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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.
Continue Reading The NLRB is Reviewing Union Access to Employer Email and Electronic Communications Systems

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.
Continue Reading EEOC Issues Guidance on Use of AI in Employment Decisions

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. …
Continue Reading NLRB Restores Leniency for Employee Abusive Conduct and Workplace Outbursts

On April 14, 2023, the California Civil Rights Department (“CRD”), formerly known as the Department of Fair Employment and Housing, announced that it will now accept “enforcement deferral requests” from employers currently obligated to provide a “Labor Contractor Employee Report” by the upcoming May 10, 2023 deadline. …
Continue Reading Extension Available for California Employers to Submit Labor Contractor Employee Report

The National Labor Relations Board’s (NLRB or the “Board”) Office of General Counsel (“GC”) released an internal advice memorandum on February 27, 2023, which indicates that the NLRB will seek to enforce the National Labor Relations Act (NLRA or the “Act”) against employers that allegedly retaliate against employees for having workplace discussions about racism. The memorandum—which concerned employment actions the Kaiser Permanente Bernard J. Tyson School of Medicine, Inc. (the “Tyson Medical School”) took with respect to a faculty member/physician following various discussions about race in the workplace—sets forth an expansive interpretation of conduct that constitutes protected concerted activity under Section 7 of the Act so as to include general discussions “working to end systemic racism, including its impact at the [e]mployer.”…
Continue Reading The National Labor Relations Board Seeks to Regulate Discussions of Race in the Workplace

On March 29, 2023, the OFCCP announced Director of the Office of Federal Contract Compliance Programs (OFCCP), Jenny Yang, will leave her position to take on a new role at the White House. Specifically, Yang will join the White House Domestic Policy Council as a deputy assistant to the President for racial justice and equity. …
Continue Reading OFCCP Makes Headlines – What’s Happening at the OFCCP?

On January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) published a draft of its Strategic Enforcement Plan (“SEP”) in the Federal Register, which outlines the enforcement goals for the Commission for the next four years. While the Agency aims to target a number of new areas – such as underserved workers and pregnancy fairness in the workplace – it is notable that it listed as priority number one the elimination of barriers in recruitment and hiring caused or exacerbated by employers’ use of artificial intelligence. …
Continue Reading EEOC Pushes for Greater Enforcement on AI

On February 9, 2023, the Department of Labor Wage and Hour Division issued a Field Assistance Bulletin concerning the application of certain provisions of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) to teleworking employees. The bulletin provides guidance on compensable time, breaks for nursing employees who are teleworking, and FMLA eligibility rules for remote employees. …
Continue Reading Department of Labor Issues Guidance on the FLSA and FMLA for Remote Workers

On January 5, 2023, the Federal Trade Commission (“FTC”) issued a notice of proposed rulemaking (“NPRM”) that would “provide that it is an unfair method of competition – and therefore a violation of Section 5 [of the FTC Act] – for an employer to enter into or attempt to enter into a non-compete clause with a worker; [or to] maintain with a worker a non-compete clause . . .”  If this rule becomes final, it would effectively prohibit employers from entering into non-compete agreements—as broadly defined by the proposed rule—with their workers.
Continue Reading The Federal Trade Commission Seeks to Ban Non-Compete Clauses