Employment Trending Topics

To help with your writing efforts, here’s what people are looking for in Employment Law online. Trending topics culled from JD Supra, search analytics, social media conversations, and other sources:

Religious Discrimination in the Workplace: What to Know 

Consider writing about:

Religious discrimination in the workplace; common employer (or manager) errors or misunderstandings involving this issue; potential legal pitfalls to avoid during hiring, training, and disciplinary, accommodation, or termination processes. Consider whether to do a general presentation of do’s and don’ts, or whether to examine a recent or otherwise noteworthy dispute that can serve as a cautionary tale or a starting point for presenting practical takeaways. Alternatively or additionally, consider whether to do a more trend-oriented writeup, focusing on how the landscape regarding religious discrimination and religious accommodation has evolved in recent years, recurring or emerging issues that have fueled religious discrimination allegations, and how courts have responded to such claims.

New York City Council Mulls Employee Sick Leave for Pet Care Needs 

Consider writing about:

A proposed measure that would allow employees in New York City to use sick leave to care for a companion animal or service animal; how the proposal would work, in terms of type of qualified sick leave (paid or unpaid), amount of leave that could be taken, advance notice, proof of need, employer size, etc.; whether this pet proposal breaks new ground locally or nationally; the measure’s prospects for passage by the city council; whether similar measures are being considered in other jurisdictions; what the New York City measure may indicate, more generally speaking, regarding evolving expectations and obligations involving employees’ right to time off (paid or unpaid), and how employers are (or should be) adapting to those changes.

Related information:

https://www.cbsnews.com/newyork/news/nyc-safe-and-sick-time-law-taking-care-of-pets

EEOC Shows It Means Business Regarding Pregnant Workers Fairness Act 

Consider writing about:

New developments involving the Pregnant Workers Fairness Act; charges brought by the U.S. Equal Employment Opportunity Commission regarding employers’ alleged non-compliance with the PWFA; outcomes or status of those cases; practical takeaways from those EEOC actions.

What to Know About the Uniformed Services Employment and Reemployment Rights Act 

Consider writing about:

The Uniformed Services Employment and Reemployment Rights Act; whom the USERRA applies to; main points employers should know; common misunderstandings or potential pitfalls regarding USERRA’s scope and application; any noteworthy litigation over employee protections and rights under USERRA, and what employers may be able to learn from those cases.

Return-to-Office Trends and Tips 

Consider writing about:

An update on return-to-office trends (in the industry or jurisdiction of your choice, or more generally); factors that employers should weigh when deciding whether to scale back on remote-based work; what employers should consider in formulating, communicating, and enforcing policies on in-office vs. remote-based work; how employers can provide incentives for employees to return to the office; whether it makes sense to offer different pay rates to in-office vs. remote employees (and any pitfalls that may arise from implementing different pay scales on that basis); potential for discrimination claims or other liability risks in conjunction with a mandate that employees return to the office.

NLRB Sets Sights on Stay-or-Pay Agreements 

Consider writing about:

An Oct. 7 announcement by the National Labor Relations Board’s general counsel regarding so-called “stay or pay” employment agreements; what these agreements consist of, and how common they are; likely next steps by the NLRB on this matter; how employers can minimize legal risk related to their use of “stay or pay” agreements.

Related information:

https://www.reuters.com/legal/government/nlrbs-abruzzo-says-companies-should-pay-requiring-noncompetes-stay-or-pay-pacts-2024-10-07

Election Day Issues From an Employment Law Perspective 

Consider writing about:

Labor- and employment-related issues that may arise on Election Day or in relation to Election Day, whether internal issues (free speech in the workplace; social media risks; potential disputes between employees, or even workplace violence or outsider threats; employee rights to time off for voting or volunteering) or external issues (ballot measures or key races that employers – either generally, or in a particular region or industry – should be paying attention to, and what the midterm results could mean for labor unions and for employee rights more generally).

NLRB Finds Former Starbucks CEO’s Comment Violated NLRA 

Consider writing about:

An Oct. 2 ruling by the National Labor Relations Board regarding a comment made by former Starbucks CEO Howard Schultz; basis for the NLRB’s finding that the comment violated federal labor law; what this case may illustrate regarding potential employer pitfalls during a period of labor organizing activity, and related do’s and don’ts for employers to keep in mind.

