NLRB Says Mere Offer To Employees Of A Severance Agreement Containing Broad Confidentiality and Non-Disparagement Terms Is Unlawful (US)

On February 21, 2023, the National Labor Relations Board (“NLRB” or the “Board”) decided in McLaren Macomb that an employer commits an unfair labor practice when it presents a non-supervisory employee with a proposed severance agreement containing broad confidentiality or non-disparagement provisions. Reversing two earlier decisions by the previous Republican-majority NLRB in 2020, a majority of the presently constituted Board opined that broad confidentiality and non-disparagement terms “have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise” of rights guaranteed under Section 7 of the National Labor Relations Act (the “Act”), which include the right to engage in “concerted activity” for “mutual aid and protection.”

US Supreme Court Clarifies Employers’ Overtime Wage Payment Duty (US)

By Laura Lawless on February 22, 2023 Posted in Fair Labor Standards Act, Overtime, Pay, Recent Cases, SCOTUS, Wage and Hour

On February 22, 2023, the U.S. Supreme Court issued a decision clarifying employers’ obligation to pay overtime under the federal Fair Labor Standards Act (FLSA). The decision, Helix Energy Solutions Grp., Inc. v. Hewitt, No. 21-984, — S.Ct. — (Feb. 22, 2023), affirmed the Fifth Circuit Court of Appeals’ interpretation of the FLSA’s overtime pay requirement, finding it applied even to very highly compensated employees unless one or more specific overtime exemptions applies.

Ninth Circuit Strikes Down Latest California Law Against Employee Arbitration Agreements (US)

By Michael Kelly on February 21, 2023 Posted in Arbitration, California, Recent Cases

The U.S. Court of Appeals for the Ninth Circuit struck down the California Legislature’s latest attempt in a prolonged effort to limit employers’ ability to make arbitration of all disputes a condition of employment. In an opinion issued on February 15, 2023, the Ninth Circuit ruled that the law, Assembly Bill 51, is preempted by the Federal Arbitration Act (FAA) because the law created an obstacle to arbitration that conflicted with the FAA’s broad mandate in favor of arbitration.

Managing Long-term Sickness Webinar – Follow-up questions answered (Part 4 – UK)

By Squire Patton Boggs on February 15, 2023 Posted in Events, Sickness, Webinars

Here are a couple more of the questions – and our answers, following our recent webinar on Managing Long-term Sickness Absence.

Today we address the following:

You mentioned a £500 sum that employers can claim to support employees back to work during or after illness – can you please provide more information about that?
Where is the line between “reasonable” and “not reasonable” when it comes to adjustments? We have a long-serving employee who is now unable to do his current job as an operative due to arthritis. We sought advice from OH who said a reasonable adjustment (it is accepted that they are disabled) would be to make them a manager, even though he has no management experience. Surely this would not constitute a reasonable adjustment?

Department of Labor Reminds Employers of Duties Owed to Teleworking Employees (US)

By Laura Lawless on February 13, 2023 Posted in Department of Labor, Employment Policies, Fair Labor Standards Act, FMLA, Leave, Wage and Hour

On February 9, 2023, the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin addressing several vexing questions pertaining to compliance with the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) when a business employs teleworkers. Field Assistance Bulletins do not have the effect of law, but nonetheless are important statements of DOL policy and statutory interpretation.

Knew this would happen – entirely predictable problems with new working patterns Bill (UK)

By David Whincup on February 9, 2023 Posted in Contract of Employment, Flexible Working, Grievance, Guidance, Retaliation, Working Time

Last week the government voiced its support for the new Workers (Predictable Terms and Conditions) Bill, the endeavour of MP Scott Benton to combat “one-sided flexibility”, where “workers are on stand-by for work which never comes”, it says in the BEIS press release. This is a belated by-product of the Taylor Good Work Report in 2017, so not exactly a government priority up to now.

The basic structure of the Bill is not unlike the flexible working regime and indeed there is very considerable potential for overlap and confusion between the two. The worker (which includes employee) can ask for a more predictable working pattern (days, hours, times) and the employer can only refuse if it has good business reason to do so, those reasons being substantially similar to what it could use to knock back a flexible working request. There is a compulsory consideration period for the employer and a limited financial penalty if it does not engage fully with the process or rejects the worker’s request on the basis of incorrect facts. In line with the proposed amendments to the flexible working regime, you can only make two requests per year and the request itself needs to contain certain minimum information about who you are, what you want and from when. Workers who make or seek to enforce such a request are protected from retaliatory detriment or dismissal, again in terms substantially identical to the flexible working regime.

H-1B Cap Registration Commences on March 1st; Are you ready?

By Gregory A. Wald on February 9, 2023 Posted in Business Immigration, Immigration

U.S. Citizenship and Immigration Services (USCIS) has announced that the initial registration period for the fiscal year (FY) 2023 H-1B cap will open at noon EST on March 1st and run through noon EST on March 17, 2023. USCIS intends to notify selected registrants by March 31^st. Employers sponsoring selected registrants will be able to file cap-subject H-1B petitions in April.

Impressing a Robot: EEOC Takes a Byte Out of AI Based Hiring (US)

By Daniel Pasternak on February 6, 2023 Posted in Accommodation, Age Discrimination, Americans with Disability Act, Artificial Intelligence, Disability Discrimination, Discrimination, Diversity Equity and Inclusion, EEOC, Equal Pay

Squire Patton Boggs Intern Ruzanna Mirzoyan discusses the EEOC’s focus on artificial employment tools in employment recruitment and hiring decisions.

Job applicants might be surprised to learn that their resume may need to impress an artificial intelligence (“AI”) algorithm before they can score an interview. A significant (and growing) number of employers currently use AI during the hiring and recruiting process. According to a February 2022 survey from the Society for Human Resource Management, about one in four employers use AI or an automated algorithm to help with hiring and recruiting decisions, with larger employers more likely to use AI tools in their hiring process.

Managing Long-term Sickness Webinar – Follow-up questions answered (Part 3 – UK)

By Squire Patton Boggs on February 2, 2023 Posted in Sickness, Webinars

Here are a couple more of the questions – and our outline answers – following our recent webinar on Managing Long-term Sickness Absence.

Today we address the following:

On a phased return to work, is an employee entitled to sick pay (Company or SSP) for any hours/days they do not work?
What if an employee cannot come back to work full-time or if they just want to work full-time from home?

Did you hear? The EEOC issues new guidance on auditory disabilities in the workplace. (US)

By Joe D'Andrea on January 30, 2023 Posted in Accommodation, Americans with Disability Act, Discrimination, EEOC, Recent Cases

Hearing impairment probably isn’t the first thing that comes to mind when you think about workplace discrimination. In fact, it’s probably not even in the top ten. With hearing impairment affecting about 15% of adults, however, this is a topic that has recently moved its way up the EEOC’s priority list.