Law and the Workplace

New York State Passes the Gender Expression Non-Discrimination Act

After 16 years of debate and discussion, the New York State Legislature recently passed the Gender Expression Non-Discrimination Act (“GENDA”), which would amend the New York State Human Rights Law to expressly prohibit discrimination on the basis of gender identity or expression.

Under the Act, gender identity or expression is defined as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” Under existing provisions of the New York State Human Rights Law, employees who successfully establish claims of discrimination are entitled to back pay and compensatory damages. The Act also expands New York’s hate crime laws to include crimes against transgender and gender non-conforming people.

The legislation has been sent to Governor Cuomo, who is expected to sign the bill. If signed, the Act will be effective thirty days after it is signed, with the exception of certain amendments relating to the hate crime laws, which will not become effective until November 1, 2019.

Notably, the New York City Human Rights Law currently prohibits discrimination based on gender identity or expression. Nonetheless, if and when the state legislation is signed, employers should review their existing policies, including their non-discrimination and anti-harassment policies, to ensure that they are in compliance with these state law requirements.

The Employment Law Landscape in 2019

States across the country have passed new laws addressing sexual harassment, paid family leave, and other labor and employment law issues. As many of these laws will soon become effective, employers should be prepared for the following changes in the legal landscape.

Sexual Harassment Laws

New York City’s Stop Sexual Harassment Act, effective April 1, 2019, will require employers with 15 or more employees to conduct annual anti-sexual harassment training for all employees. For purposes of the Act, independent contractors who perform work for an employer for more than 90 days and more than 80 hours in a calendar year are also deemed employees. For additional information regarding the Act’s requirements, please refer to our previous posts.   This New York City law complements a similar law in New York State, which became effective on October 9, 2018, and which also requires employers to conduct annual anti-harassment training. For additional information regarding the State’s requirements, please refer to our previous post.

California recently amended Section 12950.1 of its Government Code to expand the reach of its anti-harassment requirements. Previously, employers with 50 or more employees were required to provide 2 hours of anti-harassment training to all supervisors every other year. Under the amended law, employers with at least five employees must provide 2 hours of anti-harassment training to all supervisors, plus 1 hour of anti-harassment training to all non-supervisory employees, every other year. Current employees must complete their first session of anti-harassment training on or before January 1, 2020. For additional information regarding these new training requirements, please refer to our previous post.

Delaware Governor John Carney signed HB 360 into law, effective January 1, 2019, which creates a new section in the Delaware Discrimination in Employment Act prohibiting sexual harassment in the workplace.

In addition to defining the circumstances in which an employer can be found liable for harassment, the law imposes new notice and training requirements. Employers with 4 or more employees must distribute an information sheet (available here) on sexual harassment to all employees by July 1, 2019. Employers with at least 50 employees will be required to provide interactive anti-sexual harassment training to all employees every 2 years. New employees must be trained within 1 year of hire and existing employees must be trained on or before January 1, 2020. Such employers must also provide sexual harassment training for all supervisors every 2 years. And, under the new law, new supervisors must be trained within 1 year of assuming a supervisory position, and existing supervisors must be trained on or before January 1, 2020.

Leave Laws

As we previously reported, effective July 1, 2019, the Massachusetts Paid Family and Medical Leave Program, will provide eligible employees with up to 20 weeks per year of paid medical leave for an employee’s own serious health condition, as well as 12 weeks per year of paid leave for family-care purposes. Employees taking leave under the Massachusetts law will receive up to 80% of their average weekly wage (up to a designated cap).

Michigan’s Paid Medical Leave Act, effective March 29, 2019, will require employers with 50 or more employees to provide paid medical leave for personal or family health needs. Eligible employees will accrue 1 hour of paid leave for every 35 hours worked, up to a maximum of 1 hour per calendar week and 40 hours per benefit year. Where employers permit employees to accrue paid medical leave, employees must also be permitted to carry over available but unused medical leave to the following year, though the maximum amount of leave to be used by employees in any given year may be capped at 40 hours. Alternatively, employers may frontload the time to be used for the same purposes and under the same conditions as accrued medical leave, and when frontloading the time employers are not required to allow employees to carry over accrued, unused leave. New employees may be restricted from using their accrued medical leave for up to 90 days after they are hired.

New York’s Westchester County Earned Sick Leave Law, effective April 10, 2019, will require employers to provide all employees (including part-time, exempt and seasonal employees) who work in Westchester County 1 hour of paid sick leave for every 30 hours worked, up to a maximum of 40 hours per year. The new Westchester law applies to employers with five or more employees and grants employees a private right of action for employer violations. For additional information regarding these new requirements, please refer to our previous post.

