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Special Report

2023 Mid-Year Report

Welcome to Our Mid-Year Report

The last six months have brought considerable changes in workplace law. The next six months look to bring even more. Click the tabs above to get this report’s up-to-the-moment mix of our attorneys’ informed podcasts, subject-matter highlights and insights on the topics of core concern to clients in 2023.

Don’t miss a beat. Workplace law is changing at a rapid pace. Our attorneys stay on the cutting edge of the law and take pride in sharing their knowledge through timely and insightful updates.

Affirmative Action and the Supreme Court

Discrimination: The Town + Gown Divide

The Court’s decision on race and higher-ed admissions doesn’t directly impact employment discrimination law, but employers should still beware. Get the nuances and expectations here.

Supreme Court’s Impact on Employers

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Our insights into the Court’s cert and case decisions can help you better manage your compliance concerns and mitigate legal risks.

The Court’s affirmative action decision wasn’t the only “decidedly impactful” one for employers this term.

 

Major questions around religious accommodation, the FCA, the NLRA and state law pre-emption, “general personal jurisdiction” and more were also all decided.

“Just because you’re undertaking a DEI initiative doesn’t mean that you are making decisions that are based on protected characteristics.”

Samia M. Kirmani

Principal; Co-leader, Workplace Training Group

“It still remains paramount to make sure decisions are made for legitimate nondiscriminatory reasons, and that you evaluate your DEI practice as written, and also as applied.”

Michael D. Thomas

Principal

“It really is about ensuring that everyone involved understands what the DEI measures are and how to operationalize those within the bounds of the law. DEI is not dead; it is still alive and well.”

Monica H. Khetarpal

Principal; Co-leader, Higher Education Industry Group

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Of Counsel, Washington, D.C. Region
(She/Her)
Principal, Hartford
Principal, Washington, D.C. Region
(She/Her)
Principal, Denver
Principal, Orange County

Creating and maintaining a diverse and inclusive workplace is not just the right thing to do but can help your organization attract top talent, improve engagement and retention, increase productivity and innovation, expand your market, and drive profits. In today’s workplace, diversity, equity and inclusion is a business imperative. Our attorneys are ready to assist with a full suite of diversity, equity and inclusion (DEI) workplace services.

Artificial Intelligence

AI 101: What It Is + How to Manage Its Application

With AI developing at a lightning pace and regulators rushing to catch up, we discuss the evolving set of city, state and federal laws and legislation bound to impact employers.

AI Use + the Practice of Law

AI is just the most recent in a long line of technologies that create questions of responsible use for employers and professional practitioners. Listen in for emerging codes of conduct.

Regulation on the rise: pending legislation

Previously we have seen states and cities pass regulations or statutes pertaining to the use of AI in the workplace, including New York City and Illinois. This year, the following states and localities have accelerated their looks into legislation concerning the use of AI in various ways:

  • California
  • Connecticut
  • New Jersey
  • New York
  • Rhode Island
  • Vermont
  • Washington, D.C.

EEOC: ADA + AI

As part of its Artificial Intelligence and Algorithmic Fairness Initiative, the EEOC released a technical assistance document in 2022 about technology and disability discrimination that discusses where the ADA and technology intersect with the workplace.

To date, the most common ways an employer uses these technologies that could violate the ADA include:

  • The employer does not provide a reasonable accommodation for an employee or applicant with a disability to be rated fairly and accurately.
  • The tool used intentionally or unintentionally screens out individuals with disabilities.
  • The tool violates the ADA restrictions on disability-related inquires or medical examinations.
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Talk to a lawyer

“Big data” and the algorithm-driven, generative machine-learning technologies it fuels can be boon or bane for employers. From bias possibilities in HR recruiting and retention tools to biometric data misuse and beyond, we help employers be real about the emerging issues and developing laws around AI.

COVID-19 US Public Health Emergency Ends

Employer checklist

The U.S. COVID-19 public health emergency ended on May 11, 2023. States are following suit, but some state and local requirements remain.

