SuperVision - Labor & Employment Insights, Issue 4, December 2023

Carrie Grundmann, Julian Harf, Mark Heath, Eric Iskra, Eric Kinder, Mitchell Rhein, Chelsea Thompson, Kelsie Wiltse
Spilman Thomas & Battle, PLLC
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Welcome!

Welcome to our fourth and final issue of SuperVision 2023! In this latest edition, we provide you with our Top 10 to round out the year, including five of the biggest labor and employment developments from 2023 and five issues to watch in 2024. We hope you enjoy this issue of SuperVision!

We wish you a restful holiday and a prosperous 2024!

Eric W. Iskra, Chair, Labor & Employment Practice Group

Carrie H. Grundmann, Executive Editor, SuperVision

Attacks on Non-Disclosure, Confidentiality, and Non-Compete Agreements in 2023 

By Carrie H. Grundmann

On several fronts in 2023, we saw federal agencies and entities attacking the scope and enforceability of certain employment agreements, including non-disclosure, confidentiality, and non-compete agreements. Employers need to be aware of these limitations and take them into account with new hires and when dealing with the cessation of employment. 

In February 2023, the National Labor Relations Board issued its decision in McLaren Macomb, 372 NLRB No. 58 (2023), which addressed the enforceability of confidentiality and non-disparagement provisions in severance agreement for non-supervisory employees.

Click here to read the entire article.

Groff v. DeJoy and Its Impact on Religious Accommodation

By Julian F. Harf

Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from discriminating against employees and applicants on the basis of religion (as well as race, color, sex, and national origin), and it obligates employers to reasonably accommodate an employee’s religious observance or practice unless doing so creates an undue hardship. In July 2023, the Supreme Court decided Groff v. DeJoy, 600 U.S. 447 (2023), and clarified what constitutes an “undue hardship” in the Title VII religious accommodation context.

For decades, the focus has been on whether the religious accommodation would require the employer to “bear more than a de minimis cost” and, if so, it constituted an undue hardship. 

Click here to read the entire article.

The Pregnant Workers Fairness Act Changes the Game for Expectant Mothers in the Workplace

By Eric E. Kinder

This past year has brought with it expanded employment protections for new and expectant working mothers. These protections, in the form of two federal laws, alter the landscape for how employers can consider the needs of expectant and new mothers in the workplace.

The most significant change is the the Pregnant Worker Fairness Act, which creates new reasonable accommodation requirements for most employers when considering pregnancy-related limitations of their employees and applicants. 

Click here to read the entire article.

A Revamped Union Organization Process

By Mitchell J. Rhein

Unions won 95 percent of the elections involving groups of 500 or more workers that occurred in the first half of 2023. Overall, unions won 662 elections during that same period – covering over 58,000 workers, the greatest first-half win total for unions in nearly 20 years. In the second half of 2023, the National Labor Relations Board (the “Board”) made two changes to the union organization process that will likely aid unions seeking further gains in 2024. First, the Board completely altered the process for union organizing by, in some situations, placing the burden on an employer to seek an election and strengthening the consequences of unfair labor practices committed by an employer during an organizing campaign. Second, the Board issued new procedural rules, which go into effect on December 26, 2023, designed to reduce the time between when a petition for election is filed and when the election occurs. These changes require employers to immediately prepare for union organizing regardless of the perceived risk of employees organizing. Employers that are caught flat-footed by union organizing and ignorant about the rules for organizing likely will suffer the wrath of the Board’s union-friendly rules.

Click here to read the entire article.

A Significant Expansion of Title VII on the Horizon?

By Eric W. Iskra

The U.S. Supreme Court in Muldrow v. City of St. Louis is poised to determine whether an employee who was transferred to a new position, but did not suffer actual harm, can bring a claim under Title VII of the Civil Rights Act of 1964. At its core, this case will establish critical standards of whether a discriminatory act must result in harm or, to put it more plainly, whether an “adverse employment action” (i.e., some significant disadvantage or tangible harm) is needed in order to maintain a Title VII claim. 

Click here to read the entire article.

The Impact of the Supreme Court’s Decision on Affirmative Action in Education on Workplace DEI 

By Carrie H. Grundmann

In June 2023, the United States Supreme Court issued rulings in two related cases: Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and SFFA v. University of North Carolina, Nos. 20-1199 & 21-707, striking down affirmative action in college admissions and concluding that neither Harvard nor UNC offered compelling enough justifications for their racial admission preferences. While these decisions are limited to higher education, they have implications for DEI initiatives in the workplace. Indeed, the activist who founded Students for Fair Admissions (“SFFA”) and others have begun targeting private entities that have/had race-related requirements for employment.

Click here to read the entire article.

EEOC May Issue New Guidance on Workplace Harassment in 2024

By Sarah E. Kowalkowski

In 2024, and for the first time since 1999, the Equal Employment Opportunity Commission (“EEOC”) likely will publish new Enforcement Guidance on Harassment in the Workplace. On September 29, 2023, the EEOC issued Proposed Enforcement Guidance on Harassment in the Workplace, opening a thirty-day public comment period, a necessary legal step before adopting new guidance.

There are several noteworthy provisions of the proposed guidance.

Click here to read the entire article.

NLRB Joint Employment Rule   

By Kelsie A. Wiltse

On October 27, 2023, the National Labor Relations Board (the “Board”) issued its final rule (“2023 Final Rule”) on joint employment. The rule becomes effective on December 26, 2023, and raises concerns for staffing agencies and their clients, franchisors/franchisees, and contractors/subcontractors. 

As written, the rule states that two or more employers may be considered “joint employers” if “the employers share or codetermine those matters governing employees’ essential terms and conditions of employment.” Broadly speaking, the 2023 Final Rule may find a joint employment relationship if an entity can control one of seven essential terms and conditions of employment, even if that control is never actually exercised. There are seven areas included.

Click here to read the entire article.

Supreme Court to Review Deference Standard to Federal Administrative Agency Actions in 2024

By Chelsea E. Thompson

Next month, the United States Supreme Court will be hearing a pair of cases (Relentless, Inc. v. Department of Commerce and Looper Bright Enterprises v. Riamondo) that could fundamentally change whether a federal court must defer to a federal administrative agency in interpreting federal laws and rules. These cases are factually not terribly relevant to employers; they deal with a federal rule requiring the fishing industry to pay the costs associated with observers who monitor the fishers’ compliance with federal rules. The import of their decision, however, is that they give the Supreme Court the option to overturn a landmark decision that has been in place for 40 years, called Chevron v. Natural Resources Defense Council. 

Click here to read the entire article.

OSHA: A Look Forward into the 2024 Regulatory Agenda 

By Mark E. Heath

There are several items at the Occupational Safety and Health Administration that should be on employers’ radars in 2024. Read our breakdown of four major issues. 

Click here to read the entire article.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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