Insights

On October 29, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) published a notice in the Federal Register that it received two requests under the Freedom of Information Act (“FOIA”) for 2021 Type 2 EEO-1 Reports filed by federal contractors.  The two requests came from the University of Utah and a non-profit organization named “As You Sow.”  The OFCCP notified federal contractors that the information might be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, and requested that any entities that filed these reports and object to their disclosure submit objections by December 9, 2024.  Objectors are strongly encouraged to use the OFCCP portal.  Alternatively, contractors may also submit written objections via email at OFCCPSubmitterResponse@dol.gov, or by mail. 

Effective January 1, 2024, California employees will be entitled to accrue and use more paid sick leave per year.  On October 4, 2023, California Governor Gavin Newsom signed SB 616 into law, which amends the Healthy Workplaces, Healthy Families Act of 2014 (“HWHFA”) and significantly expands paid sick leave requirements for employers in California.  Further, non-construction industry employees covered by a collective bargaining agreement (“CBA”), previously excluded from coverage, will now be entitled to certain benefits and protections under the HWHFA.  The amendment also preempts local ordinances that are contrary to the HWHFA with respect to certain issues, for example, rate and timing of pay, and advance leave and notice.

In Clark v. A&L Homecare and Training Center, LLC, Nos. 22-3101/3102, a split three-judge panel for the U.S. Court of Appeals for the Sixth Circuit held that notice to potential plaintiffs should only be issued if lead plaintiffs show a “strong likelihood” that such absent employees are “‘similarly situated’ to the plaintiffs themselves.” In so holding, the Sixth Circuit joined the Fifth Circuit in rejecting the long-standing “lenient” two-step collective action certification process.  The Sixth Circuit declined, however, to apply the Fifth Circuit’s approach and adopted a “strong likelihood” standard.  The Clark decision, issued on May 19, 2023, will significantly impact FLSA collective action litigation in favor of employers in federal district courts in Ohio, Michigan, Kentucky, and Tennessee.  The widening Circuit split ripens this issue for review by the Supreme Court of the United States.

On April 10, 2023, after considering public comments, the Office of Federal Contract Compliance Programs (“OFCCP” or the “Agency”) issued a modified version (“Modified Revision”) of its initial proposed revisions to the Scheduling Letter and Itemized Listing published on November 21, 2022 (“Initial Revision”).  OFCCP retracted a few of its proposed information and data demands (e.g., no requirements to identify whether a promotion is “competitive” or “non-competitive”).  However, its more onerous and fundamental changes remain – most notably, requiring submission of information regarding the use of artificial intelligence tools, more compensation data, and documentation of compensation analyses.  The Modified Revision does little to alleviate contractors’ concerns that the revised Scheduling Letter and Itemized Listing will significantly increase the burden of responding to an OFCCP audit and related risk.

On March 3, 2023, New York Governor Kathy Hochul signed into law A999 / S1326 (the “Amended Law”), which includes amendments to New York State’s pay transparency law (“Law”) that both broaden and lessen obligations on employers. Specifically, the Amended Law modifies the scope of covered jobs, eliminates the recordkeeping requirement, and clarifies the definition of “advertise.” What remains unchanged, however, is the September 17, 2023, effective date and the requirement to include the job description in an advertisement, if one exists. Crowell & Moring LLP (“Crowell”) previously reported on the originally-enacted Law, which can be found here.

On October 11, 2022, the United States Department of Labor (“DOL”) announced that it is seeking public comment on a proposed rule, which modifies the legal framework for determining whether a worker is an employee or independent contractor under the Fair Labor Standards Act (“FLSA”).  The proposed rule would rescind the current independent contractor rule (adopted by the Trump Administration in 2021), which simplified the multi-factor test, and heavily weighted two “core” factors—workers’ control over their work and opportunity for profit or loss—in determining the status of workers.  The new rule returns to a “totality-of-the-circumstances” analysis, which balances all factors equally.  While the current rule is perceived as more favorable to respecting a worker’s independent contractor status, this shift in legal framework is expected to lead to more determinations that workers are employees, most particularly, gig workers.

On April 27, 2022, the Chicago City Council passed amendments (“Amendments”) to its Human Rights Ordinance (“Ordinance”) adding significant sexual harassment prevention requirements for employers, including new employer policy, notice, and training obligations, expanded recordkeeping requirements, and stricter penalties for violations. The Amendments also expand the definition of “sexual harassment” and “sexual orientation.” The Amendments, which apply to all employers with at least one employee working within the geographical boundaries of the city of Chicago, took effect on June 4, 2022. Chicago employers, however, have until July 1, 2022 to implement the amended sexual harassment prevention requirements.

