Canada saw significant developments in labour and employment law in 2019.  As we embark on a new decade, we will undoubtedly see the landscape in this ever-changing area of law continue to evolve.   Here is our Littler LLP overview of 15 key developments in 2019 with links to more detailed articles and commentary:

As many employers are on the way to normalizing their business practices and re-engaging their employees, they should not overlook the many potential pitfalls in the administration of their retirement, health and welfare plans and their executive compensation arrangements. The risks of missteps are high, and include loss of tax-qualification of retirement plans, penalty taxes in connection with the Affordable Care Act’s (ACA) employer mandate rules, other IRS penalties, employee lawsuits and Department of Labor enforcement actions.

(May 27, 2021) – Littler, the world’s largest employment and labor law practice representing management, has once again been recognized by Chambers and Partners in its Chambers USA 2021 guide.

In addition to the firm’s overall Band 2 ranking for labor and employment law, Chambers USA named 68 Littler attorneys as leaders in the field, as well as 47 regional offices, with the Alabama, Georgia, Minnesota, New York, Tennessee and Texas offices earning a Band 1 designation.

The Littler attorneys ranked in the labor and employment practice area include:

USCIS has officially announced the dates for the fiscal year (FY) 2025 H-1B cap lottery, which will open on Wednesday, March 6, 2024 at noon ET and end on Friday, March 22, 2024, at noon ET. This annual lottery is meant to select new H-1B candidates, who will be eligible to file an H-1B petition and, if approved, begin H-1B employment on October 1, 2024 (the first day of FY 2025).

Foreign workers fill a critical need in the U.S. labor market, particularly in the professional and technological fields such as science, technology, engineering and mathematics (STEM). To fill this need, U.S. employers submit H-1B temporary worker visa status registrations with the United States Citizenship and Immigration Services (USCIS), which is a lottery-based system where registrations are selected from the congressionally allotted quota of 85,000.

Immigration associates George Thompson and Deepti Orekondy discuss the nuances and intricacies of filing of an H-1B visa application, including H-1B Cap petitions, and how to help employers maintain H-1B compliance. This podcast delves into common pitfalls and strategic considerations for an employer filing an H-1B petition.
   

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

Download full Q1 2023 Global Guide Quarterly

Extensions of Laws

New Legislation Enacted

Authors: Carlo Majer, Partner, and Caterina Colombano, Associate – Littler Italy

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

Download full Q1 2023 Global Guide Quarterly

Whistleblower Protection Act Has Entered into Force

New Legislation Enacted

Authors: Dennis Veldhuizen, Partner, and Eric van Dam, Partner – Clint | Littler

On September 1, 2021, the Office of Federal Contract Compliance Programs (OFCCP), the Department of Labor sub-agency charged with enforcing affirmative action and non-discrimination requirements imposed on federal contractors by way of Executive Order 11246, announced that it was reversing

Update: The vaccination deadline for covered federal contractors has been extended until January 18, 2022.

The federal government’s complicated multi-pronged approach to implementing COVID-19 safeguards related to federal contractors has left many confused.  We offer this brief guide to help contractors understand their obligations and the timelines for implementation.

On October 11, 2021, Texas Governor Greg Abbott issued Executive Order GA-40, which states that no entity in Texas can “compel” any individual, including any employee or consumer, to receive a COVID-19 vaccination who objects “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”  The order also establishes a maximum criminal penalty of $1,000 but expressly exclude

On August 19, 2022, OFCCP published a notice in the Federal Register for the stated purpose of advising employers that in response to a Freedom of Information Act (FOIA) request, it is planning to produce confidential information that is protected from disclosure pursuant to a statutory exemption.

As outlined in our August 22 Insight, OFCCP announced an intention to produce federal contractors’ Type 2 EEO-1 data in response to a FOIA request from the Center for Investigative Reporting (CIR).  Employers were given until September 19, 2022, to file their objections. On September 15, 2022, OFCCP extended the deadline for filing objections to October 19, 2022.

Readers will recall that in August 2022, OFCCP published a notice in the Federal Register advising employers that it was the subject of a Freedom of Information Act (FOIA) request seeking EEO-1 data from all federal contractors, including first-tier subcontractors, for the period 2016-2020.

On February 14, 2023, OFCCP announced that it was again extending the deadline for employers to file objections to the disclosure of their EEO-1 data in response to a FOIA request from the Center for Investigative Reporting. The deadline for submitting objections is now March 3, 2023. 

Last August OFCCP published a notice in the Federal Register advising employers that in response to a Freedom of Information Act (FOIA) request, the agency was planning to produce confidential information that is ordinarily protected from dis

Last week the Equal Employment Opportunity Commission revealed that the 2022 EEO-1 reporting deadline is again being postponed.  Reporting, which was expected to begin in July, is now “tentatively” scheduled to open in the fall of 2023.  The change was referenced in brief notices on an EEOC webpage and the EEO-1 website.

According to the EEO-1 website:

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.

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.

Jeanine Conley Daves and Alexa Laborda Nelson explain how employers can take steps to ensure they are in compliance with the recent COVID-19 relief plans and avoid potential whistleblower litigation.

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European companies are navigating a variety of social and equality-related issues impacting their workplaces and, according to Littler’s second annual European Employer Survey, are increasingly channeling their concerns into concrete actions.

This Annual Report on EEOC Developments—Fiscal Year 2019 (hereafter “Report”), our ninth annual publication, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year. The Report does not merely summarize case law and litigation statistics, but also analyzes the EEOC’s successes, setbacks, changes, and strategies. By focusing on key developments and anticipated trends, the Report provides employers with a roadmap to where the EEOC is headed in the year to come.

