By McKenzie T. Meade, Esq., and Whitney R. Brown, Esq.
Every employer should put these three key action items on your company’s front burner in 2024. Here’s why:
Revise your Employee Handbook to Include a Unified Request for Accommodation Process
- Reason 1: In the late 1970s, the U.S. Supreme Court ruled that any religious accommodation imposing more than a de minimis burden on employers was an undue hardship. In Groff v. DeJoy (2023), the Supreme Court said, effectively, “only joking!” The 9-0 decision held that an employer can show undue hardship ONLY if it can prove that the requested accommodation or other viable option would result in a substantial increase in the cost to the employer’s overall business.
- Reason 2: The Pregnant Worker Fairness Act (PWFA) requires employers of 15 or more employees to provide reasonable accommodations to pregnant workers (employees AND applicants). It’s like the ADA, but it doesn’t require the pregnancy-related condition rise to the level of disability (e.g., an employee with swollen feet requesting to prop her legs up need not show the swelling is disabling). The EEOC’s proposed regulations attempt to dramatically extend the accommodation obligation to include leaves and waiving essential job functions for periods of at least 40 weeks.
For these reasons, employee handbooks should direct employee requests for accommodation on any basis to HR personnel who understand the interactive process and keep up to date on the EEOC’s PWFA draft regulations and the inevitable legal challenges they’ll face.
Understand Your Company’s and Others’ Use of AI
Many employers use artificial intelligence for human resources functions like screening applicants. Employers must remember that AI algorithms are only as good as the information they receive. For example, if an employer uses resumes of top performers in a role historically dominated by men to “train” an AI to pick similar applicants, the AI may place undue weight on common but more masculine and non-job-related items like certain clubs or sports. Even if you depend on third parties for applicant sorting, your company is still the employer, and the primary defendant, so vet these carefully. Unsurprisingly, two of the five key priorities in the EEOC’s draft Strategic Enforcement Plan for 2023-2027 relate to employer AI use.
Update Your Union Avoidance Training
In August 2023, the National Labor Relations Board reversed more than 50 years of precedent about how a union comes to represent employees. Instead of the union gathering proof of majority representation and requesting an election, now a union may simply assert that it represents a majority of a unit of employees. According to the NLRB’s general counsel, the union can make the claim of representation to basically any officer or manager. Once it does so, the employer has 14 days to request an election. If the employer takes no action and then doesn’t meet with the union to bargain, the NLRB will order the employer to bargain without the necessity of an election.
Add to this the “quickie” election rules being reinstated on Dec. 26, 2023, and wins for unions in Hollywood and against the Big 3 in auto manufacturing, and you have a recipe for stealth organization leading to representation without election. The antidote is well-trained managers alert to union activity who are positively engaging employees in ways that diminish the appeal of unions.
McKenzie Meade and Whitney Brown are with Lehr Middlebrooks Vreeland & Thompson PC. The Birmingham labor and employment law firm provides information for Alabama Retail’s Employment Law Resource Center. The firm represents employers exclusively regarding workplace matters. As an Alabama Retail member, another benefit of your membership is access to the Employment Law hotline operated by LMVT.
This article can also be found on Page 14 in the February 2024 issue of Alabama Retailer.