The United States Supreme Court ruled that in order to deny a requested religious accommodation by an employee, Title VII requires employers to show substantial increased costs would result. The proposed FLSA overtime rule is being reviewed by the Office of Management and Budget (OMB). The Equal Employment Opportunity Commission announced the delay of the EEO-1 launch date until the fall and the general counsel of the National Labor Relations Board (NLRB) issued a memo advising that non-compete agreements violate the National Labor Relations Act.

Supreme Court Clarifies Religious Accommodation Requirements – By unanimous decision, the United States Supreme Court ruled in the case of Groff v. DeJoy, Postmaster General that Title VII of the Civil Rights Act of 1964 requires employers to accommodate the religious needs of employees as long as it would not impose an undue hardship on the employer. Justice Alito who wrote the opinion for the court stated that “We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. What matters more than a favored synonym for ‘undue hardship’ (which is the actual text) is that courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of [an] employer.”

Gerald Groff is an Evangelical Christian who believes that Sundays should be devoted to worship and rest. He began work in 2012 delivering mail for the United States Postal Service (USPS). While his work initially did not require working on Sunday, this changed after USPS agreed to facilitate Sunday deliveries for Amazon. Mr. Groff transferred to a rural USPS station that didn’t make Sunday deliveries but subsequently Sunday deliveries began at that station. His Sunday work was redistributed to other USPS staff, and he received progressive discipline for failing to work on Sundays leading to his eventual resignation. He brought this lawsuit alleging a violation of Title VII’s religious accommodation requirement.

Both the District Court and the Third Circuit Court of Appeals ruled for USPS based on a prior United States Supreme Court ruling in the case of Hardison v. TWA. The lower courts believed the Supreme Court’s ruling in the Hardison case provided that any religious accommodation that imposed more than a de minimis cost would constitute an undue hardship. Justice Alito noted that while the opinion in the Hardison case contained one sentence with the de minimis cost language, in three other instances in the opinion, it stated that an accommodation is not required when it entails “substantial costs or expenditures.” The Supreme Court believed that undue hardship is shown “when a burden is substantial in the overall context of an employer’s business.”

OMB Reviewing FLSA Overtime Rule – The Office of Information and Regulatory Affairs (OIRA), which is part of the Office of Management and Budget (OMB) is currently reviewing a proposed rule concerning the exemption from the overtime and minimum wage requirements of the Fair Labor Standards Act (FLSA) for executive, administrative, and professional employees. The Department of Labor had announced previously that the delayed rule, originally expected in October 2022, will be released in August 2023. Approval by OIRA would result in the proposed rule being published for public comment in the Federal Register. The salary basis threshold that must be met to qualify for the exemption is currently $35,568/year.

EEOC Delays EEO-1 Launch Date – The Equal Employment Opportunity Commission (EEOC) announced that the Office of Management and Budget (OMB) is completing a mandatory, three-year renewal of the EEO-1 Component 1 data collection which is required as part of the Paperwork Reduction Act. As a result, the EEOC indicated that the tentative opening of the 2022 EEO-1 Component 1 data collection will be delayed until the Fall. EEOC had previously advised that the opening would occur in mid-July. Updates about the opening date will be posted to www.eeocdata.org/eeo1.

NLRB General Counsel Believes Noncompete Agreements Violate the NLRA – Jennifer Abruzzo, National Labor Relations Board (NLRB) General Counsel issued a memo to NLRB staff advising that non-compete agreements included in employment contracts and severance agreements violate the National Labor Relations Act (NLRA), except in limited circumstances.  According to Ms. Abruzzo, overbroad non-compete agreements prevent employees from exercising their rights under Section 7 of the NLRA that protects employees’ rights to take collective action to improve their working conditions. “Non-compete provisions reasonably tend to chill employees in the exercise of Section 7 rights when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work,” said General Counsel Abruzzo.

The memo provides that non-compete agreements interfere with the ability of employees to do such things as: concertedly threaten to resign to secure better working conditions given their lack of access to other employment opportunities and since employees could fear legal action for violating their agreements; carry out concerted threats to seek or accept employment with a local competitor; and solicit their coworkers to go to work for a local competitor since employees would potentially breach their agreements resulting in legal action. In limited circumstances, the General Counsel advised that non-compete agreements could be lawful if the “provisions clearly restrict only individuals’ managerial or ownership interests in a competing business, or true independent-contractor relationships.”

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.