In a move that gave hope to many business groups, a federal judge in Texas temporarily blocked a controversial new National Labor Relations Board “joint employer” rule on February 22. The new rule, which had been set to take effect on February 26, is designed to make it easier for the NLRB to label businesses joint employers of each other’s workers. The NLRB could the use that label to hold both businesses responsible for each other’s unfair labor practices. The prospect of this has been especially worrisome to businesses that work with franchise and temporary staffing arrangements, since a franchisor could be responsible for unfair labor practices committed by a franchisee and a staffing company could be responsible for unfair labor practices committed by its client.

Under the NLRB’s new rule “two or more entities may be considered joint employers of a group of employees if each entity has an employment relationship with the employees, and if the entities share or codetermine one or more of the employees’ essential terms and conditions of employment.” The NLRB plans to apply the rule by examining whether two entities each have  authority to control one or more of the following for an employee or a group of employees:

  1. Wages, benefits, and other compensation;
  2. Hours of work and scheduling;
  3. The assignment of duties to be performed;
  4. The supervision of the performance of duties;
  5. Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
  6. The tenure of employment, including hiring and discharge; and
  7. Working conditions related to the safety and health of employees.

The judge’s ruling this week did not permanently block the new NLRB joint employer rule, and it instead simply put it on hold until March 11 while the judge considers a lawsuit filed by the US Chamber of Commerce and other business groups. That lawsuit does seek to permanently block the new rule, and its fate remains uncertain. This is the second delay for the new rule, which was originally set to take effect on December 26. 2023.

The Labor and Employment Practice Group at Frantz Ward will continue to monitor this situation closely. If you have questions about this or other labor and employment law issues, contact Brian Kelly or another member of the group.

Approximately 21 states and several municipalities have enacted laws that prohibit inquiries by employers into the salary history of applicants.  These laws are based primarily on the arguments that: 1) salary history does not accurately reflect an applicant’s qualifications and capabilities, or the market standard for similar positions; 2) relying on the salary history of an applicant when making a job offer will perpetuate any prior disadvantages the applicant experienced in the job market; and 3) considering the salary history of an applicant disproportionately affects women and people of color, and potentially others, who historically have been underpaid due to discrimination.

On March 1, 2024, a new Salary Ban Law will go into effect in Columbus, Ohio, and serves as a reminder to employers that they need to check and be aware of any salary history laws that may exist in the cities and states where they have employees.  Employers also need to be mindful of any pay equity statutes and ordinances under federal, state or local law that require an employer to reveal a relevant pay scale to external applicants.

With respect to the Columbus law, it applies to all businesses that employ 15 or more people within the City of Columbus, and only applies to applicants for new employment and not current employees seeking a transfer or promotion with the business.  Additionally, applicants may voluntarily share their salary history with an employer in Columbus and, if they do so, the employer may discuss it with the applicant.

There are several exemptions that apply to the Columbus law in addition to that for internal applicants, such as positions where compensation is set by a collective bargaining agreement, and applicants for positions with the state and federal government offices in Columbus.

Any person or labor union can file a complaint alleging a violation of the Columbus law.  Complaints will be investigated by the Columbus Community Relations Commission, which can impose fines of $1,000 for a first offense, $2,500 for a second violation, and $5,000 for a third violation within a five-year period.  The Commission also can refer a complaint to the City Prosecutor for potential criminal prosecution.

Despite the restrictions in the Columbus law, it expressly allows, as do many of the other state and local salary ban laws, for employers to inform an applicant of the salary range for the relevant position, and also to discuss with the applicant their salary expectations.

If you have questions about the Columbus Salary Ban Law, or any Pay Equity Law, or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.

On January 1, 2024, a new Occupational Safety and Health Administration (“OSHA”) Rule took effect: the Final Rule to Improve Tracking. OSHA has long required employers to track and maintain records regarding workplace injuries and illnesses. Since 2016, OSHA has implemented (under multiple Presidential Administrations) varying rules regarding electronic submission of Forms 300, 300A and 301.

Whereas former versions of the rule included a 250 employe threshold, OSHA’s new Rule expands application of the rule to more employers in high-risk industries in an effort to increase transparency and public access.

Effective January 1, covered employers with 100 or more employees in designated “high-risk industries” are now required to electronically submit both OSHA Forms 300 and 301 on an annual basis, as well as 300A Summaries. A list of the high-risk industries subject to the new requirement can be found at OSHA’s injury reporting website.

