Supreme Court holds that at least some “weaponized” speech loses at least some First Amendment protections

In Houston Community College System v. Wilson, the Supreme Court unanimously held that a public official, like all of us, enjoys free speech rights under the First Amendment; however, that speech cannot be weaponized in an effort to silence the free speech of others.

The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.

How broadly will the Supreme Court’s ruling be applied? The Court cautioned that its holding may be limited to its rather specific set of facts, which included that the public official at-issue had merely been censured.

Our case is a narrow one. It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment. It entails only a First Amendment retaliation claim, not any other claim or any other source of law. The Board’s censure spoke to the conduct of official business, and it was issued by individuals seeking to discharge their public duties. Even the censured member concedes the content of the censure would not have offended the First Amendment if it had been packaged differently. Neither the history placed before us nor this Court’s precedents support finding a viable First Amendment claim on these facts. Argument and “counterargument,” not litigation, are the “weapons available” for resolving this dispute.

Maryland joins ranks of states mandating some form of paid sick leave

Law 360 ran a recent article noting that Maryland has joined the ranks of at least 10 states (California, Colorado, Connecticut, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington, Washington, D.C.) that have already mandated some form of paid sick leave. Employers are reminded to check each jurisdiction’s laws as they vary widely, some mandate that employers provide paid sick leave, some call for the creation of state-administered and/or privately insured paid leave programs, and even within those broad categories the amount of what kinds of paid leave required vary widely including for employees of varying seniority. Additionally numerous cities and local governments have implemented their own array of programs.

Also warranting specific and frequent reviews of potentially applicable paid sick leave mandates, these laws are not infrequently the subject of litigation as they roll out. For example, Colorado employers may wish to follow a recent Colorado Supreme Court case, no. 22SC78 (formerly Colorado Court of Appeals case no. 22CA91), titled Chronos Builders, LLC v. Colorado Department of Labor and Employment, Division of Family and Medical Leave Insurance, in which the Supreme Court accepted certiorari, agreeing to hear “whether the Paid Family and Medical Leave Insurance Act’s premium violates Section (8)(a) of TABOR” (TABOR being a 1992 state constitutional amendment limiting the state’s financing capabilities).

EEOC issues guidance on federal anti-discrimination laws and employees who are caregivers outside work

The EEOC has issued a guidance explaining that employees who act as “caregivers” for their family and friends may be protected by existing anti-discrimination laws. The EEOC does not define the phrase “caregiver” and, therefore, presumably intends it in a general dictionary sense. In other words, readers should note the EEOC is not using that phrase in this guidance to mean medical or other professional caregivers. The EEOC notes that being a caregiver is not itself protected by federal anti-discrimination laws like Title VII, the ADA and the ADEA. Rather, the EEOC cautions, caregivers often fall into those laws’ other existing protected classes.

Caregiver discrimination violates federal employment discrimination laws when it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history).  Caregiver discrimination also is unlawful if it is based on an applicant’s or employee’s association with an individual with a disability, within the meaning of the ADA, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided.  Finally, caregiver discrimination violates these laws if it is based on intersections among these characteristics (for example, discrimination against Black female caregivers based on racial and gender stereotypes, or discrimination against Christian female caregivers based on religious and gender stereotypes).

The EEOC explains it has issued this guidance because many caregivers are facing challenges due to the COVID-19 pandemic.

The COVID-19 pandemic has significantly impacted employees’ work and personal obligations, creating concurrent and, at times, competing job and caregiving demands.  Abrupt changes in work locations, schedules, or employment status required millions of Americans with caregiving responsibilities for children, spouses, partners, older relatives, individuals with disabilities, or other individuals to quickly adjust to vastly changed circumstances.

Even as the pandemic evolves, the challenge of juggling work and caregiving obligations remains.  Some workplaces, classrooms, and care facilities may operate on hybrid schedules, request or require employees to work extra shifts, or close with short notice.  Employees may need to quarantine unexpectedly if they or household members are potentially exposed to or infected with COVID-19.  Some employees who live in households with persons who are immunocompromised, children too young to be vaccinated against COVID-19, or other vulnerable individuals may be reluctant to return to the workplace.

