October 13, 2023

Are Your Company’s Return To Work Policies ADA Compliant? Let’s Review!

David Law

On Wednesday, October 4, the U.S. Equal Employment Opportunity Commission (EEOC) announced that Public Service Company of New Mexico (PSCNM) and PNMR Services Co. agreed to pay $750,000 (among other terms) to settle a case alleging violations of the Americans with Disabilities Act (ADA). This announcement is a good reminder for employers to review their policies and practices impacting employees who are returning from a medical leave of absence.

In the lawsuit, the EEOC alleged that PNM had a policy or practice of failing to accommodate qualified employees with disabilities. Specifically, the EEOC alleged that employees were not allowed to return to work after a medical leave of absence unless they were released to “full duty” and could perform their job functions without medical restrictions. Employers cannot, however, condition an employee’s return to work on his or her ability to work without restrictions. Instead, when an employee is returning from some type of medical leave, employers should contact the employee to confirm the return to work date, and inform the employee that if accommodations are needed, the employee must inform the employer so that the parties can engage in the interactive process. Read more >>

October 10, 2023

Talent Without Borders: Immigration Insights – October-November 2023

Sarah Bileti

By Sarah Bileti and Emma Fahey

A government shutdown was narrowly avoided on September 30, 2023 after Congress passed a continuing resolution to fund the government for an additional 45 days. However, another shutdown is possible if Congress does not pass the required bills by the end of the 45-day resolution on November 17, 2023. In the event of a government shutdown, various immigration-related agencies would likely pause operations or continue to operate on a limited scale. Of particular import to employers are United States Citizenship & Immigration Services (USCIS) and the Department of Labor (DOL).
- USCIS: Although USCIS is a fee-funded agency and would likely continue to function relatively unaffected throughout a government shutdown, programs that receive appropriated funds – such as E-Verify and Conrad 30 J-1 doctors – would be suspended.
- DOL: Further, the DOL’s Office of Labor Certification (OFLC) would shut down completely and be unable to process applications through its online portal. These include PERM applications, prevailing wage requests, and Labor Condition Applications (LCAs) required to file H-1B petitions.

October 10, 2023

POWR Play: Big Changes Ahead for Colorado Antidiscrimination Law

by David Law

David Law

In June 2023, Governor Jared Polis signed into law the Protecting Opportunities and Workers’ Rights (“POWR”) Act, dramatically altering Colorado’s antidiscrimination law, and presenting a host of new challenges for employers. The new law went into effect on August 7, 2023. This article covers the major aspects of the law, and best practices for ensuring compliance.

New Standard for Harassment

Historically in Colorado, to make out a claim for harassment, an employee had to show that the conduct was “severe or pervasive.” This was a difficult standard to meet, as it required employees show that their work environment was “permeated” with discriminatory intimidation, ridicule, and insults. Petty slights, minor annoyances, and isolated incidents were not sufficient.

The POWR Act scraps the severe or pervasive standard and replaces it with a new rule: harassment is legally actionable if it is (a) unwelcome (b) directed at an individual because of their membership in a protected class, and (c) subjectively offensive to the individual and objectively offensive to a reasonable person in the same protected class. The Act states that the type of work and the frequency of harassment have no bearing on whether the objective standard is satisfied. Under the new law, even a single incident can constitute unlawful harassment. Notably, the law uses a modified objective standard by asking whether a reasonable person in the same protected class would find the conduct offensive. It is unclear how this modified reasonable standard will affect how harassment claims are analyzed.

Action Items: Review your EEO and anti-harassment policies to ensure they are up to date and drafted to comply with the new law.

October 2, 2023

SEC Settlement A Reminder for Employers: Review Your Separation Agreements

by Mark Wiletsky

Mark Wiletsky

Companies routinely use separation agreements with departing employees. Through those agreements, the employee receives some type of separation benefit (typically a payment or severance), and in exchange the employee waives and releases any potential claims against the company. The goal is to avoid an existing or potential dispute, claim, or lawsuit. But if companies do not routinely review and update those agreements, they risk the agreement being challenged or invalidated. Even worse, companies are sometimes investigated and forced to pay fines or penalties for provisions in these agreements. A recent settlement announced by the Securities and Exchange Commission (SEC) provides a strong reminder to employees to regularly review and update agreements used with employees.

The Facts

On September 19, 2023, the SEC announced a settlement with a real estate services firm. According to the announcement, the company violated the SEC’s whistleblower protection rule with separation agreements it used between 2011 and 2022. The agreements contained a common provision: employees had to affirm that they had not filed a complaint about the company with any state or federal court or local, state, or federal agency. These types of representations are typically included in separation or settlement agreements to ensure that any pending complaint or charge is resolved in conjunction with the separation or settlement agreement. Read more >>

September 28, 2023

Worship in the Workplace and Reasonable Accommodations

Mark Wiletsky

by Mark Wiletsky

Question: Do employers need to provide a space for employees to worship and/or pray in the office?

