Compliance Stuff

The Supreme Court of the United States recently denied certiorari in  Bivens v. Zep, Inc. , leaving in place a stark circuit split on the standard for employer liability when customers or other third parties harass employees. 00:00 24:53 Quick Hits The Supreme Court left intact the Sixth Circuit’s intent-based standard for employer liability for third-party harassment. The Sixth Circuit’s ruling diverges sharply from the EEOC’s position, as well as that of almost all other circuits to address the issue. Employers in Kentucky, Michigan, Ohio, and Tennessee continue to benefit from the higher bar for employer liability set by the Sixth Circuit, while employers in most other jurisdictions remain subject to a more employee-friendly standard. Background In  Bivens v. Zep Inc . , the Sixth Circuit held that an employer can be liable for customer harassment only if it intended for the harassment to occur or was willfully indifferent to it. In its decision, the Sixth Circuit rejected ...

In a significant broadening of vicarious liability for employers, the American Law Institute (ALI) recently approved a “Special Rule on Vicarious Liability for Sexual Assault” as part of the Third Restatement of Torts: Miscellaneous Provisions. This marks a notable deviation from the traditional imposition of vicarious liability on employers by imposing liability “even when the employee was not acting with a motive to serve the employer’s interest.” However, ALI has drafted this special rule with “significant guardrails” meant to temper the burden placed on employers. Quick Hits Recent case law has indicated a gradual shift toward holding employers liable for employees’ sexual misconduct. To expand this liability for employers while acknowledging the risk of creating too much liability, the rule only applies to sexual assault that meets specific criteria, including only applying in circumstances where the victim is “particularly vulnerable.” This rule only applies to employer-employee ...

In 2025, California is continuing to spearhead efforts to expand employees’ rights. Assembly Bill 2499 (AB 2499), Assembly Bill 2123 (AB 2123), and Senate Bill 1090 (SB 1090) are prime examples of these efforts, providing employees with new and expanded benefits when going on leave. Whether they are caring for an ill family member or were a victim of an act of violence, employees in California are now entitled to more inclusive leave benefits as a result of these new laws. AB 2499 Enacted on September 29, 2024, AB 2499 was created to broaden the protections afforded to victims of violence. Before AB 2499, employees were only afforded protection from discrimination or retaliation for taking time off as a victim of crime or abuse. AB 2499 expands these protections, providing employees the additional benefit of taking time off to assist a family member in obtaining relief or caring for a family member who was a victim of certain qualifying acts. The type of time off is not limited strict...

The exclusivity provision of the  North Carolina Workers’ Compensation Act (the “Act” ) normally prevents an employee from suing his employer in civil court for work injuries.  The employee is normally relegated to filing a workers’ compensation claim with the  North Carolina Industrial Commission .  However, the North Carolina Supreme Court has allowed an exception to the Act’s exclusivity provision in certain circumstances.   Woodson v. Rowland , 329 N.C. 330, 407 S.E.2d 222 (1991).   That narrow exception allows an employee to sue his employer in civil court if “an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct . . .”    Woodson , 329 N.C. at 340-41, 407 S.E.2d at 228.  This exception has historically been strictly interpreted and very few, if any cases have ever met the  Woodson  standar...

  States and cities are as busy as ever passing new workplace regulations throughout the calendar year. Here is our mid-year report summarizing the notable labor and employment laws that take effect from roughly July through October.  Virginia Bill / Ordinance / Regulation Main Topic Summary Effective Date Virginia HB 14   Unemployment Provides that an employer waives all rights in connection to unemployment claims where the employer failed to respond in a timely manner. 7/1/2025 Virginia HB 1730 ;  Virginia SB 894 Employer Liability Provides for employer liability for criminal sexual assault by an employee or agent under certain circumstances. 7/1/2025 Virginia HB 2269 ;  Virginia SB 1260 Healthcare Requires hospitals to establish a workplace violence reporting system, including reporting, record retention, and antidiscrimination requirements. 7/1/2025 Virginia SB 1218   Noncompete Agreements Amends the definition of “low wage employee” in the statute proh...