Labor & Employment Law Update

On June 15, 2022, the United States Supreme Court held that the Federal Arbitration Act (FAA) partially preempts a rule of California law that invalidates contractual waivers of the right to assert representative claims under California’s Labor Code Private Attorneys General Act of 2004 (PAGA).

USCIS has announced a few measures to ease the backlog of Employment Authorization Document (EAD) cards. These may feel like baby steps. But they are steps in the right direction.

In today’s age of technology and innovation, more and more employers are hiring remote employees  who live and work in a geographic location outside of where their business is located.  Remote work offers advantages, including expanding access to a wider pool of employee talent and savings on overhead costs.  But managing a multi-state workforce can be challenging.

In today’s virtual world so much has changed – we work from home, we attend meetings from home, and now, many companies are hiring from home. Virtual interviewing is on the rise, and for good reason. Companies can interview from a wide-breadth of candidates across the country without having to fly interviewees to the main office. However, video conference platforms can also open business up to potential litigation and compliance risk. 

The Pandemic Era brought in droves of new challenges for employers, including The Great Resignation – an unprecedented trend of employees voluntarily quitting their jobs starting in 2021 and continuing to today.  The unemployment rate is low and employers’ demand for labor is high meaning that it is more important than ever for employers to implement strategies for employee retention. Employers may want to kick-start these retention strategies with an eye towards working parents. 

On April 7, CMS announced that it would be phasing out several temporary waivers enacted during the COVID-19 pandemic and restoring minimum regulatory requirements to protect residents’ health and safety.

Courts in the United States are split on whether a company’s acknowledgment of vicarious liability for an employee’s negligence, bars a claim of direct negligence against the company. Based on appellate court decisions, Illinois had been one of the states that barred direct negligence claims against a company when the company had acknowledged being vicariously liable for its employee’s actions. However, on April 21, 2022, in McQueen v. Green, the Illinois Supreme Court rejected the earlier appellate court decisions and held that companies can be both vicariously liable for an employee’s negligence, as well as directly liable for the company’s negligence.

Mayor Lori Lightfoot and the Commission on Human Relations (the “Commission”) recently amended and expanded the sexual harassment prohibitions set forth by the City of Chicago.  The Ordinance provides for many changes—it (i) expands the definition of “sexual harassment;” (ii) expands the requirement for written policy documents; (iii) increases the statute of limitations for reporting discrimination; (iv) increases the monetary penalty for discrimination; and (v) has caused additional “safety measures” to be implemented by employers. 

As employers continue to face staffing issues, using independent contractors has become more common. Health care entities need to be mindful of the special requirements that apply to such arrangements.

Perhaps flying under the radar of everyone except antitrust lawyers (and the employers who have been targeted), the Department of Justice (DOJ) has made a concerted push recently to use federal anti-trust laws as a tool to bolster workers’ rights, even going so far as to prosecute employers for alleged anticompetitive practices in labor markets.