The United States Department of Labor (DOL) Wage and Hour Division recently issued Field Assistance Bulletin No. 2023-02 (FAB) to provide guidance to Wage and Hour Division (WHD) field staff regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and its enforcement, including new posting requirements for employers covered by the Fair Labor Standards Act (FLSA). The PUMP Act requires FLSA-covered employers, with limited exception, to provide all nursing employees, exempt or non-exempt, with reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk… Read more
Sackett v. EPA On May 25, 2023, the U.S. Supreme Court issued a decision in Sackett v. EPA, a closely watched case regarding the jurisdictional reach of the federal Clean Water Act (CWA). Specifically, the Supreme Court addressed the test to be utilized for determining whether wetlands are “waters of the United States” within the scope of the CWA. In Sackett, the plaintiffs Michael and Chantell Sackett were backfilling their property with dirt and rocks in preparation for building a house when they received a compliance order from U.S. EPA informing them that their backfilling violated the CWA because their… Read more
In its “Warhol/Prince” opinion issued on May 18, the U.S. Supreme Court has clarified that copyright protection, at least for pictorial, graphic, and sculptural works (specifically photographs), includes the exclusive right of the copyright owner to prepare and to authorize the preparation of derivative works that transform the owner’s original copyrighted work. The Court has further clarified that the first of four statutory factors that determine whether an accused work is protected “fair use” focuses on whether the specific use of the accused work has a further purpose or a different character, which is a matter of degree, that is sufficiently… Read more
Employers in Illinois and Chicago will soon be subject to the following new employment laws: In addition to the July 1, 2022 requirement for a written policy on sexual harassment and a poster advising employees of the prohibition on sexual harassment, on or before July 1, 2023, Chicago employers must complete the following new Sexual Harassment and Prevention Training sessions for Chicago employees who work remotely or in-person within the City of Chicago: Non-managerial employees must participate in a minimum of one hour of sexual harassment prevention training annually; All employees must participate in one hour of bystander training annually,… Read more
The National Labor Relations Board (“NLRB”) recently issued a broad cease-and-desist order against an employer that allegedly engaged in unfair labor practices and also ordered it to reimburse the Union for its bargaining expenses since November 2019 “through the date in the future when good faith negotiations begin” and to read the remedial notice to its employees. Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023). The NLRB also used the decision to expand the remedies available for allegedly unlawful bargaining behavior. Noah’s Ark Processors, LLC (“Noah’s Ark”) and UFCW, Local No. 293 (“UFCW”) engaged in negotiations… Read more
On May 1, 2023, the National Labor Relations Board (“NLRB”) issued its decision in Lion Elastomers LLC II, 372 NLRB No. 83 reversing its 2020 ruling in General Motors LLC, 369 NLRB No. 127, and creating an inconsistent analysis of employer discipline when an employee commits misconduct while engaged in protected concerted activity. In General Motors, the NLRB held that a single consistent standard should apply to all situations involving abusive workplace conduct when the employee is engaged in activity under Section 7 of the National Labor Relations Act (“NLRA”). In General Motors, the NLRB adopted the Wright Line test… Read more
Beginning April 1, 2023, Measure ULA, a citizen-sponsored ballot initiative which was approved by voters in the City of Los Angeles, adds a new tax on the sale or transfer of real property valued at over $5 million. This Measure amends the City’s law to add a new tax to property sales to fund affordable housing and tenant assistance programs and is a permanent tax until repealed by voters. While the City collects an existing 0.45% documentary transfer tax (DTT) on property sales and transfers, the new ordinance imposes an additional tax (the ULA Tax) as follows (and adjusted annually… Read more
On March 24, 2023, Michigan became the first state in decades to repeal its “Right-to-Work” law. Two days after Governor Whitmer signed the legislation into law, the Teamsters celebrated the repeal with the Governor. Michigan was one of 27 states with right-to-work laws that do not require private-sector employees covered by a collective bargaining agreement to pay dues or fees to a union. The following state currently have right-to-work laws: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin,… Read more
As outlined in the February 22, 2023 SGR Client Alert, the National Labor Relations Board (“NLRB”) ruled in McLaren Macomb that severance agreements may not contain general non-disparagement or confidentiality/non-disclosures provision because they interfered with, restrained or coerced employees’ exercise of their Section 7 rights under the National Labor Relations Act (“Act”). On March 22, 2023, Jennifer A. Abruzzo, the NLRB General Counsel, issued Memorandum GC 23-05 (“Guidance”) to provide guidance regarding the February 21, 2023 McLaren Macomb decision. In the McLaren Macomb decision, the NLRB ruled that the severance agreement at issue contained overly broad non-disparagement and confidentiality clauses… Read more
Group health plans are now required to submit an annual attestation confirming that the agreements the plan enters into with its service providers do not contain “gag clauses,” which are limitations regarding the plan’s ability to access de-identified claims data or disclose provider-specific information to third parties, including plan participants. The first attestation is due by December 31, 2023, and will cover the period of December 27, 2020 through December 31, 2023. The attestation must be submitted through a CMS portal. An attestation will be due by the 31st of December each following year. Self-funded plans can contract with their… Read more
