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Employment Law

Monitoring: Beware fixating on productivity

07/26/2023
Are supervisors asking to install tracking software on their remote employees’ computers and devices? They may be suffering from what Microsoft has termed “productivity paranoia.”

A matter of morals … or discrimination? Expect more cases claiming ‘expressive association’

07/24/2023
The Supreme Court ruled in June that a Colorado web designer could decline to develop sites celebrating same-sex weddings based on her First Amendment expressive freedom of association. Now a different employer—a Catholic school—is trying to argue it has the right to “expressive association” in the employment context, able to reject applicants or fire employees who don’t live up to its views on moral behavior.

AI in the workplace must conform to anti-discrimination laws

07/20/2023
Recent guidance from the EEOC covers AI in employers’ selection procedures—hiring, firing and promotion decisions—and whether using AI in this manner has a disparate impact on protected groups.

EEOC finding novel ways to drive industry change

07/20/2023
Not content just to punish discrimination, the EEOC is seeking ways to increase employment opportunities for members of protected classes.

Sink retaliation claims by engaging an outsider to investigate bias complaints

07/20/2023
Using an outside entity to investigate internal discrimination or harassment complaints helps prevent retaliation lawsuits. That’s because there’s no reason for an outside investigator to take sides in the outcome.

When evaluating religious accommodations, accept sincerity of employee’s stated beliefs

07/20/2023
The EEOC is pushing the envelope on how far employers can go if they want to deny requests for reasonable religious accommodations. It doesn’t generally approve of employers probing too deeply into why an employee might have a faith-based objection to following an employer’s dress and grooming rules.

Beware growing influence of pro-worker NLRB

07/20/2023
A decade ago, the National Labor Relations Board—the independent agency that enforces the National Labor Relations Act—was considered a relatively minor player on the employment-law scene compared to the Department of Labor and the EEOC. No more.

Is it OK to disable online comments to silence pro-union messages?

07/20/2023
Employees have the right under Section 7 of the NLRA to engage in protected concerted activity—to complain between and among themselves about terms and conditions of employment. This right includes the right to express an opinion in favor of unionization and against the termination of co-workers who were allegedly fired for supporting the union. Section 7 covers social media posts and comments.

After Groff ruling, how to accommodate religion at work

07/17/2023
On June 29, a unanimous Supreme Court ruled 9-0 in Groff v. DeJoy that employers must accommodate employees’ religious practices and beliefs unless doing so creates an undue hardship. Now, employers must revamp their religious accommodation process or risk litigation.

NLRB moves to ban noncompetes, but options remain

07/17/2023
In a memo to the agency’s regional directors, NLRB General Counsel Jennifer Abruzzo announced her conclusion that including noncompete agreements in employment and severance agreements violates the National Labor Relations Act.