Employment Law This Week®: New Laws Impacting Employers, Sexual Orientation Discrimination, Amended Persuader Rule, Nurses Aren't "Supervisors"

(1) Election 2016: New Laws Impacting Employers

Our top story: Election Day brings a wave of new laws affecting employers. While all eyes were on the battle for the White House, voters in a number of states approved new legislation that will directly impact employers. Arizona and Washington will soon require paid sick leave for workers, as well as minimum wage increases. Medical marijuana is now legal in Arkansas, Florida, and North Dakota, while recreational use was approved in California, Maine, Massachusetts, and Nevada. The new laws in Arkansas and Maine explicitly prohibit employment discrimination against medical marijuana users. Debbie Cannavino, from Epstein Becker Green, has more on the new cannabis laws:

"Even if marijuana is legal in certain states, employers can still regulate its use in the workforce and have policies to maintain a drug-free workplace, just like they do with alcohol. For example, employers can have policies that indicate that an employee cannot use, possess, grow, or distribute marijuana in the workplace. Employers can also have policies indicating that, like alcohol, marijuana cannot be consumed during the work day, and that an employee cannot come to work under the influence of marijuana."

Read a recent blog post on this topic: http://bit.ly/2fohjHw.  Bonus: Watch the extended interview here.

(2) Federal Court Agrees with EEOC: Title VII Covers Sexual Orientation

In another move toward sexual orientation protections in Title VII of the Civil Rights Act of 1964 (“Title VII”), the U.S. District Court for the Western District of Pennsylvania has denied a motion to dismiss a sexual orientation case brought by the U.S. Equal Employment Opportunity Commission (“EEOC”), one of several claims that the agency is pursuing across the country. The employer in this case had argued for dismissal because it claimed that Title VII’s prohibition of sex discrimination does not apply to sexual orientation discrimination. The court found that sexual orientation discrimination is a "subset of sexual stereotyping" covered by Title VII. This same issue is currently pending before the U.S. Court of Appeals in the Second and Seventh Circuits, in cases where the district courts ruled that sexual orientation discrimination is not prohibited by Title VII.

For more on the EEOC’s sexual orientation discrimination lawsuits, click here: http://bit.ly/2fCZmIf

(3) DOL’s Amended Persuader Rule Is Permanently Blocked

A federal court in Texas has permanently enjoined the U.S. Department of Labor (“DOL”) from enforcing its 2016 amended Persuader Rule, after concluding that the amended rule is unlawful. The decision applies nationwide, making permanent a preliminary injunction that the court issued in June. The rule would have required employers to report payments made to consultants, including lawyers, in connection with even indirect efforts to influence employees’ opinions on labor unions and a wide range of employment matters.

Click here for more: http://bit.ly/2fbypuH

(4) Fourth Circuit Rules That Nursing-Home Nurses Are Not “Supervisors”

The Fourth Circuit recently upheld a conclusion by the National Labor Relations Board (“NLRB”) that registered nurses and licensed practical nurses at a nursing home in South Carolina can unionize because they do not exercise enough independent judgment to be supervisors. The Fourth Circuit deferred to the NLRB’s position that employees do not exercise independent judgment because their decisions are controlled by company policies or rules. Because the nurses’ supervision mainly consisted of making sure that nursing assistants followed written rules and did not discipline assistants on their own, the nurses did not exercise independent judgement and, therefore, were not supervisors.

(5) Tip of the Week

Lenora Billings-Harris—Diversity Strategist, an award-winning international speaker, and the author of The Diversity Advantage—is here with some advice on how to combat unconscious bias:

"We could not get through the day if we didn't have bias, because bias is a mental association or a preference. . . . However, we can mitigate some of the negative consequences when our biases are inappropriate or wrong. So, the first thing that we can do is to become more self-aware. How I mean that is, pay attention to those judgments, those biases, that are in our head. . . . Be willing to consider, what would I feel like if . . .? And what I’m leading to here is, what scientists now know is the need to belong is so strong that, when we feel that we're not belonging, if we are excluded, it’s as powerful as pain, physical pain. So think about, how would I feel if . . .? How would I feel if somebody stole my idea in a meeting? How would I feel if no one’s paying attention to what I’m saying? How would I feel if people were always judging how I look or how I speak by my accent and that type of thing? That can then enable you to change your behavior to be more inclusive."