Here are some key “to-dos” for  employers who still have COVID-19 protocols in place:

  1. Assess whether those protocols make sense for their workplace considering the current COVID-19 circumstances.
  2. Revisit testing and vaccination policies. 
  3. Review all accommodations for legal compliance given the changes.
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Talk to a lawyer

(Rich)
Principal, New York City
Principal, Los Angeles
Office Managing Principal, Cincinnati

Every day, we help employers develop proactive strategies, strong policies, and business-oriented solutions throughout the lifecycle of the employment relationship to cultivate a workforce that is engaged, productive, and diverse. We are their partners in developing practical solutions to the ever-evolving challenges in today’s workplace. Our primary goal is to help them manage daily employee-related issues with minimal disruption to their business.

Corporate Criminal Enforcement Changes

In back-to-back speeches to the American Bar Association’s National Institute on White Collar Crime in early March, Deputy Attorney General Lisa Monaco and Assistant Attorney General Kenneth Polite announced several significant policy changes affecting corporate criminal enforcement by the DOJ.

Changes at-a-glance

The changes to the policy in the following areas are acknowledged to be “a combination of carrots and sticks.”

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Individual Accountability

Renewed focus on the prompt disclosure of “all relevant, non-privileged facts about individual misconduct,” noting that “[w]here prosecutors identify undue or intentional delay . . . cooperation credit will be reduced or eliminated.”

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Corporate Recidivism

Additional clarity and constraints: “[C]riminal resolutions here in the United States, as well as prior wrongdoing involving the same personnel or management as the current misconduct” will be most relevant to the DOJ’s recidivism analysis.

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Voluntary Self-Disclosure of Misconduct

DOJ components investigating and prosecuting corporate cases must have in place (and publish) “a formal, written policy to incentivize such self-disclosure” (e.g., the Criminal Division’s FCPA Corporate Enforcement Policy, the Antitrust Division’s Leniency Policy and Procedures, etc.).

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Corporate Cooperation

DOJ reiterates its criteria for corporate cooperation and further commits to harmonizing its requirements and expectations regarding such cooperation across its components.

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Compensation Structures

DOJ prosecutors must consider as part of their evaluation of a company’s compliance program the extent to which measures are in place to “incentivize compliant conduct, deter risky behavior, and . . . avoid legal ‘gray areas.’”

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Personal Device Policies

In evaluating a company’s compliance program, prosecutors should consider whether there are "effective policies and procedures governing the use of personal devices and third-party messaging platforms to ensure that business-related electronic data and communications are preserved.”

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Independent Compliance Monitors

While “Department prosecutors will not apply any general presumption against requiring an independent compliance monitor as part of a corporate criminal resolution, nor will they apply any presumption in favor of imposing one," there is a non-exhaustive list of 10 factors to guide prosecutors’ determination of whether a monitor is required in a corporate criminal case.

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Corporate Criminal Resolutions

Affirming a “commitment to transparency in corporate criminal enforcement,” minimum requirements (e.g., agreed-upon statement of facts, relevant considerations for entering into the agreement, etc.) that have long been staples of Criminal Division resolutions will now be required department-wide.

Implementation at-a-glance

According to the Monaco Memo, to facilitate its implementation of the changes, the DOJ will:

  • Rollout a three-year Pilot Program on Compensation Incentives and Clawbacks.
  • Provide detailed guidance on how DOJ will consider — among other things — corporations’ approaches to, and compliance programs concerning, employees’ use of personal devices, communications platforms and messaging applications.
  • Signal a “significant restructuring” of and surge in resources for the National Security Division (NSD), which will include the addition of more than 25 new prosecutors who will investigate and prosecute sanctions evasion, export control violations and similar economic crimes.
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There is a renewed focus on the timing of the prompt disclosure of “all relevant, non-privileged facts about individual misconduct” and a notification that “[w]here prosecutors identify undue or intentional delay . . . cooperation credit will be reduced or eliminated.”

