Over the past 30 years, the labor movement in the United States has steadily declined. Union membership rates have plummeted from 20.1 percent to just 11.3 percent. With membership at historic lows, unions are turning to new organizing strategies in an attempt to stay relevant to the working class.

Autumn is upon us. In Washington, that means we are busy savoring our pumpkin spice lattes and enjoying the last few days of sunshine. This is also the time of year when some of us carve pumpkins and tell scary stories as the Halloween holiday approaches. To celebrate the season, we bring you this light-hearted update on cases sure to strike fear in the heart of unions and employers. Read on if you dare!

The Genetic Information Nondiscrimination Act (GINA) governs how employers may acquire and use employee genetic information. Since GINA became effective in 2009, there has been little enforcement of GINA and therefore little guidance on employer responsibilities under GINA. In May, however, the Equal Employment Opportunity Commission (EEOC) began actively enforcing GINA. The EEOC’s recent enforcement activity serves as a reminder that employers must proactively ensure that their practices comply with GINA.

Employers who lately have felt under siege by federal and state enforcement agencies can take comfort in two recent decisions by the United States Supreme Court. In University of Texas Southwestern Medical Center v. Nassar, a narrow Court majority held retaliation claims under Title VII to a stricter standard of proof than standard discrimination claims. In Vance v. Ball State University, the same majority narrowly defined “supervisor” for purposes of establishing an employer’s vicarious, or strict, liability for harassment. Both decisions will make it more difficult for employees to establish claims of employment discrimination under federal law.

The U. S. Supreme Court’s June 26, 2013 ruling in United States v. Windsor that invalidated section 3 of the federal Defense of Marriage Act (DOMA) will require employers to take action now to ensure compliance with various federal employment laws. Unfortunately, the decision also raises questions regarding the scope of the Supreme Court’s decision, and how federal agencies will react to the court’s ruling.

On June 10, 2013, the Seattle City Council unanimously approved an ordinance restricting employers’ ability to access public records and conduct criminal background checks on potential employees. The ordinance will take effect on November 1, 2013 if approved by Mayor Mike McGinn, which is expected. Under the ordinance—which covers all private employers with one or more employees and applies to positions requiring at least 50 percent of working time within the Seattle city limits—employers are no longer able to inquire about a potential employee’s criminal history or to conduct a background check until a conditional offer of employment is given.

The Equal Employment Opportunity Commission (EEOC) recently issued four new “Question and Answer” documents that address how the Americans with Disabilities Act of 1990 (ADA) relates specifically to diabetes, epilepsy, intellectual disabilities, and cancer. These documents provide clear answers to common employer questions about hiring and accommodating employees with one or more of these conditions. They also offer various concrete examples showing how to apply the ADA to specific scenarios.

Social media in the workplace has been a “hot” issue for several years, and there are no signs of a slowdown for this controversial topic. In fact, recent National Labor Relations Board (“NLRB”) decisions and the Washington State social media privacy bill show that employee use of social media is presenting more complicated issues than ever.

My employer retaliated against me because: I complained about sexual harassment; I reported a supervisor’s discriminatory treatment of my coworkers; I provided negative information about a manager during an investigation of alleged discrimination. Retaliation claims have become more numerous and can be more difficult to dismiss on summary judgment than claims based on the discrimination out of which the retaliation allegedly arises.

In a notice issued March 7, 2013, the U.S. Citizenship and Immigration Services (“USCIS”) announced that employers should begin using a revised version of the I-9 employment eligibility verification form immediately.

In early February, the U.S. Department of Labor (DOL) issued a new final rule on the Family and Medical Leave Act (FMLA). The new rule relaxes the requirements for obtaining military “qualifying exigency” leave or “military caregiver” leave, addresses disclosure of family history for FMLA purposes under the Genetic Information Nondiscrimination Act (GINA), describes what minimum increment to use for intermittent leave, and contains provisions for members of airline flight crews. The DOL has also made revisions to its FMLA forms and poster, which go into effect March 8, 2013. The following paragraphs summarize these changes.

On January 4, 2012, President Obama appointed three individuals to the National Labor Relations Board (“NLRB” or “Board”) while the United States Senate was not in session. The President claimed he had the power to make such appointments without the “advice and consent” of the Senate under the United States Constitution’s Recess Appointments clause. Since then, the Board has issued a number of controversial decisions concerning, among other subjects, social media and employer confidentiality rules. Many of these notable opinions have had a great impact on employer policies and practice, as detailed in prior Sebris Busto James monthly Employment Law Notes.