Labor & Employment Law Update

The U.S. Department of Labor has announced a notice of proposed rulemaking to clarify the personal protective equipment (PPE) standard for the construction industry. In its press release, the Department argued that the current standard does not state clearly that PPE must fit each affected employee properly. The proposed change would clarify that PPE must fit each employee properly to protect them from occupational hazards. The Department went on to state that there have long been safety concerns regarding the failure of standard-sized PPE to protect physically smaller construction workers (especially women) properly.

Many states are prohibiting employers from entering into non-competes with their employees.  Read the full article to determine whether any of these new laws apply to you!

On August 1^st, United States Citizenship and Immigration Services (USCIS) will publish the new Form I-9 for employers to use to confirm a new employee’s authorization to work in the United States. Employers are encouraged to begin using the new form on August 1^st for all new hires, but may use the current form (version 10/21/19) through October 31^st. Starting November 1, only the new Form I-9 may be used for newly hired employees and reverifications. The new Form I-9 will be a single page and will include a checkbox for employers to indicate they examined Form I-9 documentation remotely under a new Department of Homeland Security (DHS)-authorized alternative procedure (see further information below). USCIS is moving the Preparer/Translator Certification and the Reverification/Rehire sections to stand alone documents. Thus, if either of those situations apply, employers must complete a separate document and maintain it with the Form I-9.

Resurrecting a rule that it attempted—but failed—to implement years ago, the Department of Labor has announced a new rule that will require certain employers in high-hazard industries to electronically submit injury and illness information. The rule applies to establishments with 100 or more employees in certain high-hazard industries including construction, manufacturing, agriculture, transportation, warehousing, and utilities.

On July 17, 2023 in Adolph v. Uber Techs., Inc., No. S274671, 2023 WL 4553702 (Cal. July 17, 2023), the California Supreme Court held that an individual can maintain a class action in court under the Private Attorneys General Act (PAGA) even when that individual’s California Labor Code claims are sent to arbitration. This decision breaks away from the ruling set forth in the Supreme Court Case – Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. [142 S.Ct. 1906], 213 L.Ed.2d 179.

OSHA is launching a new three-year initiative it claims is intended to prevent workplace hazards in warehouses, processing facilities, distribution centers, and high-risk retail establishments.  High-risk retail establishments covered by the program include:

Yep. You read that right. Not really sure how else to describe this little nugget. As Illinois continues to do all it can to help labor organizations, the latest assist is a real stomach turner. 

In a recent decision, Mallory v. Norfolk Southern Railway Co., the U.S. Supreme Court opened the door for companies to face lawsuits in the state where they have registered to do business. The ruling stems from a case involving a Virginia-based former employee’s lawsuit against Norfolk Southern in Pennsylvania, despite the alleged injuries occurring in other states. The Court’s majority decision upheld the notion of “registration by consent” laws, allowing states to assert jurisdiction over out-of-state companies based on corporate registration.

Bias, and particularly unconscious bias, is tricky. It is present in the most well intentioned of individuals and can be challenging to identify and therefore manage. However, just because it is challenging to identify does not make it impossible, and it is important to fight. Identifying areas for potential bias in hiring and the employment relationship will not only greatly increase your candidate pool and support retention but will also reduce your legal exposure.

In Groff v. DeJoy, Postmaster General (No. 22-174, June 29, 2023 Slip Opinion), the US Supreme Court held that Title VII requires an employer that denies 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 opined that when courts review religious accommodations in the future they must take into account all relevant factors in the case, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.