Talk to a lawyer

Principal, Berkeley Heights
(He/Him)
Principal, Hartford

Companies operating in complex regulatory environments face increased scrutiny and an unprecedented threat of government enforcement actions and potential criminal proceedings at both the state and federal levels. Our team — which includes former federal and state prosecutors and enforcement attorneys from the DOJ, DHS, DOL, and other government agencies — have the experience necessary to guide clients through virtually any type of investigation or enforcement action.

Data Privacy

Leveraging Compliance Commonalities + Getting Ahead of Risks

As more states increasingly pass privacy laws, pursuing business goals without assuming unacceptable levels of data privacy and security risk is key for employers.  Here's how to address near- and long-term concerns.

Top 4 client questions

  1. Are we subject to some or many of these laws, and what are our best options for coming into compliance efficiently and effectively?
  2. How does the general rise in class action lawsuits over website tracking technologies relate to data protection?
  3. How is employee-monitoring technology being used and what are the legal risks we need to navigate?
  4. What are the key AI-related risks we need to mind?
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More comprehensive data privacy in 2023

The number of states passing comprehensive consumer data privacy statues, including a statute that pertains to medical data not protected by HIPAA, continued to grow in the first half of 2023. And, with statutes pending or moving through the legislative process in other jurisdictions, even more states may be likely before the year’s end. 

Federal Statute?

While the federal government has been considering a comprehensive consumer data privacy statute, which would help with the potential inconsistencies between state legislation, no clear timeline is currently available. 

Common protections

Customers have the right to:

  • Access personal data.
  • Correct personal data.
  • Delete personal data.
  • Opt-out of personal data being sold.

Keep in mind, though, that despite these similarities, there are nuances in the laws. Be cautious; not all privacy laws are created the same.

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While many of the statutes are consumer-facing, the laws require employees of covered companies to have awareness of privacy and security requirements and have a workforce trained to respond to customer requests.

Talk to a lawyer

Office Managing Principal, Berkeley Heights
Principal, New York City
Principal, Berkeley Heights

Data cuts across your whole enterprise. Our Privacy, Data and Cybersecurity practice group understands the issues that organizations face when collecting and processing data, whether for managing human capital or for commercial activities. Just as importantly, our team understands the interplay of technical, administrative, contractual, and legal risks in the industry-specific regulatory environments where our clients operate.

Environmental, Social and Governance

ESG Audio Guide

The “triple bottom line” of people, planet and profits, ESG provides any size organization with a flexible framework for aligning operations with corporate responsibilities and values. The following candidly discussed and fully informed high-level conversations with top Jackson Lewis attorneys provide a primer on ESG and presents parameters and practices for proactively developing policies around its pillars.

Computer with an ESG infographic on the screen

ESG 101

Stakeholders are demanding that public companies demonstrate how they plan to incorporate ESG priorities into all facets of their businesses. But what is ESG?

Listen now

Diverse team

Promoting Racial Equity

As more corporate shareholders demand that companies assess their progress in environmental, social, and governance areas, businesses are considering the proactive step of performing a racial equity audit. These audits help to create accountability for values-based outcomes.

Listen now

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Insight into SEC Human Capital Disclosures

Corporate governance reporting is a framework that gives stakeholders insight into a company’s ESG practices, allowing them to better understand the demographic makeup of its corporate board and overall workforce.

Listen now

Thermometer showing high temperatures

Utilizing the Framework to Address Employee Concerns and Safety Needs

Employers are leveraging ESG to address various employees’ and shareholders’ concerns, including appropriate workplace safety controls that respond to employee input while maintaining compliance with state and federal standards.

Listen now

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Human Rights and Modern Slavery

The intersection of human trafficking and smuggling and ESG presents significant legal risks to organizations. Companies are responsible for ensuring their workforces are legally authorized to work, and must also ensure that there are no coerced, trafficked, or underage employees or contractors at their work sites.

Listen now

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What Is Corporate Governance?

Despite acknowledging the necessity of integrating ESG policies, organizations face difficulty determining how their programs are governed. As a result, leaders may encounter challenges when implementing ESG strategies and monitoring and reporting information responsibly.

