Dobbs on Demand Podcast Series

In response to the recent Dobbs v. Jackson Women’s Health Organization decision in which the Supreme Court overturned Roe v. Wade, BakerHostetler partners have developed a podcast series aimed at providing guidance and addressing questions pertaining to the new legal and business considerations that should be made in this new landscape.

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Washington Employers: Take Caution Before Asking Your Employees To Sign Confidentiality and Nondisparagement Agreements

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For years, employers have insisted that confidentiality and nondisparagement agreements be included in settlement agreements in a variety of employment disputes, such as discrimination, harassment, wage and hour, and others.

The reasoning is straightforward enough: Companies want to protect their reputations, and confidentiality/nondisparagement provisions in settlement agreements have been a way to ensure that unhappy employees do not continue to make disparaging statements about their current or former employers after the parties’ disputes have resolved. However, these provisions became particularly controversial in the wake of the #metoo era, when employees alleged these agreements acted as a manner of silencing employees from disclosing gender discrimination and harassment.

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Not Your Godfather’s Smackdown: Joint Employer Test Must Consider ‘Reserved or Indirect Control,’ D.C. Circuit Rules

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In 2009, the James Brown compilation album The Godfather’s Smackdown, Live! was released. It’s a two-disc compilation of live shows from 1980. I never saw James Brown live, but I did see James Brown’s Celebrity Hot Tub.

On Friday, the D.C. Circuit Court of Appeals issued a different kind of smackdown, chastising the National Labor Relations Board (NLRB) for ignoring the Circuit Court’s earlier directive about the joint employer test. Believe it or not, this case is another chapter in the ongoing Browning-Ferris saga.

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FTC and DOJ MOUs with NLRB Reflect the Administration’s Ongoing Focus on Restrictive Labor Relationships and the Gig Economy

Last week, the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) announced that the agencies had entered into a new Memorandum of Understanding (MOU). The FTC press release touted the MOU as a big deal, stating that it would “bolster the FTC’s efforts to protect workers by promoting competitive U.S. labor markets and putting an end to unfair practices that harm workers.” The NLRB Press Release was a bit less definitive, describing it as “a partnership between the agencies that will promote fair competition and advance workers’ rights.” And this week, the Department of Justice (DOJ) Antitrust Division announced its own MOU with the NLRB.

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New DC Law Protects Marijuana Users from Adverse Employment Actions

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Washington, D.C., employers will soon be prohibited from disciplining, terminating or refusing to hire individuals based on marijuana use or a positive marijuana test. The Cannabis Employment Protections Amendment Act of 2022 will take effect on July 13, 2023, or shortly thereafter.

The law, however, contains a few exceptions. Employers will not be in violation if their actions are required by federal statute, federal regulations, or a federal contract or funding agreement, or if the employee used or possessed marijuana at work or while performing work-related duties. The law also does not cover employees in “safety-sensitive” positions, such as police, security, guards, construction workers, operators of heavy machinery, healthcare workers, caretakers, or gas and power company employees.

Once the act takes effect, employers will have 60 days to notify their employees of (1) their new rights under the legislation, (2) whether their position is designated as safety sensitive and (3) the protocols for drug and alcohol testing. Employers must then provide the same information to employees annually and to each new hire.

Practical Advice for Employers

D.C. employers should promptly evaluate which positions are safety sensitive so they can provide written notification when required.

D.C. employers should also review their drug and alcohol policies to make sure they (i) provide for testing upon reasonable suspicion and (ii) set forth testing protocols. Businesses should also make sure they exclude marijuana from preemployment drug testing for D.C. applicants.

Employers should also prepare to comply with the notice requirements. Handbooks should contain the required notice of employees’ rights under the act and the drug and alcohol testing protocols. An employer might also choose to list the positions that are designated as safety sensitive. Regardless of whether safety-sensitive positions are listed in a handbook, employees in those positions must be notified individually.

National employers should consider a D.C. supplement that contains the required information. To satisfy the annual re-notification requirement, employers should redistribute the handbook or D.C. supplement each year. More specific guidance is likely to follow. If you have any questions, please contact a member of our team.

NYS Employers: Updated Sexual Harassment Postings and Policies Are Required!

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Employers should be aware that New York state has passed a law that requires employers to reference an established hotline in any material – including handbooks, policies and workplace postings – they post or provide to employees regarding sexual harassment.

The hotline is intended to enable individuals experiencing workplace harassment to receive pro bono counsel and assistance. Just this week, the New York State Division of Human Rights (DHR) established this toll-free, confidential hotline. Pro bono attorneys will be available to staff the hotline Monday through Friday, 9 a.m. to 5 p.m.

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The EEOC Issues Updated Guidance on Workplace COVID-19 Testing

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Until recently, employers had broad discretion to determine whether their employees were required to take COVID-19 tests prior to entering the workplace. However, newly released guidance from the U.S. Equal Employment Opportunity Commission (EEOC) notes that, as of July 12, 2022, employers must show that mandatory COVID-19 testing is “job-related and consistent with business necessity.”

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New Chicago Sexual Harassment Prevention Requirements Go Into Effect

Chicago’s new sexual harassment prevention ordinance went into effect this month, imposing significant new obligations on Chicago employers.

The ordinance requires employers to have a written policy prohibiting sexual harassment that includes an expanded definition of sexual harassment, a statement that sexual harassment and retaliation for reporting sexual harassment are illegal in Chicago, examples of prohibited conduct that constitutes sexual harassment, details on how to report sexual harassment internally at the company and where victims of sexual harassment can seek assistance outside the company, and a requirement that employees participate in sexual harassment prevention training annually. The written policy must be provided to employees in their primary language within the first calendar week of their employment. Employers have the option to develop their own policy that satisfies the requirements of the ordinance or to use a model policy developed by the Chicago Commission on Human Relations (CCHR). The model policy is available on the CCHR’s website in English, Spanish, Polish, simplified Chinese, Arabic and Hindi.

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Colorado Approves Changes to Unemployment Insurance Notices

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This past spring, Colorado legislators enacted several new employment-related laws, including Senate Bill 22-234. The bill provides $600 million in federal pandemic relief funds to replenish Colorado’s Unemployment Insurance Trust Fund and updates the notice requirements employers must follow when providing employees with information about unemployment insurance. 

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HHS Letter to Healthcare Providers About Emergency Medical Care

Reading a home pregnancy test.

On Monday, July 11, 2022, the secretary of Health and Human Services (HHS) issued a letter to healthcare providers regarding the Emergency Medical Treatment and Active Labor Act (EMTALA), indicating that when a state law prohibits abortion and does not provide an exception that aligns with EMTALA’s emergency medical condition definition, that state law is preempted.

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