NV Says Marijuana is Not Lawful Off-Duty Conduct

On August 11, 2022, the Nevada Supreme Court refused to hold that recreational marijuana use is a “lawful” activity for purposes of the state’s law providing employment protections for “lawful activities” or “lawful off-duty conduct” outside of work.

In Ceballos v. NP Palace, LLC, the court said that while recreational marijuana use is legal in NV, marijuana possession remains illegal under federal law; accordingly, the court ruled that a wrongful termination claim could not be supported on public policy grounds.

DOL Revises Pay Equity Guidance For Federal Contractors

The DOL’s contractor bias watchdog said Thursday that it won’t require companies to produce privileged communications when it reviews their internal pay audits, potentially allaying concerns that the agency was trying to overreach.

A directive initially issued earlier this year now also identifies what documentation contractors must provide about compensation analyses, as well as what’s required from a contractor whose analysis identifies a problem.

In addition, the directive has substituted the term “compensation analysis” for “pay equity audit” to refer to contractors’ obligations under 41 CFR 60-2.17(b)(3) to avoid confusion. That regulation governs contractors’ obligation to maintain affirmative action programs. This change suggests that OFCCP compliance officers should only request compliance documentation when a desk audit’s preliminary analysis reveals disparities in compensation practices.

DHS Exploring Permanent Virtual I-9 Verification

The Biden administration is looking into creating permanent programs that would allow employers to use email, video and other technologies to remotely verify their employees’ eligibility to work in the U.S., according to a proposed rule released on Wednesday.

A permanent virtual verification program, according to DHS, could spare employees the costs of traveling to a company office to reverify their eligibility to work in the U.S. It could also help businesses looking to hire remote workers who couldn’t easily travel to a certain location, DHS said.

In response to an October request for feedback on the I-9 verification process, the agency said that the “vast majority” of more than 300 commenters said they supported allowing businesses to remotely examine their workers’ I-9 forms.

The agency, however, explained that its proposed rule wouldn’t directly create the new remote verification programs. Instead, it would give DHS the legal footing to explore and adopt alternative means of verifying Forms I-9, which employers use to check employees’ identifying documents.

FL WOKE Act Stayed

I reported back on April 29th that the Florida “Stop W.O.K.E. Act,” (Stop the Wrongs to Our Kids and Employees) has employer ramifications. It became law on July 1, 2022, but I advised about a pending lawsuit could change that. Yesterday, a federal judge on blocked part of a controversial Florida law that prevents employers from promoting various sex- and race-based concepts as part of worker training sessions, saying the limitations violate the First Amendment.

4th Circuit: Dysphoria Can Be  A Disability

A divided Fourth Circuit ruled on Tuesday (in Kesha Williams v. Stacey Kincaid, case number 21-2030) that gender dysphoria can qualify as a disability under the Americans with Disabilities Act, making it the first federal appellate court to extend the law’s protections to transgender people. The Fourth Circuit majority said gender dysphoria (clinically significant distress or impairment related to a strong desire to be of another gender) is distinct from the “gender identity disorders” that Congress wrote out of the ADA when the law was passed in 1990.

The Fourth Circuit covers Maryland, Virginia, West Virginia, North Carolina and South Carolina.

Changes to MI Wage and Leave Delayed

A recent Court of Claims decision would: (1) increase the state minimum wage to $12/hour; (2) gradually eliminate the tip credit; and (3) expand Michigan’s paid sick leave requirements. However, on July 29, 2022, the Court held that its decision would not take effect until February 19, 2023. But not that the Court’s decision has been appealed to the Michigan Court of Appeals.

House passes Inflation Reduction Act

The House has passed the Inflation Reduction Act in a 220-207 vote. The legislation contains a 15% minimum corporate tax rate for companies with annual profit above $1 billion, as well as a 1% tax on share buybacks. President Joe Biden is expected to sign the legislation into law this week.

Wages Driving Inflation?

Average hourly earnings in July grew 5.2% year on year while annual wage gains have breached 5% each month this year, according to the DOL, indicating that employers are constantly vying to attract and keep talent. This trend, along with rising costs in other areas for businesses, are the primary forces driving companies to raise prices, experts say.

Monkeypox Leave Update

Last week, I mentioned allowing state emergency health leave in the same manner as COVID for monkeypox. I used CO as an example. However, CO has actually taken a different posture:

Note that other states may take a different position with respect to Monkeypox and leave.

Written by: Gordon M. Berger, Partner

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