While most data submitted on employer Forms 300A, 300, and 301 will be made available to the public, certain information will not be made available, including employee names, addresses, and medical providers.

Practically speaking, application of the new rule will give OSHA significantly more information at its disposal to not only analyze over the long-term, but also use in the short term to prepare for onsite inspections and to target employers under existing national emphasis programs.

The deadline to submit information for the 2023 calendar year is March 2, 2024. OSHA has posted FAQs and written instructions on how to submit information on the ITA on their website.

If you have any questions about your obligations under the new Rule, please contact Katie McLaughlin or any member of Frantz Ward’s Labor & Employment Group.

On January 9, 2024, the Department of Labor (the “DOL”) announced its final rule defining “independent contractors” under the Fair Labor Standards Act (the “FLSA”).  Displacing the 2021 two-factor Trump Administration rule, the Biden Administration’s Final Rule returns to the “totality of the circumstances” test.

As we know, the FLSA provides that nonexempt employees must earn minimum wage and overtime. Independent contractors, of course, are not afforded these and other protections under the FLSA.  Unfortunately, the FLSA – passed in 1938 – fails to define the term independent contractor, which has necessitated rules promulgated by the various politically-appointed Departments of Labor since that time.

The Trump Administration sought to streamline the process of classifying workers as employees vs. independent contractors in 2021, giving greater weight to two main factors: (1) control; and (2) opportunity for profit or loss.  If both of these factors weighed in favor of the same classification, then in theory, the worker classification analysis need not proceed further.  However, if the factors split, then three remaining factors would be considered: (1) the amount of skill required for the work, (2) the degree of permanence of the relationship, and (3) whether the work is part of an integrated unit of production. Those three individual factors, however, were not intended to outweigh the factors of control and opportunity for profit or loss.

Shortly after taking office, and four days before the Trump Administration’s rule took effect, President Biden’s Administration’s Department of Labor published a rule delaying the effective date, and on May 6, 2021, published a rule withdrawing the 2021 Rule.  Legal proceedings ensued, after which the Biden Administration undertook new rulemaking on October 13, 2022, which became final on January 9, 2024.

The Final Rule re-establishes the multifactor, totality-of-the-circumstances test, aligning with decades of (varying) judicial precedent analyzing worker classifications. The Final Rule outlines six main factors for analysis, to be weighed equally: (1) the opportunity for profit or loss depending on managerial skill; (2) investments by the worker and the potential employer; (3) the degree of permanence of the work relationship; (4) the nature and degree of control; (5) the extent to which the work performed is an integral part of the potential employer’s business; and (6) the skill and initiative of the worker.  As previously, the DOL leaves open the door for additional factors demonstrating that a worker is in the business for him or herself.

Outside of the Final Rule’s departure from the previous two-core factor analysis, two other changes from the 2021 Rule are noteworthy: first, the DOL’s re-establishment of “investments by the worker and the potential employer” as a separate factor; and second, required analysis as to whether the work performed is an integral part of a potential employer’s business (as opposed to the 2021 Rule’s “integral part of unit production”). Both changes broaden the scope of relevant facts in determining a worker’s status, with the stated goal of determining “whether the worker is economically dependent on the potential employer for work or is in business for themself.”

The Final Rule becomes effective on March 11, 2024. In the meantime, businesses of all sizes should review their independent contractor relationships and consult with a Frantz Ward attorney if questions remain. Full text of the Final Rule and accompanying Executive Summary can be found here.

As an update to our prior client alert addressing the enactment of R.C. §4123.56(F), there has been a recent decision in State ex rel. Butler v. Indus. Comm., 10th Dist. Franklin No. 22AP-274, 2023-Ohio-3774 holding that a claimant is no longer required to prove that the inability to work is solely due to an impairment arising from the workers’ compensation injury. In this case, the claimant resigned her employment and then requested the payment of temporary total disability (“TTD”). The Industrial Commission of Ohio (“ICO”) awarded the TTD as it was determined that claimant resigned her employment due to her workers’ compensation injury. The employer filed a mandamus action with the Court of Appeals contending that the ICO abused its discretion by granting TTD following claimant’s resignation causing unemployment for reasons unrelated to the workers’ compensation injury. The Court held that claimant was entitled to the payment of TTD, based on a Medco-14 form completed by her physician of record, which provided evidence that she was unable to return to her former job based on the allowed conditions in the workers’ compensation claim. The Court did not address the claimant’s resignation as they found that they were no longer required to do so, in accordance with the amendment to R.C. §4123.56(F) and the AutoZone case.

