On August 24, 2023, the Office of Management and Budget approved a request from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to revise the “Itemized Listing” that OFCCP uses to collect information from federal contractors that are selected for supply or service audits. Among the changes that have been approved is a new requirement that audited contractors:

On December 14, 2023, the U.S. Department of Labor issued final regulations requiring the so-called “nondisplacement” of workers performing work on contracts for the federal government under the Service Contract Act (SCA). These regulations implement Executive Order 14055, “Nondisplacement of Qualified Workers Under Service Contracts,” President Biden signed on November 18, 2021.

On March 29, 2024, the Office of Management and Budget (OMB) published revisions to Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (SPD 15). These changes will impact how companies collect the race and ethnicity data for their federal reporting. 

Alexander MacDonald says agencies may have to “regulate more modestly and litigate more often” after the U.S. Supreme Court overruled Chevron.

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Alex MacDonald says that federal agencies will have to look for new ways to advance their policy positions in the wake of SCOTUS overturning Chevron. 

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On June 3, 2024, the U.S. Court of Appeals for the Eleventh Circuit granted a preliminary injunction prohibiting a venture capital fund from awarding grants based on race and gender. In reversal of the district court, the majority found the grant contest “substantially likely to violate” 42 USC Section 1981, a federal statute enacted as part of the Civil Rights Act of 1866 prohibiting private parties from racial discrimination in contracts.

Alexander T. MacDonald and Michael J. Lotito review four decisions in the U.S. Supreme Court's recently completed term and discuss how the rulings may affect employment law.

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In July, the Third Circuit upheld a District of New Jersey decision to throw out a withdrawal liability assessment, finding the multiemployer pension fund was barred from pursuing its claim because the fund unreasonably delayed notification of a withdrawal liability assessment for 12 years.

Withdrawal Liability Assessments Under ERISA

Alexander MacDonald discusses the filing of an amicus brief with the U.S. Supreme Court asking the court to clarify a prior 1984 decision which, if successful, could weaken a new form of “exclusive representation” for unions.

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Kerry Notestine, Chad Kaldor, Shawn Matthew Clark and Garrick Josephs discuss a court’s decision that the Maryland WARN Act does not give individuals the right to file suit in their personal capacity to enforce a legal claim under the Act.

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David Gartenberg said he is worried about the fact that the rule leaves the FAMLI benefits out of alignment with unpaid Family and Medical Leave benefits allowed under federal law. 

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While the Department of Justice (DOJ) has initiated at least two new Foreign Corrupt Practices Act (FCPA) enforcement actions against U.S. companies, it has also announced several decisions not to prosecute—most recently involving a U.S. biotech firm and its subsidiaries. The November 16, 2023, declination letter is instructive for companies concerned about protecting themselves against the consequences of employees who take it upon themselves to flout internal anti-bribery policies.

In France, profit-sharing is the new black. After years of statutory value-sharing bonuses (starting in 2018) and the introduction of compulsory profit-sharing schemes in companies with at least 50 employees (since 2020), the government encouraged trade unions to finalize a national and intersectoral collective bargaining agreement (CBA) on the subject of profit-sharing. This led to a CBA signed in February 2023. The new Profit-Sharing Act of November 19, 2023 transposes this CBA into law and adds some new provisions.

In November 2023, soon after Illinois Governor JB Pritzker signed amendments to the Illinois Day and Temporary Labor Services Act (the “Act”), several staffing agencies and associations sued for an injunction against enforcement of certain provisions of the Act.  In Staffing Services Association of Illinois v. Flanagan, Case No. 23-CV-16208, these parties claimed that Sections 11, 42, and 67 of the Act were preempted by the National Labor Relations Act (NLRA), the Employee Retirement Income Security Act of 1974 (ERISA) and the due process clauses of the U.S.

Oregon’s Paid Family and Medical Leave Insurance Program (“Paid Leave Oregon”) generally provides eligible employees with up to 12 weeks of paid time off for leave that qualifies as family, medical, or safe leave. Since Paid Leave Oregon took effect on September 3, 2023, employees have been stacking Paid Leave Oregon leave benefits and Oregon Family Leave Act (OFLA) leave benefits, leaving employers frustrated with staffing shortages.

Mark Callaghan says the new UK government should increase Statutory Paternity Pay “in excess of inflation,” because it would benefit businesses and families alike.

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Ellen Donovan McCann says post-employment benefits are often the first to be amended when businesses experience budget challenges, but employers may have to take more care in changing them if SCOTUS decides that former employees can sue over those benefits.

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Largely overshadowed by the rise in COVID-19 deaths and the January 6, 2021, siege on the Capitol, the Criminal Antitrust Anti-Retaliation Act of 2019 (“the Act”) became law on December 23, 2020. See 15 U.S.C. § 7a-3. The Act, which Senator Chuck Grassley sponsored, prohibits employers from retaliating against individuals who report criminal antitrust violations to their employer or the federal government, or who participate in a federal governmental criminal antitrust investigation or proceeding.  

Background

On February 19, 2021, the U.S.

The recently enacted Anti-Money Laundering Act significantly increases the potential value of awards for whistleblowers under the Bank Secrecy Act. The challenge for a financial services employer is to establish that discipline against an employee in a compliance role is supported by evidence that the decision was based on the employee's incompetence or other inappropriate behavior, and that any whistleblowing activity he or she engaged in was not a consideration. Philip M. Berkowitz explores the issues in this edition of his Employment Issues column.