On June 6, 2022, the Supreme Court of the United States ruled in an unanimous opinion in Southwest Airlines Co. v. Saxon, No. 21-309 that airline cargo loaders are exempt from the Federal Arbitration Act (“FAA” or the “Act”) under the Act’s “transportation worker” exemption. The Supreme Court reasoned that while not all employees of an airline are exempt from the FAA, ramp employees who load and unload cargo from planes are part of a “class of workers engaged in foreign or interstate commerce” specifically exempted by the Act. The Supreme Court’s broad interpretation of this exemption permits airline cargo loaders to bring wage-and-hour claims in court rather than being forced into arbitration. This case is the second of three arbitration cases argued before the Supreme Court this term. Crowell previously issued an alert about the first case, Morgan v. Sundance, which held that the courts may not create “arbitration-specific variants of federal procedural rules,” despite the FAA’s “policy favoring arbitration.” The third case, Viking River Cruises v. Moriana, involving FAA preemption of representative claims under California’s Private Attorneys General Act, is pending before the Court.

On February 4, 2022, President Biden signed an Executive Order on Use of Project Labor Agreements for Federal Construction Projects (the “Order”) for federal construction projects valued at $35 million or more. The Order instructs federal agencies to require “every contractor or subcontractor engaged in construction” on projects valued at $35 million or more to “agree, for that project, to negotiate or become a party to” a Project Labor Agreement (“PLA”) with “one or more appropriate labor organizations.”

On June 11, 2021, New York Governor Andrew Cuomo signed S06768 (Amendments), amending the New York State Health and Essential Rights Act (HERO Act), into law.  Crowell & Moring previously addressed the HERO Act, which permanently codified COVID-19-related health and safety protocols, here.  The Amendments modify and clarify several important aspects of the HERO Act, including but not limited to the definitions of “work site” and “employee,” the implementation of the model airborne infectious disease exposure prevention standards (Model Standards) and employers’ own airborne infectious disease exposure prevention plans (Plans), limiting employees’ private right of action, and narrowing the scope of authority of joint labor-management workplace safety committees to be established by November 1, 2021.  The Amendments also provide the New York Department of Labor (NYDOL) until July 5, 2021 to publish the Model Standards.  Also, in response to the State’s achievement of reaching the seventy percent vaccination rate of adults, effective June 15, 2021, Governor Cuomo announced that most of the State’s remaining COVID-19 restrictions are lifted, except for the mask requirement for unvaccinated individuals and in certain settings (e.g., large-scale indoor event venues, pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes and health care settings per CDC guidance). 

On May 11, 2021, New York City Mayor Bill de Blasio signed into law Int. 888-A and 901-A, New York City Local Law 51 and 52, respectively.  Collectively known as the New York City “Retirement Security for All” legislation, these laws impose a mandatory auto-enrollment payroll deduction individual retirement account (IRA) program requirement (Program) for employees of private sector employers, which do not currently offer a retirement plan, and employ five or more employees “whose regular duties occur in” New York City.  Employers are not required to contribute to these accounts.  This legislation also establishes a retirement savings board (Board) to facilitate the implementation of the Program and tasks the New York City Comptroller with establishing an investment strategy and policy and directing the underlying investments and investment funds.  The new law takes effect on Monday, August 9, 2021, but the Board has up to two years to implement the Program.

On May 5, 2021, New York Governor Andrew Cuomo signed S1034, the New York State Health and Essential Rights Act (HERO Act), into law.  The HERO Act, described by the Governor’s Office as a “first-in-the-nation” law, requires the New York State Commissioner of Labor (NYDOL), in consultation with the New York State Commissioner of Health (NYDOH), to issue airborne infectious disease exposure standards for all work sites, in English and in Spanish.  These standards, covering not only employees but also independent contractors, must be differentiated by industries and must address several subject areas, including employee health screenings, face coverings, personal protective equipment (PPE), effective social distancing, and cleaning and disinfecting protocols.  All employers are required to either implement the standard that is relevant to their industry and workforce, or to establish their own airborne infectious disease exposure prevention plans (Plans) that meet or exceed the requirements of the applicable NYDOL standard.  Effective November 1, 2021, the HERO Act requires employers with at least ten employees to permit their employees to create and participate in joint labor-management workplace safety committees meeting certain specified criteria.  The statute, otherwise effective June 4, 2021, establishes a private right of action for employees and imposes civil fines on employers who fail to comply.  Retaliation against covered employees for exercising rights under the HERO Act or the employer’s Plan, reporting violations, participating in workplace safety committees, and/or refusing to work based on their reasonable, good-faith belief that the working conditions create an unreasonable risk of exposure to airborne infectious diseases inconsistent with applicable law is strictly prohibited.

On Tuesday, April, 27, 2021, the Centers for Disease Control and Prevention (CDC) issued Interim Public Health Recommendations for Fully Vaccinated People.  The guidance enumerates various situations in which fully vaccinated individuals may forgo wearing a mask, and circumstances in which they may refrain from quarantining and testing.  The guidance considers individuals “fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson and Johnson (J&J)/Janssen).”  The guidance includes various specific recommendations.