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Publications
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03.15.2024Implications From Denial of Certiorari in Race-Neutral Admissions CaseUpdatesThe U.S. Supreme Court denied certiorari in a much-scrutinized U.S. Court of Appeals for the Fourth Circuit case involving race-neutral school admissions procedures, Coalition for TJ v. Fairfax County Board, on February 20, 2024.
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03.15.2024Update: Employers, Take Notice as the DOL Crafts White House AI MandatesPodcastsIn this episode, Chris Wilkinson updates listeners on federal and state regulation of artificial intelligence (AI).
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03.07.2024Part 2: How Americans' Views of Corporations Are Changing—for Better or WorsePodcastsIn part two of our series on how Americans' views of corporations are changing, Senior Counsel Chris Wilkinson is joined by Perkins Coie's persuasive communications advisor, Senior Litigation Consultant Karen Lisko, to discuss how these views are playing out in the courtroom.
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02.22.2024Update: Five Questions Companies Are Asking About DOL's New Independent Contractor RulePodcastsThe U.S. Department of Labor (DOL) recently issued a final rule imposing stricter criteria for companies to classify workers as independent contractors.
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02.15.2024 (UPDATED 02.20.2024)Proposed Rule Would Impose Pay Transparency and Salary History Requirements for Federal ContractorsUpdatesThe Federal Acquisition Regulatory Council issued a Proposed Rule, “Pay Equity and Transparency in Federal Contracting,” on January 30, 2024. The Proposed Rule would amend the Federal Acquisition Regulations, which apply to federal government commercial contracts to be principally performed in the United States and its territories.
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01.16.2024 (UPDATED 1.18.2024)Five Questions Companies Are Asking About DOL's New Independent Contractor RuleUpdatesThe U.S. Department of Labor published its final independent contractor rule on January 10, 2024. The final rule revises the Trump administration’s interpretation of “employee” under the Fair Labor Standards Act to determine whether a worker is an employee or independent contractor.
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12.27.2023Update: The Growing Regulation of AI-Based Employment Decision ToolsPodcastsIncreasing adoption of video and automated technology, such as artificial intelligence (AI), in employment practices has prompted regulatory efforts.
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12.18.2023Part 1: How Americans' Views of Corporations Are Changing—for Better or WorsePodcastsIn addition to ensuring returns for investors, American corporations are tasked with navigating a host of social, political, and economic hot button issues—and polls have reflected some success on this journey.
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11.30.2023Title IX Grievance Rules Raise Due Process QuestionsThe U.S. Department of Education's (DOE) 2022 proposed Title IX regulations were accompanied by confident claims that their impact would be nothing short of historic. After receiving over 239,000 comments, the DOE's anticipated release of the final rule in October has been delayed. The official reasons for the delay are a mystery, but the avalanche of comments has likely led the agency to reconsider important aspects of campus Title IX disciplinary hearings, somewhat awkwardly referred to as grievance procedures.
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11.22.2023Employers, Take Notice as the DOL Crafts White House AI MandatesArticlesChristopher Wilkinson wrote an article published in Bloomberg Law titled "Employers, Take Notice as the DOL Crafts White House AI Mandates," where he considers the Department of Labor’s new responsibilities under the White House’s artificial intelligence executive order, spanning issues such as discrimination, immigration, and worker displacement.
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09.19.2023The Growing Regulation of AI-Based Employment Decision ToolsArticlesThe growing use of video and automated technology, including artificial intelligence, in employment practices—and the concern that the technology may foster bias—has triggered a wide array of regulatory efforts.
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09.08.2023With Race Gone as a Factor in Admissions, Is Student Athlete Status Next?ArticlesThe U.S. Supreme Court’s recent decision on universities’ affirmative action policies, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), has garnered significant political, cultural, and media attention. The overall focus has centered on the decision’s determination that race can no longer be used as a factor to achieve diversity in university admissions. Less attention has been paid to the manner in which the winding trials and ensuing appellate process lifted the veil on college admissions and how various factors other than race, including legacy and athletic ability, tip the scales in admissions decisions.
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08.14.2023Update: New EEOC Guidance Clarifies Employer Responsibility for Discrimination in AI Employment ToolsPodcastsEmployers are increasingly utilizing artificial intelligence (AI) tools supplied by third-party vendors.
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07.19.2023Three Questions About the Recent Attorneys General Letter Related to DEI ProgramsUpdatesOn July 13, 2023, 13 attorneys general signed a public letter voicing opposition to employers’ use of diversity, equity, and inclusion plans. The letter alleges that the U.S. Supreme Court’s recent decision banning race-based affirmative action in college admissions implicates corporate DEI programs.