Listen now

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(She/Her)
Principal, Denver
(She/Her)
Principal, White Plains
(She/Her)
Principal, San Francisco
Principal, New York City
(She/Her)
Principal, Baltimore
Principal, Orange County

In the employment realm, ESG focuses on human capital and the many ways companies demonstrate the value of and commitment to their employees. As a workplace law firm that operates with the clear belief that our employees are our greatest asset, we understand the importance of the issues that must be considered when creating a values-driven culture. We’re ready to partner with you from the breakroom to the boardroom in this new ESG-focused world.

Future of Work

Why Hybrid Is Here to Stay — and How You Can Make It Work for You

Hybrid work in its many forecasted forms is now one of the toughest topics for employers, touching on workplace issues of culture, productivity and fairness.

“Employers who want to distinguish themselves, who really want to attract and retain the best, are going to really think about ‘What is my policy about where work is going to be performed and why does it matter?’”

Felice B. Ekelman

Principal

“It’s important for employers to be able to communicate something beyond, ‘I don’t trust you to be productive when you’re at home.’”

Tasos C. Paindiris

Principal; Co-lead, Advice and Counsel Practice Group

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Our job is to help employers develop proactive strategies, strong policies, and business-oriented solutions throughout the lifecycle of the employment relationship to cultivate a workforce that is engaged, productive, and diverse. Providing employers with tailored and preemptive legal advice and multi-disciplinary strategies, we partner with employers to develop practical solutions to the ever-evolving challenges in today’s workplace.

Immigration

Looking Forward to Forward-Looking I-9s

The world of I-9s is moving, including the end of COVID-19 flexibility and DHS’s just-released final rule allowing a permanent virtual I-9 review option for E-Verify users, which goes into effect August 1 — the same day DHS releases a new I-9 form.

Temporary I-9 flexibility ends July 31, 2023

Employer compliance checklist 
30 days (instead of three) to conduct physical examinations.

  • Prepare lists of employees who were verified remotely.
  • Train staff.
  • Consider using authorized agents, if necessary.

Considerations: A DHS final rule published July 25, 2023, makes qualified employers’ virtual inspection of I-9 original documentation a permanent option as of August 1, 2023. 

Additionally, a new version of Form I-9 (Rev. 08/01/23), consistent with the new rule, is available starting August 1, 2023 (although the current form (Rev. 10/21/19) can be used until October 31, 2023).

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Office Managing Principal, Washington, D.C. Region
Principal, White Plains

Our attorneys help employers access the best global talent, ensure compliance with immigration-related requirements in the workplace, and manage an increasingly diverse workforce. Our Immigration team provides comprehensive services to address clients’ needs quickly and effectively in both the compliance and immigration benefits areas. We provide innovative and cost-effective immigration guidance to employers, including identifying creative visa options and strategies for the global migration of critical staff and hiring of foreign workers.

Labor Relations

Preventing Flip-Flop Whiplash

Between the NLRB’s intense activity and the Supreme Court’s 8-1 decision in the rare labor case that makes its docket, precedent and policy changes are coming fast and furious in 2023.

What we’re seeing

The NLRB is digging deep into pending cases to make changes across a broad range of labor relations areas:

  • Independent contractor standard.
  • Separation and severance agreements.
  • Assessments of misconduct in protected concerted activities, and remedies for repeat offenders.
  • Access to employer property and the “overwhelming community of interest” standard.  
     

“We’ve got the traditional flip-flopping back and forth between standards that are applied when there’s a Republican board and a Democratic board.”

Jonathan J. Spitz

Principal; Co-Chair, Labor Relations Practice Group

“Non-compete agreements — whether or not they run afoul of Section 7 of the National Labor Relations Act — are a hot-button issue right now at the board, with the FTC and a lot of state legislatures involved.”

Daniel D. Schudroff

Principal

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We advise employers in all industries, whether they are fully unionized, fully non-union or somewhere in between. We offer strategic legal advice in assessing and addressing vulnerabilities, strengthening employee relations, and communicating effectively and lawfully with employees, whether in the midst of an organizing campaign, a period of transition for the organization or any other context.

