Compliance Stuff

As state-level privacy laws continue to expand in the absence of federal legislation, businesses must prepare to meet a growing patchwork of requirements or risk penalties and reputational harm. In 2025, eight additional states' comprehensive privacy laws will come into effect, further increasing the complexity of compliance. By the end of next year, approximately 150 million Americans—43% of the U.S. population—will be covered by comprehensive state-level privacy regulations. Most of the activity next year will take place in January, when five states (Iowa, Delaware, Nebraska, New Hampshire, and New Jersey) have privacy laws going into effect, with three more following later in the year. Why This Matters Navigating this evolving landscape of state privacy laws is critical for most companies doing business within the United States. Non-compliance could lead to regulatory penalties, legal liabilities, and loss of consumer trust. The good news is that if your business is already in ...

  Question:  We have an employee who is undergoing fertility treatments out of town and misses days sporadically. Do these absences fall under the Family and Medical Leave Act (FMLA)? Answer:  Great question; complicated answer. The answer is complicated b ecause a question about FMLA leave is always the start of a longer conversation about whether other federal, state, and local requirements are triggered. For example, even if the employee’s fertility treatments do not qualify for FMLA leave, the employee may be entitled to unpaid leave as a reasonable accommodation or paid leave under state and/or local sick pay laws . Additionally, any adverse treatment against an employee undergoing fertility treatments could lead to a pregnancy discrimination claim. The answer is also complicated because FMLA leave always depends on the facts . Further, only a couple federal district courts have addressed this issue, and those district courts came to different conclusions. But let’s...

  Real World Impact :   A recent New Jersey Superior Court decision interpreting the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) may require New Jersey employers to defend an employee’s employment-related claims before both a judge and arbitrator. Background New Jersey Bergen County Superior Court Judge John O’Dwyer recently ruled in  Paton v. Davis Saperstein  that some employee claims against an employer must be arbitrated, but other claims relating to sexual harassment had to be litigated. As explained below, the court’s decision on how to apply the federal EFAA is contrary to court decisions in other states. In 2022, in response to the #MeToo movement, President Biden signed the EFAA, which amends the Federal Arbitration Act (FAA) to prohibit mandatory arbitration of sexual harassment and assault claims. Specifically, the law renders a pre-dispute arbitration agreement or joint action waiver unenforceable in a case that ...

  Back to Basics is a weekly feature that highlights important but possibly overlooked information that any EHS professional should know. This week, we examine   how to prepare for the upcoming winter respiratory disease season. Now that fall has arrived, are you ready for this year’s winter respiratory disease season? The Centers for Disease Control and Prevention (CDC) predicts that COVID-19, influenza, and respiratory syncytial virus (RSV) infections will lead to a similar or lower number of combined peak hospitalizations this winter than the 2023-2024 season. The CDC’s predictions are based on expert opinion, historical data, and scenario modeling conducted by its Center for Forecasting and Outbreak Analytics for COVID-19, influenza, and RSV. However, there’s inherent uncertainty in any long-range scenario. Factors that could drive higher rates of serious illness and hospitalizations include the following: A new COVID-19 variant with an increased ability to evade the body’...

The U.S. Supreme Court has agreed to review the pleading standards that plaintiffs must satisfy in Employee Retirement Income Security Act (ERISA) prohibited transactions cases. The case,   Cunningham v. Cornell University , involves a challenge of Cornell’s allegedly excessive recordkeeping fees in its retirement plans. We’ve gathered articles on the news from SHRM and other outlets. Split Among Appellate Courts At least two federal appeals courts have ruled that plaintiffs alleging prohibited transactions under ERISA only have to allege that such a transaction took place to survive a defendant’s motion to dismiss. But the 2nd Circuit and three other appeals courts have said those lawsuits must also allege that a plan engaged in a prohibited transaction with the intent to benefit a third party, such as a recordkeeper. The Cornell plaintiffs told the Supreme Court that the 2nd Circuit had gone further and misconstrued ERISA “by placing the onus on plaintiffs to negate, rathe...

On October 18, 2024, the Federal Trade Commission (“FTC”) gave notice that it would appeal a Texas federal court’s decision halting its non-compete rule (the “Rule”) from taking effect as to all employers nationwide. The appeal sets the stage for a decision by the conservative Fifth Circuit, which has become a key battleground for challenges to federal rules.  In August, in  Ryan LLC v. Federal Trade Commission , No. 3:24-cv-00986-E (N.D.Tex.), the United States District Court for the Northern District of Texas  enjoined enforcement  of the Rule nationwide, preventing it from taking effect as intended on September 4, 2024. T he court found that the FTC lacked authority to issue the Rule under the FTC Act, and that the near-complete ban on noncompetes imposed by the Rule was arbitrary and capricious.  On similar grounds, the Florida federal court in  Properties of the Villages Inc. v. Federal Trade Commission,  No. 5:24-cv-00316 (M.D.Fla), issued ...

  The California Civil Rights Council has been working on proposed regulation revisions to include automated decision-making in the requirements under the Fair Employment and Housing Act. The Council met on October 17, 2024, for public comment on  the most recent version of the regulations  and voted to extend the comment period to 30 days, though typically the period is only 15 days. Here are some of the highlights of the proposed regulations:  Definitions An automated decision system (ADS) is defined as a “computational process that screens, evaluates, categorizes, recommends, or otherwise makes a decision or facilitates human decision-making that impacts applicants or employees.” the definition excludes word processing software, spreadsheet software, and map navigation systems. Adverse impact (or disparate impact) includes the use of a facially neutral practice that may create a substantial disparity in the rate of selection in hiring, promotion, or other employme...

Despite some recent positive signs for the U.S. economy, many companies still face the prospect of reductions in force (RIFs), which can be challenging and involve complex processes that require careful planning and compliance with a myriad of laws and regulations. Quick Hits Documenting both the business reasons for a RIF and the objective criteria used to select employees for termination is crucial to mitigating the ris k of discrimination claims and other legal challenges. Employers may want to note the various federal and state legal requirements, such as the WARN Act and any applicable mini-WARN acts when planning and executing a RIF. According to recent figures released by the U.S. Bureau of Labor Statistics, the U.S. economy added 254,000 jobs in September 2024 as the unemployment rate dropped to 4.1 percent from 4.2 percent. Also, in September, the Federal Reserve cut its interest rate for the first time in more than four years in an effort to keep the U.S. job market strong wh...

  With the election drawing near, questions about voting leave laws are becoming more frequent. Employers must understand a patchwork of state laws that regulate voting leave, political speech in the workplace, and related issues . As election season approaches, we are considering some of the intricacies of voting leave laws throughout the United States. Quick Hits As Election Day—Tuesday, November 5, 2024—draws near, employers are considering their leave obligations. Various state, local, and municipal election-related laws have implications for multistate employers’ compliance plans. Notice posting and political speech laws also have implications for employers’ compliance plans. Leave Obligations There are three key issues employers may need to address when considering voting and election leave— posting notices, types of leave, and requests for leave . Posted Notices Some states require employers to post notices informing employees about their voting leave rights. California and ...