Related information:

https://www.latimes.com/business/story/2024-10-04/nlrb-finds-former-starbucks-ceo-violated-labor-law-in-handling-long-beach-employee-unionization-questions

Texas Federal Judge Throws Roadblock in NLRB’s Path 

Consider writing about:

The significance of a temporary injunction granted by a Texas federal judge in a case that challenges the constitutionality of the National Labor Relations Board; background to the underlying case; next steps in this labor dispute; a wider-angle look at challenges to the NLRB’s constitutionality, and how those challenges are faring.

Related information:

https://news.bloomberglaw.com/daily-labor-report/labor-board-sees-another-texas-judge-freeze-enforcement-case

Disability Discrimination Trends in the Workplace 

Consider writing about:

Legal trends involving disability discrimination in the workplace; noteworthy enforcement actions, verdicts, or other actions; cautionary tales or other practical takeaways from these developments; common errors on the part of employers or managers, in terms of addressing employee concerns and responding to accommodation requests or disability discrimination claims; how employers can promote a more inclusive workplace.

Federal Appeals Court Ruling’s Implications for the FLSA, Overtime Pay, and the DOL 

Consider writing about:

A Sept. 11 ruling by the U.S. Court of Appeals for the 5th Circuit; the ruling’s significance for overtime pay rights, requirements, and exemptions, as well as for the U.S. Department of Labor’s powers in a post-Loper Bright landscape; the ruling’s potential impact on enforcement trends involving the Fair Labor Standards Act; best practices for employers in light of the 5th Circuit decision.

Related information:

https://www.ca5.uscourts.gov/opinions/pub/23/23-50724-CV0.pdf

NLRB Delivers Joint-Employer Headaches to Amazon’s Doorstep 

Consider writing about:

The National Labor Relations Board’s stance regarding Amazon’s potential status as a joint employer of subcontracted delivery drivers; how this issue has come to the NLRB’s attention; what could be next for Amazon and the NLRB over this issue; labor organizing efforts that Amazon is facing these days; what other employers should know about their potential obligations or liabilities if they are determined to be joint employers.

Related information:

https://apnews.com/article/amazon-nlrb-delivery-drivers-3214680ef8c8b060184964412f378128

https://www.cnbc.com/2024/09/04/amazon-is-joint-employer-of-some-delivery-drivers-nlrb-says.html

Interagency MOU Shows Federal Attention to Mergers’ Impact on Workers 

Consider writing about:

A memorandum of understanding entered into last month by the U.S. Department of Labor, the National Labor Relations Board, the Federal Trade Commission, and the Department of Justice’s Antitrust Division; purpose of the MOU; its effective date; what this new interagency collaboration could mean for M&A trends and practices and for government enforcement actions.

Related information:

https://www.ftc.gov/news-events/news/press-releases/2024/08/ftc-doj-partner-labor-agencies-enhance-antitrust-review-labor-issues-merger-investigations

https://www.justice.gov/opa/pr/justice-department-department-labor-federal-trade-commission-and-national-labor-relations

Update on Employee Retention Credit Program: Practical Tips for Businesses 

Consider writing about:

The latest developments involving Employee Retention Credits; what to know about the related Voluntary Disclosure Program and Internal Revenue Service actions potentially affecting businesses that filed Employee Retention Credit claims; important deadlines or other practical information for businesses that have participated in the ERC program or that may still wish to claim tax credits under the program; how businesses should be prepared to defend their ERC claims.

Related information:

https://www.irs.gov/newsroom/irs-reopens-voluntary-disclosure-program-to-help-businesses-with-problematic-employee-retention-credit-claims-sending-up-to-30000-letters-to-address-more-than-1-billion-in-errant-claims

Texas Federal Judge Strikes Down FTC’s Noncompete Ban 

Consider writing about:

An Aug. 20 action by a Texas federal judge regarding the Federal Trade Commission’s noncompete rule; basis for the judge’s ruling; what the ruling means for the FTC’s noncompete ban, the FTC’s authority, and its future enforcement efforts; prospects for a retooled nonenforcement rule from the FTC; options for employers in the wake of the court’s ruling.

