Employer Policies and Procedures

Reasonable Accommodations under the Pregnant Workers Fairness Act

Ashley D. Mitchell Leave a comment

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

Darius Rohani-Shukla Leave a comment

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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NLRB Issues Ruling Prohibiting Non-Disparagement and Confidentiality Provisions in Severance Agreements

Megan Shaked Leave a comment

By Megan S. Shaked

Over the last few years, we have seen states enact various restrictions on confidentiality and nondisparagement clauses in employment agreements. These changes were made in the wake of the #MeToo movement and in an effort to reduce perceived barriers to workers’ ability to raise claims for unlawful conduct in the workplace.

Last week, the National Labor Relations Board (NLRB) ruled that a severance agreement containing nondisparagement and confidentiality provisions is unlawful under the National Labor Relations Act (NLRA).

The main issue was whether the employer violated the NLRA by offering a severance agreement to 11 bargaining unit employees it permanently furloughed. The agreement broadly prohibited the employees from making statements that could disparage the employer. The agreement also prohibited the employees from disclosing the terms of the agreement.

In examining the language of the severance agreement at issue, the Board ultimately concluded that the nondisparagement and confidentiality provisions “interfere with, restrain, or coerce employees’ exercise of Section 7 rights.” The Board reasoned that because the agreement conditioned the receipt of severance benefits on the employee’s acceptance of the unlawful provisions, the respondent’s proffer of the agreement violated the NLRA.

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Navigating the New Normal: Remote Work Challenges [Webinar Recording]

Theresa Green Leave a comment

On Wednesday, February 22, 2023, Jordan B. Schwartz and Darius Rohani-Shukla presented a webinar regarding Navigating the New Normal: Remote Work Challenges.

There is no doubt that the COVID-19 pandemic triggered a significant surge in remote work nationwide, allowing more and more employees to work from their homes or some other location locally or in a completely different state from the employer’s brick and mortar location. This has created significant employment hurdles for employers because remote employees are generally subject to the laws of the city and state where they are physically located and perform work. Depending on state law and conflict of law principles, there may be exceptions for employees who are temporarily located in a state or not considered “based” within a state. But certainly for those who intend to continue to work from a different state on a more long-term basis, its likely that a particular state’s laws could apply.

And the challenges created by remote work are ones that are unlikely to disappear any time soon. Statistical projections show that by the end of 2022 remote work will make up about 25% of all jobs in North America. Notably, in 2021, about 67% of white-collar workers worked either partially or exclusively from home and almost 98% of remote workers surveyed said they would like to work remotely at least some of the time for the rest of their careers.

This desire to work remotely combined with the challenges in hiring and retaining workers that many employers are experiencing, makes it likely that employers will have to continue to grapple with if and how to incorporate remote work into their current structure, including how to effectively monitor employee performance and the employment laws that may be triggered related to this unique work environment.

Participants in this webinar learned: Continue reading →

[Webinar] Navigating the New Normal: Remote Work Challenges

Theresa Green Leave a comment

On Wednesday, February 22, 2023 at 1 p.m. EST, join Dan Deacon and Darius Rohani-Shukla for a webinar regarding Navigating the New Normal: Remote Work Challenges.

There is no doubt that the COVID-19 pandemic triggered a significant surge in remote work nationwide, allowing more and more employees to work from their homes or some other location locally or in a completely different state from the employer’s brick and mortar location. This has created significant employment hurdles for employers because remote employees are generally subject to the laws of the city and state where they are physically located and perform work. Depending on state law and conflict of law principles, there may be exceptions for employees who are temporarily located in a state or not considered “based” within a state. But certainly for those who intend to continue to work from a different state on a more long-term basis, its likely that a particular state’s laws could apply.

And the challenges created by remote work are ones that are unlikely to disappear any time soon. Statistical projections show that by the end of 2022 remote work will make up about 25% of all jobs in North America. Notably, in 2021, about 67% of white-collar workers worked either partially or exclusively from home and almost 98% of remote workers surveyed said they would like to work remotely at least some of the time for the rest of their careers.

This desire to work remotely combined with the challenges in hiring and retaining workers that many employers are experiencing, makes it likely that employers will have to continue to grapple with if and how to incorporate remote work into their current structure, including how to effectively monitor employee performance and the employment laws that may be triggered related to this unique work environment.

Participants in this webinar will learn: Continue reading →

Illinois Set to Become the Third State with a Mandatory Paid Leave Law

Daniel C. Deacon Leave a comment

The Illinois Paid Leave for All Workers Act (Senate Bill 208), which will provide paid leave to virtually all Illinois employees, was passed by the Illinois legislature on January 10, 2023 and was sent to the Governor J.B. Pritzker for signature on January 30, 2023.  Governor Pritzker has publicly supported this bill and it is expected he will sign the bill into law soon.   Illinois is set to join Nevada and Maine as the only three states in the country with a mandatory paid leave law- requiring nearly all Illinois employers to provide employees up to 40 hours of paid leave per year for “any purpose.”  This will have significant impact on Illinois employers, and it is imperative for employers to take proactive steps to review existing leave policies and prepare to implement the Act’s requirements when it goes into effect on January 1, 2024.

Scope of the Act

The Act will apply to all Illinois employers except school districts organized under the School Code and park districts organized under the Park District Code.  Furthermore, all Illinois employees will be covered with a few limited exceptions:

  • employees under the federal Railroad Unemployment Insurance Act or the Railway Labor Act;
  • students employed by a college or university for less than 2 consecutive calendar quarters during a calendar year with no reasonable expectation of being rehired by the same employer of the same service in a subsequent calendar year;
  • employees working in the construction industry who are covered by a collective bargaining agreement (“CBA”); and
  • employees covered by a collective CBA with an employer that provides services nationally and internationally of delivery, pickup, and transportation of parcels, documents, and freight.

