Since at least 1978 when the U.S. Equal Opportunity Commission (“EEOC”) issued guidance on hiring tools, employers have known that they need to analyze carefully any testing procedures they utilize to screen potential employees and current employees in order to ensure that they are properly validated and do not discriminate against individuals or protected classes under the disparate treatment and disparate impact theories of discrimination.  On May 12, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) for the first time issued guidance in a question and answer format to employers, employees and applicants on the use of artificial intelligence tools.

Artificial intelligence (“AI”) tools are often times used by employers to assist them and save them time in making decisions regarding hiring new employees, monitoring their work performance, determining wages and promotions, as well as other terms and conditions of employment.  These tools typically rely upon software that uses algorithms to aid the decision-making process.  The concern of the EEOC is that artificial intelligence tools utilized by employers may have a disparate impact on individuals, both applicants and current employees, with disabilities, and therefore violate Title I of the Americans with Disabilities Act (“ADA”). The technical assistance guidance published by the EEOC gives employers practical tips on how to comply with the ADA, and to applicants and employees whose rights may have been violated.

Examples of some of the AI tools that concern the EEOC are: “resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test.”

While the technical assistance guidance was issued by the EEOC, it was done in conjunction with the U.S. Department of Justice (“DOJ”), as the EEOC enforces disability discrimination laws for the private sector and federal employees, whereas the DOJ enforces such laws for state and local government employees.  The guidance comes after disability advocates for years have been complaining of discrimination via employer testing programs, and been clamoring for action with respect to the use of AI.  In this regard, it is estimated that more than 80% of employers use some form of automated tools to screen candidates for hire.

The guidance explains the meaning of AI as well as “software and algorithms,” and how they relate to one another when used in the workplace.  It then goes on to discuss the basics of the ADA and reasonable accommodation, as well as algorithmic-decision making tools that screen out qualified individuals with disabilities and that violate the prohibitions on disability-related inquiries and medical examinations.  It finishes by providing “Promising Practices” for employers, job applicants and employees.  In particular, the technical assistance guidance directs employers to be critical of any AI tools they may use, and it includes questions that employers should ask vendors of AI tools.  The EEOC emphasizes that any AI tools should focus on determining the abilities or qualifications that are needed for a job, regardless of whether a reasonable accommodation is needed to perform the essential job functions.

On July 22, 2021, Jennifer Abruzzo was sworn in as the General Counsel for the National Labor Relations Board (“NLRB”) for a four-year term. In the more than nine months that have followed, the new General Counsel has urged the NLRB to reverse several existing precedents in ways that would dramatically enhance the ability of unions to organize employees.

Shortly after her appointment as General Counsel, Ms. Abruzzo signaled the scope and nature of her agenda. Starting in August 2021, she issued a series of memoranda that outlined the voluminous issues and concerns she intended to address. Overwhelmingly, the General Counsel’s writings and actions have favored unions and employees.  While the number and significance of her proposed changes are quite dramatic, the General Counsel’s anti-employer agenda is not surprising.  She was nominated by President Biden, who has announced that he intends to be the most pro-union president in the history of the country, she had served in various positions with the NLRB for more than 20 years, and her last employment before assuming the General Counsel’s job was as the Special Counsel for Strategic Initiatives for the Communications Workers of America.[1]

The three majority members of the Board are likely to lend a sympathetic ear to the General Counsel’s arguments. Two of the three were appointed by President Biden in August of 2021. Both had previously served as counsel for unions. The Chairperson was appointed to the Board by President Obama in 2014, and in January of 2021, President Biden made her the Chairperson of the Board. The Chairperson previously served in positions that supported two Democratic senators.

