“Wage Act”).  Rather, employees are limited to a damages recovery only as provided by the FLSA, which in some circumstances can be, in addition to other remedies, double (not triple) wage damages.

The Massachusetts Department of Family and Medical Leave (the “Department”) has issued a series of updates concerning Massachusetts Paid Family and Medical Leave (“MAPFML”).  These updates reflect the latest changes made to MAPFML since the Department’s last quarterly briefing, as discussed in our prior coverage of the MAPFML.