Hunton Employment & Labor Perspectives

Background

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. 

Last week, the Ninth Circuit issued a decision holding that California employers can require employees to enter into mandatory arbitration agreements as a condition of their employment.  In the decision, Chamber of Commerce v. Bonta, No. 20-15291 (9th Cir., Feb. 15 2023), a three-judge panel reversed the Ninth Circuit’s own prior decision and found that Assembly Bill 51 (AB 51), which sought to impose criminal and civil penalties on employers who require employees to enter into such agreements, is preempted by federal law.

Webinar: Recession Ahead? Key Considerations for Employers Conducting a RIF

Tuesday, February 28, 2023
12:00–1:00 pm ET
11:00 am –12:00 pm CT
9:00 am –10:00 am PT

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. 

On December 21, 2022, New York Governor Kathy Hochul signed New York State’s pay transparency bill into law.  Effective September 17, 2023, the new law will require employers to disclose the anticipated compensation range for any advertised job posting.  See N.Y. Lab. Law § 194-b.

As we reported in September, effective January 1, 2023, employers face a host of pay disclosure and recordkeeping obligations.  The DLSE, the agency in charge of implementing the new law (codified at California Labor Code section 432.3), recently published guidance on the parameters of the new law.

In Hamilton v. Dallas County, 2020 U.S. Dist. LEXIS 223831, 2020 WL 7047055, at *2 (N.D. Tex. Dec. 1, 2020), a federal district court judge dismissed a lawsuit by female Dallas County detention officers alleging that a gender-based decision related to weekend work schedules violated Title VII of the Civil Rights Act of 1964.  At the root of that case was the fact that, although male and female officers received the same number of days off during a workweek, only male officers were permitted to take both weekend days off.  The female officers complained about the scheduling policy, but the County maintained the policy, citing safety concerns. 

As employers know, the federal government’s New Year’s resolutions often do not make employers’ lives easier. The following are recent developments of which employers should be aware. 

The U.S. Supreme Court agreed to hear a case that will impact how employers across the country respond to their employees’ requests for religious accommodation. Depending on how the Court rules, it may become much more difficult for companies to comply with or deny religious accommodations under Title VII of the Civil Rights Act of 1964.