As an example of the General Counsel’s pro-union stance, she has argued in her brief to the NLRB in a pending case, Cemex Construction Materials Pacific, LLC, 28-RC-232059, that five different prior NLRB holdings should be overruled. Probably the most significant NLRB doctrine that the General Counsel seeks to overturn in this case involves union recognition based on union authorization cards. For decades, employers have routinely and lawfully rejected requests from union representatives for recognition based upon authorization cards supposedly signed by a majority of the employees the union sought to represent. Instead, employers usually simply replied to such requests that they preferred to rely upon the results of a secret ballot election conducted by the NLRB. The General Counsel now argues that under such circumstances, an employer should be ordered to bargain with a union unless the employer can establish that it rejected the union’s request based on a good faith doubt that the union represented a majority of the employees in the proposed bargaining unit. The General Counsel asserts that a 1949 NLRB decision in which this theory was espoused, Joy Silk Mills, Inc., 85 NLRB 1263 (1949),  provides superior logic and reasoning and would reduce unlawful actions by employers. She also believes that the commission of unfair labor practices subsequent to employer’s rejection of card-check recognition can be relied upon as support for the conclusion that the employer lacked good faith for its doubt of majority status at the time of its rejection of a union’s request for recognition. If the NLRB and the courts adopt this ruling, employers will face very difficult choices. If they examine authorization cards and those cards appear to have been signed by a majority of the employees in an appropriate unit, the employer will be bound by that knowledge and will not be able to seek an election.

The General Counsel has also argued in Cemex that the NLRB should overrule long-established precedent and hold that mandatory employee meetings at which employers seek to persuade employees not to support unions violate the National Labor Relations Act. Such meetings have long been a staple of employer campaigns in response to union campaigns. The General Counsel argues that such meetings are unlawful because they inherently involve a threat of reprisal against employees for exercising their protected right to refrain from listening to such speech. The General Counsel also contends that an employer violates the law when a manager or supervisor “corners” an employee who is working at his job and thus is compelled to listen to the anti-union views of the manager or supervisor. According to the General Counsel, employers may avoid liability if they assure employees that attending mandatory meetings or suffering such “cornering” is voluntary and that non-participation will not result in any reprisals.

In Cemex and another case the General Counsel has also argued that employees who have been discharged unlawfully under the Act should be entitled not only to the traditional remedies of reinstatement and bargaining, but also should be made whole for all losses they have suffered, just as they would under other statutes. More specifically, according to the General Counsel, unlawfully terminated employees should be able to recover “expenses, penalties, legal fees, late fees” and “damages for harm such as emotional distress or injury to character, professional standing or reputation; as well as remedies that are tailored to addressing the public harm and chilling effect, or potential thereof, of the unfair labor practice at issue.”

Elsewhere, the General Counsel has asserted that more publication than the mere posting of  notices on a bulletin board regarding employer violations of the Act is needed in order to remedy employer violations. The General Counsel also contends that employers should be required to pay for costs incurred by a union in connection with a re-run of an election that was necessary because of an employer’s misconduct.

Finally, in February of this year, the General Counsel launched a “new injunction initiative” that is aimed at promptly addressing and stopping the actions of employers who threaten or coerce employees during organizing campaigns. In one of her earlier memoranda, the General Counsel wrote that such injunctions are one of the most important tools available for the enforcement of the Act, and that she intended to “aggressively” seek such relief where necessary. She pointed specifically to allegedly unlawful discharges that occur during union organization campaigns as constituting the types of violations that should result in injunctive relief.

The General Counsel’s emphasis of such injunctive relief is an unspoken acknowledgement that pursuit by the NLRB of its normal remedies under the Act can take months if not years to reach conclusions, long after an election has been conducted. On the other hand, successful pursuit by the NLRB of injunctive relief from a federal district court can result in reinstatement of discharged employees and the redressing of other alleged actions in a matter of days, versus the months if not years it can take for the NLRB to obtain “normal” remedies under the Act. Thus, seeking an injunction can have a powerful effect upon the outcome of a pending election.

[1] Interestingly, in the first six months of the NLRB’s 2022 fiscal year, the number of union representation petitions filed with the NLRB have increased by 57% — from 748 during the Board’s 2021 fiscal year to 1,174 during the period from October 1, 2021 to March 31, 2022.

