The EEOC recently released guidance to assist those employers filling out their EEO-1 reports who have non-binary employees – those who choose not to identify as male or female – in their workforces. This question has become more pressing given the increase in the number of states permitting individuals to classify themselves as non-binary on government-issued identification forms, especially as employers begin the task of completing their EEO-1 reports before next month’s deadline. What do employers need to know about this latest development?
As predicted, Washington’s legislature has been busy over the past few months passing new laws that directly impact how employers conduct business. There have also been several key court decisions impacting workplace law of which all employers should be aware. What happened? We’ve put together summaries of the more significant recent developments for you below.
New York Governor Cuomo just signed into effect an amendment to state law which expressly prohibits discrimination against employees based on clothing or facial hair worn in accordance with the employee’s religion. The amendment is set to take effect October 8, 2019. What do New York employers need to know about this development?
The State of Alabama passed an Equal Pay Act in the 2019 legislative session that is set to take effect on September 1, 2019. Employers must begin their preparations to comply with the law now because there are new timekeeping and wage records that will be required of all employers in Alabama as a result.
New York Governor Andrew Cuomo recently signed legislation amending state law to explicitly prohibit discrimination based on hair texture or protective hairstyles as race-based discrimination. The new law took effect immediately upon signing in July 2019. What do New York employers need to know about this new law?
The National Labor Relations Board (NLRB) announced today its intent to publish a proposed “Election Protection Rule” that would amend regulations governing the filing and processing of petitions for secret ballot union elections. A Board majority explained that the proposed amendments would “better protect employees’ statutory right of free choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a Board-conducted secret ballot election.” To that aim, the Board proposed amendments to its: (1) blocking charge policy; (2) voluntary recognition bar rule; and (3) recognition rules in the construction industry. It should be noted that this represents the first of what may ultimately be several forays into rulemaking to amend the current representation process.
In an eye-opening opinion letter issued earlier today, the U.S. Department of Labor confirmed that parents attending certain school meetings for the benefit of their children are entitled to FMLA leave for their absences. The agency concluded that the need to attend school meetings to discuss individualized education programs for children with serious health conditions triggers intermittent FMLA leave protection. Employers should make note of this opinion and revise their family leave policies and practices as necessary in response.
- 3 Things For Employers To Know8.7.19
A federal appeals court ruled yesterday that the 2012 guidance document from the Equal Employment Opportunity Commission (EEOC) that cautioned employers not to apply blanket bans against hiring those with criminal records could not be enforced against the state of Texas, handing the agency a stinging loss. The sweeping decision from the 5th Circuit Court of Appeals calls into question not only the future of the guidance as applied to other employers across the country, but also the EEOC’s power to issue such guidance in the first place. Here are three things all employers should know about yesterday’s ruling.
The South Carolina Supreme Court just ruled that the state will no longer recognize common law marriages. This decision will have a direct impact on South Carolina workplace law, requiring many employers to adjust their employment policies and practices.
Westchester County employers will soon need to provide paid safe time leave to employees who are the victims of domestic violence or human trafficking. Earlier this year, county lawmakers passed the Safe Time Leave for Victims of Domestic Violence and Trafficking Law, which takes effect October 30, 2019.
An agreement to arbitrate sexual harassment claims is enforceable, according to a recent decision handed down by a federal judge in the Southern District of New York, despite a state law purporting to ban mandatory arbitration of such claims (Latif v. Morgan Stanley & Co., LLC.). The decision clears up confusion that had existed for much of the past year, as employers were caught between a broad new state law and a well-established federal policy permitting arbitration of such claims. What do New York employers need to know about this recent decision?
Joining the ranks of several other states and local jurisdictions that have taken similar steps in the fight against pay disparity, Illinois will soon prohibit employers from asking job applicants about their salary history as part of the hiring process. The new law – signed into law yesterday and set to take effect on September 29, 2019 – also includes other pay equity provisions that will require you to immediately adjust your hiring practices. What do Illinois employers need to know about this significant new development?