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07.05.2023Seven Pressing Questions Following the Supreme Court’s Admissions DecisionUpdatesOn June 29, 2023, the Supreme Court issued its landmark decision in two cases challenging universities’ consideration of race as a factor in student admissions: Students for Fair Admissions v. President and Fellows of Harvard College; and Students for Fair Admissions v. University of North Carolina.
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05.31.2023New EEOC Guidance Clarifies Employer Responsibility for Discrimination in AI Employment ToolsUpdatesThe Equal Employment Opportunity Commission provided guidance indicating that, in its view, employers are generally liable for the outcomes of using selection tools to make employment decisions.
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05.25.2023Update: OFCCP Finalizes Rescission of the 2020 Religious Exemption RulePodcastsThis spring, the Office of Federal Contract Compliance Programs (OFCCP) published its final order rescinding the Trump-era Religious Exemption Rule for federal contractors.
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04.2023Employment Law Yearbook 2023, Chapter 2, OFCCP DevelopmentsLawyer PublicationsThis annual publication provides a comprehensive overview of U.S. employment law, highlighting significant case law, legislative changes, government agency actions, and other developments of the prior year.
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03.30.2023NLRB General Counsel: Workplace Discussions of Race Are Protected Under the NLRAUpdatesEmployees alleging racism in the workplace received favorable guidance from the National Labor Relations Board in a recent general counsel memorandum.
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03.20.2023OFCCP Finalizes Rescission of the 2020 Religious Exemption RuleUpdatesThe Office of Federal Contract Compliance Programs (OFCCP) published its final order on March 1, 2023, rescinding the Trump-era Religious Exemption Rule for federal contractors.
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03.02.2023Day-Rate Rules Result in Overtime Pay for Exempt Highly Compensated EmployeeUpdatesThe U.S. Supreme Court ruled that compensation based on a daily rate does not satisfy the Fair Labor Standards Act's “salary basis test,” which is required for an employee to be exempt from overtime compensation.
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02.17.2023How AI and Automated Systems Use Can Lead to Discrimination in HiringUpdatesThe National Institute of Standards and Technology, the White House, and the Equal Employment Opportunity Commission are warning companies that uncritical reliance on AI can have legal consequences, including potentially building in bias that can lead to claims of employment discrimination.
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02.13.2023Update: Affirmative Action: Six Employer Questions After the Supreme Court ArgumentsPodcastsThe U.S. Supreme Court held oral arguments in two landmark cases, Students for Fair Admissions, Inc. v. President and Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, arising out of the affirmative action policies of two elite university systems, Harvard University and the University of North Carolina.
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11.07.2022Affirmative Action: Six Employer Questions After the Supreme Court ArgumentsUpdatesOn October 31, 2022, the U.S. Supreme Court held oral arguments in two landmark cases, Students for Fair Admissions, Inc. v. President and Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, arising out of the affirmative action policies of two elite university systems, Harvard University and the University of North Carolina (UNC).
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10.14.2022US Department of Labor Proposes Independent Contractor RuleUpdatesThe U.S. Department of Labor published a Notice of Proposed Rulemaking on October 13, 2022, that proposes guidance on determining employee or independent contractor classification under the Fair Labor Standards Act.
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09.20.2022Recent Large Government Settlements Reflect Unique Risks to Employers for Antitrust ViolationsUpdates
Employers who share information with competitor employers about employee compensation, including wages and benefits, face greater risks of government investigations into violations of antitrust laws, as evidenced by recent legal actions by the U.S. Department of Justice, including an $84.8 million settlement between the DOJ and three poultry processing plants.
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9.20.2022Six Questions Companies Are Asking About Pay EquityBlogsWhy focus on pay equity now? Robust ESG compliance commitments and recent social movements have pushed pay equity to the top of many companies’ priorities.
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09.01.2022Federal Contractors in Limbo After Vaccine Mandate Nationwide Injunction Is NarrowedUpdates
The federal contractor COVID-19 vaccine mandate, dormant after a federal district court issued a nationwide injunction, may be revived in an appeal of that matter after the U.S. Court of Appeals for the Eleventh Circuit determined that the nationwide injunction was too broad.
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08.23.2022OFCCP Issues Revised Compensation Data DirectiveUpdatesFederal contractors should remain vigilant in how they structure and conduct internal pay equity audits to ensure compliance with the revised federal guidance. On August 18, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs revised its recent directive related to compliance obligations on evaluating compensation and how the agency may seek to gain access to that data during a compliance audit.