Wage transparency laws are getting more and more popular, and employers should expect this trend to continue. These laws are designed to correct the gender pay gap and, generally, require an employer to publish the salary range for the job position being advertised.

For example, Washington and New York City recently joined Colorado in requiring wage transparency. Washington now requires that employers disclose in each job posting the wage scale or salary range, and a general description of all of the benefits and other compensation to be offered. This law goes into effect on January 1, 2023 and applies to employers with fifteen or more employees.

Similarly, New York City now requires that employers advertising jobs include a “good faith” salary range for every job, promotion, and transfer opportunity advertised. “Good faith” means the salary range the employer honestly believes at the time it is listing the job advertisement that it is willing to pay the applicant. Unlike Washington, however, employers in New York City do not have to list the benefits offered in the position as “salary” does not include other forms of compensation or benefits offered such as insurance, paid time off, bonuses, or commissions. This law applies to employers with four or more employees and covered employers must begin posting salary ranges on May 15, 2022.

We can reasonably expect that these wage transparency laws will be implemented in more states and cities across the country. As such, employers should start to consider how they will comply with a wage transparency law. Employers should also analyze their pay and wage date to determine if there are any wage gaps that will come to light if a wage transparency law were implemented. If so, an employer may want to correct – or start correcting – such wage gaps. At a minimum, this is good for employee relations and may save time and energy in the future.

Governor DeWine recently signed into law Senate Bill 47 (SB 47), which primarily aims to clarify employers’ overtime-pay obligations under Ohio law. The Bill takes effect on July 6, 2022.

As discussed below, the Bill does some good – it expressly integrates the FLSA’s Portal-to-Portal Act exemptions into the Ohio statute; additionally, it limits a plaintiff’s procedural mechanisms for pursuing Ohio class-wide wage and hour claims in court. But the Bill also leaves several unanswered questions, and most importantly, it contains express carve-outs that arguably expand employers’ overtime-pay obligations.

1: The Good: Adopting Portal-to-Portal Act and De Minimis Exceptions; Limiting Procedural Mechanisms Applicable to State Class-wide Lawsuits

SB 47 expressly adopts the exceptions to compensability provided by the “Portal to Portal Act” (PPA) amendments to the federal Fair Labor Standards Act (“FLSA”), as well as the FLSA’s de minimis exemption. Specifically, under the FLSA —and now, too, SB 47— an employer need not pay overtime wages for time spent:

  1. Engaging in normal commuting to and from work;
  2. “Performing activities that are preliminary to or postliminary to the principal activity or activities”; or
  3. Engaging in “activities requiring insubstantial or insignificant periods of time beyond the employee’s scheduled working hours” (known as “de minimis” time).

While these changes are nominally impactful, courts had already interpreted Ohio law as including these exceptions even prior to SB-47. Their practical utility is therefore limited. Nonetheless, having these important principles codified in the law is welcomed for employers.

Also welcomed are the Bill’s changes to the procedures for bringing class-wide wage-and-hour lawsuits under Ohio law. Under existing law, a plaintiff may purse such actions as “class actions.” This mechanism includes all members into the class unless the member expressly “opts out” of the action. Under SB 47, however, opt-out wage-and-hour actions are now prohibited.

Instead, consistent with federal FLSA procedures, such actions now must be brought as “collective actions,” a mechanism which requires each class member to give written consent to “opt in” to the action. Typically, opt-in actions creates much smaller classes than “opt-out” actions.

2. The Bad: Carve-Outs that Potentially Expand Employers’ Overtime Obligations and Additional Ambiguities

Although the Bill generally adopts the FLSA’s PPA exceptions, it doesn’t do so wholesale. It rather includes certain carve-outs that the PPA does not. Most notably, employers must pay overtime on all activities that are “specifically directed by the employer,” as well as those which are performed “pursuant to a custom or practice applicable to the activity.” These exceptions contradict judicial interpretations of the PPA and existing Ohio law.

