Court OKs EEOC’s Lawsuit Against Employer Notwithstanding Lengthy Delay (US)  

It’s a not-so-uncommon scenario for employers.

  • An employer terminates an employee.
  • The employee files a charge with the U.S. Equal Employment Opportunity Commission (EEOC) alleging her termination was the motivated by unlawful discrimination.
  • The EEOC asks the employer to provide a comprehensive response to the charge, supplemented with voluminous documents requested by the agency in connection with its investigation, typically with a deadline of just a few weeks for the employer to submit its response.
  • The employer, at its considerable expense, provides its timely response to the EEOC.
  • The matter then sits…and sits…and sits, at the EEOC, sometimes for years, with no action being taken. Continue Reading

An Update Concerning Employer Mandatory Vaccination Policies – COVID-19 (US)

With news reports emerging this week that two companies each have developed a COVID-19 vaccine that is more than 90% effective and carries few side effects, and that mass immunizations may begin as early as December 2020, when more than 20 million doses of the vaccines are predicted to be available, employers will soon confront an important decision: whether to require that all employees receive a COVID-19 vaccination as a condition of remaining in or returning to the workplace. In September of this year (which now feels like ages ago), we covered issues relating to employers considering implementing a mandatory seasonal influenza vaccination requirement. In that post, we discussed the legal issues concerning whether an employer can indeed implement and enforce a mandatory flu vaccination policy. (The TL:DR version: the U.S. Equal Employment Opportunity Commission (EEOC) does not recommend that employers require employees be vaccinated for the seasonal flu as a condition of employment – with the possible exception of healthcare employers – and those employers that do require flu vaccination must accommodate employees who for disability or religious reasons cannot or will not be vaccinated.) Continue Reading

Arizona and Three More States Approve Recreational Marijuana Use: Hashing Out What This Means for Employers (US)

DrugsFor citizens of Arizona, Montana, New Jersey, and South Dakota, 11/3 may become another 4/20, as on Election Day, voters in those states approved initiatives to joining 11 other US states that previously decriminalized recreational adult use of marijuana.[1] Employers in those states however may not be as enthusiastic, since approval of recreational marijuana use undoubtedly will impact how they deal with applicants and employees when it comes to marijuana-related issues, as well as their overall approach to substance abuse and drug testing policies. It’s therefore important for employers to understand the implications these developments may have on how they approach the use of marijuana by their workforce. This post primarily focuses on the evolution of marijuana laws in Arizona, where medical marijuana use has been legal for nearly a decade, and examines what the recent legalization of adult recreational marijuana use means for employers in the state, which may also serve as an example of how other states may take on this issue since it appears that attitudes towards marijuana legalization are substantially shifting, signaling that more states may approve of similar measures in the future.

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Second thoughts for employers facing new pandemic measures (UK)

Employment Confusion

Boris’ press conference on Saturday night addressed one key question and left another unanswered. In his late start, overturning of previous statements and an expression more hunted than Ronnie Biggs, the Prime Minister showed clearly that the pandemic holds the reins of power at present, not the Government.  On the other hand, after six months of press conferences, we are no nearer understanding why they won’t give the UK’s Chief Medical Officer a clicker for his own slides.

It is all very well extending the CJRS in the circumstances, of course, but doing so less than five hours before it was due to expire will inevitably leave employers considering the rightness or otherwise of decisions which they have been entitled and indeed obliged to take already by the Government’s earlier silence on key issues.  What if you have scrupulously followed the requirement to agree the contract variation necessary to claim under the Job Support Scheme, or if in anticipation of the ending of the CJRS you have already issued notices of redundancy?  How does this square with your previously-mandated efforts to winkle your remaining furloughed staff off the sofa and back to work, or from WFH back to the office?  How are you expected to preserve any credibility at all as employer in such circumstances?

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Belgium – Your employees can’t work from home? Time for a certificate!

Coronavirus themed Belgium FlagWe were – as ever – maybe a little late to the party, but as of Monday 2 November, Belgium is in new lockdown, at least until 13 December.

