KMK Law Management Rights Blog

Most people have read about artificial intelligence in the media and many have tried out programs like ChatGPT. Some have even used such programs at school or at work. This raises a question of what employment law issues are implicated by the use of AI. To find out, I asked ChatGPT the following question: “What employment law issues are raised by use of artificial intelligence programs?” ChatGPT dutifully produced a list of seven (7) issues, which I will comment on in this episode. 

In Groff v. DeJoy, decided today, the U.S. Supreme Court clarified the standard for employers to determine what constitutes an undue burden that would permit an employer to reject an employee’s request for a religious accommodation. Under Title VII, employers are required to reasonably accommodate an employee’s religious observance or practice if it is possible to do so without “undue hardship” on the conduct of the employer’s business. Until today, the seminal case on Title VII religious accommodations was the 1977 Supreme Court decision in Trans World Airlines Inc., v. Hardison. That case established the well-known standard that an employer is not obligated to grant a religious accommodation if the accommodation would create more than a “de minimis” burden on the employer’s operations. 

If you follow the news, you are probably aware that non-compete agreements are under attack on several levels. This episode will consider three primary sources of these attacks on non-compete agreements:

1. The Federal Trade Commission (FTC) Proposed Rule banning non-compete agreements;
2. The NLRB General Counsel Memorandum GC 23-08 (May 30, 2023) indicating that non-compete agreements may violate section 7 of the National Labor Relations Act; and
3. State laws banning or curtailing enforcement of non-compete agreements.

See the FTC Proposed Rule here.

See the NLRB General Counsel ...

Employers seeking to enforce non-compete agreements against their former employees will face a new hurdle following the latest news out of Washington, DC. National Labor Relations Board (“NLRB”) General Counsel Jennifer A. Abruzzo, who is responsive for the investigation and prosecution of unfair labor practice cases and for the general supervision of NLRB field offices, released a memorandum today announcing her interpretation that many non-compete agreements violate the National Labor Relations Act (“NLRA”) and thus are not enforceable. She has directed NLRB field offices to submit cases involving non-compete agreements for further investigation.

There are several common misperceptions about employment law that seem to persist over time - employment law myths if you will. In this episode, 5 common employment law myths are exploded.

Like everything else, employment law and employment litigation is driven by economics. Matters such as the cost of having dedicated human resources professionals and how attorneys are paid by plaintiffs and defendants can all have a significant role in employment litigation and litigation avoidance. There is also the question of whether employers should buy Employment Practices Liability Insurance (EPLI) to protect themselves against potential losses. These topics and more will be discussed in this episode.

On February 21, 2023, the National Labor Relations Board (NRLB or the “Board”) issued a decision in Mclauren Macomb, 372 NLRB No. 58 (2023), holding that severance agreements that contain broad confidentiality and/or non-disparagement provisions violate Section 7 of the National Labor Relations Act (NLRA or the “Act”) because they tend “to interfere with, restrain or coerce employees’ exercise of the rights guaranteed in Section 7” of the Act.  Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”  

Workplace violence is in the news again. It is a difficult and frightening problem that implicates several aspects of employment law. This episode covers several thoughts on the issue of workplace violence and considers steps employers may take to lessen the risk of an incident, particularly in the context of employee terminations.

A recent trend in labor and employment law has been the passage of pay transparency laws. These are laws that require employers to either disclose salary ranges for posted jobs to applicants who request the information or in some cases, to all applicants in the actual job posting. At present, there are eight states and a handful of municipalities that have passed these laws but a lot more have pending legislation so I would expect to see more laws passed in the next couple of years. 

The states are:

• California
• Colorado
• Connecticut
• Maryland
• Nevada
• New York
• Rhode Island
• Washington

In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including: