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Protecting Employers Since 1985 | |
In this issue:
- Florida Individual Freedom Act Paused
- NLRB Rules against Home Depot
- Two Highly Controversial Interpretations of the MHRA
- New Ruling on Joint Employers
- New Illinois Transportation Benefit Program Requirement
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Questions? Contact Jim by email or at (952)746-1700 | |
Eleventh Circuit Puts the Breaks on Florida's Individual Freedom Act (a/k/a/ "Stop Woke Act")
By James B. SHerman, Esq.
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Florida Governor Ron DeSantis and the Sunshine State’s legislature have been aggressively opposed to certain fringe elements of DEI initiatives. In 2022 they enacted the Individual Freedom Act to prevent schools as well as employers from subjecting students or workers to instruction or training that compels them to believe in various banned subjects. Among the subjects the Act declared unlawful for schools or employers to mandate for students or employees:
- The belief that members of one race, color, national origin, or sex are morally superior to others.
- That persons of one race, color, national origin, or sex are inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- Privilege or oppression is necessarily determined by a person’s race, color, national origin, or sex.
- That adverse treatment of any person is justified based on past actions committed by members of their race, or in the interest of achieving diversity, equity, and inclusion (DEI).
- That virtues such as merit, excellence, hard work, fairness, or racial neutrality or colorblindness, are merely disguises for racism or sexism.
The Act goes on to mandate certain curriculum for schools, including teaching that all individuals are equal before the law and have inalienable rights.
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NLRB Decision Finds Home Depot, USA Inc. Constructively Discharged Minnesota Employee Who Refused to Remove a BLM Insignia from his Store Apron
By James B. Sherman, Esq.
| While Florida’s court battle over DEI may not be over, oddly enough, workers opposed to mandatory DEI training may have better luck going to the National Labor Relations Board. For starters, consider that the Board’s General Counsel, Jennifer Abruzzo has declared in a memo that federal labor law protects the right of employees to refrain from attending “captive audience and other mandatory meetings” pertaining to so-called “concerted activities.” Consider further that the Board has blurred the lines between workplace issues and issues of race, gender, and other topics typically associated with DEI. | Questions? Contact Jim by email or at (952)746-1700 | | | |
Appeals Court Issues Two Divergent Opinions Interpreting the Minnesota Human Rights Act (MHRA)
By James B. Sherman, Esq.
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One Decision Held That Ensuring Fair Competition Might Provide A Powerlifting Event Sponsor With A Valid Business Reason To Exclude Transgender Athletes From Competing Against Women, The Other Decision Held That A Pharmacist’s Conscientious Objection To Dispensing A Birth Control Pill That Could “End Life,” Is No Defense To A Claim Of Pregnancy Discrimination
The Minnesota Court of Appeals recently decided two controversial cases that have garnered national attention from advocacy groups and touch on issues that have divided the nation. Perhaps not surprisingly, then, the Court’s rationale for its decisions in two cases decided on the same day in March, appears somewhat inconsistent. In one case the court overturned a transgender plaintiff’s win on summary judgment that found the defendants violated the MHRA by excluding a transgender athlete from competing in a women’s powerlifting event.
| Questions? Contact Jim by email or at (952)746-1700 | | | |
Texas District Court Overrules NLRB Regulation on Joint Employer
By John D. Simmons, Esq.
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When an employee performs services for more than one entity, there’s often a question about which of those entities constitutes an “employer”. Since 2020, the analysis of this question has been guided by the question of whether both entities “share and codetermine the employees’ essential terms and conditions of employment.” For a recipient of an employee’s services to meet this standard, they “must possess and exercise such substantial direct and immediate control over one or more essential terms or conditions of their employment as would warrant finding that the entity meaningfully affects matters relating to the employment relationship with those employees.”
Since the advent of the 2020 rule, the key phrase has been “direct and immediate control”, with the NLRB considering indirect or merely reserved control as insufficient to make them a joint employer.
In 2023, the NLRB issued a new final rule that introduced a new standard for joint-employer status. The mechanics of the new rule were confusing, but departed from the 2020 rule at least by allowing “reserved control” in a contract, indirect control of the conditions of employment, work rules governing the health and safety of individuals in performance of the job, or control that is only exercised sporadically or in isolated circumstances to all classify that entity as a joint employer.
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Questions? Contact John by email or at (563)333-9102 | | | |
Questions? Contact Tony by email or at (630)377-1554 | |
Attention Illinois Companies
Illinois Law Requires Pre-Tax Commuting Benefit Program for Workers in Cook County and Other Counties and Townships
By Anthony J. Caruso, Jr., Esq.
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Effective: January 1, 2024, the Illinois Transportation Benefits Program Act went into effect.
NOTE: Employer only establishes the program. Employer does NOT pay the cost of the transit benefit.
Covered Employee: Any person who performs an average of at least 35 hours of work per week for compensation on a full-time basis. Employees have the option of participating in this benefit program. (Note: any person seems to include independent contractors.)
Covered Employers: Any individual, partnership, association, corporation, limited liability, government, non-profit organization or business trust that directly or indirectly or through an agent or any other person, employee or exercises control over wages, hours, or working conditions of an employee, and that is located in
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