Related information:

https://www.reuters.com/legal/us-judge-strikes-down-biden-administration-ban-worker-noncompete-agreements-2024-08-20

When Do Social Media Postings Create a Hostile Work Environment? 

Consider writing about:

A recent federal appeals court ruling involving the content of an employee’s personal Instagram account; how the posts led to a co-worker’s allegations of a hostile work environment; what to know about the reach of Title VII protections; what the 9th Circuit’s ruling illustrates regarding the forms that sexual harassment can take, and how even off-site or off-duty conduct can contribute to a hostile work environment, and how an employer may be found liable due to allegedly inadequate responses to harassment.

Related information:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/25/23-55404.pdf

Wage Transparency Laws Continue to Gain Steam 

Consider writing about:

Wage transparency laws in the state(s) or region(s) of your choice; where such laws have recently passed or will soon go into effect, or where they are being seriously discussed; how these laws compare to each other in terms of scope and projected impact, and whether a particular “model” or “formula” for these laws has taken hold across state borders; potential penalties for noncompliance; possible pitfalls or areas of confusion for employers; how employers can best navigate the evolving landscape of new or enhanced obligations; additional pointers, as warranted, for employers who operate in multiple states.

How Employers Should Be Thinking About Political Expression in the Workplace 

Consider writing about:

Political messaging in the workplace, especially as the presidential election season revs up in the United States. Among the possible points to explore: employees’ social media use; employee T-shirts, buttons, or other belongings that display political messages; related dress code policies; whether clashing political messages in the workplace could lead to real or alleged incidents of harassment, retaliation, or toxic workplace cultures; misconceptions over free speech protections in the workplace; whether workplace policies regarding political expression can extend beyond workplace interiors to exterior company property or to employees’ off-site or off-duty interactions; how employers can create and enforce policies that don’t give rise to allegations of bias, favoritism, or unfair disciplinary actions.

Separation Agreement Lessons From NLRB Judge’s Ruling 

Consider writing about:

A recent ruling by a National Labor Relations Board judge regarding Meta’s separation agreements; agreement terms that the judge singled out; how Meta is required to structure its separation agreements going forward; how other employers would be wise to craft their own separation agreements and related workplace policies in light of this ruling.

Related information:

https://www.sfchronicle.com/tech/article/meta-layoffs-judge-ruling-19589725.php

Are Four-Day Workweeks a Trend Worth Exploring? What Employers Should Know 

Consider writing about:

Implementation of four-day workweeks. Is this a growing trend (in one region or another), or is it a short-lived perk that has come and gone with changing economic conditions? Among the issues to consider addressing: potential pitfalls and other factors that companies should consider before deciding whether to change to a four-day workweek; whether (and how) to try out a modified workweek on a test basis; how to balance employee preferences with customer expectations; how to ensure that employees don’t wind up doing uncompensated work after their official hours are compressed or reduced; how to periodically evaluate the impact of a reduced workweek or other greatly modified work schedule; how best to modify or roll back implemented changes after review or as circumstances change.

What’s Happening With FTC’s Non-Compete Rule? 

Consider writing about:

Recent developments involving the Federal Trade Commission’s final rule banning non-compete agreements; how courts have split over the issue; where the FTC rule currently stands; when the rule is due to take effect; how employers should be thinking about their employment practices amid contrasting outcomes of legal challenges to the FTC rule.

Related information:

https://www.hrdive.com/news/courts-split-ftc-noncompete-ban/722203

https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes

Calif. Supreme Court Upholds Ballot Measure Classifying Ride-Share Drivers as Independent Contractors 

Consider writing about:

A July 25 ruling by the California Supreme Court, which upheld a 2020 ballot measure on Uber and Lyft drivers’ classification as independent contractors; basis for the ruling; what the ruling means for drivers’ rights and protections and for companies’ labor practices; whether the California Supreme Court ruling pertains to other types of gig economy workers, apart from ride-share drivers classified as independent contractors; how legal developments over gig economy workers are unfolding in other states, and how they compare to the situation in California.

Related information:

https://www.courts.ca.gov/opinions/documents/S279622.PDF

What’s Next for Joint Employer Rule? 

