Reasonable Accommodations under the Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (“PWFA”) was signed by President Biden on December 29, 2022, and takes effect on June 27, 2023. The PWFA requires covered employers to provide a reasonable accommodation to the known limitations of a qualified employee related to pregnancy, childbirth, or related medical conditions unless the accommodation would pose an undue hardship on the operation of the business.

Below is a summary of the PWFA.

Who is a covered employer?

A covered employer is an employer with at least 15 employees. Employers may look to EEOC regulations related to Title VII and how courts interpret employers under Title VII for purposes of determining coverage as the PWFA explicitly references the Title VII definition of employer.

What does the PWFA require?

Under Title VII employers cannot discriminate against an employee based on pregnancy, childbirth, or related medical conditions. Likewise, employers covered by Title VII must treat an employee affected by pregnancy, childbirth, or related medical conditions the same as other workers with similar abilities or an inability to work.

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Managing Internal Investigations [Webinar Recording]

On Thursday, May 11, 2023, Lindsay A. DiSalvo and Ashley D. Mitchell presented a webinar regarding Managing Internal Investigations.

Gathering reliable information about employees and workplace incidents to make reasonable and informed employment decisions can be a challenge for employers. The scope and complexity of workplace investigations can vary depending on the issues and the number of people involved. Internal investigations can involve various and very different types of claims, such as discrimination, harassment, retaliation, theft, misconduct, whistleblowing and misappropriation of trade secrets. An ill-considered response to any of these issues can create a variety of problems for employers, making the process for conducting these types of investigations even more important.

Participants in this webinar learned Continue reading

Navigating Non-Disparagement and Confidentiality Clauses: NLRB General Counsel Provides Additional Insight on Severance Agreements

Over the past three months, the National Labor Relations Board (the Board) has more actively scrutinized the use of severance agreements that contain confidentiality clauses which might prevent employees from sharing information about their terms of employment. This was particularly evident in the Board’s recent decision in McLaren Macomb, 372 NLRB No. 58 (2023), which we wrote about here. In McLaren Macomb, the Board ruled that that overly broad non-disparagement and confidentiality provisions included in severance agreements offered to certain employees violated Section 8(a)(1) of the National Labor Relations Act (the Act).

The Board’s General Counsel, Jennifer Abruzzo, provided further clarification on the meaning of McLaren Macomb in a memorandum that was issued on March 22, 2023.  Below are the most important takeaways from that memorandum.

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OSHA Expands Its Investigative Authority Under the Whistleblower Protection Program through U and T Visa Certifications

By Kara Maciel, Eric J. Conn, and Darius Rohani-Shukla

OSHA has unveiled another tool that will enhance its ability to investigate potential workplace safety violations affecting vulnerable workers who are victims of criminal activity, including sex and labor trafficking. Effective March 30, 2023, OSHA can now issue an important certification used to support two nonimmigrant visas, the U and T visas, that grant individuals immigration status when working with officials during criminal investigations and proceedings. Immigration,Document.,3d,IllustrationBoth the U visa and T visa were created in 2000 as part of the Victims of Trafficking and Violence Protection Act and are intended to provide undocumented workers or workers whose immigration status depends on their employer with the opportunity to report qualifying criminal activity (QCA) without jeopardizing their immigration status and/or risking retaliation by their employer. Now, OSHA can provide support to the visa applications of workers who bring forward credible allegations of a violation of a law that OSHA enforces, in situations where OSHA has detected specific QCA.

OSHA does not have the authority to issue U and T visas themselves. Rather, these visas are issued by Continue reading

Conn Maciel Carey LLP Adds Highly Regarded OSHA Defense and Employment Attorney Kimberly Richardson

Conn Maciel Carey LLP, (CMC) a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, is pleased to announce that Kimberly Richardson has become an Of Counsel attorney with the firm based out of the firm’s principal office in Washington, DC.

Ms. Richardson will provide counseling and litigation services related to workplace health and safety and employment-related matters. Throughout her 15 years of experience, Ms. Richardson has served as the lead in-house workplace health and safety attorney for multiple national and international organizations, where she advised executive leadership on matters pertaining to labor, employment, and OSHA compliance.

“I am elated to share Kimberly’s perspective as a former in-house corporate counsel with our clients and our attorneys as she prides herself on advising companies to create and prioritize robust compliance programs on the myriad of employment legal issues,” says Kara Maciel, Labor and Employment Practice Chair. “When corporate legal teams need advice on creating collaborative approaches to their ESG initiatives, Kimberly will be a strong leader of CMC’s team in providing strategic privileged counsel on the responsibilities that corporations will be facing in the years to come.”

“I could not be more excited to welcome the legendary Kimberly Richardson to our OSHA and L&E teams at Conn Maciel Carey,” says Eric Conn, OSHA Practice Chair. Continue reading

Conn Maciel Carey Submits Comments to the FTC Urging it to Revise the Proposed Rule Banning Non-Compete Clauses

On April 19, 2023, Conn Maciel Carey LLP’s Labor & Employment partners, Kara Maciel and Jordan Schwartz, submitted public comments on behalf of a diverse coalition of employers urging the Federal Trade Commission (“FTC”) to revise its Proposed Rule banning non-competition clauses.  While we believe that the FTC does not have legal authority to promulgate the Proposed Rule in its current form, the coalition’s comments focused on three problematic portions of the Proposed Rule and proposed the FTC revise it in three primary respects: Continue reading

Conn Maciel Carey LLP Expands Midwest Presence with OSHA Defense & Employment Senior Counsel Mark Ishu

Conn Maciel Carey LLP (CMC), a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, is pleased to announce that Mark Ishu has joined the firm’s Chicago office as a Senior Counsel.

