Womble Employment Law Blog

Employers will now have to show a higher degree of hardship to deny employee requests for religious accommodation. Under Title VII of the Civil Rights Act of 1964 and 29 C.F.R. § 1605.2(b)(1), employers are required to grant employee requests for religious accommodation “unless the employer demonstrates that [the requested] accommodation would result in undue hardship on the conduct of its business.” On July 29, 2023,  the United States Supreme Court unanimously clarified  in  Groff v. DeJoy  that a religious accommodation only results in “undue hardship” when “the burden of granting [the] accommodation would result in  substantial  increased costs in relation to the conduct of its particular business.”  The “substantial increased cost” standard is a departure from the lower “more than a  de minimis  cost” standard that has prevailed since 1975. For the last 48 years, employers could deny religious accommodations for causing “undue hardship” ...

  In the ongoing legal battle over the Occupational Safety and Health Administration’s emergency temporary standard on COVID-19 Vaccination and Testing (the “ETS”), a federal appeals court has given OSHA authority—for now—to move forward with enforcement.  The core of the ETS is the requirement that employers with more than 100 employees must implement and enforce a policy that mandates that employees be fully vaccinated against COVID-19 by January 4, 2022 or to submit to weekly COVID-19 testing and wear a mask.   However, in light of the numerous legal challenges and the uncertainties caused by the conflicting decisions in federal court, OSHA has stated that it will exercise its “enforcement discretion” to give employers some additional time to comply with deadlines published in the original ETS.  OSHA states that it will not issue any citations for non-compliance with ETS requirements before January 10, 2022, and will not issue citations before February 9, 202...

On November 5, 2021, the U.S. Occupational Safety and Health Administration published its anticipated emergency temporary standard on COVID-19 Vaccination and Testing (the “ETS”). Citing the “grave danger” posed by the virus to unvaccinated employees in the workplace, the headline-grabbing core of the ETS is the requirement that covered employers must implement and enforce a policy that mandates that employees be fully vaccinated against COVID-19 by January 4, 2022 or to submit to weekly COVID-19 testing and wear a mask.   The ETS stated that it was to take effect immediately, i.e ., when it was issued on November 5, 2021.   However, numerous legal challenges to the ETS were filed in federal courts across the country on the same day it was issued.   The challengers in the legal cases asserted, among other things, that the ETS is not valid because OSHA did not have the authority to issue the ETS and that it is unconstitutional. In one of those challenges, the ...

Join our Webinar to discuss the Families First Coronavirus Response Act, including its new paid leave requirements, tax credits, and frequently asked questions.  The webinar will be at 1 PM ET on March 23, 2020.  There is no cost for this timely presentation.  Resister here . The Act goes into effect on April 2, 2020 and will impact private employers with 500 or fewer employees and all public employers as they navigate the sweeping effects of COVID-19. During this webinar, we will will cover topics including:  Employer and employee coverage under the Act Emergency Paid Sick Leave Emergency Family and Medical Leave Expansion Act  Calculating the correct pay rates during paid leave Tax credits for Paid Sick and Paid FMLA Leave Frequently asked questions

At Womble, we are working closely with our clients as they seek to address the enormous business and legal issues arising from COVID-19.  Our teams have put together a hub collecting our up-to-date legal alerts and guidance for businesses across sectors and across the US and abroad.  The hub, with links to articles, events, and resources, can be found here .  Our thoughts are with all individuals, families, and businesses impacted by these challenging times.

As businesses move closer to planning their 2020 fiscal year budgets and considering pay increases, they should keep in mind that proposed overtime regulations are nearing final publication by the U.S. Department of Labor.  The new regulations will impact the so-called "white collar" overtime exemptions for executive, administrative, professional, and highly compensated employees under the Fair Labor Standards Act ("FLSA").  If the regulations become final in 2020 as expected, they will increase the minimum compensation levels required for those workers to be classified as exempt from overtime. Workers who do not meet the higher compensation levels cannot be classified as exempt from overtime under the FLSA.  So, the new regulations may result in the need for businesses to give pay increases to some workers to keep their overtime exemptions in place, or otherwise prepare to pay overtime to workers who no longer meet the minimum compensation levels. The new regul...

(Winston-Salem, NC)  For the eleventh year in a row, John Pueschel of Womble Bond Dickinson’s Winston-Salem office hosted the 2019 Legal Update for the Winston-Salem Chapter of the Society for Human Resource Management at the Firm’s Winston-Salem office. Over 50 HR professionals of clients and local businesses attended. The event provided information and best practices on legal issues of particular interests to HR professionals. Womble Bond Dickinson attorneys led many of these sessions, which included: Internal Investigations, led by Womble Bond Dickinson attorney Kurt Stakeman and J.T. Moser , Director of Enterprise Risk and Corporate Investigations at Wake Forest University Health Sciences; Womble Bond Dickinson attorney Gemma Saluta , who is a Board-certified workers’ compensation specialist, facilitated a Q&A session with Industrial Commission Deputy Commissioner Michael Silver ; EEOC Re quest for Collection of Pay Data, presented by Womble Bond Dickinson atto...

