Laws affecting employees in the workplace are rapidly evolving, and compliance with myriad regulatory updates, pending legislation, and a ‘new and active’ Supreme Court will keep employers on their toes throughout 2023, affirms Terry Bonnette and Nicholas Huguelet, partners at Detroit-based management side labor and employment law firm Nemeth Bonnette Brouwer PC, who recently highlighted some important updates for employers at the firm’s ‘Raising the Bar’ educational seminar.
SCOTUS updates
In terms of U.S. Supreme Court rulings, Bonnette said, “There is a significant and fundamental shift away from group rights to individual rights. It also appears that the way we treat religion in the workplace is changing.”
He pointed to Kennedy v. Bremerton School District where SCOTUS overturned a more than 50-year endorsement test to rule in favor of a high school football coach who offered a personal prayer on the football field after each of his games. Bonnette also noted that in another case, Groff v. DeJoy, SCOTUS will re-consider the current “more than de minimus” standard for determining whether a request for religious accommodation creates an undue burden on employers, deciding if it should be replaced by the more rigorous standard from the ADA. A decision will probably come in late summer. Even though the Supreme Court dismissed it without issuing an opinion, the issues raised In re Grand Jury regarding protection of attorney-client privileged communications containing both legal and non-legal advice, Bonnette cautioned employers to weigh their wording in email communications carefully.
EEOC regulatory and legislative news
The past year also marked many Equal Employment Opportunity (EEO) regulatory and legislative guidance and updates; some decisive ones included:
• Artificial Intelligence Bill of Rights – The EEOC issued updated guidance on the Americans with Disabilities Act (ADA) and the use of AI to assess job applicants and employees, clarifying that employers who use algorithmic technology to evaluate applicants may be liable if the technology unfairly screens out or poorly rates candidates—and employers also should ensure that such a tool is accessible to people with disabilities before using that tool.
• “Maskual Harassment”: The end of mask mandates has not ended the culture wars that surround masks. Employers should revisit and revise workplace civility policies to address tensions that may impact employees in protected-classes, such as persons unvaccinated for a religious reason, or due to an underlying disability, or with relative with an underlying disability.
• The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act Signed into law on March 3, 2022, by President Biden, this Act amends the Federal Arbitration Act (FAA), rendering pre-dispute arbitration agreements and pre-dispute joint action waivers unenforceable with respect to claims involving sexual harassment or sexual assault arising after March 3, 2022.
• Pregnant Workers Fairness Act (PWFA) and the FLSA’s PUMP for Nursing Mothers Act are new laws that go into effect on June 27, 2023, providing protection for lactating mothers in the workplace and “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions
• Pay Data Collection: After halting collections in 2019 — and continuing the pause due to the COVID-19 pandemic — pay equity remains an enforcement priority for the EEOC, leading to the possibility of reinstatement of the obligation that covered employers report pay data as part of their EEO-1 filings.
Disability and leave Considerations – in Michigan
• 2018 Paid Medical Leave Act: In Michigan, the voter-initiated PMLA was amended by the State Legislature, rolling back many of the employer requirements for paid time off. After much litigation, the Michigan Court of Appeals ruled on January 26, 2023, that the legislative amendments were constitutional, but further appeal is expected. Stay tuned.
• Milligan v. Greektown Casino: A casino employee brought ADA, FMLA, Pregnancy Discrimination Act, Title VII, and ELCRA claims against FMLA Source — her employer’s third-party claims administrator for employee leave requests. The court granted a motion to dismiss because allegations failed to show that FMLA Source was the employer. Bonnette observed that vendors sometimes do get it wrong; employers should take corrective action when that happens.
• Frederick v. Allor Mfg, Inc., 2022: An employee who was terminated for absenteeism alleged that his former employer discriminated against him by refusing to allow him to use three weeks of vacation time to “self-quarantine” at home due to COVID-19 concerns. In January 2022, the court granted Allor's Motion for Summary Judgment, but Bonnette noted there are still ongoing questions among courts as to what is considered “adequate notice” of the need to take leave.
Labor union updates
Not all employers have unions, so why should those companies care? Huguelet pointed out that many of the protections offered by the National Labor Relations Act apply to covered employees whether unionized or not, and also noted a recent uptick in union activity.
“Union activity is increasing rapidly, and representation petitions filed with the National Labor Relations Board (NLRB) increased over 57% during the last six months of 2022,” Huguelet said.
He attributed that spike to college-educated individuals choosing to work in the service industry, and Gen Z workers being more activist than prior generations—validating a 27.5% jump in election petitions in 2022 in the hospitality and food service industries.
Amid this increased activity, a NLRB General Counsel issued a Memo regarding Captive Audience and Mandatory Meetings (GC Memo 22-04) raising the protected status of captive audience meetings, in which employers hold meetings to offer their viewpoint on union representation. A key point in the memo was a plan to urge the NLRB to adopt a rule prohibiting employers from discharging or disciplining employees who assert their right to refrain from listening in on these captive audience meetings by either failing to attend or leaving the meeting early.
What’s happening in Michigan
• Two Senate Bills on the Right to Work: SB 5 and SB 34 have been introduced in the Senate, repealing Michigan’s Right to Work law. If passed, they would again make the payment of union dues/service fees mandatory if required by a collective bargaining agreement. Currently, the Bills have been referred to the Senate Labor Committee.
• Employee Fair Scheduling Act: HB 4035 would apply to non-exempt employees in retail, hospitality and food service industries and would require, among other expectations, that employers provide new employees with a written good-faith estimate of the work schedule. It is currently sitting in committee.
• Amendments to ELCRA: HB 4003 and SB 4 would amend the Elliott-Larsen Civil Rights Act to specifically include “sexual orientation, gender identity or expression” within the list of protected classifications.
HB 4003 has been introduced and referred to the House Judiciary Committee, while SB4 was passed by the Senate on March 1, 2023.
“We are really just scratching the surface,” Bonnette said, “and employers should also be on the lookout for potential updates in matters involving arbitration, non-competes, wages, cannabis, and COVID-19 in 2023. It will not be boring.”
