On April 29, 2024, the U.S. Equal Employment Opportunity Commission (the “EEOC” or the “Commission”) published its “Enforcement Guidance on Harassment in the Workplace” (the “Guidance”), which outlines the legal standards for harassment and employer liability under the equal employment opportunity laws enforced by the Commission.  (See here.)  The Guidance replaces the five prior harassment guidance documents from the EEOC, issued between 1987 and 1999, and serves as a single resource for workplace harassment law.  The Guidance addresses several timely topics, including, but not limited to, protections for LGBTQ+ workers, harassment in the remote workplace, and the interplay between religious freedom and unlawful harassment.  The Guidance also includes over 70 illustrative examples of permissible and impermissible conduct.   Continue Reading EEOC Updates Anti-Harassment Guidance for First Time in 25 Years

After much anticipation, the U.S. Department of Labor (DOL) unveiled its Final Rule on April 23, 2024, increasing the salary that an employee must earn in order to qualify for the executive, administrative, professional and highly compensated employee “white collar” exemptions under the Fair Labor Standards Act (FLSA). Although the Final Rule will almost certainly face legal challenges and could be struck down, employers should still take the opportunity to evaluate and audit their employee exemption classifications in the event the new rule takes hold in July.Continue Reading DOL’s Final Rule to Increase Salary Thresholds for Overtime Exemptions

On Tuesday, April 23, 2024, the Federal Trade Commission (“FTC”) voted 3-2 to adopt a Final Rule banning virtually all non-compete agreements between employers and employees.  The Final Rule will not go into effect until 120 days after its publication in the Federal Register (the “Effective Date”), and its enforcement could be further delayed or barred by court challenge or Congressional intervention. Continue Reading The FTC Adopts Final Rule Banning Employee Non-Compete Agreements

On October 26, 2023, the National Labor Relations Board (“NLRB” or “Board”) issued its long-awaited final rule establishing a new standard for determining when two employers are joint employers under the National Labor Relations Act. If any two entities are deemed joint employers, both are obligated to bargain with a union that represents the employees. Moreover, each entity is responsible for any unfair labor practice committed by the other and both are subject to demands for recognition and/or an NLRB election.

The final rule, set to take effect December 26, 2023, rescinds and replaces the Board’s previous joint employer rule issued in April 2020. The most significant change under the new rule is the manner in which it alters what is needed to show that two entities share or codetermine employees’ essential terms of employment. The 2020 rule required an entity to possess and actually exercise “substantial direct and immediate control” over one or more of the essential terms. Under the new standard, an entity can be deemed a joint employer if it has authority to control at least one essential term, “whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect, such as through an intermediary.”

Although similar to a previous standard announced in the NLRB’s 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186, the new rule goes considerably further by establishing that mere possession of such authority, alone, is sufficient to find joint employer status.Continue Reading NLRB’s New Joint Employer Test Significantly Expands Circumstances Under Which Separate Entities Will Be Deemed Joint Employers

A recent U.S. District Court ruling dealt a major setback to the U.S. Department of Labor’s (DOL) guidance regarding rollover recommendations as fiduciary investment advice under ERISA. In American Securities Association (ASA) v. U.S. Department of Labor, Case No. 8:22-cv-330 (M.D. Fla. Feb. 13, 2023) (the “ASA Case”), the court vacated a critical part of