Conflicting NLRB Stances Create Employer Compliance Plight

July 28, 2023

By Alice B. Stock

The following article by Bond attorney Alice Stock was published by Law360

Can an employer give employees a wage increase or benefits improvement during a union organizing campaign or while negotiating a first collective bargaining agreement after a union has won an election? At present, in most situations, it will be unlawful for an employer to do so.

Read More >> Conflicting NLRB Stances Create Employer Compliance Plight

A Case Worthy of Ushering in the Dog Days of Summer

July 6, 2023

By Howard M. Miller

As an avid, albeit misguided, reader of breaking news alerts, I am increasingly feeling like the narrator in the old Tom Petty song, “Jammin Me.” If you are like me and are feeling truly exhausted from the daily bombardment of bad news on all fronts, any distraction can be of welcome relief, particularly when that distraction involves “man’s best friend” – dogs.

Now, before we go any further, a couple of disclaimers are in order: I have had dogs as pets my whole life, I view dogs as family members, I enjoy quoting one of my daughter’s theology professors who is keen to point out what the word dog spelled backwards reveals, and I will almost invariably take the side of a dog in a litigated controversy.

This brings us to the June 23, 2023 decision in the case of Meyer v. City of Chehalis, Case No. 3:22 -cv-05008 (W.D. Washington). In Meyers, a firefighter brought a lawsuit under the Americans with Disabilities Act (ADA) and the Washington Law Against Discrimination alleging that he was denied a reasonable accommodation in the form of a service dog to help him with his post-traumatic stress disorder.

Read More >> A Case Worthy of Ushering in the Dog Days of Summer

Race in Admissions after Students for Fair Admissions, Inc. v. Harvard

June 30, 2023

By Laura H. Harshbarger and Philip J. Zaccheo

On June 29, 2023, the U.S. Supreme Court issued its long-awaited decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.[1] The Court considered the admissions practices of Harvard College and University of North Carolina (UNC) and found that neither could withstand the “strict scrutiny” demanded for race-based admissions decisions. Although nominally about these two particular admissions programs, the Court’s rationale for its ruling leaves virtually no possibility that race-based admissions practices will withstand judicial challenge.

Read More >> Race in Admissions after Students for Fair Admissions, Inc. v. Harvard

Supreme Court Increases Burden on Employers Seeking to Deny a Religious Accommodation Based upon Undue Hardship

June 30, 2023

By Adam P. Mastroleo and Kali R. Schreiner

For the past 46 years, employers across the United States have understood that, under Title VII of the Civil Rights Act of 1964 (Title VII), they were permitted to deny an employee’s religious accommodation request based upon “undue hardship” so long as the burden of granting the accommodation would result in “more than a de minimis cost.” Employers based this understanding on the 1977 Supreme Court decision in Trans World Airlines, Inc. v. Hardison,[1] where the Court first stated that requiring an employer to “bear more than a de minimis cost” in granting a religious accommodation would constitute “an undue hardship.”[2] This standard has been consistently upheld by courts throughout the country since Hardison was first decided.

Read More >> Supreme Court Increases Burden on Employers Seeking to Deny a Religious Accommodation Based upon Undue Hardship

BREAKING: U.S. Supreme Court Rules on Affirmative Action in Admissions 

June 29, 2023

By Laura H. Harshbarger

BREAKING: U.S. Supreme Court ruled that Harvard’s and UNC’s admissions programs, which factor an applicant’s race into account during the admissions process, are unconstitutional based on Equal Pro-tection Clause/Fourteenth Amendment grounds. A link to the decision can be found here. The decision will have resounding impacts on institutions’ admissions processes. Our higher education attorneys are studying the decision and its implications, and we will be providing commentary and guidance soon. 

Read More >> BREAKING: U.S. Supreme Court Rules on Affirmative Action in Admissions 

Final New York WARN Regulations Issued

June 23, 2023

By Colin M. Leonard

The New York State Department of Labor issued final regulations making certain changes and additions to long-existing regulations regarding the New York WARN Act. As we reported previously, the revisions update the regulations to conform to certain statutory changes as well as provide clarification to other areas of the NY WARN law. The final regulations became effective June 21, 2023 and are identical to the proposed regulations issued by the Department of Labor on March 29, 2023.