The EEOC discusses a number of ways it believes that an employee’s off-duty caregiver activities and obligations can implicate each of the existing protected classes under federal anti-discrimination laws.

DOL issues guidance on FMLA and FMLA retaliation

The DOL issued Field Assistance Bulletin 2022-02 to provide updated guidance on the anti-retaliation laws it oversees, including the FMLA and FLSA. The guidance provides a series of hypotheticals that illustrate when an employer might or might not have committed prohibited retaliation. HR professionals and employment lawyers may be interested in reviewing the guidance to obtain a sense of where DOL believes the line is crossed.

For example, DOL discusses whether unlawful retaliation has occurred (the names are the names DOL provides for each hypothetical employee and are offered for readers’ convenience in looking up a particular hypothetical of interest):

  • When an employee is terminated after telling a cow0rker that he has called DOL to ask about overtime rights? See hypothetical “Nelson.”
  • When a new mother is told to get back to work then eventually sent home after taking an extra long lactation break during which she was not able to finish pumping then asking if she would be allowed a break later in the day to do so. See hypothetical “Aisha.”
  • When an employee stays home on FMLA leave to care for his child but despite the FMLA leave having been approved, has three points assigned (without any disciplinary consequences) to his tally of absence points under the employer’s no-fault policy, which provides that every absence, whether approved or not, triggers three such points, with no discipline, until ten total points are accumulated in a year, at which point the employee is subject to possible discipline up to and including discharge. See hypothetical “Jaime.”
  • When the front-desk clerk takes a series of days off for migraines, comprising first 3 days, then 1 day, then 2 days, spanning a 4-month period, and, although all the days were approved under the FMLA, the hotel reduces her to part-time because front desk position requires a full-time reliable daily presence. See hypothetical “Deborah.”

Where the DOL would find violations in those hypotheticals, it also recites what relief it would require of the company.

The guidance also includes hypotheticals related to visa programs.

Texas federal trial court un-freezes Trump-era DOL independent contractor rules

In a case titled, Coalition for Workforce Innovation v. Walsh, a Texas federal trial court has un-frozen the Trump-era DOL independent contractor rules, which were frozen by the incoming Biden Administration. As noted in a prior post on this blog, the Trump-era rules were seen as especially important for gig-economy companies. As the court’s order explained, because its ruling lifted the Biden Administration’s freeze, the Trump-era DOL independent contractor rules should be read as having become effective on March 8, 2021, which was their original effective date.

Pandemic-era I-9 List B expansion ending 5-1-2022

Effective 5/1/2022, the DHS will end its temporary pandemic-era program that allows employers to accept expired List B documents (such as drivers licenses). During the pandemic, DHS recognized that many issuers of the List B documents (such as state motor vehicle departments ) were being overwhelmed by employee absences related to COVID-19. As a result, DHS permitted employers temmporary leeway to accept expired List B documents between 5/1/2020 and 4/30/2022. That program will end 4/30/2022, so effective 5/1/2022, companies will no longer be able to accept expired List B documents.

What does that mean for employees hired under this temporary rule during the pandemic (between 5/1/2020-4/30/2022)? In other words, if a company accepted the expired List B document during that period and is still employing the person, should the company now ask for an unexpired document? Can the company do that? What if the employee is no longer working for the company? On its webpage related to this change, DHS explains the flowchart for companies now, as follows:

Starting May 1, 2022, employers must only accept unexpired List B documents.

If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022. See table below for update requirements.

If the employee’s Form I-9 was completed between May 1, 2020 and April 30, 2022 with an expired List B document and that document expired on or after March 1, 2020, and the employee: Then:
Is still employed.
  • Have the employee provide an unexpired document that establishes identity. Employees may present the renewed List B document, a different List B document or a document from List A.
  • In the “Additional Information” field of Section 2, the employer enters the document:
    • Title;
    • Issuing authority;
    • Number; and
    • Expiration date.
  • The employer initials and dates the change. See example.
Is no longer employed. No action is required.
The List B document was auto extended by the issuing authority, so it was unexpired when presented. No action is required because the document was unexpired when presented.