Prior to September 15, 2020, when a workers’ compensation claimant’s departure from the workplace was “voluntary” and for reasons unrelated to the industrial claim, claimant was ineligible for the payment of TTD – commonly referred to as the judicially-created defense of “voluntary abandonment”. In short, when a claimant removed himself from employment for reasons unrelated to the work injury, he was no longer eligible for TTD since the voluntary abandonment (not the injury) caused the loss of wages.

When the Ohio legislature enacted §4123.56(F) on September 15, 2020, it superseded any prior judicial decisions applying the doctrine of “voluntary abandonment”. As we previously discussed in our September 11, 2020 client alert,  the amended statute expressly wiped out all prior case law regarding the voluntary abandonment doctrine and now states that if a wage loss is a direct result of the allowed conditions in a claim, TTD is payable, and if the wage loss is a direct result of something other than the allowed conditions, it is not.

R.C. §4123.56(F) provides:
If an employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease, the employee is entitled to receive compensation under this section, provided the employee is otherwise qualified. If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section. It is the intent of the general assembly to supersede any previous judicial decision that applied to the doctrine of voluntary abandonment to a claim brought under this section.

Some contend that the intent behind the new law was to eliminate the concept of voluntary abandonment from Ohio’s workers’ compensation law altogether.  Others argue that the intent was to bring clarity to conflicting case law and eliminate judicially-created exceptions to voluntary abandonment issues.

The first case to address the new law was State of Ohio ex rel. AutoZone Stores Inc. v. Indus. Comm., 10th Dist. No. 21AP-294, 2023-Ohio-633, decided on March 2, 2023, where the claimant had been terminated from his employment while working light duty and prior to his request for TTD. The claimant’s request for TTD was based on the fact that he had undergone surgery for the allowed conditions in the workers’ compensation claim. The employer argued that since the claimant voluntarily abandoned his position due to his termination, he was not entitled to TTD.

 The AutoZone court found that R.C. §4123.56(F) sets forth two operative questions to be eligible for TTD:

  1. Whether claimant is unable to work as a direct result of an impairment arising from the injury or occupational disease; and
  2. Whether claimant is otherwise qualified to receive TTD. (“Otherwise qualified” related back to the disqualifications set forth in R.C. §4123.56(A) which provides claimant is ineligible for receipt of TTD if he has returned to work, has a statement from his doctor opining he is capable of returning to his former position of employment, when work within the physical capabilities of the employee is made available by the employer or another employer, or when the employee has reached maximum medical improvement.)

The AutoZone court held that claimant was entitled to the payment of TTD and did NOT consider whether claimant’s departure (i.e., his termination) from his workplace was “voluntary” in determining his eligibility for TTD. The Court held that R.C. §4123.56 (F) requires a claimant’s inability to work to stem from an impairment arising from an injury. The Court declined to address an additional requirement that a claimant prove he is unable to work ONLY due to an impairment from an industrial injury. AutoZone is currently on appeal and pending before the Ohio Supreme Court.

As referenced above, the more recent case of Butler adopted the finding of AutoZone by holding that a claimant is no longer required to prove that an inability to work is solely due to an impairment arising from the workers’ compensation injury.

In sum, the courts in AutoZone and Butler have found that even when they do not have a job to return to, claimants are entitled to TTD.

While the change in the law and subsequent court cases clearly present a challenge to employers, it goes without saying that workers’ compensation cases are extremely fact specific and determined on a case-by-case basis. It is possible that with a different set of circumstances, the Industrial Commission of Ohio and/or the courts may find that a claimant’s lost wages are directly the result of reasons unrelated to the industrial injury and deny the payment of TTD.

Frantz Ward will continue to monitor similar workers’ compensation decisions closely and provide updates.

Frantz Ward’s Labor & Employment Group has previously written about the Ohio Bureau of Workers’ Compensation’s treatment of marijuana in its Drug-Free Safety Program (DFSP) following the legalization of medical marijuana in 2016. The legalization of cannabis for certain medical conditions has had no effect on the BWC’s position that a drug-free workplace meant a marijuana-free workplace.  What will change now after the passage of Issue 2 and the Act to Control and Regulate Adult Use Cannabis (codified in Ohio Revised Code Section 3780) goes into effect on December 7, 2023? In short, and until further notice, nothing – it’s business as usual for the BWC and business still means a marijuana-free workplace.

