With the economy in flux, and layoffs at a high not seen since the pandemic, how can employers protect themselves from lawsuits by disgruntled ex-employees?  In a recent case, Raymond v. Spirit AeroSystems Holdings, No. 23-3126 (U.S. 10th Circuit Court of Appeals, 1/7/25), the court reviewed a claim that a group of former employees were selected for termination in a reduction in force (RIF) based on their age, in violation of the federal Age Discrimination in Employment Act (ADEA)....

With DEI in the crosshairs of the current administration’s enforcement activities, employers need to review their organization for DEI type policies, practices and activities (even if the organization does not subscribe specifically to DEI).  The guiding principle of this audit is to prevent violations of Title VI of the 1964 Civil Rights Act that govern programs and activities receiving federal financial assistance, Title VII of the 1964 Civil Rights Act which governs the...

President Trump nominated Jonathan Berry to be the next Solicitor of the U.S. Department of Labor (USDOL).  Jonathan Berry is a managing partner at Boyden Gray PLLC and a member of the Federalist Society, a conservative legal group.  He is also the author of Chapter 18 of Project 2025’s treatise Mandate for Leadership, which focuses on labor department priorities and activities.

The Diversity Equity and Inclusion (DEI) Executive Orders have taken root and at the time of writing been upheld most recently by the U.S. Fourth Circuit Court of Appeals.  Other than the obvious programs such as employee resource groups (ERGs), hiring preferences, and worker pipeline building, what other areas of HR may DEI impact that HR needs to be aware of?

Although Executive Order 11246 is revoked, the Office of Federal Contract Compliance Programs (OFCCP)is still finding relevance.  Section 4212 (VEVRAA) and Section 503 (Disabled) Affirmative Action Plans (AAPs) are required by regulation, and OFCCP has stated that the agency will resume audits of these plans at some point.  More recently, with a new Director in place, the OFCCP may be the first line of attack against federal contractor Diversity, Equity, and Inclusion (DEI)...

The U.S. Bureau of Labor Statistics (BLS) reported that in 2023 women who were full-time wage and salary workers had median usual weekly earnings that were 84% of male full-time wage and salary workers. This situation is up 22% from 1979, the first year for which comparable earnings data are available, when women’s earnings were 62% of men’s earnings.  Per the BLS, the majority of this closing of the pay gap was between 1980 and 2003. From 2004 to 2023, the...

The EEOC on January 29th issued a statement that called for the reversal of former President Biden’s gender approach to EEOC complaints and investigations.  Specifically, Executive Order 14166, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” directed federal agencies to enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct...

In a case coming before the U.S. Supreme Court, the question before the court is “what do white people and other members of a majority group have to prove to win a claim for reverse discrimination?” It’s an interesting proposition because many federal courts require an additional step for a majority group to demonstrate discrimination.

Federal contractor minimum wage case is set up for Supreme Court:  The U.S. Court of Appeals for the Fifth Circuit has reversed a Texas federal court’s decision that invalidated President Biden’s executive order increasing the hourly minimum wage for employees of federal contractors. The appeals court upheld the minimum wage mandate, concluding it was a valid exercise of presidential authority.

Diversity, Equity, and Inclusion (DEI), sometimes expanded to include Accessibility (DEIA), has faced criticism in the media for being perceived as entitlement-driven, disconnected from the broader population, lacking genuine inclusivity, and focused on meeting quotas. During the first Trump administration, some government agencies implemented DEI training that framed all white individuals as inherently privileged and prejudiced, reportedly separating them into different rooms for...

As Artificial Intelligence (AI) permeates throughout the organization, it leads to a new type of organizational structure: the diamond shaped structure.  Although still early in the AI development, jobs will be changed or taken over by AI.  As such, the structure of the organization and career lattice for employees will change. 

PBMs or Pharmacy Benefit Managers are under the gun these days. PBMs are third party administrators for many types of drug care plans, especially those covering employers. PBMs earn revenues in a variety of ways. First, they collect administrative and service fees from the original insurance plan. Second, they can also collect rebates from the manufacturer. Third, and more controversial, they can resell drugs at a price higher that than the price negotiated with the manufacturer or...