Interpreting the PPA, the U.S. Supreme Court has clarified that off-shift activities are not compensable merely because the employer requires them. Integrity Staffing Solutions v. Busk, 135 S. Ct. 513 (2014)(“[I]f the test could be satisfied merely by the fact that an employer required an activity, it would sweep into ‘principal activities’ the very activities that the [PPA] was designed to address”). Nor are they compensable because they make the rest of the job easier or safer. Rather, such activities are only compensable if they are both (1) integral to (i.e., an “intrinsic component of”) the principal activity the employee was hired to perform and are (2) indispensable to his or her performance of that activity (i.e., the employee effectively cannot perform the principal activity unless he also performs the off-shift activity).

Applying this “integral and indispensable” test, courts have frequently rejected claims for a number of mandatory off-shift activities, including for time spent:

  • waiting in line to undergo, and undergoing, mandatory post-shift security screenings;
  • maintaining and laundering uniforms;
  • changing into and out of required uniforms;
  • performing pre- and post-trip vehicle inspections; and
  • reporting to a site and waiting to be assigned work.[1]

Under SB 47, however, employers may be required to pay for time spent performing these activities, so long as they are employer -“direct[ed].” This is presumably true regardless of whether the activity meets the more-stringent “integral and indispensable” test described above. Consequently, SB 47 may entitle employees to compensation for activities that are not currently covered by existing Ohio and federal law.

Moreover, while the Bill aims for clarity, it creates several important ambiguities. For instance:

  • Did the drafters intend to expand employers’ overtime obligations for pre- and post-liminary obligation beyond what is required by the FLSA?
  • The Bill’s definition of “de minimis” time is more expansive than that applied to the FLSA: unlike SB 47, the FLSA requires the time occur such that, “as a practical administrative matter,” it cannot be “precisely recorded.” Was SB-47’s omission of this limitation intentional?
  • The Bill only covers “overtime.” Does this mean the employer-directed off-shift activities must occur before an employee works 40 regular weekly hours before pay is required, or are these activities merely aggregated with all other work hours—no matter when they occur— and are thus compensable if the employee exceeds 40 total hours?

3. Concluding Thoughts and Practical Advice

SB 47’s aim to clarify Ohio’s overtime law is generally positive. Indeed, because the FLSA’s integral and indispensable test is largely fact-specific, identifying the line between compensable and non-compensable activities can be arduous, and courts sometimes reach inconsistent results. The Bill may reduce some of that ambiguity. But in doing so, the Bill ostensibly increases the likelihood that employer-directed off-shift activities will be subject to overtime obligations.

The Bill takes effect on July 6. In the meantime, employers should carefully investigate and identify any activities, however insignificant, that employees may be performing before or after they clock in and out. If those activities are being encouraged or directed by the employer, they may need to be tracked and paid. Employers should also update their handbooks to specifically prohibit off-the-clock work and create a procedure for reporting alleged off-the-clock activities to management or Human Resources.

 

 


[1] See Busk, 135 S.Ct. 513 (time spent waiting in line and undergoing  mandatory pre- and post-shift security screenings was not compensable);  Dinkel v. Medstar Health Inc., 99 F. Supp. 3d 37, 42 (D.D.C.2015) (employees not entitled to time spent maintaining and laundering uniforms); Pippen v. Global Technical Recruiters, Inc., No. 1:21 CV 00311, 2021 U.S. Dist. LEXIS 111392 (N.D. Ohio June 15, 2021) (time spent changing into and out of required uniforms not necessarily compensable); Campbell v. Empire Merchants, LLC, No. 16-CV-5643 (ENV) (SMG), 2018 U.S. Dist. LEXIS 146510, at *21 (E.D.N.Y. Aug. 27, 2018) (employees not entitled to pay for time spent reporting to site and waiting to be assigned work); Brand v. Comcast Corp., 135 F. Supp. 3d 713 (N.D. Ill.2015) (cable technicians not entitled to pay for time spent performing pre-trip vehicle inspections).