The Chicago City Council just approved what is likely the most expansive predictive scheduling law in the country. Business and labor groups came together with Chicago Mayor Lori Lightfoot’s staff and the city council to negotiate, draft, and approve the Chicago Fair Workweek Ordinance. The new law, approved yesterday and set to go into effect on July 1, 2020, will soon mandate certain employers to give many lower-income employees advance notice of their schedules and face financial penalties for unexpectedly changing an employee’s shift. What do Chicago employers need to know about this significant new law?
The Oregon Supreme Court just revived a whistleblower retaliation claim filed against sportswear giant Nike by adopting for the first time a novel legal concept known as the “cat’s paw” theory. The July 18 opinion opens new avenues for employees to pursue retaliation and discrimination remedies against employers. By reading a summary of the case and gaining a better understanding of this theory, you can avoid running into similar legal trouble with your employees.
- 3 Things You Need To Know About Opinion Letter7.23.19
Trucking companies will no longer need to pay their drivers for certain off-duty time, potentially including time spent sleeping in their sleeper berth units, after the Labor Department issued an opinion letter yesterday confirming that such time is generally not compensable. The letter is a welcome one for trucking industry, clearing up confusion caused by recent conflicting court decisions that held that off-duty time may be limited to eight hours a day when a driver is on a trip and spending off-duty time in their sleeper. However, you should make sure you understand the full ramifications of the opinion letter before changing your pay practices. Here are three things you need to know about yesterday’s significant news.
The news that President Trump selected Eugene Scalia to take over as Labor Secretary late last week caught some employers by surprise; after all, it was just a week ago that we were analyzing the track record of the soon-to-be-acting Secretary who many expected to helm the Department of Labor for an extended period of time. But now that it appears we have a likely successor in place to take over for Alexander Acosta, all employers are turning their attention to the same issue: what does this transition mean for the business community? We’ve once again assembled the opinions of some of our firm’s foremost thought leaders – including one of our partners who recently worked side-by-side with Scalia on a significant workplace law matter – to help provide a glimpse into what you should expect from the U.S. Department of Labor. The consensus opinion? Scalia will aggressively battle against intrusive and overreaching regulations that hamstring the country’s employers, and will quickly endear himself to the business community.
Thanks to recent negotiations among state lawmakers, it appears that California employers may get a temporary reprieve on some of the more sweeping data privacy requirements that were set to take effect in just a few short months. However, the pending legislation that would provide the delay would not exempt employers from significant disclosure requirements that also comprise the California Consumer Privacy Act (CCPA) – meaning you should still be in the process of preparing for the new law at your workplace.
When the news broke Friday afternoon that Labor Secretary Alexander Acosta would be resigning from his post, employers across the country began wondering what this transition would mean for them. You may have even heard speculation that Acosta’s immediate replacement could accelerate the agenda that has been restoring balance to the employer-labor relationship over the past several years. We’ve assembled the opinions of some of our firm’s foremost thought leaders – including a former colleague of the incoming acting secretary – to help provide a glimpse into what you should expect from the U.S. Department of Labor in both the short term and the long term.
Immigration and Customs Enforcement (ICE) threatened to start to carry out a series of immigration raids this weekend seeking to identify and apprehend undocumented individuals – with some potentially occurring at the nation’s workplaces. These potential raids might continue for weeks or months, with varying levels of intensity and geographic focus. Even if they do not materialize to the extent originally promised, just the specter of these enforcement activities has raised a number of questions from employers about how to respond to such an action, and how to minimize the chances of them happening in the first place.
New Jersey Governor Phil Murphy recently signed into law amendments to the state’s medical marijuana law, providing greater clarity when it comes to the workplace implications of medical marijuana use by employees and applicants, while creating additional obligations for employers. The July 2 amendments took effect immediately, which means you should not delay incorporating the new law’s requirements into your day-to-day human resources practices.
While many Oregonians were enjoying a leisurely holiday break last week, Oregon lawmakers were busy enacting the nation’s most generous paid leave program. Governor Kate Brown stated she intends to sign into law “HB 2005: Paid Family Leave,” which will provide 12 weeks of paid leave to just about every employee in the state (yes, even if you only have one employee), to be funded by a new payroll tax paid by both workers and employers with 25 or more employees. While the law will not kick in until 2023, it’s never too early to learn about what’s around the corner and start to prepare. What do Oregon employers need to know about this groundbreaking new law?
