Labor & Employment Law Updates
On Monday, April 18, 2022, a federal judge from the U.S. District Court for the Middle District of Florida struck down the Centers for Disease Control’s (“CDC”) national mask mandate on airplanes and public transit.[1] The judge’s ruling freed airlines, airports, and mass transit systems to make their own decisions about mask requirements, resulting in a mix of responses. The filing came days after airline CEOs called on President Biden to drop the mandate.[2]
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Colorado lawmakers abandoned yet another attempt to pass Protecting Opportunities and Workers’ Rights Act (“POWR”), which would have removed the longstanding “severe or pervasive” standard from Colorado sexual harassment claims for a much easier standard to prove.
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On March 15, 2022, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a Directive[1] addressing federal contractors’ obligations to analyze their compensation systems for impediments to equal employment opportunity and to turn over such analyses when under audit.[2]
[1] Directive 2022-01, https://www.dol.gov/agencies/ofccp/directives/2022-01
[2] As part of their affirmative action obligations, the OFCCP requires federal contractors are required to perform an in-depth analysis of their total employment practices to determine whether and where impediments to equal employment opportunity exist, including conducting an in-depth analysis of their compensation systems to determine whether there are gender-, race-, or ethnicity-based disparities, as provided in 41 CFR 60-2.17(b)(3).3.
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On Thursday, the United States Supreme Court held that federal courts do not have the authority to search an arbitration dispute for a federal question that would establish jurisdiction to confirm or deny an arbitral award.[1] The Supreme Court ruled 8-1 that the text of the Federal Arbitration Act does not entitle federal courts to “look through” the underlying dispute in order to establish federal question jurisdiction to hear requests to confirm or deny awards.[2]
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On March 9, 2022, the Seventh Circuit[1] affirmed the District Court’s finding that termination of employment based on discovery of the employee’s performance issues while she is on protected leave under the Family Medical Leave Act (“FMLA”) 29 U.S.C. § 2601 et seq. does not constitute FMLA interference[2] or FMLA retaliation.[3]
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On March 10, 2022, the U.S. Department of Labor released new resources aimed at providing information to vulnerable workers, such as immigrant workers, workers of color, and women, who are terminated or are subjected to other adverse employment actions in retaliation for exercising their lawful rights
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On February 17, 2022, the Federal Register published a proposed rule by the U.S. Department of Agriculture (“USDA”) that would require federal contractors to certify their labor law compliance.[1] The proposed rule would apply to all solicitations and contracts that exceed the simplified acquisition threshold, which is currently $250,000.[2]
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On February 28, 2022, the Tenth Circuit re-affirmed that circumstantial evidence is sufficient to prove pretext of willful discrimination under the Age Discrimination in Employment Act (“ADEA”).
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On February 19, 2022, the 2022 COVID-19 Supplemental Paid Sick Leave Law, Senate Bill 114, went into effect in California.[1] The law, which retroactively applies from January 1, 2022, and extends until September 30, 2022, requires employers with 26 or more employees to provide supplemental paid sick leave of up to 80 hours for COVID-19 related paid leave.
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Both chambers of Congress recently passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”), a bill aimed at preventing employers from requiring workers to arbitrate sexual harassment and assault claims.[1] The bill is now headed to the desk of President Biden for his expected signature.
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On February 9, 2022, the Ninth Circuit resolved a decades long dispute involving claims under the California whistleblower protection statute in Wallen Lawson v. PPG Architectural Finishes Inc [1] The Court determined that the test prescribed in Cal. Lab. Code § 1102.6 is the correct legal framework for claims of whistleblower retaliation. [2]
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After the United States Supreme Court stayed the implementation and enforcement of the COVID-19 Emergency Temporary Standard (ETS) requiring private employers to implement a mandatory vaccination or weekly testing and masking policy.[1] the federal Occupational Safety and Health Administration (OSHA) announced its withdrawal of the ETS as of January 26, 2022.[2]
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On January 1, 2022, all Colorado employers—regardless of size—became subject to traditional paid sick leave requirements under the Healthy Families and Workplaces Act (“HFWA”).[1] This requirement differs from the 2021 version of the Act, which required only employers with 16 or more employees to provide paid sick leave.[2]
[1] C.R.S. § 8-13.3-403(1)(c).
[2] C.R.S. § 8-13.3-403(1)(b).
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On January 14, 2022, the U.S. Supreme Court agreed to hear a case where the outcome may require public employers to reevaluate their policies regarding employees’ unprotected speech. [1]
[1] Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1010 (9th Cir. 2021), cert. granted, No. 21-418, 2022 WL 129501 (U.S. Jan. 14, 2022).
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The Department of Homeland Security (DHS) and U.S. immigration and Customs Enforcement (ICE) have extended flexibility in complying with the Employment Eligibility Verification (Form I-9) requirements until April 30, 2022 due to the ongoing COVID-19 pandemic.
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A COVID-19 diagnosis alone, however, is not enough.
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A federal court has issued a nationwide injunction blocking the federal government from enforcing its upcoming vaccination requirements for employers awarded federal contracts.
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