Non-competes, NDAs and Other Agreements

Confidentiality and non-disparagement clauses

The NLRB returned to its pre-2020 standard restricting certain confidentiality and non-disparagement clauses in departing employees’ severance agreements. Severance pay cannot be conditioned on employees broadly waiving Section 7 rights. Agreements are unlawful if they have a reasonable tendency to restrict employees from:

  • Pursuing ULPs or cooperating with NLRB investigation.
  • Making public statements about working conditions to former employees, the media, or on social media.
  • Disclosing terms of severance agreement to union or former employees.
Animated icon of a clipboard with checklist being checked off.

Non-competes feel the heat

Proposals at the state and federal level would either limit the range of non-compete agreements (e.g., no enforcement against lower-paid employees or employees in certain occupations) or prohibit their use in nearly all or all circumstances.

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Federal Workforce Mobility Act of 2023 (FWMA)

Would prohibit the use of non-compete agreements in the context of commercial enterprises except under certain circumstances.

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Proposed FTC Rule

Even more significant than FWMA, this rule is intended to ban non-competes on a national level in most circumstances.

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NLRB General Counsel

Issued a prosecutorial memo asserting certain non-compete provisions in employment and severance agreements violate the NLRA by interfering with Section 7 rights — while not binding, the memo seeks to bring test cases and make new law. 

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State-Level Bills

Dozens have been introduced and/or become law in 2023 alone to restrict the use of non-compete agreements.

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(He/Him)
Principal, New York City

Business information and goodwill often are a company’s most significant assets, but — unlike equipment and physical assets — employees and others can easily move this information and take client relationships with them to competitors. We offer employers a multi-disciplinary approach to help confront all forms of unfair competition, both through appropriate agreements and policies and in courts across the U.S. and beyond. No matter what the client’s particular situation, we bring to bear a wealth of knowledge, experience and practical solutions that make business sense.

OSHA’s New Enforcement Guidance

Bigger Expectations + Bolder Enforcement

OSHA’s been busy in 2023 with its focus on “the vulnerable worker.” Heat illness, fall protection, PPE and more are all subjects of proposed rulemaking. And then, there’s its new IBI enforcement effort. . . .

In early 2023, OSHA began allowing its regional and area offices the discretion to issue Instance-By-Instance (IBI) citations in an effort to deter serious violations. Rather than issuing one citation and one penalty that incorporates all instances of a certain violation, an IBI citation can now be issued for each separate violation (even if found during the same investigation) with a separate penalty issued each time as well.

Infraction types

Reserved for more serious infractions, IBI citations for high-gravity serious violations of OSHA standards specific to:

  1. Falls
  2. Trenching
  3. Machine Guarding
  4. Respiratory Protection
  5. Permit-Required Confined Spaces
  6. Lockout / Tagout
  7. Other-than-serious Violations of OSHA Standards Specific to Recordkeeping
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Relevant OSHA documents

Regional administrators and area directors have discretion to apply IBI penalty adjustments in appropriate cases to achieve a deterrent effect.

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Talk to a lawyer

With experienced Workplace Safety and Health attorneys located strategically throughout the U.S., we are well-positioned to serve all of an employer’s needs with respect to safety and health programs and compliance issues. 

Pay Transparency

“The Avalanche Has Started . . . and It’s Not Stopping”

The volume of new and pending laws, the rapidness of their rollout and their variations across geographies all suggest that embracing the spirit of transparency is going to be easier than actually executing on it. Here’s how employers can anticipate emerging issues and evaluate options to better avoid enforcement.

More pay transparency legislation in 2023

States and local jurisdictions at both the county and city levels are passing pay transparency laws, requiring employers to provide salary and general compensation information in their job postings for applicants and, in many states, even for existing employees.

Multistate employer alert

  • Some laws apply as soon as you have one employee in that state (even if the employee is remote).
  • Remote positions require compliance under these laws.
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Talk to a lawyer

(She/Her)
Principal, Long Island

Employers face a growing threat from pay equity claims, both internal and external, pressure from activist investors, and increased government-mandated reporting of sensitive pay data. With a team of experienced attorneys and master’s and Ph.D. statisticians, we provide support and defense in the broad range of pay equity issues employers face.

