October 17, 2024

Portugal’s E-2 Treaty Addition: A Gateway for Brazilian Investors to the U.S.

Samantha Wolfe

Portugal’s recent addition to the U.S. Department of State’s E-2 Treaty List has created a valuable opportunity for both Portuguese citizens and Brazilians with dual citizenship. For entrepreneurs and investors seeking to expand their business horizons into the United States, this development opens a new, strategic pathway, particularly for Brazilian nationals who hold or can obtain Portuguese citizenship.

With Portugal now part of the U.S. E-2 Treaty program, qualified individuals can leverage this visa to invest in and manage a U.S. business while enjoying a host of benefits that make the E-2 visa an attractive option for foreign investors. This blog will explore what the E-2 visa entails, why this development matters for Brazilian investors, and how Portuguese and Brazilian entrepreneurs can take advantage of this new opportunity. Read more >>

October 15, 2024

EEOC Steps Up Enforcement for Pregnant Workers: What Businesses Need to Know About the Pregnant Workers Fairness Act

Leslie Perkins

by Leslie Perkins and Greg Saylin

The Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing anti-discrimination laws, has been increasingly active in addressing compliance with regulations affecting pregnant workers. This has been particularly evident in fiscal year 2024, as the EEOC has already filed five cases under the Pregnant Workers Fairness Act (PWFA), despite the law being in effect for just over a year. State labor commissions, such as the Utah Antidiscrimination and Labor Division, have likewise seen an increase in charges by pregnant workers.

Greg Saylin

Passed in 2023, the federal PWFA was introduced to combat discrimination and promote workplace equality by requiring employers to provide reasonable accommodations to employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions. Retaliation against such workers is prohibited.

Some employers have been caught off guard since pregnancy-related leave, without extenuating medical complications, has largely been a function of company parental leave policies, particularly where a worker has not been employed long enough to qualify for other leave. Employers need to take note that they are now required to engage in the interactive process to determine whether an employee is entitled to an accommodation for a pregnancy-related condition – even those not associated with complications – such as normal childbirth and recovery time. Read more >>

October 3, 2024

Online Conduct, Offline Impact: Unpacking the Legal Implications of Social Media Harassment in the Workplace

JT Washington

by JT Washington

Today, technology and social media are integral parts of our daily lives. Social media has transformed how we communicate and express ourselves. However, this transformation has brought new challenges, particularly in the workplace, where online behavior can have significant repercussions. Recent legal cases have demonstrated what happens on social media does not always stay online and can contribute to a hostile work environment or harassment if it impacts an employee’s working conditions. This encompasses behavior that may not occur in the physical workplace but still affects the overall work environment. Employers are required to promptly and effectively address harassment, irrespective of where it takes place, including on social media.

A recent ruling by the U.S. Court of Appeals for the Ninth Circuit, in the case of Okonowsky v. Garland, has emphasized this reality. 109 F.4th 1166. The court held that an employer could be held liable for a hostile work environment claim based on harassing content posted on an employee’s personal social media account, even if the conduct occurred outside the physical workplace. This decision builds upon earlier guidance from the Equal Employment Opportunity Commission (“EEOC”), which warned that employers might be liable for non-work-related conduct when it affects the workplace environment. The ruling underscores the growing influence of social media in shaping workplace dynamics and the potential legal ramifications for employers who fail to address harassment that originates online but permeates the workplace. Read more >>

September 26, 2024

Employer Considerations Following Wave of 401(k) Forfeiture Lawsuits

Alex Smith

by Alex Smith

Over the past year, numerous employers and their 401(k) plan fiduciaries have faced lawsuits regarding how forfeited employer contributions to their 401(k) plan are utilized. This wave of lawsuits began approximately a year ago when a plaintiff’s law firm filed putative class action lawsuits raising this novel claim against multiple large employers, including Intuit, Clorox, and Thermo Fisher Scientific in California federal courts. Since then, this claim has been included in numerous 401(k) plan lawsuits even though none of these lawsuits have reached a final judgment on the merits and only four have had decisions on motions to dismiss.

These lawsuits allege that the employer and its 401(k) plan fiduciaries breached their fiduciary duties under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), by using forfeited employer contributions to the 401(k) plan to offset future employer contributions instead of using the forfeited amounts to offset 401(k) plan expenses that were charged to participant accounts. The plaintiff’s counsel alleges that the employer and 401(k) plan fiduciaries are violating ERISA’s fiduciary requirements to make decisions for the benefit of plan participant because the employer benefits from a reduction in its future employer contributions at the expense of plan participants who have to pay for certain expenses that are charged to their 401(k) accounts. Read more >>

September 25, 2024

Demystifying Qualifications for PWFA

Dana Dobbins

By Dana Dobbins

Question: Do employees have to be employed for 12 months or work 1,250 hours to qualify for the Pregnant Workers Fairness Act (PWFA), or do they qualify as soon as they begin employment?