After a dramatic few days, Maryland joins nine other states (and the District of Columbia) in implementing a paid family and medical leave program. On March 31st, the Maryland General Assembly passed “The Time to Care Act of 2022,” which established the Family and Medical Leave Insurance Fund. Just eight days later, on April 8th, Republican Governor Larry Hogan vetoed the legislation citing the burden on small businesses, as well as the potential for up to 24 weeks of leave in a year (compared to only 12 weeks under the federal FMLA). The following day (April 9th), the Maryland General Assembly voted to override Governor Hogan’s veto, thereby finalizing the legislation.

A few key takeaways from Maryland’s paid family and medical leave program are:

  • Beginning October 1, 2023, employers, employees, and self-employed individuals who elect to participate (see below) will be required to contribute to the fund.
  • A self-employed individual can elect to participate in the program but must commit to at least three years of participation.
  • The program is mandatory for employers with 15 or more employees.
  • Generally, employees are entitled to up to 12 weeks of leave within a year for qualifying reasons. However, in certain circumstances, an employee may be entitled to up to 24 weeks of leave within one year.

Maryland’s new law is a reminder to multi-state employers, as well as employers with remote workers, to stay up-to-date on state and local leave guidelines, in addition to federal leave laws.

What is OSHA’s top post-COVID enforcement priority?  According to Assistant Secretary of Labor and the head of the Occupational Safety and Health Administration (“OSHA”), Doug Parker, it’s heat-related illnesses.  On April 8, 2022, OSHA released its National Emphasis Program (“NEP”) for heat related issues in the workplace.

Before becoming head of federal OSHA enforcement, Mr. Parker was head of Cal/OSHA, one of the few states in the country to have a state plan, including its own dedicated heat illness prevention standard.  The NEP bring this issue to the forefront of federal OSHA’s inspection and enforcement priorities, as the agency works in the meantime to create a proposed rule (i.e. a dedicated, permanent standard).  For now, OSHA will use the NEP and its General Duty clause to target and begin conducting heat-related workplace inspections at “High-Hazard” heat illness employers in the near future.

How should employers prepare? First, understand the work-related hazard OSHA is trying to prevent and mitigate: heat-related illnesses and stress that result when the human body can no longer regulate its internal temperature.  Such illnesses include heat stroke, heat exhaustion, heat cramps, and other illnesses – many of which may result in death—with symptoms that include high body temperature, confusion, dizziness, headache, nausea and vomiting.

Second, employers should determine if they are covered by the NEP, which targets “High-Hazard” industries with both indoor and outdoor operations based on NAICS codes and includes industries from manufacturing, construction and transportation to restaurants, skilled nursing facilities and employment services industries.  See NEP, Appendix A.

Third, employers should evaluate the potential for outdoor and indoor heat illness hazards and either develop a program to address those heat hazards or review existing policies and training programs that address heat exposure.  At a minimum, employers should start with and build off of the well-worn mantra: “Water. Rest. Shade.”

Although many employers with Southern locations deal with warmer temperatures year-round, summer is quickly approaching for the entire country and employers in “High-Hazard” industries should anticipate unannounced inspections from OSHA on “any day that the National Weather Service has announced a heat warning or advisory for the local area.”

If you have any questions about the NEP, developing and revising heat illness prevention programs, or how to prepare for an OSHA inspection, please contact Frantz Ward OSHA attorneys Christina Niro or Jon Scandling.

With so many employees having contracted COVID-19, an important legal question for employers and employees alike is whether COVID-19 is a “disability” within the meaning of the Americans with Disabilities Act (“ADA”). In other words, is COVID-19 the sort of condition for which employees are entitled to reasonable accommodations, such as extended leave, flexible work schedules, and remote work arrangements? One might think the answer would be well-settled by now, given that we’re two years into the pandemic. But unfortunately the law often develops well after the circumstances that necessitate it. So too, here: courts are just now grappling with this fundamental question, and the results have not always been consistent.

