On October 11, 2022, the DOL finally announced the publication of its proposed new rule. And what was old is new again. The proposed rule reverts back to an “economic reality test” for evaluating whether a worker is an independent contractor based on the “totality of the circumstances” of the worker/business relationship. It establishes a … Read more
Federal courts and administrative executive agencies have recently made significant developments in the area of employment law. In a matter of first impression by any Federal appeals court, the Fourth Circuit recently held that gender dysphoria constitutes a disability subject to the Americans with Disabilities Act (“ADA”). The National Labor Relations Board (“NLRB”) also recently … Read more
The First Circuit recently ruled that the policy by Whole Foods to ban its employees from wearing political messages on their face masks while working was not a discriminatory practice. On June 28, 2022, in a case called Kinzer v. Whole Foods Market, the First Circuit dismissed a lawsuit brought by a class of Whole … Read more
On May 23, 2022, in a case called Morgan v. Sundance, the United States Supreme Court unanimously decided that a party can waive its right to arbitration even when its conduct has not prejudiced the other side. In so holding, the USSC changed 1st circuit precedent which had for years required a showing of prejudice. … Read more
Federal employment discrimination laws do not prohibit employment discrimination based solely on an individual’s status as a caregiver. But caregiver discrimination does violate federal employment discrimination laws, such as Title VII, the Americans with Disabilities Act of 1990, and the Age Discrimination in Employment Act, when it is based on another protected characteristic, like an individual’s … Read more
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“the Act”) became the law of the land on March 3, 2022. While terse in language, the Act will have broad implications. What does the Act say? The new law amends the Federal Arbitration Act (“FAA”) and allows employees subject to pre-dispute mandatory arbitration … Read more
Ever since New Hampshire legalized medical marijuana, employers have struggled with how to manage employees prescribed cannabis by their doctors. There was concern that businesses might be violating the Federal Controlled Substances Act if they were perceived as permitting employees to use medical marijuana. That is because the Controlled Substances Act characterizes pot as a … Read more
It is finally official. After months of uncertainty, today the Supreme Court blocked the vaccine/testing mandate published back in November by the Occupational Health and Safety Administration (OSHA) to deal with what the agency perceived as workplace dangers caused by the ongoing COVID-19 pandemic. As a reminder, OSHA issued the nationwide “Emergency Temporary Standard” (ETS) … Read more
After months of controversy and legal challenges in Court, many employers have to be asking: where are we on the so-called Federal OSHA vaccine mandate? The shorter answer is that we are still in limbo, but hopefully with a final answer coming shortly. While we wait, employers should begin taking steps to comply with OSHA’s … Read more
As we prepare to turn the calendar to 2022, employers should be aware that in the last half of 2021, the United States Equal Opportunity Commission (“EEOC”) has tackled the hot topics of LGBTQ+ rights and technology/artificial intelligence. Briefly, here is what the EEOC has been up to in that regard: LGBTQ+ Rights Earlier this … Read more