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06.29.2022Today’s Pay Equity LandscapePodcasts
Workplace Rules - Episode 9
Legal, political, and social movements have pushed pay equity to the top of many organizations’ priorities. -
06.16.2022The Pay Equity Landscape: Top Trends for EmployersArticlesSeveral forces are demanding that employers show greater pay transparency, including activist shareholders, government regulations, and societal changes. Perkins Coie attorney Chris Wilkinson and Cary Elliott, a director at Resolution Economics, offer steps companies can take to fulfill their equity goals and avoid lawsuits and fines.
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03.23.2022OFCCP Directive on Internal Pay Equity Audits Takes on Privilege ClaimsUpdatesFederal contractors who conduct pay equity audits under attorney-client and work product privileges face increased risks under a new directive by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs.
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02.02.2022An Affirmative Action Reminder For Gov't ContractorsArticles
Law360
Potential and existing federal contractors and subcontractors face a thicket of obligations when they decide to enter into agreements to perform work for the federal government. -
01.18.2022Federal Contractor Threatened With Suspension and Debarment for Not Submitting Affirmative Action PlansUpdatesThe U.S. Department of Labor’s Office of Federal Contract Compliance Programs recently reminded federal contractors that the government has broad authority to audit and investigate contractors’ equal employment practices and policies.
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12.10.2021Federal Contractor Vaccine Mandate Blocked in Nationwide InjunctionUpdatesOn December 7, 2021, a federal district court in Georgia issued a nationwide injunction blocking the federal contractor vaccine mandate and other protocols.
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11.05.2021Frequently Asked Questions on OSHA’s COVID-19 Vaccination and Testing Emergency Temporary StandardUpdatesThe U.S. Department of Labor’s Occupational Safety and Health Administration issued its long-awaited emergency temporary standard requiring all employers with a total of 100 or more employees to mandate vaccination and/or weekly COVID-19 testing. OSHA also released a comprehensive FAQ to address questions.
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11.01.2021Frequently Asked Questions on Religious Objections to Employer COVID-19 Vaccine MandatesUpdatesOn October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance related to the COVID-19 pandemic, adding a brand-new section addressing religious objections to COVID-19 vaccine mandates.
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10.22.2021Federal Contractors Bracing for Implementation of Vaccine MandateUpdatesLast week, the federal government began enforcing the requirements of the Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors” (COVID EO) and its supporting guidance.
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09.08.2021OFCCP Signals More Rigorous Enforcement Landscape With Three Big MovesUpdatesThe U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has taken three recent notable actions.
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08.03.2021What to Expect When You’re Expecting Change in DCPodcastsJoin Perkins Coie Senior Counsel Christopher Wilkinson for a discussion of what it takes to actually get things done in D.C., based on experience gained as the associate solicitor for civil rights and labor management for the U.S. Department of Labor during the Obama administration.
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06.08.2021District Court Denies Preliminary Injunction Against Colorado’s Equal Pay ActUpdates
On May 27, 2021, the U.S. District Court for the District of Colorado denied Rocky Mountain Association of Recruiters’ motion for preliminary injunction.
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05.12.2021The Labor Department’s First 100 Days Under Biden—What to KnowArticlesThe Biden administration is closing in on its first 100 days. Based on the strong progressive agenda of the campaign, it was expected that the Department of Labor would take very bold and aggressive actions out of the gate.
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UPDATED 05.12.2021US Department of Labor Announces Final Rule Regarding Independent ContractorsUpdatesOn January 7, 2021, the U.S. Department of Labor (DOL) issued its highly anticipated final rule codifying its interpretation of independent contractor status under the Fair Labor Standards Act (FLSA).
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03.11.2021Challenge to Colorado Equal Pay for Equal Work Act Will Have Important (and Costly) Implications for EmployersUpdatesColorado’s Equal Pay for Equal Work Act, SB19-085 (the Equal Pay Act), went into effect on January 1, 2021.
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12.03.2020Higher Education Institutions May Be Back in the Department of Labor’s CrosshairsUpdatesThe gender equity movement focused higher education institutions on pay equality. For example, in 2016, the Equal Employment Opportunity Commission (EEOC) sued the University of Denver alleging gender discrimination in professor compensation that resulted in the university paying $2.66 million to resolve the matter. Now, the recent racial justice movement has raised the stakes for these institutions.
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11.12.2020New Administration Will Bring Big Changes to the Department of LaborUpdatesThe U.S. Department of Labor (DOL) will see significant changes under a Biden administration.
