Election 2016: New Laws Impacting Employers

Our top story: Election Day brings a wave of new laws affecting employers. While all eyes were on the battle for the White House, voters in a number of states approved new legislation that will directly impact employers. Arizona and Washington will soon require paid sick leave for workers, as well as minimum wage increases. Medical marijuana is now legal in Arkansas, Florida, and North Dakota, while recreational use was approved in California, Maine, Massachusetts, and Nevada. The new laws in Arkansas and Maine explicitly prohibit employment discrimination against medical marijuana users.

Federal Court Agrees with EEOC: Title VII Covers Sexual Orientation

In another move toward sexual orientation protections in Title VII of the Civil Rights Act of 1964 (“Title VII”), the U.S. District Court for the Western District of Pennsylvania has denied a motion to dismiss a sexual orientation case brought by the U.S. Equal Employment Opportunity Commission (“EEOC”), one of several claims that the agency is pursuing across the country. The employer in this case had argued for dismissal because it claimed that Title VII’s prohibition of sex discrimination does not apply to sexual orientation discrimination. The court found that sexual orientation discrimination is a "subset of sexual stereotyping" covered by Title VII. This same issue is currently pending before the U.S. Court of Appeals in the Second and Seventh Circuits, in cases where the district courts ruled that sexual orientation discrimination is not prohibited by Title VII.

DOL’s Amended Persuader Rule Is Permanently Blocked

A federal court in Texas has permanently enjoined the U.S. Department of Labor (“DOL”) from enforcing its 2016 amended Persuader Rule, after concluding that the amended rule is unlawful. The decision applies nationwide, making permanent a preliminary injunction that the court issued in June. The rule would have required employers to report payments made to consultants, including lawyers, in connection with even indirect efforts to influence employees’ opinions on labor unions and a wide range of employment matters.

Fourth Circuit Rules That Nursing-Home Nurses Are Not “Supervisors”

The Fourth Circuit recently upheld a conclusion by the National Labor Relations Board (“NLRB”) that registered nurses and licensed practical nurses at a nursing home in South Carolina can unionize because they do not exercise enough independent judgment to be supervisors. The Fourth Circuit deferred to the NLRB’s position that employees do not exercise independent judgment because their decisions are controlled by company policies or rules. Because the nurses’ supervision mainly consisted of making sure that nursing assistants followed written rules and did not discipline assistants on their own, the nurses did not exercise independent judgement and, therefore, were not supervisors.

Tip of the Week

Lenora Billings-Harris—Diversity Strategist, an award-winning international speaker, and the author of The Diversity Advantage—is here with some advice on how to combat unconscious bias.