The Washington Supreme Court held for the first time today that obesity is a protected class under state anti-discrimination law (Taylor v. Burlington Northern Railroad Holdings, Inc.). This decision runs counter to recent federal court decisions in other parts of the country that have said obesity not caused by an underlying physiological disorder or condition does not qualify as an impairment under federal law. The main reason for this distinction is that Washington state disability discrimination law offers broader coverage than the federal Americans with Disabilities Act (ADA).
The National Labor Relations Board just relaxed its test for determining the legality of an employer’s anticipatory withdrawal of union recognition prior to the expiration of the collective bargaining agreement. In the July 3 Johnson Controls, Inc. decision, the Board upheld an employer’s right to suspend bargaining and serve notice within 90 days prior to CBA expiration of its desire to withdraw recognition from an incumbent union thereafter, upon receiving objective evidence that the union has actually lost majority support.
In a unanimous decision late last week, the 9th Circuit Court of Appeals resuscitated class claims against retail giants Nike and Converse that allege employees are owed compensation for time spent undergoing security checks when exiting the retail stores (Rodriguez v. Nike Retail Stores, Inc.; Chavez v. Converse, Inc.). On Friday June 28, the federal appellate court held that the lower district court – which had ruled in favor of the employers by applying the federal de minimis doctrine – needs to conduct a do-over to comply with a recent California Supreme Court decision that all but eliminates the de minimis doctrine based on the facts before the high court. The bar set by the courts is high; California employers may now need to pole vault in order to scale it.
By a 9-0 vote, the U.S. Supreme Court ruled today that by and large, the courts should continue deferring to a federal agency’s reasonable interpretation of its own ambiguous regulations, leaving a good deal of power in the hands of agencies despite an outcry that this doctrine interferes with governmental separation of powers. In the last workplace law decision of the Supreme Court’s term, it also ruled stare decisis cuts strongly against overruling Auer and that the Court would need a particularly “special justification” to reverse Auer. Although the underlying case was not employment-related, today’s decision in Kisor v. Wilkie could have far reaching impact on employers and workplace law compliance.
Still grappling with the expansive sexual harassment reforms passed last year, New York businesses and employers will soon need to manage through yet another expansive suite of amendments that will continue the state’s ongoing implementation of stronger, and more burdensome, antiharassment and antidiscrimination laws. On the last day of its legislative session, the New York State Senate and Assembly passed sweeping reforms meant to overhaul the state’s antidiscrimination laws. Governor Andrew Cuomo, who advocates for more robust workplace harassment laws, is expected to sign the bill without delay. Once enacted, the amendments will impact every workplace in New York.
This past week was a busy one for New York State lawmakers. In addition to passing game-changing legislation overhauling the state’s discrimination laws, the New York State Senate and Assembly just passed two pay equity bills that will have a significant impact on all New York businesses.
Employers may be surprised to learn that the Republican-controlled National Labor Relations Board just issued a unanimous decision invalidating an employer’s mandatory arbitration agreement that could be reasonably interpreted as preventing employees from filing charges with the Board. The June 18 Prime Healthcare decision analyzed the employer’s arbitration agreement using the relatively new Boeing Co. standard for evaluating facially neutral policies and rules that potentially interfere with employees’ protected rights, but fell on the side of the workers. Yesterday’s decision may require you to adjust your arbitration agreements to ensure you stay on the right side of the law.
Employers in Dallas and San Antonio are on the verge of having to provide your workers with paid sick leave – and these new city ordinances are set to go into effect in the next few weeks. When the legislative session came to a close on May 27, the state legislature had failed to pass a bill that would have banned municipal paid sick leave ordinances such as the ones passed in Austin, Dallas, and San Antonio in 2018 despite Texas employers’ high hopes.
