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2022 Recap and 2023 Forecast for Federal Employment Law
By Lauren Daming, Lauren Harris on January 5, 2023 at 12:00 PM

We are finally moving past the plethora of pandemic-era employment laws that riddled this blog over the past two years. However, not all will be quiet in 2023, as the breadth of pending U.S. Supreme Court cases and issues agencies are reviewing is wide and has the potential to disrupt several industries. This recap and forecast highlights a few of those topics.

Federal Spotlight on Artificial Intelligence in Employment Decision-Making

In May 2022, the EEOC issued guidance advising employers to ensure that any artificial intelligence-empowered hiring tools do not negatively impact applicants with disabilities. The DOJ issued companion guidance on the same day directed toward state and local employers. The guidance clarified that employers must provide reasonable accommodations to applicants who may be affected by automated decision-making tools due to their disabilities. The discussion clearly signaled that employers are responsible for vetting potential bias in AI-based hiring tools — even if a vendor provides the software. The EEOC appears to be taking a hard line on AI when it comes to disability discrimination, signaling that companies could be liable for the conduct of their vendors.

The National Labor Relations Board General Counsel published a memo in October 2022 addressing workplace surveillance, “algorithmic-management tools,” and other technologies that could interfere with workers’ ability to exercise their rights to engage in protected, concerted activity. The memo warned that such technologies could unlawfully measure or base decisions upon activity protected by the National Labor Relations Act. It proposed a balancing test that would pit an employer’s business interest in using the technology against employee rights.

Employers can look to these sources when considering how to incorporate AI into employee decision-making. While existing federal law is not specifically targeted at AI use in the employment context, the agencies responsible for enforcing employment statutes are positioning themselves to occupy this space. After all, they are not regulating the technology itself but only the effect the technology may have on workers.

Federal Spotlight on Pregnant and Breastfeeding Workers

In the final weeks of 2022, Congress passed the Pregnant Workers Fairness Act (PWFA) as an amendment to the government funding bill, which President Joe Biden signed on December 31, 2022. The PWFA goes into effect in June 2023 and requires employers with 15 or more employees to provide reasonable accommodations to job applicants and employees with conditions related to pregnancy or childbirth. The PWFA also prohibits discrimination because of the need for a pregnancy-related accommodation. Given that over half of the states have already enacted some type of pregnancy accommodation law, this federal law should not surprise many employers.

The EEOC will enforce the PWFA and provide guidance in the next two years to give examples of reasonable accommodations. Reasonable accommodations may include a light-duty assignment that does not involve heavy lifting, allowing more frequent rest or bathroom breaks, ergonomic accommodations, etc. The PWFA mirrors the protections provided for employees under the Americans with Disabilities Act of 1990 (ADA), but on a temporary basis. Like the ADA, the PWFA does not require modification of the essential functions of the job.

In the coming months, employers should plan to revise accommodation policies and incorporate pregnancy accommodations into the interactive process. Stay tuned for more guidance and information on the PWFA.

Similarly, President Biden signed the Pump Act, also known as the Providing Urgent Maternal Protections for Nursing Mothers Act, which expands protections for breastfeeding parents previously provided by the Affordable Care Act of 2010 and employer obligations under the Fair Labor Standards Act. Employers are already required to provide reasonable time to express breast milk and provide a place for pumping, other than the bathroom, which is shielded from view and private. The main updates under the PUMP Act include:

  1. protections for employees who were not previously covered, particularly salaried employees;
  2. time spent expressing breast milk must be considered hours worked if the employee is also working; and
  3. the period of accommodations is extended from one year to two years.

The PUMP Act also provides that before filing a complaint against an employer, the employee must notify the employer of non-compliance and permit correction. Employers with questions about how to accommodate nursing employees should contact counsel for more detailed information. These changes took effect December 29, 2022.

Supreme Court Roundup

Helix Energy Solutions Group v. Hewitt

In this case, the justices are considering whether “highly compensated, executive” employees paid on a daily or shift basis (rather than a salary) should nevertheless be considered exempt from the Fair Labor Standards Act (FLSA) overtime provisions. The case focuses on workers who earn more than the FLSA’s highly compensated employee salary threshold but who do not receive a “salary” such as the plaintiff, an oil rig worker who earns over $200,000 per year. A central issue is what constitutes a salary and whether this concept is consistent with the statutory and the regulatory language of the FLSA. The decision could significantly affect industries that rely on highly compensated hourly workers, such as the health care field.

Glacier Northwest v. Int'l Brotherhood of Teamsters

This case concerns whether the National Labor Relations Act preempts state tort law in a claim involving a union’s alleged destruction of company property during a labor dispute. In the case, unionized cement truck drivers halted work after their trucks had been loaded with prepared cement. The work stoppage meant the cement could not be used and was therefore wasted. The court will decide whether in those circumstances the economic loss of the concrete is incidental to the strike and therefore protected by the NLRA, leaving the company without recourse to recover from the union.

303 Creative LLC v. Elenis

As a follow-up to 2018’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (aka the gay wedding cake case), the justices again consider how individual religious beliefs interact with state non-discrimination statutes. This time, the question is whether the Colorado Anti-Discrimination Act, which prohibits companies open to the public from discriminating on the basis of sexual orientation or announcing an intent to do so, violates the First Amendment. The plaintiff is a website designer and devout Christian opposed to same-sex marriage. While she wants to design wedding websites, she wants to post a message on her company website that she will not do so for gay couples. She argues that the Colorado statute violates her free-speech rights because it would require her to express messages that are inconsistent with her religious beliefs and prohibit her from describing her beliefs on her website. The last time the justices considered this issue, they issued a relatively narrow opinion that had less far-reaching consequences than it could have. But the court’s makeup has considerably changed since then, and the opinion in 303 Creative is likely to be broader and more impactful on the interplay of religious liberty and civil rights.  

Coinbase v. Bielski

In Coinbase, the court will decide whether litigation should be paused while one party appeals a decision denying a motion to compel arbitration. The court’s decision will resolve a circuit split and significantly affect litigation strategy for employers and employees who are parties to arbitration agreements.

If you have questions or would like to discuss any of the issues outlined here, please contact an attorney in Greensfelder’s Employment & Labor Practice Group.

Read our recap and forecast of Missouri and Illinois state employment law changes here.

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