Steven J. DiBeneditto Jr.

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The National Labor Relations Board (NLRB) and the Occupational Safety Health Administration (OSHA) recently signed a Memorandum of Understanding (MOU) to coordinate investigations and enforcement actions between the two agencies. The MOU is the latest step by OSHA to blur the lines between workplace safety law and labor law, and could result in more workplace citations from OSHA or unfair labor practice charges filed with the NLRB. …
Continue Reading NLRB and OSHA to Enhance Enforcement Cooperation

The Office of Federal Contract Compliance Programs (OFCCP) recently published a final rule titled “Pre-enforcement Notice and Conciliation Procedures.” This rule rescinds the evidentiary standards from the 2020 rule titled “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination,” which required specific pre-determination notice requirements and certain evidentiary standards. In a blog post, the OFCCP explains that the “new final rule restores flexibility to OFCCP’s pre-enforcement and conciliation procedures, promotes efficiency in resolving cases, strengthens enforcement and promotes alignment of the standards of Title VII of the Civil Rights Act of 1964.” …
Continue Reading OFCCP Publishes Final Rule on Pre-Determination Requirements and Conciliation

Federal contractors have had a flurry of headlines to keep up with over the last few months. Most prominent among them is the Federal Acquisition Regulatory Council’s interim rule barring federal agencies and contractors from using TikTok or any other ByteDance product (the “Covered Applications”). …
Continue Reading TikTok “Bytes” the Dust for Federal Contractors and Other Important Updates

In Harris et. al. v. Medical Transportation Management, Inc. et. al., the D.C. Circuit Court of Appeals held that a putative class cannot be certified as an “issue” class under Rule 23(c)(4) without also satisfying the requirements in Rule 23(a) and (b). This ruling is important because it prohibits putative classes from using the “issue” class mechanism of Rule 23(c)(4) to skirt the important procedural requirements in Rule 23(a) and (b) that are meant to protect both the litigants and absent parties. The court also encouraged the use of the partial summary judgment mechanism, rather than Rule 23(c)(4), to resolve discrete legal issues common to many class members. …
Continue Reading D.C. Circuit Requires Compliance with Rules 23(a) and (b) to Certify Rule 23(c)(4) “Issue” Class Actions

Last week, the Ninth Circuit issued an opinion in Sharp v. S&S Activewear, L.L.C. where it confirmed that music in the workplace can form the basis of a Title VII sex harassment claim even when it is (1) not directed at any particular individual employee, and (2) offends both female and male employees. …
Continue Reading Ninth Circuit Says Music in the Workplace Can Form Basis for Harassment Claim Under Title VII

The Fourth Circuit issued an opinion in Messer et al. v. Bristol Compressors International, LLC et. al. that should serve as a cautionary tale to employers planning to use severance agreements when implementing layoffs. There, the court considered three questions. First, whether Bristol Compressors validly eliminated its severance plan before terminating Plaintiffs’ employment. Second, whether certain Plaintiffs who signed a Stay Bonus Letter Agreement (“SBLA”) waived their claims against Bristol Compressors. And third, whether four of the Plaintiffs received adequate notice under the WARN Act before their employment was terminated. …
Continue Reading Fourth Circuit Outlines Pitfalls in Using Severance Plans for Layoffs

As part of the bill funding the federal government, President Biden signed into law the Pregnancy Workers Fairness Act (PWFA) and the PUMP for Nursing Mothers Act (PUMP Act). These relatively unknown laws are important pieces of legislation carrying with them significant changes to the workplace for pregnant employees.
Continue Reading Under the Radar Laws Expand Protections for Pregnant Employees in the Workplace

On December 7, 2022, New York City Council Member Tiffany Cabán along with three other co-sponsors introduced a proposed bill that would prohibit all employers from terminating employees without (1) “just cause” or (2) a bona fide economic reason.  The bill would amend current law which protects “fast food” employees from being terminated without just cause.
Continue Reading New York City Bill Could Fundamentally Change Employer-Employee Relationship for NYC Employers

The EEOC recently issued long awaited guidance on how an employer’s use of software, algorithms, and artificial intelligence will be treated by the Commission under the Americans with Disabilities Act (ADA). …
Continue Reading EEOC Adopts Guidance On Use of Algorithms and AI Under the ADA For Job Applicants And Employees

The Equal Employment Opportunity Commission has started to take affirmative steps to include non-binary classifications on agency forms.  In an announcement last month, individuals will be able to choose a non-binary gender markers when filling out intake and charge of discrimination forms used by workers for discrimination complaints levied against employers.  On these forms, an individual will be able choose “X” for the voluntary self-identification questions and use the prefix “Mx.”…
Continue Reading EEOC Taking Steps to Include Non-Binary Classification on Forms