The Act will not impact the validity or otherwise modify the terms of a CBA in effect on January 1, 2024. The Act’s requirements can be waived in a bona fide CBA as long as the waiver is set forth explicitly in the agreement in clear and unambiguous terms.

Th Act also exempts those employers that are covered by a municipal or county law in effect on Jan. 1, 2024, such as the Chicago Minimum Wage and Paid Sick Leave Ordinance and the Cook County Earned Sick Leave Ordinance.  For any municipal or county ordinances enacted or amended on or after January 1, 2024, employers are only required to comply with the provisions of the local ordinance to the extent that it provides greater benefits, rights, and remedies to employees than those provided under the Act.

Accrual and Use of 40 hours of Leave in 12-Month Period

Beginning on January 1, 2024, covered employees will accrue one hour of paid leave for every 40 hours worked.  However, employees cannot use their paid leave until they have completed 90 calendar days of employment, or until March 31, 2024, whichever is later.

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[Webinar] California Employment Law Update

Theresa Green Leave a comment

On Thursday, January 19, 2023 at 1 p.m. EST / 10 a.m. PST, join Andrew J. Sommer, Megan S. Shaked, and Samuel S. Rose for a webinar regarding a California Employment Law Update.

2023 brings changes for California employers to a range of topics touching on pay equity and marijuana use, as well as wage and hour compliance. This webinar will review compliance obligations for companies doing business in California, as well as discuss the practical impact of these new laws and best practices for avoiding potential employment-related claims.

Participants in this webinar will learn: Continue reading →

Announcing Conn Maciel Carey LLP’s 2023 Labor and Employment Webinar Series

Theresa Green Leave a comment

Announcing Conn Maciel Carey LLP’s

2023 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 3 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  

Conn Maciel Carey’s complimentary 2023 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examine past trends and look ahead at the issues most likely to arise.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2023 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past eight years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.

California Employment Law Update

Thursday, January 19, 2023

Remote Work Challenges

Wednesday, February 22, 2023

Whistleblower/Retaliation Issues

Tuesday, March 21, 2023

Pay Transparency & Non-Compete Laws

Wednesday, April 20, 2023

Managing Internal Investigations

Thursday, May 11, 2023

Hot Topics in Wage and Hour Law

Tuesday, June 20, 2023

Marijuana and Drug Testing

Tuesday, July 18, 2023

Privacy Issues in the Workplace

Wednesday, September 20, 2023

ADA Reasonable Accommodations

Wednesday, October 18, 2023

Artificial Intelligence in the Workplace

Tuesday, November 21, 2023

NLRB Issues and Joint Employer Update

Thursday, December 14, 2023

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

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New York City Pay Transparency Law Goes into Effect – Tips for Employers

Daniel C. Deacon Leave a comment

After a series of amendments passed by the New York City Council in the Spring of 2022 postponed the effective date of the New York City Pay Transparency Law, the law finally went into effect on November 1, 2022.  Employers need to take swift action to ensure that their job advertisements comply with the law, if they haven’t already done so.  The law amended the New York City Human Rights Law (NYCHRL) to make it an unlawful employment practice for a covered employer to advertise a job, promotion, or job transfer without disclosing the minimum and maximum salary or hourly wage range of compensation for the position that the employer in good faith believes it would pay for the position.

A covered employers is any employer with four or more employees, including independent contractor and owners, or one or more domestic workers, that has at least one employee who works, at least in part, in New York City.  The law also covers employment agencies of any size. Temporary help firms that recruit, hire, and assign their own employees to perform work or services for other organizations to support or supplement the other organization’s workforce are exempt from the disclosure requirements.  However, employers that work with temporary help firms must follow the disclosure requirements.

Prior guidance issued by the New York City Commission on Human Rights (the “Commission”) provides that the “salary” employers must disclose is the “base annual or hourly wage or rate of pay,” and it does not need to include other forms of compensation or benefits offered in connection with the advertised job, such as health insurance, 401K contributions or employer-funded pension plans, severance pay, overtime pay, commissions, tips, bonuses, and stock. The guidance also provides further instruction about how the law applies, which include the following highlights:

  • Coverage and Application
    • The four employees do not need to work in the same location, and they do not need to all work in New York City.
    • As long as one of the four employees works in New York City, the workplace is covered.
    • The disclosure requirements apply to any position that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.  In other words, employers outside of New York City need to be aware of the law’s potential reach, especially with respect to remote jobs that could be filled by persons living (and working from) New York City.  Employers that post for remote jobs and have more than four employees should include compliant salary/wage ranges in postings for those jobs.
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Preventing and Responding to Workplace Violence [Webinar Recording]

Theresa Green Leave a comment

On Tuesday, October 11, 2022, Kara M. Maciel, Lindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, presented a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized serious hazards, and OSHA has instituted enforcement actions under its General Duty Clause after incidents of workplace violence. OSHA has also initiated a rulemaking to address workplace violence in specific industries. For its part, the EEOC has also prioritized ways to effectively prevent and address workplace violence, particularly in the form of workplace harassment. And outside of OSHA and the EEOC, employers can also be held liable for workplace violence through other claims such as negligent hiring and supervision.

In this webinar, attendees learned: Continue reading →