Non-essential shops are closed and so-called “professions with direct contact” (beauticians, barbers) are prohibited from working.  Working from home is mandatory, unless this is “impossible due to the nature of the position of the employee or the continuity of the business, activities or services”. A similar exception is made for those employed in the frontline of essential services, such as medical staff, the police and certain parts of the food and energy sectors.

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WEBINAR – November 5 – Healthcare Employers’ COVID-19 Update: A Practical Discussion of Recent Employment Law Developments Relating to COVID-19 (US)

As part of Squire Patton Boggs’ ongoing focus on COVID-19 pandemic challenges and opportunities, on November 5, 2020 at 2:00 p.m. Eastern, William J. Kishman and Laura Lawless of the firms’ Labor & Employment Practice Group will host an hour-long discussion aimed at healthcare employers that will focus on some of the key issues that are front and center in this sector, including:

  • Managing unique telehealth obligations relating to employees;
  • New guidance on leave obligations for healthcare employers under the Families First Coronavirus Response Act and other laws;
  • Practical guidance for shift structuring, layoff recalls, and other operational changes related to COVID-19;
  • Avoiding unexpected pitfalls concerning remote workers;
  • Hotspots for COVID-19-related litigation and how to avoid them;
  • Impact of COVID-19 on union organizing, employee complaints, and other protected activities;
  • Managing COVID-19-related safety obligations in the healthcare setting; and
  • Future developments to monitor regarding the FFCRA, vaccines and other key areas.

We hope you can join us for this special opportunity to hear from these industry experts on these developments. Registration is available at this LINK.

Feeling Lucky?: DHS Proposes Wage-Based Changes to its Annual H-1B Lottery (US)

On Wednesday, October 28, 2020, the Department of Homeland Security (DHS) announced another proposed change to the H-1B visa program.  The new rule would do away with the random lottery system currently used to issue the annual quota of 85,000 H-1B visas and replace it with a new lottery system weighted to favor applications with higher wages.

The Current H-1B Lottery Program

The H-1B visa is the workhorse of the U.S. immigration system; used by employers seeking to fill high-skilled jobs (called “specialty occupations”) that require, at a minimum, a bachelor’s degree in a related field.

H-1B workers must be paid a “required wage,” which is the higher of either (1) the salary paid to other U.S. workers in the same role and location or (2) the prevailing wage for the job in the same location.  Prevailing wages can be obtained in several ways, including using private wage surveys, but the vast majority of H-1B petitions rely on the Department of Labor’s (DOL) Occupational Employment Statistics (OES) program, which gathers salaries for hundreds of job categories across specific geographic areas.  Those wages are broken into four “Wage Levels” (I, II, III, and IV), depending on the complexity and experience required by the role, ranging from Level I for mainly entry level workers to Level IV for experts and experienced leaders. Continue Reading

Online Employment Tribunal hearings – remote possibility or part of our new normal? (UK)

Digital lawRemote evidence in Tribunal hearings have traditionally been limited to circumstances where an individual’s location or health makes it very difficult for them to attend the venue. Historically the ETs have not much liked it and there is a continued perception that evidence given remotely is like that given by a written statement alone – admissible, yes, but just not as persuasive as a live witness there in front of the Judge. Throw a global pandemic into the mix, however, and now remote hearings are increasingly becoming the norm rather than an exception. But how different are remote hearings to those heard in-person? What if the internet cuts off? How can witnesses be best prepared to present their evidence virtually? Read on to find out.

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WEBINAR – October 30: What the US Election Means for Labor and Employment Legislation (US)

While it is impossible to predict the outcome of the November 2020 presidential and congressional elections, there is no doubt that it will significantly influence the direction of various labor and employment laws. Join partner Traci L. Martinez, principal David Stewart and associate Dylan J. Yépez on October 30 at 1 p.m. Eastern for an insightful discussion on how the election results may impact your labor interests over the next four years and beyond.

Information and Registration can be accessed at this LINK.

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