As a refresher, the BWC’s Drug-Free Safety Program “DFSP” (sometimes also referred to as the Drug-Free Workplace Program)offers Ohio employers premium discounts for fulfilling and incorporating certain requirements into their drug and alcohol policies. These requirements include formalizing their drug and alcohol policies in writing, providing education and training to employees and supervisors, and conducting specific types of testing for certain types of illegal substances.

For drug and alcohol testing, the DFSP requires that employers perform all of the following types of testing:

  • Pre-employment / new hire
  • Reasonable suspicion
  • Post-accident
  • Return-to-duty / Follow up
  • Random (only for the advanced levels of participation in the DFSP)

The DFSP also requires testing for all of the following five (5) substances:

  1. Cocaine
  2. Marijuana
  3. Opiates
  4. Amphetamines
  5. Phencyclidine (PCP/angel dust)

This substance list remains unchanged after Ohio’s recent legalization of recreational marijuana.

For employers already feeling the pressure to relax their drug-testing policies —particularly in the context of pre-employment / new hire testing —the legalization of recreational marijuana use in Ohio will not help employers grappling with continued hiring and retention challenges and the desire to maintain their premium discounts under the DFSP.  For many, cost-benefit analysis may weigh in favor of discontinuing testing for marijuana and against the (sometimes comparatively) modest savings achieved through current DFSP premium discounts.

Of course, legal and practical considerations and potential ramifications associated with drug and alcohol policy changes in the wake of new legislation extend beyond the issue of DFSP rebates, as our Labor & Employment Group have already discussed and will continue to monitor.

We previously reported in August on the National Labor Relations Board’s decision in Cemex Construction Materials Pacific, NLRB Case No. 28-CA-230115, 327 NLRB No. 130 (August 25, 2023), wherein the Board overruled long-standing precedent and adopted a new scheme to provide labor unions with an easier path to unionizing a company. 
On Tuesday, November 2, 2023, the NLRB’s General Counsel, Jennifer Abruzzo, issued a Guidance Memorandum in Response to Inquiries about the Board’s decision in Cemex, in which she made it clear that, “an employer confronted with a verbal or written demand for recognition” that states a majority of employees in an appropriate bargaining unit have signed authorization cards must: 1) recognize and bargain with the union; 2)  file a petition within two (2) weeks with the NLRB seeking an election or challenging the appropriateness of the bargaining unit; or 3) await the processing of a petition for an election previously filed by the union (if it filed one).  If an employer does not do one of these three things, the union can then file an unfair labor practice charge for the company’s refusal to bargain and it can request a remedial bargaining order.
The Guidance Memo additionally provides that the demand made to an employer “does not need to be made on any particular officer or registered agent of an employer so long as it is on a person ‘acting as an agent of an employer.’”  Thus, according to the NLRB’s General Counsel, unions can seek out an unsuspecting supervisor on which to make its demand, and then sit back and wait two weeks before filing an unfair labor practice charge in which it seeks an order requiring the company to recognize and bargain with the union without an election having been held.
The Guidance Memo further discusses when certain unfair labor practices that are committed during the pendency of an election petition will result in the dismissal of the election and a bargaining order being issued.
In light of the GC’s Memo, employers should ensure that any individuals acting as an agent of the employer, as defined by the National Labor Relations Act and the Labor Board (i.e., statutory supervisors), are aware of their responsibility when they are approached by an employee who asserts a recognition demand on behalf of a union, and also are aware of proper conduct when an election petition is pending.
If you have questions about the Guidance Memo, or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.

Next week, Ohioans will head to the polls to vote on Issue 2, which would legalize and regulate recreational marijuana for Ohioans over the age of 21 to include cultivation, sale, purchase, possession, use and home growth, in addition to other proposed regulation.

So will Issue 2 force employers to change how they make decisions regarding marijuana in Ohio workplaces? Arguably no. Consistent with Ohio’s existing Medical Marijuana Control Program, the ballot initiative language is clear. Employers would NOT:

  1. Be required to “permit or accommodate an employee’s use, possession, or distribution of adult use cannabis”, and
  2. Be prohibited from “refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual … because of that individual’s use, possession, or distribution of cannabis.”

In other words, under the proposed statute, employers could still prohibit employees from using or possessing cannabis while at work and/or on the employer’s premises. And employers could continue to refuse to hire, discipline, or discharge an employee if the employe tests positive for cannabis – even if the positive test was the result of lawful, off-duty use.  Ohio employers subject to federal Department of Transportation requirements and parties to federal government contracts will also continue to be permitted to drug test employees pursuant to those federal requirements.  And Ohio employers would also be able to maintain voluntary Drug-Free Safety Programs through the Ohio Bureau of Workers’ Compensation.