The bar for establishing a disability under the ADA is not high: a disability arises from “any  physical or mental impairment that substantially limits one or more of the major life activities of such individual” (as well as a record of, or being regarded as, having such an impairment). Still, not every medically recognized condition constitutes a disability. There are limits, and just like other conditions, these limitations apply to COVID-19 as well.

For instance, courts and the EEOC generally recognize that COVID-19 will not constitute a disability where the symptoms are both transitory (short-lasting) and minor.  This means that an employee is not disabled who merely tests positive but is asymptomatic, or whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of days or weeks (with no other consequences). But what should be the result where the symptoms are short-lasting but very severe? On this point courts have differed, as two recent cases illustrate.

Consider first Brown v. Roanoke Rehab. & Healthcare Ctr., No. 3:21-CV-00590-RAH, 2022 U.S. Dist. LEXIS 30548 (M.D. Ala. Feb. 22, 2022). In this case, the employer fired an employee 13 days into her 14-day COVID-19 isolation period. The employee alleged that her symptoms, including “severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes,” substantially limited major life activities such as working, breathing and concentrating. The Court found that the employee had sufficiently alleged an ADA disability,  despite no indication that the symptoms were expected to persist. According to this court, transitory COVID-19 symptoms are only excluded from ADA coverage if the symptoms are also minor.

In Baum v. Dunmire Property Mgt., however,  another court reached the opposite conclusion. 2022 U.S. Dist. LEXIS 54555 ( D. Colo. Mar. 25, 2022).  There  the individual (the plaintiff’s father) died just 15 days after testing positive for COVID-19, as a result of “acute respiratory distress syndrome, bilateral pneumonia, and COVID-19.” Nonetheless, the court concluded that this individual was not disabled, explaining: “The ADA contemplates long-term disabilities that impair major life activities. Illness that are transitory in nature are not disabilities within the meaning of the ADA.  Although Plaintiff’s father died, his illness lasted for only 15 days. Such an acute, short-term illness is too transitory in nature to constitute a disability under the ADA.” (emphasis added).”

The key takeaway is that whether COVID-19 is or is not a disability is necessarily  a case-by-case analysis, depending on the employee’s symptoms and prognosis. If the employee’s symptoms are non-existent or very minor, the employee is not likely disabled.  If the employee’s symptoms are severe and long-term, the employee likely is disabled. And where the symptoms are acute but short-term, the answer is less certain—for now—especially as courts are still trying to reconcile the condition’s potentially serious nature with the fact that it has affected millions of people. Compare Champion v. Mannington Mills, Inc., 538 F. Supp. 3d 1344, 1349 (M.D. Ga. 2021) (explaining that to find millions of Americans “disabled” under the ADA would lead to absurd results) with Booth v. GTE Fed. Credit Union, No. 8:21-cv-1509-KKM-JSS, 2021 U.S. Dist. LEXIS 224333 (M.D. Fla. Nov. 20, 2021)) (analyzing the lack of consensus regarding whether COVID-19 is a disability under the ADA).

We will continue to monitor the case developments closely.  In the meantime, where the disability answer is not clear, employers can usually mitigate their risk best by assuming that the diagnosis is a disability and engaging in the interactive process to determine whether a reasonable accommodation is appropriate. On this point, employers should remember that while disabled employees are entitled to  reasonable accommodations, employers are not required to:  (1) remove essential job functions, including in-person attendance if applicable, (2) grant indefinite leave, (3) lower production standards, (4) provide any accommodation that creates an undue hardship, or (5) provide an employee’s preferred accommodation,  as long as the accommodation that is provided is effective.