Answer: The short answer is: Maybe. Employers must reasonably accommodate employees’ sincerely held religious, ethical, or moral beliefs or practices unless doing so would impose an undue hardship. For decades, courts held that employers could deny such requests under Title VII of the Civil Rights Act of 1964 if the accommodation would impose more than a “de minimis” cost or burden. In June 2023, however, the U.S. Supreme Court “clarified” that standard. In Groff v. DeJoy, the Supreme Court held that employers can deny requests for religious accommodation only if the accommodation would result in “substantial increased costs in relation to the conduct of [an employer’s] particular business.” The Equal Employment Opportunity Commission (EEOC) has provided similar guidance, stating that employers should not try to suppress all religious expression in the workplace. Read more >>

September 27, 2023

What Can Employers Do When Employee Threats Are Related To a Disability?

Jordan Walsh

By Jordan Walsh

The Americans with Disabilities Act (the “ADA”) generally prohibits employers from taking adverse employment actions against an employee because of the employee’s disability. To challenge an employment action under the ADA, a plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) she is qualified for her position, even with her disability, with or without a reasonable accommodation; and (3) she suffered an adverse employment action because of her disability. See Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015). If this showing is made, the burden shifts to the employer to present a legitimate, nondiscriminatory reason for the employment action. See Curley v. City of North Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). If the burden is met the plaintiff must establish that the employer’s reason for the adverse employment action was pretextual. See id. Read more >>

September 19, 2023

Talent Without Borders: Immigration Insights – September-October 2023

Sarah Bileti

By Sarah Bileti and Emma Fahey

The Department of State published the October 2023 Visa Bulletin Report on September 15, 2023 and announced that it will accept family and employment-based filings based on the Dates for Filing chart in October. As October is the first month of the 2024 government fiscal year (FY), the October Visa Bulletin Report shows some recovery from the retrogressions of the last several months of FY 2023. Every final action date in the October Visa Bulletin has advanced or remained the same relative to the September 2023 report, with notable advancements in the EB1 India category to 1/1/2017, from 1/1/2012 in September, and in the EB3 All Chargeability category from 5/1/2020 to 12/1/2021. United States Citizenship and Immigration Services (USCIS) also updated its FAQs on the employment based annual limit noting that in FY 2024 the annual employment-based visa numbers are estimated to be 165,000.
The Department of State (DOS) began testing the implementation of digital visa authorization (DVA) at the U.S. Embassy in Dublin, Ireland earlier this September with a small number of K-1 (fiancé(e)) visas. If the initial trial is successful, the DOS hopes to extend the DVA to “other visa classes and additional posts in the future.” Digital visa authorization would allow foreign nationals to travel without a traditional printed visa inserted into their passport, potentially eliminating the waiting time for the foreign national’s passport to be returned in the mail following a visa stamping appointment.

September 12, 2023

How to Address Damage to Company or Customer Property

Laurie Rogers

by Laurie Rogers

Question: Can we legally require employees to reimburse the company for damage to customer or company property (i.e., the full amount of damages or insurance deductible)?

Answer: Many employers have policies requiring employees to reimburse them for damage to company property, usually through payroll or final paycheck deductions. Before implementing such a policy, you must consider state and federal laws that may restrict or prohibit your ability to make such payroll deductions. Read more >>

September 8, 2023

EEOC Proposed Regulations to Implement Pregnant Workers Fairness Act

Laurie Rogers

by Laurie Rogers

Pregnant workers have certain protections under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but gaps remain. The Pregnant Workers Fairness Act (PWFA) aims to close the gaps and better protect pregnant employees. To implement the Act, the Equal Employment Opportunity Commission (EEOC) recently proposed regulations that significantly increase employers’ obligations to reasonably accommodate their pregnant employees.

Expanded protections

On August 11, 2023, the EEOC proposed rules to implement the PWFA, a law that took effect on June 27, 2023. Before the PWFA, the PDA (which amended Title VII of the Civil Rights Act of 1964) and the ADA provided pregnant and postpartum applicants and employees with certain limited protections.

Under the PDA, pregnant workers can show a violation only if they can identify similarly situated employees who received an accommodation or if there is direct evidence of disparate treatment. Under the ADA, pregnant employees have a right to an accommodation only if they can demonstrate they have a pregnancy-related disability, which doesn’t include the pregnancy itself. Read more >>

August 16, 2023

Talent Without Borders: Immigration Insights – August-September 2023

Sarah Bileti

By Sarah Bileti and Emma Fahey

Second Round of H-1B Cap Registration Selection – United States Citizenship and Immigration Services (USCIS) conducted a second round of the H-1B cap lottery between July 28th and 31st for Fiscal Year (FY) 2024. The new selections were welcomed by employers and employees alike following extremely low selection rates in the initial round of the lottery, with USCIS reporting 780,884 registrations received for 85,000 available slots. The new selections were drawn from the existing pool of H-1B registrations submitted in March 2023 and did not require any additional action from employers. H-1B petitions for registrations selected in the second round must be filed between August 2, 2023 and October 31, 2023.