This year’s Report is organized into the following sections:

The novel coronavirus (COVID-19) has created a host of challenges for employers while accelerating fundamental shifts already underway in the workplace. As the pandemic’s many lasting implications for the workplace and the way we work begin to emerge, Littler surveyed more than 900 employers, based in North America and with operations around the world, on their concerns and the actions they have taken in response.

Due to the effects of the COVID-19 pandemic, governments across the world have implemented various measures to slow the spread of the virus, protect workers’ health and safety, and assist employers to recover from the economic crisis, among other programs.

With stay-at-home orders across the country being lifted, employers are navigating a host of legal and operational issues in bringing employees back to the workplace in the wake of COVID-19.

In Littler’s survey of more than 1,000 in-house counsel, HR professionals and C-suite executives, we gathered insights about when employers will reopen their workplaces (if at all), how they plan on doing so safely, what accommodations they will make for remote work, and their top liability concerns.

Many employers are hopeful that a vaccine for COVID-19 will be the silver bullet that will enable employers to return to some semblance of a pre-COVID workplace. Assuming a vaccine is developed, can an employer mandate that employees be vaccinated before coming back to work? What happens when an employee cannot or will not take this vaccine, either for religious, medical, or other personal reasons? Can a union or group of workers successfully challenge employer-mandated vaccines?

Government-ordered office closures that swept much of Europe early in 2020 appear to have helped convince employers across the continent that workers could be just as productive remotely as they could while gathered in offices.

The COVID-19 vaccine breakthroughs in late 2020 brought hope that the pandemic’s end could be in sight, but a return to normalcy will require widespread inoculation, raising an urgent question: Should employers mandate COVID-19 vaccinations for their workers?

We have created a high-level guide that gives an “at a glance” snapshot of the severity of lockdown restrictions in 15 countries across Asia Pacific (APAC).  The guide covers the following topics: 

We have created a high-level guide that gives an “at a glance” snapshot of the severity of lockdown restrictions in 28 countries across Europe, the Middle East and Africa (EMEA). As COVID-19 developments across EMEA slow, the June guide will be the final monthly update of this guide and we will next update the guide when the information substantially changes. We hope you have found the content we have provided over the last 12 months useful.

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.

Employers transitioning to a post-pandemic workplace face a host of novel challenges.

High on that list is navigating hybrid work models and what a return to physical workplaces looks like – especially when, as our survey reveals, the percentage of employees who prefer remote or hybrid work is higher than the percentage of employers who plan to offer it. The survey also finds employers taking a cautious approach to asking about employees’ COVID-19 vaccination status and making a range of changes to their physical workplaces.

A corporate whistleblower can create more financial, organizational, and reputational damage to an employer by using the federal False Claims Act (FCA), 31 U.S.C. § 3729-33, than by using any other “whistleblower” law. While the FCA contains no requirement that the whistleblower be an employee to create the damage, most FCA whistleblowers are employees, and almost all of them bring the problem to their management or human resources department before they suffer an adverse employment action. Management often does not hear the whistle blowing when the damage is still avoidable.

While the national vaccination campaigns have made considerable progress lately, there are still many people who have not yet been vaccinated, some of whom are hesitant to receive the vaccine at all. At the same time, discussions emerge whether and when a follow-up vaccination of already vaccinated people might be required.

After more than a year of a crushing global pandemic, the early summer brought hope for a long-anticipated return to normal business operations, at least in the United States. But those plans were derailed by the rapid spread of the highly contagious delta variant and mounting COVID-19 infections. The abrupt change left companies – many of which had just updated plans with an eye toward a post-pandemic future – scrambling to adjust policies on such pressing issues as vaccination, return-to-office timing and mask wearing.

Despite all that remains uncertain for European employers – involving the trajectory of the COVID-19 pandemic, new working models or any number of other emergent workforce issues – one area has come into greater focus: Most companies are planning a return to the office in some form.

That much is clear from Littler’s fourth annual European Employer Survey. It’s less clear, however, whether companies’ plans for balancing remote and in-person work align with employee preferences – setting the stage for some very real workplace tensions in the critical months to come.

This Annual Report on EEOC Developments—Fiscal Year 2021 (hereafter “Report”), our eleventh annual publication, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year. The Report does not merely summarize case law and litigation statistics, but also analyzes the EEOC’s successes, setbacks, changes, and strategies.  By focusing on key developments and anticipated trends, the Report provides employers with a roadmap to where the EEOC is headed in the year to come.

This year’s Report is organized into the following sections:

The past two years created a significant shift in working conditions, and with that, a new avenue of employment arrangements. The normalization of flexible working paired with talent scarcity created an ideal environment for its rise. To help set up a global workforce, many service providers—referred to as Employers of Record (EORs)—are offering to hire talent across borders for companies. They take care of labor and employment laws, social security, and tax in each desired country.

Earlier this month, Governor Ned Lamont announced the long-awaited implementation of the state’s so-called “Clean Slate Act” – sort of.  According to a recent press release, January 1, 2023 will see the full or partial erasure in some 44,000 cases involving convictions for cannabis possession.  Individuals with eligible convictions for other crimes, including most misdemeanors and certain lesser felonies, will have to wait until the second half of 2023 as a result of implementation delays.

The Clean Slate Law & How it Works

The Lehigh County Human Relations Ordinance was enacted February 26, 2024, establishing county-specific non-discrimination requirements for employment, housing, education, health care and public accommodations.  The ordinance also creates a Lehigh County Human Relations Commission charged with investigating and enforcing claims of discrimination.  The ordinance becomes effective June 1, 2024.

Expanded Protected Characteristics and Employer Coverage

The federal Internal Revenue Service (IRS) has announced that certain employers can claim federal tax credits when employees use emergency paid leave to accompany an individual to obtain a COVID-19 vaccination and/or to care for an individual recovering from an injury, disability, illness, or condition related to the vaccine.