Miles & Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 22nd annual Hot Topics in Employment Law seminar April 11 to clients from throughout Maryland and beyond. Topics covered included diversity, equity and inclusion programs, federal and state leave law updates and myriad employment issues raised on a day-to-day basis with human resources professionals, including disability and religious accommodations in the workplace, the impact of changing cannabis and clean slate laws on employers. Here are some highlights from the three interactive sessions.
DEI Programs in Light of the Harvard Admission Ruling
Kristy Eriksson, Veronica Jackson and Paolo Pasicolan discussed actions employers can take to implement DEI programs in light of the Supreme Court’s decision in Students for Fair Admissions v. Harvard University, which effectively ended affirmative action in college admissions. Aisha Jorge Massengill, head of employment law at Sonos, joined the trio to provide a corporate perspective on DEI and the challenges facing employers.
Kristy and Veronica recapped the Students for Fair Admissions decision in which the court found that the admissions policies of Harvard University and the University of North Carolina violated the Equal Protection Clause and Title VI of the Civil Rights Act of 1964. Since Title VI closely parallels Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin, they noted how employers may face similar risks, particularly amid the recent wave of efforts targeting DEI programs of all kinds across the country.
Discrimination can occur both explicitly or through facially neutral policies or practices that have an adverse impact on members of a particular race, gender or other classification, Kristy said. Employers can foster workplaces free of discrimination by encouraging programs that promote fairness, pluralism and equal opportunity for all employees. Employers may still sponsor affinity groups but should not assign or limit group membership to a particular group of employees, Veronica said. Aisha suggested employers increase the pipeline of qualified candidates by expanding sources for recruiting and advertising.
Paolo discussed the use of race and environmental, social and governance (ESG) factors in designing and administering employee benefit plans. For example, the Department of Labor’s (DOL) Tiebreaker Rule allows companies to take race and ESG into consideration when competing investments equally serve the financial interests of the plan, he said
Emerging Federal and State Issues in 2024
Suzzanne Decker and Sasha Hodge-Wren presented important updates to state and federal laws, including clean slate laws and laws on drug testing, Fair Labor Standards Act (FLSA) status, non-compete agreements and independent contractor classification, among others.
Sasha reviewed limitations on an employer’s ability to conduct pre-employment drug testing and take adverse employment action against employees for off-duty or medical cannabis consumption. Since cannabis and drug testing requirements vary by state, employers should routinely check applicable state laws to ensure compliance in each case, she said.
Suzzanne examined the DOL’s proposed changes to the FLSA’s salary threshold and standards for job duties for exempt employees, which are set to be announced this month. She also explained the DOL’s recently issued final rule codifying longstanding precedent regarding the standard for classifying workers as independent contractors. Employers should be mindful of the now-codified “economic realities test” when classifying workers as employees or independent contractors, she said.
Many states also have income thresholds (some of which increase annually) that determine whether an employee can validly enter into a non-compete agreement, Sasha said. In addition, she discussed the complexities of navigating non-compete and confidentiality agreements given the increasing number of state and local restrictions on such provisions. Employers may devise a single policy to meet the requirements of all applicable state laws or have state-by-state policies addressing each applicable state law individually. Further, several states are now limiting employers’ ability to condition employment or severance pay on an employee’s agreement to keep certain information confidential or to not disparage the employer.
Accommodations in the Office and Beyond: Navigating Accommodation Requests in the Post-Covid Hybrid Workplace
Stephanie Baron, Beth Hall and Kathie Pontone discussed ways for employers to navigate disability and religious accommodations both in the office and remotely in the post-COVID hybrid workplace.
Stephanie addressed concerns surrounding remote work requests based on disability and recommended practices for communicating with employees about return-to-office. She also reviewed what qualifies as an essential job function that must be accommodated, as well as the nuances in accommodations for employees with alcoholism and drug addiction, which may be recognized as mental health disabilities under the Americans with Disabilities Act (ADA).
Stephanie suggested that employers review and revise their job descriptions, if needed, to explicitly state that in-office work is required where in-office work is an essential part of the job. When evaluating employee accommodation requests, employers generally should engage in an interactive process to discuss the employee’s limitations and determine an effective and reasonable accommodation. Stephanie also reviewed recently enacted federal laws related to workplace accommodations for pregnant and nursing employees.
Beth addressed requirements for state and local governments and private businesses operating as public accommodations under Titles II and III of the ADA, respectively. There are specific requirements for public accommodations under Title III, such as removing architectural barriers in existing facilities, following standards for new construction and alterations and making reasonable modifications to policies, practices and procedures, when necessary, to provide individuals with disabilities an equal opportunity to access goods or services. Notably, if a company has a public-facing website, it is likely covered and thus required to be “accessible” to individuals with disabilities under Title III.
Kathie discussed religious accommodations and the Supreme Court’s heightened standard for employers to deny religious accommodation requests. Specifically, to deny a religious accommodation based on undue hardship, an employer must show that providing the requested accommodation would cause it to incur substantial cost in relation to the conduct of its particular business. Kathie explained what constitutes a sincere religious belief: Social, political or economic philosophies or personal preferences are not “religious” beliefs under Title VII.
For more information about the seminar and access to presentation materials, please visit the event site.
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