Publications

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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The City of Los Angeles will increase the minimum wage rate by $.74 as of July 1, 2023. The new City minimum wage will be $16.78. This new wage must be posted at the workplace in English and any other language spoken by at least 5% of the workforce. The City’s notice to all employers can be found here.

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As of February 20, 2023, San Francisco employers with 100+ employees are required to pay differential (or “supplemental”) pay to employees who are called to active military. This is the new requirement under San Francisco’s latest Ordinance, known as the Military Leave Pay Protection Act (“MLPPA”). The MLPPA essentially requires employers to supplement an employee’s military pay and keep employees whole while they are on military leave.

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Avid readers of Stokes Wagner’s legal updates may be familiar with California’s Assembly Bill 51, a law that, until very recently, prohibited California employers from requiring employees or job applicants to sign arbitration agreements as a condition of employment or employment-related benefits. On Wednesday, a panel of judges of the U.S. Ninth Circuit Court of Appeals held in a 2 to 1 decision that AB 51 is unenforceable, as it is preempted by the Federal Arbitration Act. California employers are once again free to require their employees to sign arbitration agreements.

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Illinois Governor is expected to sign the “Paid Leave for All Workers Act” (SB-208), a statewide law that requires most Illinois employers to provide employees with 40 hours of paid leave per year that an employee may use for any reason. Once the Bill is signed, the law will go into effect on January 1, 2024.

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The SECURE 2.0 Act was signed into law on December 29, 2022, and contains several provisions that dictate how employers must offer and administer retirement plans. While Secure 2.0’s provisions are expansive and have different effective dates ranging into 2025, there are some major changes that are worth considering:

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