Employers Beware: Obligations Under PWFA Final Regulations Exceed Concept of “Reasonable Accommodation” Under ADA

By Alan E. Senezcko, Esq.

On December 29, 2022, President Biden signed the Pregnant Worker Fairness Act into law with relatively little fanfare. It became effective on June 27, 2023 and requires covered employers to provide reasonable accommodations to a qualified employee’s known limitations related to, affected by or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation would impose an undue hardship on the operation of the employer’s business. Sounds familiar, right? Just include pregnancy and related medical conditions in your existing practice of accommodating disabilities under the ADA. One would think . . . but not under the new regulations.

On April 15, 2024 the EEOC issued its Final Rule implementing the PWFA. The regulations, which take effect on June 18, 2024, contain a number of requirements that will leave employers accustomed to accommodating employees with disabilities dumbfounded. Under the new regulations, accommodations that must be provided to employees with limitations due to pregnancy, childbirth or related medical conditions exceed what is currently required for employees with limitations due cancer, diabetes, back problems and other physical or mental impairments. Among them:

EEOC Issues Controversial Final Enforcement Guidance On Workplace Harassment

By James B. Sherman, Esq.

On Monday this week the EEOC raised eyebrows when it published its long-awaited final take on harassment law. The guidance is aimed at educating employers and employees alike, but will no doubt be used by plaintiff and defense lawyers in court. Consequently, employers, HR professionals, and consultants are well advised to become aware of what the EEOC has to say about workplace harassment. Our take is that the guidelines aim to greatly expand the scope and number of harassment claims. Here are just some of the positions enunciated in the new guidance:

Details on unlawful harassment in the remote work environment.
Defining unlawful harassment to include failure to use a person’s preferred pronoun, if done intentionally and repeated.
Defining unlawful sex-based harassment to include denying access to a bathroom consistent with an individual’s gender identity.
Non-consensual distribution of real or computer-generated intimate images (such as through social media, messaging applications, or other electronic means) can contribute to a hostile work environment.
Expectations for effective anti-harassment policies and training.

Questions? Contact Jim by email or at (952)746-1700

Employer’s Job Description Not Detailed Enough For Quick Win In ADA Failure To Accommodate Case

By James B. Sherman, Esq.

Job descriptions with lifting, standing, mobility, and/or other essential requirements are ubiquitous across all industries. EEOC interpretive regulations and numerous court decisions give deference to the judgement of employers as to what are the “essential functions” of the jobs they provide. Written job descriptions are presumed to accurately reflect essential functions. Why is this important? Because under the Americans with Disabilities Act, essential job functions need not be eliminated to reasonably accommodate a disabled individual. With this in mind you might think an employee or applicant who cannot stand for prolonged periods, or regularly lift up to 50 pounds, could readily be excluded from a job with these essential functions. A recent federal court decision suggests – think again.

Although written job descriptions enjoy a presumption of accuracy in court, the presumption may be rebutted with contrary evidence. If a plaintiff can poke holes in a job description by showing it does not reflect what the job actually entails, as the saying goes it may not be worth the paper it is written on. More and more savvy plaintiff lawyers are refusing to accept job descriptions at face value.

Questions? Contact Jim by email or at (952)746-1700

Employers Must Prepare for New Overtime Regulations Scheduled to Take Effect July 1, 2024

On April 23, 2024, the U.S. Department of Labor issued its final rule raising the salary thresholds that must be met in order to classify employees as “exempt” from overtime pay requirements under the Fair Labor Standards Act (FLSA). This final rule is set to take effect on July 1, 2024.

Executive, Administrative and Professional Exemptions: Under current regulations, to be considered exempt (i.e., not entitled to overtime pay) as an executive, administrative, or professional employee, the employer must pay the employee a salary of at least a $684/week ($35,568/year).

Under the new rule, the salary threshold increases as follows:

$844/week ($43,888/year) on July 1, 2024;
$1,128/ ($58,656/year) on January 1, 2025; and
Additional increases every three years, beginning on July 1, 2027.

Highly Compensated Employee Exemption: The current salary threshold for the Highly Compensated Employee exemption is $107,432 annually (including at least $684 per week paid on a salary or fee basis).

Under the new rule, the salary threshold increases as follows:

Questions? Contact Joe by email or at (563)333-9102

Federal Trade Commission (“FTC”) Publishes Its Final Rule, Barring Most Noncompete Agreements

By Joseph H. Laverty Esq.

On April 23^rd the FTC issued a final rule which for all practical purposes would ban noncompete agreements nationwide. Under the new rule, existing noncompete agreements for senior executives can remain in force, but employers are not allowed to enter into or enforce new noncompete agreements with senior executives. The final rule defines senior executives as employees earning more than $151,164 annually and who are in “policy-making positions”. Under the new rule, employers will have to provide notice to workers other than senior executives who are bound to an existing noncompete that the agreement will not be enforced against him/her in the future. The FTC actually went as far as to provide “model language” in its final rule that employers can use to communicate to its employees.

The final rule will become effective 120 days after publication in the Federal Register; however, there is a high likelihood that the final rule will be delayed because of legal challenges.

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