The Illinois Equal Pay Act (the "Act") is officially going live January 1, 2025.  It was passed in 2023 and amended several times. Employers in Illinois with 15 or more employees will be required to include pay and benefit information in all job postings both external and internal.    The following are specific provisions that must be complied with:

The U.S. Court of Appeals for the Ninth Circuit ruled in Nebraska v. Su, No. 23-15179 (9th Cir. Nov. 5, 2024) that the president lacks authority under the Federal Property and Administrative Services Act of 1949 to set a federal contractor minimum wage.  Initially, Arizona, Nebraska, Idaho, Indiana, and South Carolina brought suit in the U.S. District Court for the District of Arizona challenging enforcement of the contractor minimum wage. The district court had dismissed the suit...

Last Friday, President Elect Trump nominated Lori Chavez-DeRemer for the position of U.S. Department of Labor Secretary.  Ms. Chavez-DeRemer is a Republican from Oregon who recently lost her seat in the House of Representatives, representing a district that includes part of Portland, Oregon. She previously was mayor of Happy Valley, a Portland suburb.  She was a one-term congressperson.

 

For many in HR today, artificial intelligence (AI) is mainly utilized in the recruiting sphere.  From chat boxes, video interviews, and resume assessment to candidate resume creation, AI is becoming a staple in the recruitment area.  However, AI could upend the compensation and labor markets through pricing algorithms.  For example, in the IC market for Uber drivers, algorithms are used to determine peak pricing and control ride share costs.  Therefore, Uber driver...

The Family and Medical Leave Act (FMLA) remains essential but can present challenges for employers. While most employee requests for leave are genuine, there are instances that raise questions for HR. Even in legitimate cases, certain aspects of the leave process can create complications for HR teams. So, how can employers manage FMLA effectively without risking legal issues?
 

The U.S. Federal District Court for the Southern District of Texas issued an order halting further action in an enforcement case brought by the Office of Federal Contract Compliance Programs (OFCCP) against ABM Industry Groups LLC, a janitorial service provider in Houston, Texas. The case involves allegations that ABM favored Hispanic applicants over African American applicants in its hiring practices. The court’s ruling prevents the U.S. Department of Labor, the Acting Secretary of...

The Pregnant Worker Fairness Act (PWFA) became effective June 27, 2023.  The implementing regulations by the EEOC were promulgated on June 18, 2024.  It covers employers with 15 or more employees.  The PWFA requires a covered employer to provide a “reasonable accommodation” for a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation...

SAFE leave is becoming more prominent as domestic violence and crimes against women are more widely reported.  One in four women and one in nine men experience severe intimate partner violence in their lifetime, according to the National Coalition Against Domestic Violence. Over 47% of women have encountered sexual violence, physical violence, or stalking by an intimate partner during their lifetime as reported by Break the Cycle.  More than 16 million people in the U.S. suffer...

The Worker Protection Act 2024 comes into force on October 26, 2024, and employers in Great Britain have specific items they must do to meet requirements of the law.  Given the issues arising from the #MeToo and other movements, this law was passed with the intention to keep the workplace as a safe environment for all. 

In recent developments, a couple of court cases need to be noted by employers who do diversity activities.  The first is the Fearless Fund case.  Fearless Fund is an investment fund that sought to administer a contest that would have awarded $20,000 grants to small businesses owned by Black women.  The American Alliance for Equal Rights (the Alliance), an organization led by Edward Blum, who led the charge against the Harvard and University of North Carolina’s...

As degrees and education are being sidelined from job requirements (primarily due to job requirement inflation), employers need to determine if the applicant’s skills meet the level required to be successful for the job.  The jobs themselves likely don’t require degrees, but rather specific skill levels that the degree requirements have screened out, leading to a dearth of candidates for the specific job.  By opening the pool, employers have also increased the diversity...

In a recent case filed in the federal court in the Southern District of Texas, janitorial services company ABM Industry Groups (ABM) sued the U.S. Department of Labor, claiming the agency's administrative proceedings for enforcing anti-discrimination requirements for federal contractors are unconstitutional.  This case arises from the U.S. Supreme Court’s decision in the Jarskey case (SEC v. Jarskey, No. 22–859 (6/27/24)). 

Immigration, both legal and illegal, has been a driving force of the economy over the past few years. According to the Congressional Budget Office (CBO), less than 30%, or 2.6 million, are what the CBO counts as “lawful permanent residents,” which includes green-card holders and other immigrants who came through legal channels, such as family or employment-based visas.  The remaining are arguably the illegal, unauthorized, or undocumented immigrants (depending on who is...