Answer: No, employees do not need to be employed for 12 months or work a minimum threshold of hours before they can qualify for protections and accommodations under the federal Pregnant Workers Fairness Act (PWFA) or the Colorado PWFA. Employees qualify immediately (provided that the employer is a covered entity). In fact, by its terms, the PWFA applies even to job applicants. This is also true for Colorado’s PWFA.¹

Under the PWFA, employers must make reasonable accommodations for the known limitations of an employee or applicant, unless the accommodation would cause an “undue hardship”—i.e., significant difficulty or expense. Read more >>

August 26, 2024

Preventing Double-Dipping: Ensure that Paid Parental Leave Runs Concurrently with FAMLI Leave and FMLA

Dana Dobbins

By Dana Dobbins

In Colorado, beginning on January 1, 2024, eligible employees can take paid leave for a variety of circumstances under Colorado’s Family and Medical Leave Insurance (FAMLI) program. Given that the FAMLI program is still in its infancy, there are several ambiguities and issues that still need to be resolved, and employers are still adjusting their policies.

One of the pitfalls facing employers is that they have not updated employment handbooks or policies to clarify that any paid parental leave otherwise offered under company policy runs concurrently with FAMLI leave (in addition to running concurrently with FMLA leave), not in addition to those leaves. Failing to update those policies may leave the employer in a situation where an employee can take 24 or more weeks of leave, and there is little the employer can do to prevent it without running afoul of the law. For most employers, this extended duration of leave is simply not feasible. Thus, updating relevant handbook or policy provisions is key. Read more >>

August 22, 2024

Algorithmic Accountability: The Next Frontier in Employment Law?

Little V. West

By Little V. West

Artificial intelligence (or AI) technology is rapidly transforming industry norms and creating new possibilities along with moral, ethical, and legal implications. The Society for Human Resource Management has recently observed that “[a] workplace run by AI is not a futuristic concept,” noting that a 2022 “report found that 85 percent of employers using automation or AI said it saves time or increases efficiency.”[1]

Regulators and legislators have kept pace with the daily news of breakthroughs in AI capabilities. The result is a virtual kaleidoscope of developing requirements in various jurisdictions, some of which are already in effect, some of which are yet become effective, and some of which may yet be enacted bearing on the use of AI in the workplace. Read more >>

August 21, 2024

The FTC’s Noncompete Ban Is Dead—For Now

Steven Eheart

By Steven Eheart and Mark Wiletsky

Employers finally have the answer they’ve been waiting for: they don’t need to comply with the Federal Trade Commission’s (“FTC”) Rule banning noncompete agreements—for now.

The FTC’s Rule was set to go into effect on September 4, 2024. But, on August 20, 2024, a federal judge from the Northern District of Texas set aside the Rule and barred the FTC from enforcing it. The same judge previously put the Rule on hold as to only the parties who brought the lawsuit, but this new decision applies to all employers.

Mark Wiletsky

The Court rejected the Rule for two reasons: 1) the Rule exceeded the FTC’s statutory authority, and 2) the Rule is arbitrary and capricious.

The Court found that the plain language of the Federal Trade Commission Act (FTCA) does not expressly give the FTC authority to create substantive rules regarding unfair methods of competition. Additionally, the Court found that even if the FTCA empowers the FTC to create some rules, it only empowers rulemaking related to unfair or deceptive acts or practices—and noncompete agreements are not unfair or deceptive practices. In the end, the Court stated that the “role of an administrative agency is to do as told by Congress, not to do what the agency thinks it should do.” Read more >>

August 20, 2024

Responding to Employee Requests for Personnel Records

Dana Dobbins

By Dana Dobbins

Question: What are the guidelines for when employees, current or former, request a copy of their personnel file, and what files are required to be provided upon request?

Answer: When it comes to an employee’s or former employee’s request for their own personnel files, employers must be cognizant of applicable state and local law when responding to such requests. Some states, including Idaho, Montana, New Mexico, Utah, and Wyoming do not have any state or regulatory provisions that apply to private-sector employment (though there may be specific regulations related to public-sector employers). Employers should be mindful of any company policies or procedures governing access to personnel files, which should comply with any applicable laws, and must apply those policies and procedures consistently.

Other states have specific rules governing current and former employee access to the employee’s personnel file. For example, under Colorado law, an employer must allow a current employee to inspect and obtain a copy of his or her personnel file at least annually, upon the employee’s request. However, the employer can require that the review occur at the employer’s office at a time that is convenient for both the current employee and the employer. Read more >>

August 16, 2024

Tenth Circuit Court of Appeals Upholds Workplace Policies Against Secret Recordings

Karina Sargsian

by Karina Sargsian

In recent years, the issue of secret recordings by employees has sparked considerable controversy. You may recall the recent incident involving an employee at CloudFlare, who filmed herself for nine minutes while questioning HR about her termination from the IT company. She posted the video on TikTok, where it quickly went viral. If you have not seen the video, you can view it here.

Such incidents have left many employers wondering how they can protect themselves from covert recordings by employees.

Employees often resort to secretly recording conversations following workplace disputes. And while it may be nearly impossible to prevent employees from secretly recording work-related conversations, employers can implement a no-recording policy that includes termination for violating such policy. One concern for employers, however, is that an employee fired for violating the no-recording policy might claim that the termination was in retaliation for previous complaints, rather than for the policy violation itself. Read more >>