Workforce Bulletin

The Fourth Circuit recently reaffirmed that not all forms of opposition constitute protected activity. In Bills v. WVNH EMP, LLC, the Fourth Circuit unanimously affirmed the Southern District of West Virginia’s Order granting Defendants WVNH EMP, LLC, and Lanette Kuhnash’s (“Defendants”) motion for summary judgment on plaintiff Dorothy Bills’ (“Bills”) wrongful termination action under the West Virginia Human Rights Act (“WVHRA”). The sole issue was whether Bills engaged in protected activity under the WVHRA when she opposed sexual harassment by hitting a patient to stop him from groping her. Both courts agreed that Bills’ conduct was not protected by the WVHRA.

With an anticipated increase in workers no longer subject to exemption from overtime pay under a new U.S. Department of Labor rule that is scheduled to take effect on July 1, 2024 (learn more here), employers will need to sharpen their pencils and make adjustments. What’s more, on that date, many states and localities will see a hike in minimum wage requirements.

Most of these jurisdictions will have straightforward rate adjustments, with a uniform increase across all industries. However, a somewhat more complicated and significant development comes out of California, which has raised minimum wage mandates for just one sector.

Today, we’re bringing you a special breaking news episode on the recent U.S. Supreme Court (SCOTUS) ruling in the Starbucks v. McKinney case, which effectively raises the standard for federal courts issuing injunctions under section 10(j) of the National Labor Relations Act.

This ruling is a significant blow to the National Labor Relations Board’s enforcement priorities. In the video below, Epstein Becker Green attorney Steve Swirsky tells us more.

In Starbucks v. McKinney, the Supreme Court of the United States clarified the standard for injunctive relief under Section 10(j) of the National Labor Relations Act (NLRA or the “Act”). The 9-0 decision,  authored  by Justice Thomas, with Justice Jackson concurring in the judgment and dissenting in part, held that appropriate standard is the four-part test for preliminary injunctive relief articulated in Winter v Natural Resources Defense Council, Inc. 555 U.S. 7 (2008). That test requires the party seeking the injunction to show “[1] he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter, 555 U. S., at 20, 22. This represents a significant change and one that is likely to make it more difficult for the National Labor Relations Board (NLRB or the “Board”) to obtain injunctive relief while an unfair labor practice claim is being litigated.

While four circuits – the Fourth, Seventh, Eighth, and Ninth – already followed the four-factor preliminary injunction test, five other circuits – the Second, Third, Fifth, Tenth and Eleventh, and the Sixth Circuit, where Starbucks v. McKinney originated – had applied a less demanding standard that only required the NLRB to demonstrate that the Board’s Regional Director had concluded that “there is reasonable cause to believe that unfair labor practices have occurred,” and whether injunctive relief is “just and proper.” This two-factor test versus the four-factor test was seen by many to be a lower barrier to injunctive relief.

New York City employers, time is running out to update your bulletin boards. Local Law No. 161, which took effect January 2, 2024, requires New York City employers to display and distribute to each employee a multilingual “Know Your Rights at Work” poster (the “Poster”) by no later than July 1, 2024. The Poster’s main feature – a QR code – directs employees to the Workers’ Bill of Rights website created by the New York City Department of Consumer and Worker Protection (DCWP) to summarize protections available under federal, state, and local laws.

Specifically, Local Law No. 161 requires New York City employers to:

As featured in #WorkforceWednesday®: This week, we’re recapping recent U.S. Supreme Court (SCOTUS) decisions and their impact on employers across the country.

On May 15, 2024, the New Jersey Supreme Court held in Maia v. IEW Construction Group that both the six-year look-back period and liquidated damages provided by the state Wage Theft Act (WTA) do not apply retroactively. Notably, the WTA’s extended statute of limitations will only apply to conduct that occurred after the WTA’s effective date—August 6, 2019. As such, employees filing suit before August 6, 2025 to recover unpaid wages may only recover for conduct occurring after the WTA’s effective date even though the relevant time period would not include the full six-year look-back period. Although the look-back period is now six years, if an employee files a lawsuit today, that employee would only be able to recover for conduct dating back to August 6, 2019 (which is a limitations period of less than 5 years). Similarly, employees may only recover liquidated damages—which were not previously available under the state wage and hour laws—for conduct occurring after the WTA’s effective date.

For background, the New Jersey Wage and Hour Law (WHL) and the New Jersey Wage Payment Law (WPL) require employers timely pay their employees for all wages earned, including any overtime. In August 2019, New Jersey enacted the WTA, amending the WHL and WPL by adding liquidated damages and extending the statute of limitations from two years to six years. This means that, pursuant to the WTA amendments, employees who file suit seeking to recover unpaid wages may recover any unpaid wages within six years prior to the commencement of such lawsuit (often referred to as the “six-year look-back period”) plus liquidated damages up to 200% of the wages owed, together with costs and reasonable attorney’s fees.

The Department of Labor's (DOL) May 16, 2024 guidance, Artificial Intelligence and Worker Well-Being: Principles for Developers and Employers, published in response to the mandates of Executive Order 14110 (EO 14110) (Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence), weighs the benefits and risks of an AI-augmented workplace and establishes Principles to follow that endeavor to ensure the responsible and transparent use of AI. The DOL’s publication of these Principles follows in the footsteps of the EEOC and the OFCCP’s recent guidance on AI in the workplace and mirrors, in significant respects, the letter and spirit of their pronouncements. 

While not “exhaustive,” the Principles” should be considered during the whole lifecycle of AI” from ”design to development, testing, training, deployment and use, oversight, and auditing.”  Although the DOL intends the Principles to apply to all business sectors, the guidance notes that not all Principles will apply to the same extent in every industry or workplace, and thus should be reviewed and customized based on organizational context and input from workers.

While not defined in the Principles, EO 14110 defines artificial intelligence as set forth in 15 U.S.C. 9401(3): “A machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments.  Artificial intelligence systems use machine- and human-based inputs to perceive real and virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action.” 

As featured in #WorkforceWednesday: This week, we’re focused on the Equal Employment Opportunity Commission’s (EEOC’s) filing requirements for the EEO-1 Component 1 data:

The EEOC requires private employers with 100 or more employees, as well as certain federal contractors, to submit EEO-1 reports annually. Yesterday, June 4, 2024, was the deadline for employers to file EEO-1 Component 1 data.

Epstein Becker Green attorneys Dean R. Singewald II and Marissa Vitolo discuss what to do if you missed it, as well as coming changes and how to prepare for next year.

In line with the mandates of President Biden’s Executive Order 14110, entitled “The Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” and its call for a coordinated U.S. government approach to ensure responsible and safe development and use of artificial intelligence (AI) systems, the Office of Federal Contract Compliance Programs (OFCCP) has published a Guide addressing federal contractors’ use of AI in the context of Equal Employment Opportunity (EEO).

As discussed below, the Guide comprises a set of common questions and answers about the intersection of AI and EEO, as well as so-called “promising practices” federal contractors should consider implementing in the development and deployment of AI in the EEO context. In addition, the new OFCCP “landing page” in which the new Guide appears includes a Joint Statement signed by nine other federal agencies and the OFCCP articulating their joint commitment to protect the public from unlawful bias in the use of AI and automated systems.