Monthly Archives: October 2023

October 31, 2023

Breastfeeding Accommodations in the Workplace

Dana Dobbins

The ability to pump breast milk in the workplace is protected by the FLSA. In 2010, the Break Time for Nursing Mother Act was passed as part of the Affordable Care Act (ACA) and amended the FLSA to include break time and space requirements for nursing to pump breast milk at work. The PUMP Act was signed into law on December 29, 2022, further amending the FLSA to extend the reasonable break time requirement and expand lactation space requirements. The PUMP Act also extended available remedies for violations. Employers should be cognizant of the PUMP Act requirements, as well as any further protections imposed by state and local law.

Break Time Requirements

The PUMP Act requires employers to allow covered employees, for one year after the child’s birth, to take reasonable break time each time such employee has need to express the milk. The PUMP Act is silent as to what is considered a reasonable break time or how many breaks are permitted, reinforcing the drafters’ intent that these issues are to be determined on a case-by-case basis depending on the individual needs of the employee. The Department of Labor (DOL) has explained that the frequency and duration of breaks will depend on a variety of factors, including the location of the lactation space, and the steps reasonably necessary to express breast milk, such as pump setup. An employer cannot deny a break for a covered employee who needs to pump. Read more >>

October 13, 2023

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

David Law

by 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 >>