Natasha Adom discusses proposals from the FCA, PRA and Bank of England that would require financial services firms to provide more detailed monitoring and report of diversity and inclusion. 

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Michael Royal and Alyssa Peterson discuss two new laws that will bring changes for employers in Texas by expanding protections for employees who assert claims of sexual harassment under the Texas Labor Code.

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Stephanie Chavez offers advice to employers who are considering hiring individuals who have a criminal record.

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On December 23, 2021, President Joe Biden signed into law the Uyghur Forced Labor Prevention Act (the “Act”),¹ which bars the importation into the United States of products made from forced labor in the Xinjiang region of China.  This Act will significantly impact many multinational employers’ supply chains because raw materials from this region – such as cotton, coal, chemicals, sugar, tomatoes and polysilicon (a component in solar panels) – have found their way into many global supply chains.  Indeed, these materials arrive on U.S.

On December 29, 2022, President Biden signed a new whistleblower law that significantly increases the risk and cost of whistleblower claims for domestic and overseas financial services institutions that must be cognizant of anti-money laundering (AML) laws and regulations. This covers 26 categories of institutions, including banks, branches and agencies of foreign banks, broker-dealers, insurance companies, operators of credit card systems, mutual funds, certain casinos, and travel agencies.

As workplace issues have become more complex, human resource professionals and managers often turn to employment lawyers for advice in sorting out matters involving the interaction between business requirements and the requirements of employment laws and regulations. When is such advice protected from disclosure under the attorney-client privilege?

On June 1, 2023, in United States ex rel.

On September 18, 2024, Canada announced that it would impose new language and field of study eligibility requirements on its Post-Graduation Work Permit (PGWP) Program.

At the November 5, 2024 election, California voters will determine the fate of Proposition 32, which proposes to increase the state minimum wage and provide for automatic future adjustments tied to inflation.

The Euless, Texas Fair Overtime and Scheduling Standards Ordinance that imposed predictive scheduling obligations on covered employers is no more.   

The Unusual Origin of the Ordinance 

Attorneys Sarah Coats, Carly Compton, Christina Cordoza, Chris Johlie and Mark Flores share more about the nonpartisan election activities they have assisted with on a pro bono basis with Pro Bono Committee Member Breanne Martell.

As part of the annual National Celebration of Pro Bono hosted by the American Bar Association, Littler is highlighting various pro bono efforts from around the firm. Our attorneys and professional staff demonstrate their commitment to pro bono by providing significant efforts to organizations in their communities.
   

As artificial intelligence (AI) continues to transform the workplace, lawmakers and agencies are grappling with how to regulate its use in employment settings, from hiring practices to employee monitoring. The next administration’s approach to AI regulation will help shape the balance between innovation and worker protection, with each political party offering distinct views on the role of government oversight. A shift in power could lead to changes in how the U.S. Department of Labor (DOL), the U.S.

Attorneys Colette Kopon and August Johannsen join Pro Bono Committee Member Lavanga Wijekoon in discussing their participation in Littler’s pro bono clinic, held in collaboration with the National Immigrant Justice Center, focused on assisting migrant families seeking asylum in the U.S.

Pro Bono Committee Member Jenny Schwendemann is joined by Associate Don Nguyen, Customer Success Senior Coordinator Megan Gunn, Director Christie Bhageloe (Veterans Consortium Discharge Upgrade Program) and Associate Corporate Counsel Kate Brown (Amazon) to discuss Littler’s pro bono collaboration with Amazon in support of The Veterans Consortium.

Shareholder Rachel Fendell Satinsky speaks with Pro Bono Committee Member Dave Haase regarding her work with the Pennsylvania Innocence Project over the years.

As part of the annual National Celebration of Pro Bono hosted by the American Bar Association, Littler is highlighting various pro bono efforts from around the firm. Our attorneys and professional staff demonstrate their commitment to pro bono by providing significant efforts to organizations in their communities.
   

On June 29, 2024, Governor Newsom signed into law an amendment to California Code 1770, clarifying the scope of SB 478. Under SB 478 and previously published guidance from the attorney general, California restaurants were effectively prohibited from charging service fees or other surcharges, which many restaurants have implemented to offset rising costs, unless the amount of the service fee was specifically identified as part of the listed prices.

Voters in several states will decide whether marijuana or, in one case, psychedelic substances should be legal in the upcoming November 5, 2024 general election. Employers should keep their eyes on these ballot measures and prepare for questions regarding changes to workplace policies if some or all of them pass. A rundown of the ballot measures in these jurisdictions follows.

Workforce reductions, whether in the form of hours reductions, furloughs, or layoffs, are often a last resort for employers experiencing financial pressures. Nevertheless, when these actions are necessary, time typically is of the essence, because when shedding payroll is the objective, the more drawn out the process, the smaller will be any financial savings. But quick decisions need not be careless decisions. The key is to thoroughly understand the risks before making decisions that later may result in potential liability.

The Firm’s International Practice Group has once again updated its COVID-19 Vaccination: A Littler Global Guide on Legal & Practical Implications in the Workplace. Two years into the pandemic, experts agree that – in the absence of newly emerging and highly transmissible variants – COVID-19 might lose its pandemic status before the end of 2022 due to the development of various COVID-19 vaccines and increasing global vaccination rates.

The pay gap – or paying women and other historically marginalized groups less for the same or substantially similar work – has long been in the media spotlight. But as employees, boards, consumers, and the public are increasingly expecting more from organizations surrounding diversity, equity, and inclusion, the stakes for employers regarding pay equity continue to rise. Politicians have also taken note.