Employers in other states with legalized recreational marijuana use are sometimes significantly more restricted in what actions that they can and cannot take as the result of an employee’s positive drug test. In California and New York, for example, employers can generally only take action against employees if they have psychoactive cannabis metabolites in their system such that they are impaired at work.  These standards are particularly onerous for employers because science and research have, to date, yielded few (if any) approved, available drug tests that are capable of detecting current cannabis impairment that would be analogous to BAC results that test for alcohol impairment.  Further complicating the analysis in these other states is the different impact on impairment caused by the method of cannabis consumption.  Fortunately for Ohio employers, no such requirements or standards would result from the passage of Issue 2.  Employers could still refuse to hire, discipline, or discharge employees based on a positive drug test – regardless of current impairment.

If Issue 2 passes, however, employers should carefully consider whether pre-employment and other cannabis-related policies are still right for their business.  Employers may continue to grapple with the balance between relaxing pre-employment drug testing due to the nationwide labor shortage and the increased risk for potential negligent hiring, retention, and/or supervision claims.

To put it bluntly, regardless of how Ohioans vote on November 7th, employers should ensure their drug policies are consistent with state and federal law, communicate the policies to employees, and apply them consistently. If you have any questions about employer drug testing policies, please contact Katie McLaughlin or any member of Frantz Ward’s Labor & Employment Group.

After a 3-2 vote along political party lines, the EEOC recently voted to publish its Proposed Enforcement Guidance on Harassment in the Workplace, which remains open to public comment until November 1, 2023. When the current version is finalized, it will be the first update on harassment issued by the EEOC in almost 25 years and will consolidate, supersede and update five dated EEOC guidance documents on the topic: Compliance Manual Section 615:Harassment (1987); Policy Guidance on Current Issues of Sexual Harassment (1990); Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (1990); Enforcement Guidance on Harris v. Forklift Sys., Inc. (1994); and Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999). The EEOC’s last proposed guidance on harassment was issued in 2017 but was never finalized under the Trump administration. The proposed guidance follows the EEOC’s 2024-2028 enforcement priorities, which include preventing and remedying systemic harassment.

In addition to reiterating the EEOC’s position on what constitutes unlawful harassment (including causation and liability standards) and providing well-worn examples of workplace harassment, the EEOC’s newest proposed guidance also “reflects notable changes in law, including the Supreme Court’s decision in Bostock v. Clayton County, the #MeToo movement, and emerging issues such as virtual or online harassment.”  The following are notable topics addressed in the draft enforcement guidance:

Sexual Orientation and Gender Identity
Referencing the Bostock decision, 140 S. Ct. 1731 (2020), the proposed guidance explains that the decision itself “concerned allegations of discriminatory discharge, but the Supreme Court’s reasoning in the decision logically extends to claims of harassment. Indeed, courts have readily found post-Bostock that claims of harassment based on one’s sexual orientation or gender identity are cognizable under Title VII.”  As a result, the EEOC specifically identifies: 1) intentional and repeated use of a name or pronoun inconsistent with an individual’s gender identity (i.e. misgendering); and 2) the denial of access to sex-segregated facilities like bathrooms and locker rooms that are consistent with an individual’s gender identity as examples of sex-based harassment.

Consistent with the EEOC’s proposed regulations to implement the Pregnant Workers Fairness Act, which contemplates reasonable accommodation in the form of leave for abortion-related care, the EEOC’s proposed guidance states that sex-based harassment also includes harassment based on “pregnancy, childbirth, or related medical conditions,” which can include “harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.”

Religious Expression
With respect to religious expression, the EEOC’s stated position on when such expression rises to the level of harassment is as follows: “If a religious employee attempts to persuade another employe of the correctness of his beliefs, the conduct is not necessarily objectively hostile. If, however, the employee objects to the discussion but the other employee nonetheless continues, a reasonable person in the complainant’s position may find it to be hostile.”  Acknowledging the need for “special consideration when balancing anti-harassment and accommodation obligations with respect to religious expression,” the EEOC states that “employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment” and that employers “should take corrective action before the conduct becomes sufficiently severe or pervasive…”

Social Media
The EEOC also specifically addresses an employers’ obligation to address private social media activity if such conduct begins to seep into and affect the workplace: “Conduct that can affect the terms and conditions of employment, even though it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.”  The EEOC specifically notes that social media posts on personal social media pages can contribute to a hostile work environment if “an employee learns about the post directly or other coworkers see the comment and discuss it at work.”  The EEOC also addresses revenge porn: “Given the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images using social media can contribute to a hostile work environment, if it impacts the workplace.”

