Employer-Sponsored Health Plans

On Friday, June 24, in Dobbs v. Jackson Women’s Health Organization,  the United States Supreme Court overruled Roe v. Wade and held that the United States Constitution does not protect a woman’s right to terminate her pregnancy.

After Dobbs, some employers are considering adding or altering abortion-related benefits provided under their employer-sponsored group health plans, including coverage for travel related-expenses.  Although it is currently unclear whether and to what extent employers may offer those benefits without potentially violating applicable state law, below are some immediate action items and considerations for employers:

While diversity, equity, and inclusion have slowly made their way to the forefront of many employers’ minds, two dimensions of diversity are often overlooked in these discussions –neurodiversity and ability diversity. More than 1 billion people, 15% of the global population, live with a disability. Thus, employers must ensure that neurodiversity and employees and applicants with disabilities are properly represented in DEI initiatives.

U.S. Supreme Court, in Viking River Cruises, Inc. v. Moriana

In a landmark 8-1 ruling, the U.S. Supreme Court, in Viking River Cruises, Inc. v. Moriana (No. 20-1573, June 15, 2022), provided California employers with much needed relief from the onslaught of wage-hour claims brought under the California Labor Code Private Attorneys General Act of 2004, Cal. Labor Code sections 2698 et seq. (the “PAGA”).  The Court emphasized the preemptive effect of the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the “FAA”), finding that the FAA preempts a rule of California law that invalidates arbitration agreements containing waivers of the right to assert representative PAGA claims.  The Court overruled the California Supreme Court’s rule to the contrary in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 380 (2014).  The immediate impact of Viking River is to authorize motions by California employers utilizing mandatory arbitration agreements with class action waivers to dismiss PAGA claims brought in court or, alternatively, to compel arbitration of them.

Professional Dress and Hygiene

While many employers maintain “Professional Dress and Hygiene” policies in their Employee Handbooks – or as stand-alone policies – managers, supervisors, and human resources personnel are rarely trained on how to implement those policies. The common result is, unfortunately, that these policies are applied unfairly or more strictly toward Black and other racially diverse employees. Very seldom do we see policies that specifically prohibit braids, dreads, locks, twists, or knots anymore. Instead, these policies often state that employee hairstyles must be “professional” (very helpful),“neat,” and well-managed,” for example. Keeping your policy language broad can be helpful by giving your managers, supervisors, and HR personnel deference, but it can also result in disparate treatment if the decision-maker has conscious or unconscious biases about what is viewed as “professional” and make determinations under the policy relying on those unfair biases.

Airline Cargo Supervisor

In a unanimous 8-0 decision, in Southwest Airlines Co. v. Saxon, the U.S. Supreme Court (Court) held that airline cargo ramp supervisors that assist with loading and unloading cargo constitute a class of workers engaged in foreign or interstate commerce and are exempt under the from the scope of the Federal Arbitration Agreement (FAA). Justice Thomas authored the opinion on behalf of the Court (Justice Barret was recused from the case) and set forth a two-part analysis that (1) defined the relevant “class of workers” and (2) determined whether the class of worker is “engaged in foreign or interstate commerce.”

Hospital hallway

On May 30, 2022, Politico published an article with the headline:  America’s Hospital Regulator Wasn’t Designed for a Pandemic.”  The crux of the article: “[T]he Centers for Medicare and Medicaid Services is ill-equipped to enforce its rules.”  This matters for hospitals and other healthcare facilities still grappling with masks and vaccines.

Five interesting takeaways from the article are outlined below.

Texas Supreme Court Rules

Predictability and fairness are typical pillars of employment law. Where predictability allows both employers and workers to understand and navigate the rules and regulations that are applicable to them, fairness provides a constant level of security to all parties. Recently, the Texas Supreme Court used an unpredictable procedure to reach what it calls a “rule of fairness and right.”

Remote Worker Eligibility

Not surprisingly, simple solutions to complex issues are often elusive. Yet on rare occasions, the solution is in plain sight. Doubtful? For employers struggling with the issue of a remote employee’s eligibility for job-protected leave under the federal Family and Medical Leave Act (FMLA), there is a very simple answer. And, unlike the analysis we discussed in our commentary about wage and hour issues for remote employees, the answer does not depend on the location of the remote employee.