EEOC Updates Guidance on COVID-19 and Anti-Discrimination Laws

Author: Emily Mawer

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently updated its guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Many of the updates to the guidance document are consistent with the EEOC’s March webinar on COVID-19, but the updates also provide additional clarifying information regarding the Americans with Disabilities Act (“ADA”) and COVID-19 screening. The ADA continues to apply during the COVID-19 pandemic and requires that any employment disability-related inquiries or medical exams, including COVID-19 related inquiries and testing, be job related and consistent with business necessity. The EEOC guidance states, however, that the ADA does not prevent employers from following recommendations from the CDC or other public health authorities.

Preventing Wage and Hour Claims: Step One – Are You Paying for All Hours Worked?

Author: Dorrie Larison

A basic tenant of the Fair Labor Standards Act (FLSA) is that employers are required to pay their non-exempt employees for all hours worked. While this seems simple enough, sometimes employees do not record all of their work time. Under the FLSA, employers must pay for time worked if they know or have reason to believe that the work was performed. In other words, employers have a duty to make sure that work is not performed when they do not want it to be performed. Recently, in light of the pandemic, the U.S. Department of Labor issued a Field Assistance Bulletin (FAB) highlighting the requirement to track and pay for all hours worked by employees working remotely.

National Labor Relations Board Adopts Stricter Standard on Abusive, Harassing and Profane Employee Speech

Author: Neil Goldsmith

Under Section 7 of the National Labor Relations Act (“NLRA”), employees have the right to engage in protected, concerted activities. Such protected activities often include protesting working conditions that employees find unfair, unsafe, or undesirable. But what happens when these protected statements are coupled with inappropriate outbursts filled with abusive, harassing or profane language? Or worse yet, what if these protected statements are coupled with racist or discriminatory statements? Can employers still discipline employees for their inappropriate behavior while not running afoul of Section 7 yet still satisfying their obligations under anti-discrimination laws? This is the dilemma that employers—and the National Labor Relations Board (“NLRB”)—have grappled with for decades. Fortunately for employers, in General Motors LLC, 369 NLRB No. 127 (Jul. 21, 2020), the NLRB recently adopted a new standard that gives them wider latitude to discipline employees who engage in abusive, harassing and profane employee speech.

Minnesota Joins the Growing List of Locations with Mask Orders

Author: Katy Fodness

Across the country, state and local mask orders are becoming more common. For those employers located in Minnesota, for example, a new mask order went into effect on July 25, 2020, pursuant to Minnesota Governor Tim Walz’s Executive Order on masks. Under the Order, Minnesotans over the age of five must wear a face covering in indoor businesses and indoor public settings, unless alone. The Executive Order contains specific requirements for businesses, including provisions generally requiring workers to wear a face covering at all times when working indoors, outdoors in situations where six feet of social distancing cannot be maintained or when specific industry guidance imposes stricter requirements.

Time To Review and Revisit Non-Competition Agreements?

Author: Elizabeth Duff Mendoza 

The uptick in new state laws prohibiting non-competition agreements with low-wage (and in some cases, not-so-low-wage) workers has remained steady throughout 2020. Most recently, Virginia, Rhode Island and Washington have joined a growing contingent of states prohibiting non-competition agreements with workers who do not meet certain earnings thresholds. For many employers, the earnings thresholds may be higher than expected and the penalties for violations of the new laws may be harsher than expected. This post is intended to provide a brief summary of certain new earnings thresholds and potential penalties that employers should be aware in Virginia, Rhode Island and Washington.  

Key Illinois Employment Updates

Author: Emily Cantwell

We will undoubtedly remember 2020 for reasons completely unrelated to employment law. However, the State of Illinois experienced a few changes that went into effect on January 1, 2020. This post intends to provide a quick reminder of a few of the new requirements facing employers since the start of the new year.

Supreme Court Broadens Ministerial Exception to Nondiscrimination Laws for Religious Employers

Author: Rebecca Yocum

This week, the U.S. Supreme Court affirmed First Amendment protections for religious institutions in the hiring and firing of employees who play an important role in carrying out the institution’s religious mission. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court upheld the dismissal of employment discrimination claims brought by two teachers against their Catholic school employers under the ministerial exception, a legal doctrine that prohibits courts from getting involved in employment disputes between religious institutions and their ministerial employees.