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 ...

On May 9, President Trump issued a new Executive Order ( EO ) titled “Fighting Overcriminalization in Federal Regulations” to address criminal enforcement of regulatory offenses, particularly strict liability offenses where the offender need not have had a culpable state of mind to be convicted. On the whole, the EO discourages the criminal enforcement of regulatory offenses except “where a putative defendant is alleged to have known his conduct was unlawful.” The impact of the EO is not yet clear, but it could have wide-ranging implications. The  EO  is meant to tackle what it deems an “absurd and unjust” system in which people are not always aware that their conduct could criminally violate federal regulations due to the “drastically overregulated” system of government . According to the EO, the Code of Federal Regulations (CFR) contains over 48,000 sections and 175,000 pages, which is “far more than any citizen can possibly read, let alone fully understand.” As a resul...

  “The Times They Are a-Changin’” isn’t just a Bob Dylan song title—it is also a fairly accurate description of what has been happening in the arena of the Occupational Safety and Health Administration (OSHA) and the Occupational Safety and Health Review Commission (OSHRC) since early 2023. Quick Hits OSHRC, an independent federal agency that resolves disputes between employers and OSHA, has lacked a quorum on its three-person panel since April 2023 , leaving pending cases unresolved. The current term of the Review Commission’s only member expires on April 27, 2025. The Supreme Court’s  Loper Bright Enterprises v. Raimondo  and  SEC v. Jarkesy  decisions regarding administrative agencies’ s tatutory interpretations and adjudication processes may impact OSHA enforcement and OSHRC adjudicative procedures. The Office of the Solicitor General recently announced that it would no longer defend certain protections for administrative law judges . This position could cre...

  On November 15, 2024, a federal judge in Texas struck down the U.S. Department of Labor’s (DOL) latest attempt to raise the minimum salary thresholds for the Fair Labor Standards Act’s (FLSA) white-collar overtime exemption, finding that the rule exceeded the agency’s statutory authority. Quick Hits A federal judge in Texas struck down the DOL’s April 2024 overtime rule that sought to raise the minimum salary levels for the FLSA’s white-collar overtime exemption . The ruling comes in a challenge by the s tate of Texas and a group of more than a dozen business organizations. The DOL rule had raised the minimum salary level on July 1, 2024, to the equivalent of $43,888 per year, and it was set to increase to $58,656 per year on January 1, 2025. U.S. District Judge Sean Jordan for the Eastern District of Texas granted summary judgment in  Texas v. Department of Labor  to the state of Texas and a group of more than a dozen business organizations, striking down the DOL’s Apr...