EEOC Changing Intake Process

The EEOC announced on Thursday that it will promote greater equity and inclusion for members of the LGBTQI+ community by giving individuals the option to select a nonbinary “X” gender marker during the voluntary self-identification questions that are part of the intake process for filing a charge of discrimination.

SCOTUS Rules on Courts Right to Interpret Arbitration Jurisdiction

The U.S. Supreme Court on Thursday said that federal courts do not have authority to search an arbitration dispute for a federal question that would establish jurisdiction to confirm or deny an arbitral award.  

The U.S. Supreme Court said in an 8-1 ruling Thursday that federal courts don’t have authority to search arbitration disputes to establish jurisdiction.

In an 8-1 ruling, the Supreme Court said that the text of the Federal Arbitration Act does not entitle federal courts to “look through” the underlying dispute for such a question in order to establish its jurisdiction to hear requests to confirm or deny awards. The court reversed a Fifth Circuit order from September 2020 finding that a U.S. district court in Louisiana correctly asserted jurisdiction over a bid by a financial adviser to upend a Financial Industry Regulatory Authority arbitration upholding her firing.

DHS Seeking Comments On Revising Form I-9

DHS published Federal Register notice 87 FR 18377 on March 30 to invite public comments on its proposed extension and revisions to Form I‑9, Employment Eligibility Verification, before it expires on Oct. 31.

DHS is proposing Form I‑9 be extended and revised as follows:

Compress Sections 1 and 2 from two pages to one page to reduce paper use and storage burden on employers.

  1. Change Section 3 to a Reverification and Rehire Supplement that provides three separate areas to enter reverifications and rehires within 3 years of the date of the initial execution of an employee’s Form I‑9. Employers would only print and use the supplement as needed, further reducing paper use and storage burdens on employers.
  2. Update the List of Acceptable Documents to include a link to List C documents issued by DHS and the acceptable receipts listed in 8CFR 274a.2(b)(1)(vi)(A-C).
  3. Reduce and simplify the instructions from 15 pages to 7 pages, further reducing paper usage.
  4. Remove electronic PDF enhancements to ensure that it can be completed on all electronic devices and is not software dependent.

The Paperwork Reduction Act of 1995 requires a 60-day and a 30-day comment period for this Form I‑9 extension. This 60‑day comment period will be open until May 31st.

Indiana Limits COVID-19 Employer Vaccine Mandates

Under a new law, most Indiana employers who require employees to receive the COVID-19 vaccine must allow employees to opt out from the requirement based on any of the following: (1) medical reasons; (2) religious reasons; or (3) employee immunity from COVID-19 based on a prior infection with COVID-19.

Fewer EEOC Charges, Agency Recovery in Latest FY

EEOC processed a record-low number of discrimination charges and collected $50 million less for victims of workplace discrimination in fiscal year 2021 than in the year prior, according to information released by the agency Monday. This is the fourth year in a row that charges have declined. However, the EEOC says it recovered $485 million for charging parties, including $350.7 million in settling charges.

New NY Employment Laws

  1. Retaliation. Senate Bill S.5870 expands the definition of retaliation under the NYSHRL to include disclosing an employee’s personnel file because the employee opposed any practices forbidden under the NYSHRL, filed a complaint, or testified or assisted in any proceeding under the NYSHRL. This amendment took effect March 16.
  2. Sexual harassment hotline. Assembly Bill A.2035B amends the NYSHRL to create a toll-free confidential hotline for workplace sexual harassment complaints. The hotline will be established by the Department of Human Resources and will connect complainants to pro bono attorneys. This amendment will take effect July 14.

DOL and FMLA Retaliation

The DOL Wage and Hour Division (WHD) recently provided detailed examples on what types of situations give rise to claims for retaliation under the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). The guidance can be found here: FAB 2022-2: Protecting Workers from Retaliation (

FLSA retaliation

Example 1: Employee calls WHD about overtime. Nelson works as a cook at a restaurant and contacts WHD confidentially to inquire about overtime pay. Nelson tells another cook what he learned from WHD and his co-worker tells someone on the wait staff. Later that day their manager overhears two wait staff talking about the call and terminates Nelson’s employment. In this scenario, terminating Nelson’s employment because he contacted WHD (or was suspected of contacting WHD) would be prohibited. WHD may investigate or Nelson may file a private cause of action seeking appropriate remedies, including, but not limited to, reinstatement, lost wages, and liquidated damages.

