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The Modern Workplace

Recently, the Supreme Court of the United States issued a decision in Murray v. UBS Securities, LLC holding that whistleblowers are not required to prove their employer acted with “retaliatory intent” to be protected under the federal Sarbanes-Oxley Act of 2002 (“SOX”). Instead, whistleblowers only need to prove that their protected activity was a “contributing factor” in the employer’s adverse personnel action against them.

Congress enacted SOX to prohibit publicly traded companies from retaliating against employees who report what they reasonably believe ...

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Posted in Discrimination

Employers with employees located in the states falling within the jurisdiction of Fifth Circuit federal courts (e.g. Louisiana, Mississippi and Texas) should take note of an important federal appellate ruling impacting Title VII discrimination claims. On August 18, 2023, the U.S. Court of Appeals for the Fifth Circuit, issued a ruling in Hamilton v. Dallas County (Hamilton) that reversed decades of case precedent within the Circuit and changed the requirements for the ”adverse employment action” element of a Title VII discrimination claim to be in line with other federal ...

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The U.S. Department of Labor (“DOL”) announced a final rule revising its guidance on how to analyze whether a worker is properly classified as an employee or independent contractor under the Fair Labor Standards Act (“FLSA”).  The final rule rescinds the DOL’s 2021 independent contractor rule and takes effect on March 11, 2024.

The FLSA requires, among other things, covered employers to pay nonexempt employees at least the federal minimum wage for all hours worked and overtime pay for every hour worked over 40 in a workweek. These FLSA protections do not apply to independent ...

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Employers should be aware of Colorado law changes that may impact their job postings and other practices, including some changes that are likely a welcome roll-back of some prior requirements.  On January 1, 2024, the amendment to Colorado’s Equal Pay for Equal Work Act (the “Act”) took effect. As background, the Act applies to (1) all public and private employers that employ at least one person in Colorado and (2) all employees of those employers. The Act requires covered employers to include certain information in each job posting, including the hourly rate or salary ...

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Posted in Labor & Unions

On October 26, 2023, the National Labor Relations Board (“NLRB”) issued its Final Rule addressing the Standard for Determining Joint Employer Status under the National Labor Relations Act (“NLRA”). The Final Rule rescinds the prior rule enacted in 2020 and expands the scope of joint employment by including indirect control in the joint-employer standard.

The Final Rule establishes that, under the NLRA, 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 ...

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Posted in Labor & Unions

For decades, the National Labor Relations Board (“NLRB”) has found that secret ballot elections are the best method for determining whether workers want to be represented by a union. A recent memo from the NLRB General Counsel, however, makes it clear that the current Board is intent on making it much easier for unions to win the right to representation without a vote of the employees. The memo, GC 24-01 (issued November 2), explains the Board’s approach following this summer’s decision in the case of Cemex Construction Materials Pacific and International Brotherhood of ...

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As you likely know, the EEO-1 Report is a mandatory annual data collection which requires all private employers with 100 or more employees and all federal contractors (and their applicable subcontractors) with 50 or more employees to submit workforce demographic data, by job category and by sex and race to the Equal Employment Opportunity Commission (EEOC).

For the year 2022, the deadline for the filing of the EEO-1 Report is DECEMBER 5, 2023. The 2022 EEO-1 Report is based upon the filing employer’s workforce for a single pay period during the time frame of October 1, 2022 to December ...

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Posted in Discrimination

On Friday, September 29, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) posted for public inspection its proposed “Enforcement Guidance on Harassment in the Workplace.”  The EEOC previously released proposed guidance on workplace harassment for public comment back in 2017, but the guidance was not finalized.  The updated proposed guidance posted last week reflects recent changes in the law and recent trends, including:

  • The U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that Title VII prohibits employment ...
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On August 30, 2023, the U.S. Department of Labor (“DOL”) announced a proposed rule intended to “restore and extend overtime protections to 3.6 million salaried employees.” If finalized, the proposed rule would raise the salary levels that must be paid to certain employees for them to be exempt from overtime pay requirements under the federal Fair Labor Standards Act (“FLSA”). The full Lathrop GPM Client Alert on the subject can be found here.

Specifics of Proposed Rule

The proposed rule, if finalized, would raise the guaranteed weekly salary that must be paid to “white ...

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The answer after the Stericycle ruling is likely “both.” 

As the composition of the NLRB (National Labor Relations Board) changes, the roller coaster continues, making it difficult for businesses – whether private, non-profit, non-union or union and beyond – to draft and implement compliant policies, reduce risk, conduct or oversee investigations, and more. The result of this swing will likely be more confusion for all employees – union or not – as to whether common policies actually comply with the law, and more litigation involving employees who are disciplined for ...

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