In the continuing saga of the (possible) use of Environmental Social and Governance (“ESG”) factors by retirement plan fiduciaries under the Employee Retirement Income Security Act (“ERISA”), on Thursday, March 23, 2023, the House in a 219-200 vote failed to reach the two-thirds majority required to overturn a presidential veto regarding a joint resolution of
Employment Law
Key Takeaways From NLRB General Counsel’s Guidance Memo Regarding McLaren Macomb Decision
We recently reported on the National Labor Relations Board’s McLaren Macomb decision, which held that employers commit an unfair labor practice by merely proffering a severance agreement including broad confidentiality and non-disparagement clauses, regardless of whether the employee actually signs the agreement. The Board’s General Counsel (“GC”) has now issued a Guidance Memorandum explaining her…
EEOC Performance Report Shows Twenty Percent Increase in Employment Discrimination Charges for Fiscal Year 2022
On March 13, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) released its Annual Report for fiscal year (“FY”) 2022, demonstrating a significant increase in the number of charges of discrimination filed with the agency, as well as emails and calls to the agency’s contact center, from the year prior.
A total of 73,485 new…
A New DOJ Policy Provides Significant Benefits for Self-Disclosing Misconduct
The United States Department of Justice (DOJ) recently announced a nationwide policy that gives credits for companies that make “voluntary self-disclosures” for corporate misconduct. The policy builds on changes to DOJ’s Corporate Enforcement Policy that was announced in January.
The U.S. Attorneys’ Offices’ (USAO) Voluntary Self-Disclosure Policy, which was prepared by a Corporate Criminal…
NLRB Finds Confidentiality and Non-Disparagement Provisions in Severance Agreements Unlawful
The National Labor Relations Board (“NLRB”) ruled this week in the McLaren Macomb case, a decision applicable to both non-unionized and unionized employers, that merely including standard confidentiality and non-disparagement provisions in a severance agreement violates the National Labor Relations Act (the “Act”). The new Biden administration Board found that such provisions “interfere with, restrain…
SCOTUS Ruling Increases Employer Risk of Overtime Liability for Day Rate Compensation
On February 22, 2023, the United States Supreme Court issued a 6-3 decision holding that an employee who is paid a day rate (without any weekly guarantee) must be paid overtime under the Fair Labor Standards Act (“FLSA”) because day rates are inconsistent with the Department of Labor (“DOL”) regulations governing many exemptions from the…
Secure Act 2.0 – The Top Ten Retirement Provisions
The SECURE 2.0 Act of 2022 (“SECURE 2.0”), signed into law by President Biden on December 29, 2022, is another round of retirement reforms that began with the original SECURE Act (i.e., the “Setting Every Community Up for Retirement Enhancement Act”) passed in 2019. SECURE 2.0 is memorialized in “Division T” of the…
DOL Announces New Contractor Rule Proposal
The U.S. Department of Labor (“DOL”) announced today that it will publish a Notice of Proposed Rulemaking on October 13, 2022, in order “to help employers and workers determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act.” This marks the Biden Administration’s second attempt to rescind the…
Employers Must Now Prove Covid Screening is a “Business Necessity”
Employers may no longer require Covid-19 testing for on-site employees across the board. The Equal Employment Opportunity Commission (EEOC) announced on July 12, 2022, that “going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19.”
This means that…
EEOC Says COVID-19 Can Be a Disability Under the ADA
Originally Posted on The Energy Law Blog
The U.S. Equal Employment Opportunity Commission (“EEOC”) announced on December 14, 2021, that employees who contract COVID-19 may be protected from discrimination under federal law. This supplements previously issued guidance addressing when people with “long COVID” may be deemed disabled under the Americans with Disabilities Act (“ADA”).
The…