In a unanimous decision, the U.S. Supreme Court recently clarified that the requirement that a plaintiff exhaust his/her administrative remedies before filing a discrimination claim under Title VII of the Civil Rights Act is a mandatory claim-processing rule, and not a jurisdictional requirement. The decision increases the importance of raising the defense of failure to exhaust administrative remedies early in employment litigation, so as to avoid a potential waiver of the defense. Under Title VII, which is the core, federal anti-discrimination law, employees and job applicants are required to first file a charge of discrimination with the EEOC and allow the agency to investigate before filing a lawsuit. This is commonly referred to as exhausting one’s administrative remedies. The EEOC charge must be filed within 180 days of when the alleged discrimination took place (or 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis)....

We are proud that our firm, US-based Womble Carlyle Sandridge & Rice, LLP, and UK-based Bond Dickinson LLP have combined to create Womble Bond Dickinson. Effective November 1, 2017, our  combined platform now includes: 24 offices in key commercial and financial markets across the US and UK, including the firm’s newest offices in Boston and Edinburgh as well as access to Europe through existing relationships; The bench strength of 1,000 lawyers. By size, the combined firm is a Top 20 firm in the UK, Top 80 firm in the US, as well as a Global Top 100 firm by annual revenue ($410 million/£340million); A client base that includes more than 250 publicly traded companies. The combined firm will have eleven key sectors: Energy & Natural Resources, Financial Institutions, Healthcare, Insurance, Manufacturing, Real Estate, Retail & Consumer, Transport & Infrastructure, Pharmaceuticals Biotechnology & Life Sciences, Communications & Technology and Priva...

A newly revised Form I-9 has been published by U.S. Citizenship and Immigration Services ("USCIS"), and must be used by employers for new hires beginning on September 18, 2017.  The revised form bears the date of "07/17/17 N"  and, in addition to making some minor changes to the form's instructions, updates the list of acceptable documents that may be used to establish identity and authorization to work in the United States.  The prior version (with the revised date "11/14/16 N") may be used until September 17, 2017, but businesses are free to use the newly revised form right away if they wish.  The revised form, as well as detailed information about Form I-9 compliance, is available at the USCIS website.

A federal court in North Carolina has ruled that a jury trial will be held in a case brought by the EEOC challenging a hospital's mandatory flu shot policy.  The case was filed in 2016 by the EEOC for a group of terminated employees who failed to request a religious exemption by a certain deadline and did not get the required flu shot.  On August 7, 2017, the United States District Court for the Western District of North Carolina ruled that it could not dismiss the case at summary judgment without a trial, concluding that a jury would be needed to decide whether workers who did not request a religious exemption to the policy were treated more favorably. The mandatory flu shot policy required that workers obtain a flu shot by December 1.  However, to accommodate sincere religious beliefs, the policy also allowed workers who had objections to receiving a flu shot on religious grounds to request an exemption under the policy.  The po...

Remember to use the new Form I-9!  In case you missed the announcement, the United States Citizenship and Immigration Services (“USCIS”) published an updated Form I-9 that all employers in the United States must use, effective January 22, 2017.  The prior version is now invalid and should not be used.  While the new Form I-9 looks very similar to the previous version, it does contain several substantive changes as well as “smart features” that were previously unavailable. The new Form I-9 can be found on the USCIS website .   With regard to the content of the new Form I-9, the changes are readily apparent in the instructions, which increased from six pages to fifteen pages.   Within the actual form, employers will see five notable changes in Section 1.   First, the “Other Names Used” field has been replaced with an “Other Last Names Used” field.   Second, employees must now indicate whether an Alien Registration Number (if provided) is a...

By Theresa Sprain, Patricia Heyen, and John E. Pueschel In a significant decision that expands the rights of employees, the U.S. Court of Appeals for the Seventh Circuit ruled on April 4, 2017 that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.  Kimberly Hively v. Ivy Tech Community College , No. 15-1720 (7th Cir. April 4, 2017).  The Seventh Circuit is the highest court in the United States to hold that sexual orientation is a form of sex discrimination under Title VII. Kimberly Hively, a part-time, adjunct professor at Ivy Tech Community College, alleged that she was repeatedly denied consideration for full-time teaching positions and her part-time contract was not renewed due to her sexual orientation.  Hively filed suit in the U.S. District Court for the Northern District of Indiana, alleging violations of Title VII. Ivy Tech filed a motion to dismiss, arguing that sexual...

