President Biden Signs Law Limiting Arbitration Agreements for Sexual Harassment

You may recall that a couple of weeks ago I sent out an update that the Senate had passed a bill that would severely limit the use of forced arbitration agreements and class action waivers covering allegations of sexual harassment.  Well, President Biden signed the Bill into law last Friday, the 3rd.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 is now law.  The Act amends the Federal Arbitration Act by adding a new section:

[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

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The CDC Has Relaxed It’s Face Covering Recommendations, And This Should Matter to You

 As we discussed in prior updates, when OSHA withdrew its Emergency Temporary Rule requiring large employers to vaccinate or test their employees, it indicated that it was going to ensure that workplaces were COVID – safe by using the General Duty Clause.  The General Duty Clause requires employers to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  COVID is a recognized hazard that is causing or likely to cause death or serious physical harm. 

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Congress Passes Ban on Arbitration Clauses for Sex Harassment and Sex Assault Claims – Bill Goes to Biden for Signature

The U.S. Senate joined the House of Representatives and passed H.R. 4445. This Act will give the claimant the ability to void any agreement requiring the arbitration of sexual harassment and sexual assault claims. The Act also voids any agreement containing a class action waiver of these types of claims. 

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Recent Federal Court Ruling on ADA Claim Emphasizes Importance of Engaging In and Documenting the Interactive Process

A federal court in Ohio recently denied summary judgment to an employer who refused to hire an applicant for a forklift driving position who used prescription opioid medication. The court determined that there were fact issues regarding whether the employer properly engaged in the interactive process and whether the applicant’s opioid use rendered him unsafe to perform the job.

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If The DOL Doesn’t Get You, The NLRB Will

The U.S. Department of Labor Wage and Hour Division and the National Labor Relations Board recently entered into a Memorandum of Understanding that does not bode well for employers. Under this Memorandum, the DOL and NLRB will share with each other any information and data that they discover during an investigation that they believe may show a violation of a law enforced by the other entity. For example, if an employee tells a DOL investigator that the employer’s “publicity policy” forbids employees from speaking ill of the employer on social media, the DOL investigator will refer the information to the NLRB for investigation as potential a Section 7 violation. 

The Memorandum goes even further: it also provides that when one agency “has reason to believe that there may be unlawful conduct that falls within the jurisdiction of the [other agency],” it will “advise the complainant/employee(s) that an opportunity may exist to file a charge with the [other agency].” 

So, not only will one agency tell the other that it needs to investigate you, but it will also tell the complainant that he should file another charge against you.

To better enforce this commitment, the DOL recently announced that it is hiring over 100 new investigators. 

This is all a part of President Biden’s stated pro-labor/pro-union mandate. If you are not sure if your policies and practices are in compliance with the NLRA and the FLSA, now is the time to make sure that they are and to implement any needed changes. Don’t wait until the DOL or NLRB are knocking on your door.

As always, don’t hesitate to call me directly if you have any questions or need assistance. 

Think Twice Before Requiring Your Employees to Pay for Their Own Covid Tests

Although OSHA’s COVID ETS does not specifically require employers to pay for the cost of weekly COVID tests, it does recognize that state or local laws may require an employer to do so. In all likelihood, Louisiana law does just that.

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The Department of Labor Is Coming After Us All

The halcyon days of a pro-business Department of Labor are truly gone. In the past year, the DOL has withdrawn many Opinion Letters favorable to business; rescinded the Trump-Era joint employer rule and terminated a program that allowed employers to self-report FLSA violations in exchange for avoiding penalties. Now, the DOL has announced that it is hiring one hundred additional wage and hour investigators who will be specifically tasked to identify overtime and classification errors by employers.

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Recent Fifth Circuit Ruling Offers Great Tips for Avoiding Osha Citations

Yesterday the Fifth Circuit Court of Appeals issued a ruling in a case in which an employer, Angel Brothers, sought review of a decision from the Occupational Safety & Health Review Commission affirming a Citation against it.  You can find the decision here if you care to read it.  https://www.ca5.uscourts.gov/opinions/pub/20/20-60849-CV0.pdf

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Fifth Circuit Court of Appeals Issues Stay of Osha Covid-19 ETS

For those of you who may not have heard yet, as we predicted, the Fifth Circuit Court of Appeals has issued an Order staying application of the new OSHA COVID-19 ETS.  The stay is only temporary, and the parties will orally argue their cases tomorrow, after which the court will issue a ruling, which could extend or vacate the stay. 

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