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On August 25, 2022, the U.S. Securities and Exchange Commission (SEC) voted to adopt the “pay-versus-performance” rule, requiring publicly traded companies (except foreign private issuers, registered investment companies, and Emerging Growth Companies) to provide clear disclosure to shareholders on the relationship between companies’ executive compensation and financial performance. The adoption finally implements Section 14(i) of the Securities and Exchange Act of 1934 (the “Exchange Act”), as added by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
Continue Reading The SEC Adopts Pay-Versus-Performance Disclosure Requirements for ExecutiveCompensation—Do They Relate to You?

The California State Legislature recently passed a Senate Bill 1162, a pay transparency bill intended to narrow the gender pay gap and differences in pay for Black and Latino employees. If the California Governor signs Senate Bill 1162 into law, California employers with 15 or more employees must include the pay scale for a position on all job postings and provide current employees with the pay scale for their position upon request. Moreover, employers with 100 or more employees must also submit an annual pay data report, including median and mean hourly rates for race, ethnicity and sex within each
Continue Reading The Growing Pay Transparency Trend and How Employers Should Prepare 

Legislation aimed at expanding green energy construction projects is spreading throughout the United States. With it, prevailing wage mandates and project labor agreements tied to such projects are becoming more common. Construction contractors representing various trades and sizes need to be aware of the fine-print when considering bidding on these projects — including simple repair and maintenance.
Continue Reading Bidding On Green Energy Construction Projects?  Watch Out For PrevailingWage and PLA Landmines!

Recently, the 4th Circuit U.S. Court of Appeals issued a decision that expanded protections under the Americans with Disabilities Act (ADA) to people with gender dysphoria. While the case at issue was not employment-related, the implications of the decision are significant for all employers because it strengthens support for claims of ADA protection for individuals with gender dysphoria within the scope of employment, public accommodations, and government benefits and services.
Continue Reading Employers Need to Know Gender Dysphoria – Here’s Why

On August 29, 2022, the National Labor Relations Board (NLRB) examined workplace restrictions on the display of union insignia where employers require employees to wear uniforms or designated clothing. In a 3-2 ruling, the NLRB decided that Tesla, Inc. violated labor law by restricting employees from wearing pro-union t-shirts because such restriction implicitly prohibits workers from substituting union attire for required uniforms.
Continue Reading NLRB Rules that Restricting Pro-Union T-Shirts Violates Labor Law

On August 16, 2022, the 7th Circuit Court of Appeals rejected the Equal Employment Opportunity Commission’s  (EEOC) attempt to increase the level of scrutiny given to sex discrimination cases under the Pregnancy Discrimination Act and the Civil Rights Act of 1964.  With this ruling the Appellate Court affirmed a summary judgment award given to a large retail chain by a District Court in Wisconsin.
Continue Reading Light Duty Program Excluding Pregnant Workers Given the OK by the 7thCircuit

In a continuance of the labor-friendly trajectory of the National Labor Relations Board (NLRB) under the current administration, the 9th Circuit recently issued a decision upholding the right of the NLRB to award legal fees to a union incurred during the collective bargaining process. This ruling should put all unionized employers on notice of the ripple effects of decisions such as this one on their own bargaining.
Continue Reading Employers Beware: Egregious Behavior During Collective Bargaining Can Lead
to Paying Attorney’s Fees to the Union

In Constellium Rolled Products Ravenswood v. NLRB, the U.S. Court of Appeals for the District of Columbia Circuit addressed the tension between a worker’s? Section 7 protected and concerted activity rights under the National Labor Relations Act and workplace harassment that’s forbidden by workplace anti-bias laws.  In a 2-1 ruling, the Court of Appeals held that the NLRB had adequate justification to rule that an employer violated federal labor law for firing a worker who wrote “whore board” on overtime sign-up sheets despite the employer’s contention that it was enforcing its anti-harassment policy.
Continue Reading Explicit Graffiti Case Illuminates The Necessity of Consistent and Uniform
Enforcement of Anti-Bias Workplace Rules

If we were to tell you that the Federal Trade Commission (FTC) and National Labor Relations Board (NLRB) recently entered into a Memorandum of Understanding (MOU) “Regarding Information Sharing, Cross-Agency Training, and Outreach in Areas of Common Regulatory Interest,” your response may well be “What?  Why?  And what ‘Common Regulatory Interest’ could they possibly share?”  Well, good questions.
Continue Reading The NLRB and FTC Agree to Collaborate:  What This Means for Employers

On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) – the federal agency responsible for enforcing anti-discrimination laws –  issued new guidance on when employers may require employees to screen/test employees for COVID-19.  The updated guidance can be found in What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws  (the “Guidance”).
Continue Reading EEOC Issues New Guidance on COVID-19 Testing

The federal Family and Medical Leave Act (FMLA) provides employees essentially two paths to bring lawsuits for alleged FMLA violations:  retaliation claims and interference claims.  Employers are generally familiar with the concept of retaliation, and FMLA retaliation claims tend to fit a familiar mold:  If an employee suffers an adverse employment action (e.g., termination, unpaid suspension) that is causally connected to a request for FMLA leave or other FMLA-protected activity, the employee may have a claim for FMLA retaliation.
Continue Reading Employers Must Tread Carefully In FMLA Request Discussions To Avoid FMLA
Interference Claims

Illinois employers should update their leave policies in light of the new bereavement law going into effect on January 1, 2023.  On June 9, 2022, Governor Pritzker signed into law the Family Bereavement Leave Act (“FBLA”).  The FBLA amends the Child Bereavement Leave Act (“CBLA”) and expands upon an employer’s obligations to provide unpaid bereavement leave to its employees. 
Continue Reading Attention Illinois Employers: The Family Bereavement Leave Act Goes Into
Effect January 2023

As litigation costs continue to explode, more and more businesses have been including arbitration clauses in contracts with employees and customers. These clauses, which frequently include class action waivers, allow businesses to remove lawsuits from court to the more streamlined and cost-effective arbitration system. In recent years, the U.S. Supreme Court has consistently enforced arbitration clauses in a wide variety of contexts.
Continue Reading Use It or Lose It: Supreme Court Says Arbitration Clauses Can Be Waived
Inadvertently

The U.S. Supreme Court’s decision last month to overturn Roe v. Wade presents new challenges for employee benefit plans. By overturning the case establishing a constitutional right to abortion, the Court’s decision in Dobbs v. Jackson Women’s Health allows individual states to impose restrictions or outright bans on abortion. The decision is quickly leading to a patchwork of state laws that plan sponsors must now consider.
Continue Reading Employee Benefit Plan Considerations Post-Roe