Pregnant Workers Fairness Act (PWFA) and PUMP

Waiting for the Regulations: What Will Key Terms Really Mean?

The PWFA’s obligations for employers to reasonably accommodate pregnancy, childbirth or related medical conditions, some of which seem ADA-like and others which do not, also call for the process to be interactive.

Both the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP For Nursing Mothers Act) were adopted as part of the Consolidated Appropriations Act, 2023 that President Biden signed on Dec. 29, 2022. PUMP took effect immediately, although changes to available remedies under it only took effect on April 28, 2023. The PFWA took effect on June 27, 2023, and the EEOC is expected to issue regulations by December 29, 2023.

PWFA at-a-glance
  • Applies to employers with 15+ employees.
  • Requires employers to provide reasonable accommodations for temporary limitations on ability to perform essential functions of the job due to pregnancy, childbirth, or related medical conditions, unless it would cause an undue hardship.
  • Prohibits employers from requiring employees to accept an accommodation other than a reasonable accommodation arrived at through the interactive process.
  • Prohibits placing an employee on paid or unpaid leave if there is another reasonable accommodation available that doesn’t impose an undue hardship.
  • Incorporates ADA meaning of reasonable accommodation and undue hardship.
  • Prohibits retaliation.
PUMP at-a-glance
  • Applies to all employees (exempt and non-exempt).
    • An employer with fewer than 50 employees is not subject to the requirements of the law if compliance would impose “an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”
    • Additional exemptions for crewmembers of air carriers and certain employees of rail carriers and motorcoach service operators.
  • Provides for breaktime and space to pump breast milk.
  • Expands FLSA protections to include exempt employees for protected breaks for pumping.
  • Break time may be unpaid for non-exempt employees, unless the employee expresses milk during an otherwise paid break period or is not completely relieved of duty for the entire break period, or if the break is otherwise required to be paid by another law or ordinance.
  • Exempt employees should be paid their full weekly salary, regardless of whether they take breaks to express breast milk.

“For the PWFA to apply, the situation complained about in the charge must have happened on June 27, 2023, or later. A pregnant worker who needs an accommodation before June 27th may, however, have a right to receive an accommodation under another federal or state law”

PWFA FAQs: What You Should Know About the Pregnant Workers Fairness Act

U.S. Equal Employment Opportunity Commission (eeoc.gov)

A new FLSA poster with PWFA and PUMP Act info is available now.

Jackson Lewis Leave & Accommodation Suite

Eliminate doubt and increase efficiency when managing the explosion of accommodations situations and scenarios. From the federal Pregnant Workers Fairness Act (effective 6/27/23) to the patchwork of state and local laws, our interactive Leave Law Maps make it easy to keep current on the close to 30 highly regulated leaves and accommodations employers need to consider. More than just identifying the states that have laws, a simple click reveals summaries of those state and local leave laws in layperson’s terms.

Talk to a lawyer

(Joe)
Principal, New York City
Office Managing Principal, Cincinnati

Our Disability, Leave and Health Management practice group helps employers design and administer their leave and accommodation policies and practices in a way that complements and drives each employer’s unique workplace culture and proactively addresses business and operational needs. We also bring a big-picture perspective to the table by collaborating with other practice groups to ensure that employers’ leave and accommodation policies and practices are in compliance with other related legal obligations such as privacy, wage and hour, OSHA, employee benefits, and unique state and local laws. Ensuring legal compliance, reducing the risk of employment litigation and solving employer leave and accommodation problems — that’s what we do. 

© Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome. 

Focused on labor and employment law since 1958, Jackson Lewis P.C.'s 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. We help employers develop proactive strategies, strong policies and business-oriented solutions to cultivate high-functioning workforces that are engaged, stable and diverse, and share our clients' goals to emphasize inclusivity and respect for the contribution of every employee. For more information, visit https://www.jacksonlewis.com.