While it is clear from this proposed guidance that employee comments on social media regarding, abortion, marriage, gender identity or sexual orientation may “impact the workplace,” the EEOC is silent as to how an employer should reconcile its obligation to address potential sexual harassment with the First Amendment ministerial exemption, Title VII’s religious organization exemption, or free speech protections. See e.g., Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021)(allowing challenge by a devout Christian professor at Shawnee State University to discipline awarded to him by the University for refusing to use a student’s preferred pronoun based on free-speech and free-exercise grounds). Employers should also exercise caution when addressing out-of-work conduct in light of the August 2023 National Labor Relations Board’s Stericycle decision, which promises heightened scrutiny of workplace policies that impose restrictions on employee speech, including private social media speech. Stericyle, Inc. v. Teamsters Local 628, 372 NLRB No. 113 (2023).

While the proposed guidance does not “have the force and effect of law” and is “not meant to bind the public in any way,” it is clear that the current proposed guidance is another step in the EEOC’s coordinated effort to expand growth and enforcement under the Biden administration. Employers should consult experienced labor and employment counsel regarding training and to ensure policies and procedures are updated before this guidance is finalized.

Last week the EEOC issued its Strategic Enforcement Plan Fiscal Years 2024 – 2028 (FYI 2024-2028). According to the Agency, the plan “establishes the EEOC’s subject matter priorities to achieve its mission of preventing and remedying unlawful employment discrimination and to advance its vision of fair and inclusive workplaces with equal opportunity for all.” In other words, the Plan identifies “big ticket” items for potential lawsuits and other enforcement efforts that employers can expect the EEOC to pursue more aggressively in the near future.

Below are some key issues identified by the EEOC that employers should consider:

  1. “Preserving access to the legal system” by reviewing “overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements.” This priority emphasizes the need to ensure that severance agreements, arbitration agreements, and employer policies do not unlawfully discourage or prohibit the filing of EEOC charge and lawsuits;
  2. “Recognizing employers’ increasing use of technology, including artificial intelligence and machine learning, to target job advertisements, recruit applicants, and make or assist in hiring and other employment decisions.” This emphasis comes just weeks after, as our colleague Joel Hlavaty wrote, the EEOC announced a $365,000 settlement agreement with a software company that it accused of violating anti-discrimination laws through its use of AI in recruiting and hiring process. In its press release, EEOC Chair Charlotte A. Burrows wrote, “Even when technology automates the discrimination, the employer is still responsible … This case is an example of why the EEOC recently launched an Artificial Intelligence and Algorithmic Fairness Initiative. Workers facing discrimination from an employer’s use of technology can count on the EEOC to seek remedies.”  This initiative and the related settlement reinforce the need to ensure that AI tools are used in compliance with applicable laws.
  3. Targeting discrimination, bias, and hate directed against religious minorities (including antisemitism and Islamophobia), racial or ethnic groups, and LGBTQI+ individuals.” This priority merits special consideration in light of Groff v. DeJoy, the recent Supreme Court decision that heightened the standard for establishing the employer’s undue hardship  defense in the context of religious accommodations. Under the previous standard, the employer could prevail so long as the accommodation cost was anything more than “de minimis.” Going forward, employers must now show that the burden “is substantial in the context of [its]  overall business.” Thus, before rejecting religious accommodation requests, employers should carefully consider the nature of the request, the burden imposed on the business, and the viability of alternative options.
  4. “Protecting workers affected by pregnancy, childbirth, or related medical conditions, including under the new Pregnant Workers Fairness Act (PWFA) and other EEO laws.” This focus highlights the urgency for employers to develop a strategy to comply with the PWFA, as our colleague Megan Bennett outlined in her recent article.

What’s Ahead
While the EEOC will exercise its usual jurisdiction to process charges that allege violations of the federal discrimination statutes within its jurisdiction, the items in the Strategic Plan will receive special attention from the EEOC’s investigators and litigators. Therefore, employers should identify any potential exposure in these areas and creative a proactive strategy for minimizing liability and ensuring compliance in the future.