Insights

July 15, 2022
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Category: Supreme Court

High Court Hones “Major Questions” Doctrine, With Implications for Agency Rulemaking

In one of its last opinions issued before the end of its current term, the U.S. Supreme Court issued an important ruling that sheds light on the so-called “major questions” doctrine, an emerging legal standard that can be used to challenge agency rulemaking. Although the case at issue deals with a regulation issued by the Environmental Protection Agency (EPA), the...
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July 15, 2022
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Category: State and Local Law

Interstate: July 2022 Update

We are pleased to present the latest edition of our “Interstate” memo series, a service we provide to nation-wide employers on a periodic basis when state and local legislatures are active to help them stay on top of important new state and local workplace compliance developments. Members of the Center for Workplace Compliance (CWC) can read more here.
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July 15, 2022
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Category: Discrimination and Harassment

Ninth Circuit Rules Employee Who Failed Drug Test Can Bring Disability Claim

A three-judge panel of the Ninth Circuit U.S. Court of Appeals has ruled 2–1 that a jury should decide whether a terminated employee can use an employer’s alleged lackadaisical drug testing policy and the facts surrounding the timing of a pre-employment drug test to prove that the real reason for his termination was disability discrimination under California law. The court’s...
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July 07, 2022
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Category: Policies and Practices

Some Initial Compliance Questions To Consider In Light of Dobbs Ruling

In the wake of the U.S. Supreme Court’s controversial decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and almost 50 years of precedent in holding that there is no right to abortion recognized by the U.S. Constitution, employers are raising questions regarding how Dobbs might intersect with workplace compliance obligations. This memo addresses some of...
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July 07, 2022
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Category: Affirmative Action and Diversity

Comments With OMB Supporting Extension of OFCCP’s FAAP Program

Our affiliated non-profit association, the Center for Workplace Compliance (CWC), has filed written comments with the White House Office of Management and Budget (OMB) in support of a request by the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) to extend, with minor changes, its Functional Affirmative Action Program (FAAP) application and approval process for another three years. Periodic...
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July 07, 2022
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Category: Arbitration and Dispute Resolution

Supreme Court Rules Arbitration Can Trump Certain California “PAGA” Claims

The U.S. Supreme Court, in its most recent arbitration decision, has ruled that the Federal Arbitration Act (FAA) preempts an interpretation of California law that prohibits enforcement of individual arbitration agreements under California’s Private Attorneys General Act (PAGA). As a result of the High Court’s ruling, an employee who has entered into a valid arbitration agreement to resolve his or...
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July 01, 2022
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Category: Agency Enforcement

New Biden Regulatory Agenda Still Ambitious, But Little Changed From December Version

The Biden Administration has published its latest semi-annual regulatory agenda, a document required by statute that contains a list of each regulatory action federal agencies plan to take during the next 12 months, along with a time estimate by each agency as to when the action will be taken. As was the case with the agenda published last December that...
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July 01, 2022
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Category: Affirmative Action and Diversity

OMB Announces New Review (and Perhaps Revision) of Race/Ethnicity Reporting Standards

The White House Office of Management and Budget (OMB) has published an official notice announcing that it is forming a new Interagency Technical Working Group to review and possibly revise the current standards governing the race and ethnicity categories used in collecting and reporting demographic data to the federal government. Formally known as “Statistical Policy Directive No. 15 (Directive No....
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July 01, 2022
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Category: COVID-19

Fifth Circuit Rules COVID-Related Layoffs Are Not Exempt From WARN Act Notice

In a ruling of first impression by the federal appeals courts, the Fifth Circuit Court of Appeals has ruled that the COVID-19 pandemic does not qualify as a “natural disaster” excusing an employer’s failure to comply with the notice requirements of the federal Worker Adjustment and Retraining Notification (WARN) Act. And while only binding within the jurisdiction of the Fifth...
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July 01, 2022
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Category: Discrimination and Harassment

D.C. Circuit Reverses Precedent, Broadens Title VII Protection

The U.S. Court of Appeals for the District of Columbia Circuit has expanded the types of actions that violate Title VII of the Civil Rights Act of 1964 (Title VII) by ruling that an employer that changes terms and conditions of employment based on a person’s protected characteristic can be liable, regardless of whether the action results in “objectively tangible...
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