Example 2: Employee asks for additional break time to express breast milk. Aisha is a new mother who works for a call center. She uses her lunch break to express breast milk and needs additional time to finish pumping before she is able to return calls at her work station. Her boss complains when she is late returning from lunch and tells her she cannot use any time beyond her meal break for “personal stuff.” When Aisha asks if she has a right to take another break for pumping later in the day, her boss sends her home for the rest of her shift without pay.

FMLA retaliation

Example: Worker penalized for using FMLA leave to care for child. Jaime takes approved FMLA leave to care for his seven-year-old daughter when she is in the hospital overnight and recovering from surgery. Jaime returns to work as scheduled but receives three negative attendance points for the days he used FMLA leave. Under his employer’s no fault attendance plan, employees are allocated points for every absence from work, regardless of the reason for the absence. Employees are disciplined when they accrue a set number of points, and employees who accrue more than ten points in a calendar year may be terminated. In this scenario, assigning attendance points to Jaime’s FMLA-protected leave days would be prohibited. Under the FMLA’s anti-retaliation provisions, an employer may not use the taking of FMLA leave as a negative factor in employment actions and may not count FMLA leave days under no fault attendance policies. In an investigation, WHD would require that the employer remove the attendance points from Jaime’s employment record for the days he used FMLA leave to care for his daughter.

Example: Employee returns to work and her hours are cut in half. Deborah used FMLA leave from her job as a front desk clerk at a hotel when she suffered from migraine headaches that made it impossible for her to work. She was approved for FMLA leave and used it for three days in January and one day in February. In April, she had another episode, and used FMLA leave for two days. When she returned to work her new manager reduced her schedule from 40 hours to 20 hours a week saying they need workers who will show up every day. WHD completes an investigation and requires the hotel to return Deborah to her previous schedule and pay her for an additional 20 hours a week in wages for the duration of the period she worked the reduced schedule. WHD also requires the employer to pay Deborah an amount equivalent to her lost wages in liquidated damages.

Be sure to update any policies that may run afoul of this guidance!

Payment by Payroll Card in WV Clarified

Under SB 245, which amends Sections 21-5-3 and 21-5-4 of the Wage Payment and Collection Act, effective June 9, 2022 , an employer may elect to pay employee wages via payroll cardi if notifies employees in writing of any applicable fees associated with the payroll card.

In addition, the law allows employees to make at least one withdrawal or transfer from the payroll card per pay period without cost or fee, for any amount up to the amount contained on the card, and must be able to make unlimited in-network withdrawals or transfers from the payroll card without any cost or fee, for any amount up to the amount contained on the card. And, employers must give employees the option of being paid by electronic transfer instead of the payroll card.

New WA Law Limits Nondisclosure Agreements

Effective June 8, 2022, ESHB 1795, expands the scope of claims that cannot be tied to nondisclosure agreements (including retroactively) and also eliminates an exception for settlement agreements. The new law contains:

  1. A ban on agreements to not disclose conduct, or the existence of a settlement, involving acts of alleged discrimination, harassment, retaliation, sexual assault, a wage and hour violation, or conduct that is recognized as against a clear mandate of public policy.
  2. The ban applies to employment agreements, independent contractor agreements, agreements in exchange for the release of a claim, “or any other agreement between an employer and employee” (e.g., separation agreements).
  3. Employers are prohibited from discharging or otherwise taking adverse action against an employee for disclosing or discussing any of the above types of the alleged conduct.
  4. The law does not prohibit a provision requiring nondisclosure of the amount paid in settlement.
  5. Current and former employees, prospective employees, and independent contractors are protected under the new law.

Written by: Gordon M. Berger, Partner 

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