Insights

On May 1, 2023, the National Labor Relations Board issued a decision in Lion Elastomers LLC II, which overruled the Board’s earlier decision in General Motors LLC, 369 NLRB No. 127 (2020), and rejected Trump-era precedent that had made it easier for employers to discipline workers who make profane, harassing or discriminatory comments in the course of a workplace dispute.  In its statement, the NLRB described its decision as “returning to the long-established ‘setting-specific’ standards applicable to cases where employees are disciplined or discharged for misconduct that occurs during activity otherwise protected by the National Labor Relations Act” (the “NLRA” or the “Act”).  

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.

The issue of pay equity between women and men has been garnering a growing amount of attention from a variety of quarters, making litigation of pay-equity claims—from class actions to individual cases—an increasingly common occurrence.