The National Labor Relations Board issued a decision on Friday reversing 37 years of precedent and thereby granting employers greater rights to limit union activity on their premises. Under the “public space” exception, employers had to allow nonemployee union representatives access to the public areas of their property, including restaurant dining areas and cafeterias, to engage in promotional or organizational activity. But in the June 14 UPMC decision, the Board abolished that exception and held that employers no longer have to allow nonemployee union representatives access to public areas, unless the union has no other reasonable means of communicating with employees or the employer discriminates against the union by permitting similar groups access.
A federal Court of Appeals just ruled that extreme obesity not caused by an underlying physiological disorder or condition does not qualify as an impairment under the ADA. Under the 7th Circuit’s June 12 ruling, proof that extreme obesity was caused by an underlying physiological disorder or condition is necessary to implicate coverage under the Americans with Disabilities Act. What can employers take from the Richardson v. Chicago Transit Authority decision?
Illinois lawmakers recently approved House Bill 1438, referred to as the “Cannabis Regulation and Tax Act,” legalizing recreational marijuana. Governor Pritzker is expected to sign the bill into law, making Illinois the 11th state to legalize marijuana and the first state in which a legislature approved commercial sales.
In welcome news to Massachusetts employers, the Department of Paid Family and Medical Leave (DPFML) just provided much-needed answers to questions raised by the Legislature’s three-month delay of the nascent paid leave law.
Massachusetts Governor Charlie Baker, along with state house and senate leadership, just announced that they had agreed to implement a three-month delay to the Commonwealth’s robust Paid Family and Medical Leave program late on Tuesday.
By a unanimous 9-0 decision, the U.S. Supreme Court today declined to extend California’s wage-and-hour laws to employees working on offshore drilling platforms subject to the Outer Continental Shelf Lands Act (Parker Drilling Management Services Ltd. v. Newton). Although this decision represents a victory for the employer involved in the dispute, you should check with your legal counsel to ensure you are in compliance with the correct legal standard given the nuanced nature of this ruling.
The U.S. Supreme Court unanimously ruled today that Title VII’s administrative exhaustion requirement—whereby an aggrieved employee first must file a claim with the Equal Employment Opportunity Commission (“EEOC”) or a state agency before filing a lawsuit—is merely a claim-processing rule, rather than jurisdictional. As a result, an employer who does not assert “failure to exhaust” as an affirmative defense to a lawsuit might waive the ability to seek dismissal on that basis. In light of today’s decision, employers must ensure they identify an employee’s failure to exhaust at the outset of any Title VII litigation to preserve their ability to dismiss the claims on that ground (Fort Bend County v. Davis).
Pushing its deadline back for the second time, the Equal Employment Opportunity Commission (EEOC) recently announced that it plans to issue amended regulations related to incentivizing participation in employer-sponsored voluntary wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) by the end of this year. What should employers know about the May 22 announcement, and why might it be different from prior deadlines set by the EEOC?
This past Memorial Day weekend, the southeastern region of the United States experienced a historic heatwave that set all-time records. It’s only going to get hotter, and temperatures throughout the summer can create hazards for workers working both outside and inside. You could be held liable for creating conditions that lead to heat-related injuries and illnesses that may occur during these warm months, so you should take steps now to keep your employees safe and limit your legal exposure.
The 2018 Colorado state elections resulted in a Democratic House, Senate, and governor, smoothing the way for the 2019 legislature to pass six new employment bills. Some of these pieces of legislation had been proposed in various forms in previous sessions but failed to pass – until now. While a few still await Governor Jared Polis’s signature, they are all expected to be signed and soon should be state law.
Led by Associated Industries of Massachusetts (AIM), a nine-member coalition of the Massachusetts business community, along with employee and low-income advocacy groups, just requested a three-month delay to the start of contributions to the Commonwealth’s nascent paid family and medical leave program.
In a groundbreaking decision, a New York state appeals panel just extended union organizing rights to farmworkers, perhaps setting the stage for other states to do the same. While farmworkers have traditionally been exempted from the National Labor Relations Act (NLRA) since the statute’s inception, states can supplement the federal law by, for example, granting agricultural workers the rights to organize and bargain collectively. A split panel did just that with its May 23 decision, finding that the farmworker exclusion from the New York State Employee Relations Act (SERA), which was passed in 1937, violated the state constitution.