A new North Carolina law provides an additional avenue for employers to seek redress from employees who have taken company information for personal use.   N.C.G.S. § 99A-2, which became effective January 1, 2016, provides that “Any person who intentionally gains access to the nonpublic areas of another’s premises and engages in an act that exceeds the person’s authority to enter those areas is liable to the owner or operator of the premises for any damages sustained.”  N.C.G.S. § 99A-2(a).  The statute lists several examples of acts that exceed a person’s authority, and first among those examples is an employee who takes company information for use beyond the scope of his or her employment: An employee who enters the nonpublic areas of an employer's premises for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and thereafter without authorization captures or removes the employer's data, paper, recor...

The National Labor Relations Board (NLRB) announced in an August 27, 2015 decision that it was changing the test to determine whether two related businesses are "joint employers." In sum, the federal position announced in the NLRB decision is that many more businesses, like franchisors-franchisees, manufacturers-distributors, and staffing agencies and their clients can be held jointly liable for employment claims (wage and hour violations, discrimination and harassment, etc.) and could more easily organized by labor unions. This new legal test will be a major change for many businesses if it survives the expected court challenge. 

Updated, September 19, 2017:  The 2016 "white collar" regulations were struck down in federal court, and never became effective. On July 6, 2015, the U.S. Department of Labor (“DOL”) issued proposed new regulations that will significantly change the law governing certain “white collar” workers who are exempt from minimum wage and overtime pay.   All employers need to become familiar with these proposed rules, which may, if they become final, greatly impact wages and overtime pay to workers.   In addition, for those that want to have their voices heard, there is still time (until September 4, 2015) for the public to make formal comments to the DOL. Under the Fair Labor Standards Act (“FLSA”), which is the federal wage and hour law, some employees may be classified as “exempt” from the Act’s minimum wage and overtime pay requirements.    The most well-known and commonly used exemptions are the so-called “white collar” exemptions applicable to executive...

Keep an eye on your email inboxes and spam folders.  The U.S. Equal Employment Opportunity Commission recently announced that it has begun a pilot program to send electronic notices of discrimination charges.  The program is called "ACT Digital" and is intended to make responding to charges more efficient and cost effective. The pilot program is beginning in 11 EEOC offices, centered in North Carolina and the Southeast, and moving to larger offices in Midwestern and Western states.  They are the following: Charlotte; Greensboro; Greenville; Norfolk; Raleigh; Richmond; Detroit, Indianapolis; Phoenix; Denver; and San Francisco.  The EEOC states that the system is secure, and that documents and information will be accessible only by password.  Using the system, employers will be able to download charges, submit a position statement, and communicate with the EEOC.  The Commission has published a Q&A document for ACT Digital, which can be found...

On Wednesday, July 15, 2015, the United States Department of Labor released guidance addressing the misclassification of employees as independent contractors.   The guidance, an “Administrator’s Interpretation” issued by Wage and Hour Division Administrator David Weil, states that most workers are employees under the Fair Labor Standards Act (“FLSA”).   Aimed at “curtailing misclassification,” the guidance states that employees misclassified as independent contractors “may not receive important workplace protections such as the minimum wage, overtime compensation, unemployment insurance, and workers’ compensation.”   The guidance emphasizes that the FLSA’s definition of employ as “to suffer or permit to work” was designed to ensure broad coverage such that most workers are employees who are entitled to the protections of the Act.   Courts use a multi-factor “economic realities” test to determine whether a worker is in business for himself or herself, and th...

The Securities and Exchange Commission ("SEC") recently announced that it had opened an enforcement action against a company based on a confidentiality agreement that the SEC claimed interfered with the rights of would-be whistleblowers.  According to the SEC, the confidentiality agreement was presented to employees during workplace investigations, and prohibited the employees from speaking about the investigation with anyone unless the company granted permission.  The SEC claimed that such a provision violated the whistleblower protections of Rule 21F-17 of the Securities Exchange Act of 1934, which prohibits actions that impede whistleblowers from reporting possible securities law violations to the SEC.  Our colleague Morgan Curry has offered a solid analysis of the SEC's action here .  As a result, businesses are well advised to take a look at their confidentiality provisions, especially those in employment and severance agreements,...

The EEOC announced that it has settled a religious accommodation lawsuit against a beer distributor which insisted that a prospective employee cut his hair if wanted a job.  The prospective employee asserted that he was a practicing Rastafarian, and in accordance with his beliefs, was forbidden to cut his hair.  After being denied the job with the North Carolina company, he filed an EEOC charge, which ultimately resulted in the EEOC filing a lawsuit. In January, the EEOC announced that the parties had reached a settlement.  According to the EEOC, the company agreed to pay $50,000 and change its policies.  The EEOC announcement can be found here .