Consider writing about:

The National Labor Relations Board’s withdrawal of its appeal of a judge’s injunction that enjoined the NLRB’s joint employer final rule; reasons for the NLRB’s July 19 action, and what it means for the injunction and for the final rule; how the NLRB is likely to proceed on this front, going forward; other legal challenges or developments of note involving the joint employer final rule; what else employers need to know about their options and best practices as they pertain to joint employer status.

Related information:

https://www.hrdive.com/news/nlrb-withdraws-appeal-joint-employer-injunction/721888

Summertime, and the Living Is … Potentially Complicated 

Consider writing about:

The concept of reduced work hours or compressed work schedules during summer months; how common this option is (in the industry, country, or region of your choice) and the rationale behind it; related issues involving fairness, operations, client needs, and emergency coverage; what else employers should keep in mind when implementing such a plan as a potentially welcome perk for workers, and when assessing its net effect at some point after implementation.

Related information:

https://apnews.com/article/small-business-summer-hours-workers-perks-bd420489d2b71649deec784f68e14440

Employee Benefits Class Action Against DuPont, Corteva Goes Forward 

Consider writing about:

A class action against DuPont and Corteva over the companies’ handling of retirement benefits; key claims in the lawsuit; what to watch for next in this case; any practical takeaways for other companies regarding obligations and best practices involving employee benefits, especially in connection with a merger or reorganization.

Related information:
https://news.bloomberglaw.com/litigation/dupont-corteva-unable-to-fend-off-trial-over-pension-benefits

How Employers Can Beat the Heat Over Summertime Fashion 

Consider writing about:

The evolution of summertime dress codes for the workplace; whether most dress codes have relaxed, perhaps partly as a side effect of the pandemic and the shift to remote or hybrid working; how warmer summer weather can sometimes lead to workplace disagreements or complaints over “proper” or allowable clothing, especially for workers in customer-facing roles; additional issues regarding grooming, the visibility of tattoos with more revealing clothing, gender-neutral dress code policies, and perhaps safety issues involving some clothing; whether dress codes also apply to remote-based employees when on Zoom calls or other video sessions; any noteworthy legal disputes involving summertime clothing and dress code policies.

Amazon Fined $5.9 Million Over Productivity Quotas 

Consider writing about:

A nearly $6 million fine imposed on Amazon over productivity quotas for warehouse workers; what to know about the 2022 California law that regulators say the retail giant repeatedly violated; whether other employers have run afoul of this California law; whether other such laws are in effect in other states, or under consideration on a state or local level outside California; prospects of congressional action regarding productivity quotas; what employers should consider before implementing productivity quotas; feasible alternatives to productivity quotas.

Related information:

https://www.reuters.com/sustainability/boards-policy-regulation/amazon-fined-59-million-over-warehouse-worker-quotas-california-2024-06-18

Pointers on Conducting Performance Reviews [Ongoing] 

Consider writing about:

Employee performance reviews. Consider whether to write a detailed list of do’s and don’ts, or an examination of how a performance review can go wrong, or a description of common errors or missteps and their potential consequences. Alternatively or additionally, consider taking a look at any lawsuits in which a performance review played a central role, and present related lessons from those cases. Additional points to consider covering: How have remote or hybrid work arrangements altered (or complicated) the performance review process, vis a vis ongoing interactions, communications, managers’ awareness of employees’ achievements or performance issues, etc.? And in an age where employees record termination meetings for posting on social media, are workers also seeking to record performance review meetings? What should employers know about this possibility? Also, are more employers permanently jettisoning the custom of having regularly scheduled performance reviews? What are the pros and cons of making that shift, and what might take the place of formal reviews?

Implications of U.S. Supreme Court Ruling in Starbucks Case 

Consider writing about:

A June 13 ruling by the U.S. Supreme Court in a case involving Starbucks’ firing of seven employees, allegedly for violating company policy; top takeaways from the high court ruling; what the Supreme Court decision means for the seven employees in the underlying dispute, and, more broadly speaking, for employee or employer rights, labor union organizing, and the National Labor Relations Board, going forward.

Related information:

https://www.supremecourt.gov/opinions/23pdf/23-367_f3b7.pdf

https://apnews.com/article/supreme-court-starbucks-union-fired-workers-tennessee-18547e128a14fae93a148383f48cb305