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10.28.2020Six Ways OFCCP Can Reboot After Pay Discrimination LossesArticlesThe Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has now suffered two significant losses related to its approach to enforcing pay discrimination.
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09.25.2020US Department of Labor Issues Notice of Proposed Rulemaking on Independent Contractor/Employee Worker ClassificationsUpdatesThe U.S. Department of Labor (DOL) issued its Notice of Proposed Rulemaking (NPRM) on September 22, 2020, seeking to codify the independent contractor/employee worker classifications into the Fair Labor Standards Act’s regulations.
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Workplace RulesPodcastsWith the global shift to remote work in 2020, the workplace has changed radically and understanding current employment rules and regulations matters immensely.
Presentations
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05.03.2024Ethics: What Could Go Wrong???Speaking EngagementsNational Employment Law Council (NELC) Annual Conference / Chicago, IL
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10.25.2023
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06.06.20232023 Annual Labor & Employment Law Workshop (Virtual)Speaking EngagementsWebinarThis year’s agenda includes presentations on the Federal Trade Commission’s controversial proposed ban on noncompete agreements and a panel presentation featuring noteworthy speakers addressing workplace violence.
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06.06.2023Macroeconomic Trends and Job Mobility Within Labor MarketsSpeaking Engagements
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04.14.2023How Technology Can Lead to Employment Discrimination ClaimsSpeaking EngagementsCivil Rights In A Technology Dominated Era
North Carolina Central Law Review & The Science & Intellectual Property Law Review / Durham, NC
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04.07.2023OFCCP in Transition Post Director YangSpeaking Engagements
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03.09.2023The Delicate Task: How To Conduct a Trauma-Informed, Survivor-Centered Internal InvestigationWebinarsOn Thursday, March 9, 2023, Perkins Coie hosted a highly interactive CLE webinar designed by seasoned practitioners who will share best practices and their experiences investigating cases of workplace violence, sexual and racial trauma, and other instances of power-based harm.
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09.29.2022Equal Opportunity Compliance Issues and False Claims Act RisksSpeaking EngagementsPublic Contracting Institute / Webinar
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06.15.20222022 Annual Labor & Employment Law Workshop (Virtual)WebinarsA half-day, virtual employment law workshop, which covered a variety of topics, including an update on seminal federal and state employment law developments including in the areas of wage-and-hour law and the gig economy, family and medical leave and accommodations, arbitration and confidentiality in employment agreements, and other trends employers should watch in 2022.
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04.02.2022
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06.10.20212021 Labor & Employment Law Virtual WorkshopWebinarsHalf-day virtual employment law workshop that includes topics on: COVID-19 vaccination requirements and return-to-work considerations; the current National Labor Relations Board and what to expect regarding union activity during the new administration; and an update on key developments in federal and certain state employment laws.
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11.19.20202020 Labor and Employment Law Virtual WorkshopWebinarsA half-day, virtual employment law workshop, which will cover a variety of topics, including diversity and inclusion in the workplace, navigating sensitivities around political law issues, key considerations for remote working, and recent employment law changes all business owners should know.
Wage & Hour Developments
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Proposed Rule Would Impose Pay Transparency and Salary History Requirements for Federal Contractors
The Federal Acquisition Regulatory Council issued a Proposed Rule, “Pay Equity and Transparency in Federal Contracting,” on January 30, 2024. The Proposed Rule would amend the Federal Acquisition Regulations (FARs), which apply to federal government commercial contracts to be principally performed in the United States and its territories. The rule imposes three new requirements on federal...
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Washington, D.C., Set To Enact Wage Transparency Law
On January 12, 2024, Washington, D.C., joined the growing list of jurisdictions to enact wage transparency legislation when Mayor Muriel Bowser signed the Wage Transparency Omnibus Amendment Act of 2023 (the Act), formerly known as the Pay Scale and Benefits Disclosure Amendment Act. If the Act survives the 30-day congressional review period, during which Congress...
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The U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking on August 30, 2023, which proposes revisions to the regulations issued under the Fair Labor Standards Act (FLSA). The proposed rule seeks to increase the federal minimum salary threshold required for employees to qualify as exempt employees to roughly $55,000 per year. White-Collar...
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Eighth Circuit Pushes Back Against Using More Experienced Comparators in EPA Claims
In O’Reilly v. Daugherty Systems, the U.S. Court of Appeals for the Eighth Circuit[1] ruled that, for purposes of the Equal Pay Act (EPA) claim, greater experience can serve as a legitimate reason for a pay differential on March 29, 2023. Affirming the district court’s grant of summary judgment for the defendant, the Eighth Circuit...