Prior to entering private practice, Mr. Ishu spent over a decade serving as a Trial Attorney for the United States Department of Labor, Office of the Solicitor, where he prosecuted civil violations under federal labor statutes for the Occupational Safety and Health Act, Fair Labor Standards Act, , Mine Safety and Health Act, Employee Retirement Income Security Act, Davis Bacon Act, Service Contract Act, Immigration Nationality Act (H-1B, H-2B, H-2A), and whistleblower statutes. During his tenure, he was dedicated to fostering, promoting, and protecting the welfare of wage earners, job seekers, and retirees in improving working conditions, advancing opportunities for profitable employment, and assuring work-related benefits and rights.

Co-Managing Partner, Aaron Gelb, says “After litigating several significant citations with Mark on the other side representing OSHA, I came to respect him as a worthy adversary and like him as a person.  Continue reading

Pay Transparency Laws and New State Laws re: Non-Compete Agreements [Webinar Recording]

On Thursday, April 20, 2023, Daniel Deacon and Samuel Rose presented a webinar regarding Pay Transparency Laws and New State Laws re: Non-Compete Agreements.

Pay transparency laws have taken the country by storm. In December 2021, New York City Council passed a pay transparency measure that went into effect in November 2022. California passed a similar law that went into effect in January 2023. The trend will likely spread to other states across the country. This webinar explained the laws, compliance challenges, and some tips to make compliance easier. It also covered a general overview of new state laws regarding non-compete agreements, including the District of Columbia’s Ban on Non-Compete Agreements Amendment Act, which went into effect in October 2022.

Participants in the webinar learned: Continue reading

The Current Landscape of Employer Liability for Supervisor Sexual Harassment under California’s FEHA

By Samuel S. Rose

The California Court of Appeal has once again weighed in on employer liability for a supervisor’s sexual harassment under the California Fair Employment and Housing Act through its decision in Atalla v. Rite Aid Corporation (2023) 89 Cal.App.5th 294.

In Atalla, Plaintiff and a district manager for Rite Aid had developed a years-long friendship prior to Plaintiff joining Rite Aid as a staff pharmacist. The friendship began in 2017 and Plaintiff began employment at Rite Aid in 2018. The district manager supervised staff pharmacists. Plaintiff and the district manager had frequently and consistently engaged in conversation over text message regarding a variety of topics, including vacations, family, personal matters, and work.

In 2019, during a late-night text message conversation, the district manager sent an inappropriate photo to Plaintiff. The district manager sent a text message about being drunk and that he meant to send the photo to his wife. Plaintiff deleted the photo and the text. The district manager then sent another inappropriate photo and Plaintiff sent a text asking him to stop.

The trial court granted Rite Aid’s summary judgment motion. In affirming the trial court’s ruling, the Court noted that Plaintiff did not raise a triable issue of fact that the district manager was acting as a supervisor during the text exchange. The Court noted that Plaintiff and the district manager had a prior texting relationship, and the photos were sent as a result of that personal relationship. It also pointed out that the texts occurred outside of the workplace and well after working hours.

The Court notes that its decision is consistent with the current landscape of the law on point. It points to the following four cases, which we have listed with a brief discussion of their facts and holdings. Continue reading

U.S. Supreme Court Will Decide Whether an ADA Plaintiff Must Allege an Intent to Visit a Property to Establish Standing

This past Monday, the U.S. Supreme Court agreed to hear a case challenging a disabled woman’s claim that she has legal standing to bring a lawsuit against a Maine hotel company for violating Title III of the Americans with Disabilities Act (“ADA”) even though she does not plan to visit its hotel in the future.  Black,Disability,Wheelchair,,With,Ancient,Pillars,As,Background,,3d,RenderingThe outcome of this case will be crucial for all places of public accommodations, even those outside the hotel context, such as restaurants, stores, and other retail establishments.  Indeed, this case has the potential to determine whether it becomes significantly easier or more difficult for plaintiffs to bring viable ADA lawsuits against any type of company whose business is open to the public, regardless as to whether the allegations relate to websites or more traditional “brick and mortar” barriers to access.

This case began in 2020 when Deborah Laufer, an individual who uses a wheelchair, brought a lawsuit against Acheson Hotels, a hotel company that operates the Coast Village Inn and Cottages in Maine, alleging that Acheson’s website failed to identify accessible rooms, failed to provide an option for booking an accessible room, and failed to provide sufficient information to determine whether any of the guest rooms were accessible, in violation of Title III of the ADA.  As you may recall from our prior blog post, Ms. Laufer is a prolific ADA tester/serial plaintiff who has filed more than 600 lawsuits against hotels and other places of lodging.  Aside from the name of the property she is suing, Ms. Laufer’s lawsuits are virtually identical; they allege that a hotel or other place of lodging has violated the ADA because its website and/or third-party online reservation website (such as Expedia) purportedly fails to sufficiently identify the accessible features of the hotel, as required by the ADA regulations. Continue reading