Insights

September 02, 2022
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Category: COVID-19

11th Circuit Narrows Contractor Vax Rule Injunction, But Renewed Enforcement Is Questionable

The U.S. Court of Appeals for the Eleventh Circuit has rolled back a nationwide injunction issued last year by a federal trial court in Georgia that prevented the Biden Administration from implementing the President’s controversial Executive Order (E.O.) requiring federal contractors to ensure employees were vaccinated against COVID-19. Finding that the trial court went too far in issuing a nationwide...
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September 02, 2022
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Category: DACA/DAPA

Biden Administration Codifies DACA Into Regulation, But Future of Program Still Uncertain

The Biden Administration has finalized a rule that codifies into regulation the Obama-era “Deferred Action for Childhood Arrivals (DACA)” program. The final rule is substantially similar to the proposed rule published by the Administration back in September of last year. By codifying the DACA program into regulation, the Administration hopes to give the program stronger standing to survive legal challenges....
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September 02, 2022
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Category: Agency Enforcement

EEOC Holds Listening Session to Seek Input on Development of New Strategic Plan

The Equal Employment Opportunity Commission (EEOC) held a public “Listening Session” last week in Buffalo, NY, the beginning of a process ultimately leading to the creation of a new Strategic Plan and Strategic Enforcement Plan (SEP) that will establish agency priorities for the next several years. The August 22 meeting, the first time the Commission has met in public and...
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September 02, 2022
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Category: Agency Enforcement

Ruling by Seventh Circuit in EEOC v. Walmart Clarifies Burden of Proof Under Young

The U.S. Court of Appeals for the Seventh Circuit has ruled that the Equal Employment Opportunity Commission (EEOC) failed to prove that an employer engaged in unlawful pregnancy discrimination when it offered temporary light duty assignments exclusively to employees injured on the job but did not do so for employees who experienced pregnancy-related job restrictions. The ruling by the appeals...
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September 02, 2022
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Category: Policies and Practices

Soliciting Non-Binary Gender Self-ID Data: What’s the Latest?

We continue to receive calls from employers regarding whether they are required to revise their self-identification forms to collect non-binary gender data from their applicants and employees, and if not, whether and how they should be preparing to do so in the event it becomes a mandatory requirement. Importantly, there is no current obligation imposed by either the Labor Department’s...
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August 26, 2022
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Category: Agency Enforcement

Contractors Have Until September 19 To Object to OFCCP Disclosure of Type 2 EEO-1 Data

In response to a Freedom of Information Act (FOIA) request received by the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) that seeks the release of thousands of federal contractors’ and subcontractors’ consolidated EEO-1 Reports filed during calendar years 2016 – 2020, the agency has announced that it will release the requested information unless a contractor files a written...
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August 26, 2022
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Category: Whistleblowing and Retaliation

Second Circuit’s Burden of Proof Ruling in SOX Whistleblower Case Creates Circuit Split

The U.S. Court of Appeals for the Second Circuit recently overturned a jury’s award of $900,000 to a former employee who claimed, in a case brought under the federal Sarbanes-Oxley Act (SOX), that he was unlawfully retaliated against for blowing the whistle on his former employer’s alleged securities violations. According to the appeals court, the trial judge gave the jury...
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August 26, 2022
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Category: Agency Enforcement

OFCCP Revises Controversial “Pay Equity Audits” Directive

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has revised the controversial Pay Equity Audits directive issued earlier this year to clarify that the agency “will not require the production of privileged attorney-client communications or attorney work product.” As we reported back in March when it was issued, the original directive instructed OFCCP compliance officers (COs) to...
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August 26, 2022
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Category: Agency Enforcement

Fourth Circuit Rules Gender Dysphoria Is a Covered ADA Disability

In a case of first impression before the federal appeals courts, the U.S. Court of Appeals for the Fourth Circuit has ruled that gender dysphoria can be a disability under the Americans with Disabilities Act (ADA). Gender dysphoria, as discussed in more detail below, is defined as clinically significant distress experienced by transgender individuals. While the ADA expressly excludes “gender...
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August 26, 2022
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Category: Immigration

USCIS Proposes Rule To Continue Remote I-9 Document Verification

In a positive response to written comments received by the agency, although short of what we would prefer, U.S. Citizenship and Immigration Services (USCIS) has published a proposed rule that would formalize the agency’s authority to implement “alternative options,” i.e., remote review options, for employers to use when verifying an employee’s identity or work authorization documentation on the Employment Eligibility...
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