On March 18, 2022, the U.S. House of Representatives passed the CROWN Act (“Creating a Respectful and Open World for Natural Hair”) which bans hairstyle discrimination in employment, public accommodations, federally assisted programs and housing programs. The act bans discrimination against braids, dreadlocks, curls and the like. Advocates of the bill say a split in federal appellate courts requires clarification provided by the terms of the legislation. The Biden administration has signaled that it strongly supports the act. Senate republicans have signaled objections to the bill, arguing that it is unnecessary because federal law already provides protection for the types of discrimination the bill is designed to eliminate. Thus, the bill faces an uncertain future in the Senate. Several states and municipalities already have enacted similar types of statutes and ordinances.

If you have questions about this or other labor and employment issues, please contact Doug Schnee or another of the Frantz Ward Labor & Employment Group.

On March 7, 2022 NLRB General Counsel Jennifer Abruzzo asked the NLRB to overturn Board precedent related to employee handbook rules.

The case at issue is Stericycle, Inc., which examines whether certain workplace rules infringe upon or restrict employees’ rights under the NLRA. As part of the Board’s proceedings, the parties (and interested third parties) were asked to state their position on whether the Board should overrule its 2017 Boeing decision as it relates to reviewing employer policies, and return to its older Lutheran Heritage standard. Under the Boeing standard, the Board reviewed workplace rules based on a two-step balancing approach, focusing more on what the actual impact of a particular work rule has on the work place. Under the Lutheran Heritage standard, the Board heavily focused on whether an employee could “reasonably construe” that a rule was meant to restrict an employee’s Section 7 rights under the NLRA. When the Board overruled the Lutheran Heritage standard in 2017, it was a welcome sign for employers.

From the employer’s perspective, the Lutheran Heritage standard was very employee friendly and unpredictable because it allowed the NLRB agent investigating a particular situation to construe how a hypothetical employee would view a particular rule – allowing them to infer if someone may think a rule infringes upon their Section 7 rights. This resulted in the Board overruling seemingly innocuous policies based on the Board’s perception of potential infringements. For example, rules related to harassment and civility policies were at times considered unlawful under Lutheran Heritage because of their potential impact. Under Boeing, those rules were far less problematic.

While the named parties, and multiple third parties on an amicus basis, just recently presented their post hearing briefs to the Board, this case represents one of the first situations where the General Counsel is actively working to impact the topics outlined in her advice memo. As we previously discussed, in August of 2021 General Counsel Abruzzo issued her Mandatory Submissions to Advice memorandum. In that memo she outlined several doctrinal shifts she was seeking. The first shift outlined in the memo related to Employer Handbook rules.

While it is unclear how the Board will decide the current case, it is clear that the General Counsel is holding true to her word in seeking to modify current Board law. Employers should continue to monitor Board decisions, given the significance of the issues the General Counsel is looking to modify and the complexity associated with them.

If you have any questions regarding the Board’s current makeup, or any labor & employment questions, please contact one of Frantz Ward’s labor & employment attorneys.

Although the U.S. Women’s National Soccer Team’s pay discrimination settlement this week was notable for its $24 million price tag, it is also notable because it highlights the very real risk that employers face over unequal pay practices.

Members of the USWNT originally filed the case in 2019 accusing U.S. Soccer (the sport’s governing body) of gender discrimination under the federal Equal Pay Act. The core allegation in the case was that members of the women’s national team were improperly paid less than members of the men’s team. The players supported their allegation in part by noting that they were much more successful than the higher paid members of the men’s team and they essentially performed the same job duties. The resulting litigation was as controversial as it was contentious.

As many employers have learned the hard way, federal and state employment laws prohibit employers from maintaining pay practices that discriminate on the basis of sex. These laws can be complicated, and even companies with well-staffed HR and compliance departments can find themselves targeted with claims. Recent settlements by KPMG ($10 million) and Google ($2.6 million) are clear examples of this.

Many legal commentators have suggested in the wake of the USWNT settlement that employers use this as a launching pad for an evaluation of their own pay practices, a measure which appears wise given the potential exposure.

If you have questions about this or other Labor and Employment issues, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.