Congratulations to HuntonAK’s Labor and Employment, Immigration, and OSHA practices, along with thirteen attorneys for their Chambers USA 2023 rankings!
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OSHA Launches New National Emphasis Program Focused on Preventing Workplace Falls
On May 1, 2023, the U.S. Department of Labor (“DOL”) announced that its Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program (“NEP”) to prevent or otherwise reduce workplace falls (the “Fall NEP”). In its press release, OSHA claims that workplace falls are the “leading cause of fatal workplace injuries and the violation the agency cites most frequently in construction industry inspections.” While the Fall NEP took effect on May 1, 2023, there is a 90-day outreach period, meaning that programmed inspections will first begin on or around July 30, 2023. The Fall NEP has no expiration date, but it will be reviewed within six months of issuance to determine its effectiveness and whether it will be continued.
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EEOC Issues Guidance Following Expiration of COVID-19 Public Health Emergency
On May 15, 2023, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19-related technical guidance in response to the Biden administration’s termination of the COVID-19 public health emergency on May 11, 2023. The updated guidance cautions employers about their continuing obligations under the Americans With Disabilities Act (“ADA”), the Rehabilitation Act, and other equal employment opportunity laws.
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The NLRB is Reviewing Union Access to Employer Email and Electronic Communications Systems
National Labor Relations Board General Counsel Jennifer Abruzzo recently asked the National Labor Relations Board (“Board”) to overrule its decision in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019) (“Rio All-Suites”). The Rio All-Suites Board overruled the Board’s prior decision in Purple Communications, Inc., 361 NLRB 1050 (2014) (“Purple Communications”), which in turn overruled the Board’s decision in Register Guard, 351 NLRB 1110 (2007). All three cases deal with whether the National Labor Relations Act (“Act”) gives employees the right to use an employer’s email systems to engage in union and other protected concerted activities.
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EEOC Issues Guidance on Use of AI in Employment Decisions
As of late, it seems we can hardly go a day without hearing about the rise of artificial intelligence (“AI”) and its potential to disrupt all manner of industries. But awareness of AI’s potential implications to our careers has only recently hit the mainstream. Many employees may be surprised to learn that a number of employers have already been using AI to make employment decisions for some time, especially in the hiring process. And the number of employers using AI in the workplace has been growing rapidly. Some employers are even using AI to make promotion decisions.
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First Gag Clause Attestations Due December 31, 2023 – What Group Health Plan Sponsors Need to Know
The Consolidated Appropriations Act of 2021 (the CAA) requires group health plans and health insurance carriers to attest on an annual basis that they are in compliance with the CAA’s gag clause prohibition. While the prohibition of gag clauses was effective December 27, 2020, the first annual attestation is due December 31, 2023. Group health plan sponsors should begin taking steps now to prepare.
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Pay Equity – A Patchwork Legal Landscape
As pay equity has drawn more attention in recent years, employers need to stay abreast of the patchwork of federal, state, and local laws related to pay equity issues. Importantly, employers should understand the varying standards for protected characteristics, appropriate comparators, and accepted defenses under the varying laws of different jurisdictions. At a high level, this post summarizes the federal and state legal frameworks for pay equity claims and highlights the important differences in analyzing such claims.
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Virginia, Too – Increased Restrictions on Employee Confidentiality Provisions Related to Sexual Harassment Claims
Virginia joined the list of states limiting employers’ ability to include confidentiality and non-disparagement provisions in employment agreements for matters related to sexual harassment. But the law’s scope seems limited, and does not appear to apply to post-employment severance agreements.
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NLRB Restores Leniency for Employee Abusive Conduct and Workplace Outbursts
On May 1, 2023, the National Labor Relations Board issued its decision in Lion Elastomers, 372 NLRB No. 83 (2023), which will make it more challenging for employers to discipline workers who engage in abusive workplace conduct in connection with Section 7 activity under Board law. The decision overrules General Motors, 369 NLRB No. 127 (2020), which logically and uniformly applied the Board’s traditional Wright Line burden-shifting framework to cases involving employee outbursts. The Board’s decision reinstates a triad of “setting-specific” tests previously used to determine whether an employee’s opprobrious conduct forfeited the Act’s protection.
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Compliance Update for U.S. Employers Conducting Criminal Background Checks in the Hiring Process
Employers who conduct background checks on applicants or employees must comply with the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. Among other things, the FCRA requires employers who procure criminal background reports (“consumer reports”) to provide applicants and employees with a Summary of Rights form as prepared by the Consumer Financial Protection Bureau (CFPB) when providing them with the FCRA-required pre-adverse action notices. See 15 U.S.C. § 1681b(b)(3)(A)(ii).
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