Publications

Effective December 31, 2023, the Chicago Paid Leave and Paid Sick and Safe Leave ordinance will replace the existing Paid Sick Leave ordinance. Under the new ordinance, employees accrue one hour of paid sick leave plus one hour of general paid leave for every 35 hours worked, with a cap of 40 hours for each type of leave annually. Employees can carry over up to 16 hours of general paid leave and 80 hours of sick leave to the next year. Alternatively, employers have the option to front-load both types of leave at the start of each benefit year, which exempts them from the rollover requirement for general paid leave, but not for sick leave. New employees can use paid sick leave after 30 days and paid leave after 90 days of employment, and may opt to use this leave before any other provided by the employer unless mandated otherwise by law.

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The National Labor Relations Board (NLRB) has implemented a final rule effective December 26, 2023, which broadens the criteria for determining “joint employer” status under the National Labor Relations Act (NLRA). This rule reinstates the broader Obama-era interpretation of joint employer by emphasizing the importance of an employer’s potential control over the essential terms of employment, regardless of whether this control is actually exercised.

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In a recent case, the Ninth Circuit Court of Appeals held that employees may be able to support a hostile work environment claim by presenting evidence of regular exposure to violent, misogynistic music, even when the music’s message is not directed to a particular individual, but is broadly offensive to both men and women.

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Beginning in March of 2020, the Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) allowed employers to complete the I-9 process remotely on account of the COVID-19 pandemic. On May 4, 2023, ICE announced that these Covid-19 “flexibilities,” would end on July 31, 2023, and that employers would have until August 30, 2023 to conduct an in-person physical inspection for all employees remotely verified and hired during Covid-19.

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On September 30, 2023, Florida will increase its minimum wage to $12.00. The increase in wage is a part of a yearly dollar increase that Florida instituted in 2020 following a voter-approved ballot measure. Florida’s minimum wage is set to increase to $15.00 by 2026. Because Florida’s tipped wage is $3.02, the increased minimum wage will increase the required cash wage for tipped employees to $8.98 in 2023 and presumably, $11.98 by 2026. All Florida employers are required to post the current minimum wage in their place of business where an employee can see it.

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On August 25, 2023, the National Labor Relations Board (the “NLRB”) released its long awaited Cemex Construction Materials Pacific (“Cemex”) decision. See NLRB Case No. 28-CA-230115. The crux of the Cemex case revolved around how to hold election procedures when an employer has allegedly committed unfair labor practices during the “critical period” of an election campaign between the filing of the election petition and the election itself. The NLRB responded to that question by instituting a framework that hearkens back to the Joy Silk standard used over 50 years ago, which required employers to bargain with a union unless it had a good-faith doubt of the union’s majority support among employees.

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On June 29, 2023, the United States Supreme Court overturned a decades-old precedent that held race-based affirmative action policies in higher education institutions were constitutional. However, in Students for Fair Admission, Inc. v. Harvard, the Court deviated from precedent and held colleges/universities can no longer use race as a factor in their college admissions. Although this ruling may not directly impact employment law, it inevitably will affect employers, via interpretations applicable to employers’ diversity, equity, and inclusion (DEI) programs.

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On August 2, the National Labor Relations Board issued its decision in Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023), announcing yet another test for determining whether employer policies that are facially neutral might nevertheless be deemed violative of employee rights to organize and act in concert with other employees. This issue has been a point of contention for decades, and legal tests have come and gone as newly-constituted Boards under different Presidential administrations have swung the needle back and forth in favor of employees or employers. This most recent opinion moves back towards the protection of employee rights, but includes the possibility of an affirmative defense for employers.

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The U.S Supreme Court issued an opinion in Groff v. DeJoy redefining an employer’s obligations for religious accommodations under Title VII. The Court strayed away from the almost five-decade standard previously used and redefined “undue hardship” stating that it requires employers, when denying a religious accommodation, to show that the burden of granting an accommodation would result in “substantial increased costs in relation to the conduct of its particular business.” The Court effectively disavowed the long-standing “de minimis” standard placing a higher burden on employers when determining whether a religious accommodation can be denied for an undue hardship. The Court held that courts must apply this new standard and take into account all relevant factors in the case at hand, including particular accommodation at issue, and the practical impact in light of the nature, size, and operating cost to the employer. The Court remanded the case back to the lower court to apply the new redefined standard.

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Last year, the U.S. Supreme Court issued an employer-friendly decision in Viking River Cruises v. Moriana. There, it held that the Federal Arbitration Act (FAA) preempts the California Private Attorneys General Act (PAGA) such that employees who signed arbitration agreements could not avoid arbitration of their individual PAGA claims and, once their own dispute was “pared away from a PAGA action,” they lacked statutory standing to maintain their non-individual claims in court. While many employers hoped Viking River would end PAGA claims altogether, the Supreme Court left the door open for a contrary ruling from California courts, as Justice Sotomayor’s concurring opinion in Viking River foretold: “Of course, if this Court’s understanding of state law is wrong, California courts, in an appropriate case, will have the last word.” (Viking River, 142 S.Ct. at 1925 (conc. opn. of Sotomayor, J.))

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