An Election Primer for Private-Sector Employers

As the 2024 general election draws near, employers can anticipate a rise in political expression from employees both inside and outside of the workplace. Political speech encompasses a broad array of activities, extending far beyond verbal or written communication on political topics. For example, wearing clothing or accessories that endorse or oppose certain issues (N.L.R.B. v. Mead Corp.); wearing wrist bands in support of political causes (Tinker v. Des Moines); displaying bumper stickers, campaign buttons or political posters (Ferguson Police Officers Ass’n v. City of Ferguson); donning insignia such as buttons or decals (Home Depot USA, Inc. and Antonio Morales Jr.); and even “liking” a social media post can be viewed as protected speech (Bland v. Roberts).

Late yesterday, August 20, 2024, a Federal Court in Texas issued a decision which enjoins – on a nationwide basis – the FTC’s final rule which would effectively ban all non-competes with limited exceptions. While we expect the FTC to appeal this decision, the rule will not go into effect on September 4, 2024, or…

A whopping 7 in 10 Americans favor the legalization of cannabis, according to Gallup, as more states are slated to legalize adult use cannabis, or at least decriminalize it, this year. Indigenous nations, such as Wisconsin’s Ho-Chunk, are following suit. As of April 30, the Ho-Chunk tribal legislature voted to decriminalize cannabis on its tribal lands. Yet, as the Drug Enforcement Administration (DEA) advances the rescheduling of cannabis under the Controlled Substances Act, complex jurisdictional questions remain regarding the enforcement of cannabis laws at the tribal and state levels. Among them, as of 2024, can tribes legalize cannabis use and sale on their own lands?

The Northern District of California issued an eagerly awaited decision last month in Mobley v. Workday, Inc., where a job applicant claims that Workday’s artificial intelligence (AI) job applicant screening tools violate federal and California anti-discrimination laws. Workday moved to dismiss the claims, on the basis that it is not a covered employer under any of the applicable anti-discrimination laws, which the Court granted in part and denied in part. Specifically, the Court dismissed the plaintiff’s intentional discrimination claims and an aiding and abetting claim under California’s anti-discrimination law, but allowed disparate impact discrimination claims to proceed against Workday based on the argument that Workday was an “agent” of the employers to which the job applicant applied.    

From Congress’ recently proposed “Dismantle DEI Act of 2024” to the Court of Appeals for the Tenth Circuit’s decision permitting mandatory diversity training by employers, diversity, equity, and inclusion (“DEI”) programs remain a contentious issue in U.S. politics. In June 2024, attorneys general from 40 states joined one of two dueling letters, reflecting the inconsistent sentiments on this topic across state lines.

While properly implemented DEI programs remain permissible under Title VII and other applicable laws, recent legislation proposed by Senate and House Republicans would seek to eliminate any such programs sponsored or supported by the federal government. On June 12, 2024, twenty-two members of Congress, led by Ohio Senator J.D. Vance (Donald Trump’s vice-presidential candidate in the 2024 election) introduced the Dismantle DEI Act of 2024 (the “Act”). With respect to the Act, Senator Vance stated, “The DEI agenda is a destructive ideology that breeds hatred and racial division. It has no place in our federal government or anywhere else in our society.” The proposed legislation seeks to eliminate all federal DEI programs and funding for federal agencies, contractors which receive federal funding, organizations which receive federal grants, and educational accreditation agencies. Although the Act would not apply to the private sector, the federal government remains the nation’s largest employer and the Act would impact a workforce of over four million employees.

On August 11, 2023, Governor J.B. Pritzker signed an amendment to the Illinois Equal Pay Act that mandates new pay transparency requirements for most Illinois employers.

New Pay Transparency Requirements

Effective January 1, 2025, the amendment requires all public and private employers in Illinois with 15 or more employees to provide pay scale and benefits information in all open job postings. This means that covered employees must provide the following information for each posted position:

Colorado recently became the first state to regulate the use of high-risk artificial intelligence (AI) systems to prevent algorithmic discrimination by developers and deployers of AI systems. The Colorado AI Act is broad in scope and will apply to businesses using AI for certain employment purposes, imposing numerous compliance obligations and potential liability for algorithmic discrimination.