Read More >> Final New York WARN Regulations Issued

The New York State Law Enforcement Misconduct Investigative Office: What Law Enforcement Agencies Need to Know

June 22, 2023

By Kristen E. Smith

In June 2020, the New York Legislature enacted Article 5, Section 75 of the New York Executive Laws, which established the Law Enforcement Misconduct Investigative Office (LEMIO). In response to the nationwide protests following the killing of George Floyd, LEMIO was created to prevent and remedy misconduct committed by officers of New York law enforcement agencies, adding a layer of accountability outside the agencies themselves. The office’s mission is to identify and investigate officer misconduct and assist agencies in improving their policies and practices. It is important to note that LEMIO is meant to supplement, not replace, existing accountability procedures where they are lacking. These changes are intended to increase transparency and accountability surrounding officer misconduct, thereby increasing public safety and trust in law enforcement as a whole.

Read More >> The New York State Law Enforcement Misconduct Investigative Office: What Law Enforcement Agencies Need to Know

Is The End Near? COVID Paid Leave Developments

June 21, 2023

By Erin S. Torcello and Stephanie H. Fedorka

Since the announcement of the end of the federal Public Health Emergency, many clients have inquired as to the status of New York’s COVID-19 Paid Leave Law. 

As a quick recap, on March 18, 2020, in the infancy of the COVID-19 pandemic, then-Governor Cuomo signed a bill that guaranteed certain paid and unpaid leave benefits for New Yorkers subject to a mandatory or precautionary order of quarantine or isolation as a result of COVID-19 (COVID Paid Leave). While the law has remained the same since its enactment, its application has changed as the State and Federal rules regarding quarantine and isolation have changed. For example, at the beginning of the pandemic, the State issued its own rules regarding quarantine and isolation, but now relies exclusively on guidance from the Centers for Disease Control and Prevention to determine appropriate quarantine and isolation protocols.

Read More >> Is The End Near? COVID Paid Leave Developments

The National Labor Relations Board: The Show Must Go On, But With a New Independent Contractor Test

June 20, 2023

By Paul J. Buehler III

On June 13, 2023, the National Labor Relations Board (the Board), in its decision in the Atlanta Opera, Inc,[1] brought back for an encore, its 2014 FedEx II[2] standard for determining independent contractor status under the National Labor Relations Act (the Act). In doing so, the Board overruled and closed the curtains on its 2019 SuperShuttle[3] decision, bringing back a pro-employee standard for determining whether workers are employees covered under the Act or independent contractors not subject to the Act’s protections.

Read More >> The National Labor Relations Board: The Show Must Go On, But With a New Independent Contractor Test

Taking a Gamble: Plant Closings and Mass Layoffs Under the WARN Act

June 6, 2023

By Kali R. Schreiner

In a recent decision, the Second Circuit Court of Appeals overturned a district court’s ruling that an employer was not subject to the Worker Adjustment and Retraining Notification Act and New York Labor Law § 860 (the WARN Acts) when they closed a buffet restaurant and laid off over one hundred employees. In Roberts v. Genting New York, LLC, No. 21-833, the Second Circuit held that a reasonable factfinder could conclude that for purposes of the WARN Acts, the buffet was an operating unit and, therefore, Defendants were subject to the written notice requirements as prescribed by law.

Read More >> Taking a Gamble: Plant Closings and Mass Layoffs Under the WARN Act

CMS Issues Final Rule Withdrawing Health Care Staff COVID-19 Vaccination Requirement

June 5, 2023

By Adam P. Mastroleo and Hannah K. Redmond

On June 5, 2023, the Centers for Medicare and Medicaid Services (CMS) published a final rule withdrawing the requirement that employees of CMS covered health care providers be vaccinated against COVID-19. You may recall that CMS issued an interim final rule in November 2021 that required Medicare- and Medicaid-certified providers to ensure the vaccination of their staff members. The final rule published today effectively eliminates that requirement.

Read More >> CMS Issues Final Rule Withdrawing Health Care Staff COVID-19 Vaccination Requirement

NLRB Returns to Setting-Specific Standards for Employee Misconduct Occurring in the Course of Protected Activity

June 2, 2023

By Hannah K. Redmond and Jacqueline E. Zahn

In a recent decision, the National Labor Relations Board (the Board) returned to its earlier precedent “applying setting-specific standards” in cases involving employees who are disciplined for misconduct that occurs during activity otherwise protected by the National Labor Relations Act (NLRA). The Board announced its return to the “traditional standards” earlier this month in Lion Elastomers LCC II.[1]

Read More >> NLRB Returns to Setting-Specific Standards for Employee Misconduct Occurring in the Course of Protected Activity