As we previously reported, on July 10, 2017, Washington State enacted its Paid Family and Medical Leave Law, which will provide employees with a maximum of 12 weeks of paid leave per year for their own serious health condition. Employees will also be eligible for a maximum of 12 weeks of paid leave per year for family care purposes; and a maximum of 16 weeks of a combination of paid family and medical leave may be used per year. Although benefits for employees do not begin until January 1, 2020, employers must deduct and remit premiums beginning on January 1, 2019. In addition, in April 2019, employers must begin reporting all worker hours and wages to the State’s Employment Security Department.

Salary History

As we previously reported, effective January 1, 2019, employers in Connecticut are prohibited from asking (or directing a third party to ask) about an applicant’s salary history, unless the applicant has voluntarily disclosed such information. In addition, employers cannot prohibit employees from disclosing or discussing the amount of their wages or the wages of another employee that has been voluntarily disclosed by the other employee. The law also provides employees a private right of action with available damages including compensatory and punitive damages, as well as attorneys’ fees.

Effective June 30, 2019, the Restricting Information on Salaries and Earnings Act (the “RISE Act”) will prohibit employers in Suffolk County, New York from inquiring about an applicant’s wage or salary history, as well as an applicants’ prior or existing compensation and benefits. For additional information regarding these new requirements, please refer to our previous post.

Other Laws

Lactation Breaks – Effective March 18, 2019, employers in New York City will be required to provide nursing mothers with a private lactation room and a refrigerator suitable for breast milk storage. Employers must also develop and implement a written policy regarding the provision of a lactation room. For additional information regarding these new requirements, please see our previous post.

Recent Developments in Illinois – As we previously reported, lawmakers in Illinois were quite active this past year in passing legislation affecting employers. For example, employers in Illinois must now provide paid breaks for nursing mothers and include in their handbooks information concerning an employee’s rights under the Illinois Human Rights Act, including the right to be free from unlawful discrimination and sexual harassment and the right to certain reasonable accommodations. There are also new laws in effect in Illinois governing expense reimbursements, additional protections for military service members and equal pay protections for African-American employees. For additional guidance navigating this new terrain, employers in Illinois should refer to our previous post.

Given these recently enacted changes, employers should review their workplace policies and practices to ensure compliance with these new requirements. As always, Proskauer attorneys are available to advise on these new laws.

Proposed New Overtime Rule Headed to Executive Branch for Review

Our friends at Bloomberg Law are reporting that the U.S. Department of Labor (DOL) has sent a proposed new federal overtime rule to the White House Office of Information and Regulatory Affairs (OIRA). OIRA is part of the Office of Management and Budget (OMB), which has the responsibility to coordinate interagency Executive Branch review of significant regulations before publication. This is to ensure agency compliance with the principles in Executive Order 12866, which include incorporating public comment, considering alternatives to the rulemaking, and analyzing both costs and benefits.

The period for OIRA review is generally limited to 90 days, but it may be extended 30 days by the OBM Director and indefinitely by the head of the rulemaking agency (here, the DOL). OIRA has the authority to return the rule to the DOL for reconsideration, including if it does not appear consistent with the President’s policies and priorities.

As you may recall from our earlier posts, the DOL pressed the pause button on revisions to the federal overtime rule after President Trump took office in January 2017. In public comments, however, Labor Secretary Alexander Acosta has repeatedly indicated that he favors some increase in the minimum salary threshold for exemption, which was last raised in 2004. In its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions, published last October, the Trump Administration formally announced its intention to issue a Notice of Proposed Rulemaking (NPRM) in March 2019 “to determine the appropriate salary level for exemption of executive, administrative and professional employees.”

Stay tuned for further developments on the proposed new rule.

 

[Podcast]: Can My Employees Do That?

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In this episode of The Proskauer Brief, partners Harris Mufson and Howard Robbins conduct the first part in a series of podcasts entitled, “Can My Employees Do That?” In this installment, Harris and Howard discuss workplace recordings and monitoring workplace emails. Please tune in to hear timely insight regarding these key employment issues.

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Philadelphia Enacts Fair Workweek Ordinance

The Philadelphia City Council recently passed the Fair Workweek Employment Standards Ordinance (the “Ordinance”), which will impose new restrictions on retail, fast food and hospitality employers with regard to employee scheduling and pay practices. The Ordinance was signed by Mayor Jim Kenney on December 20, 2018, and will take effect on January 1, 2020.

The Ordinance applies to employers that have 250 or more employees and 30 or more locations worldwide, regardless of where those employees perform work (including full-time, part-time, temporary and seasonal employees). Such employers will be required, among other things, to:

  • Provide newly hired employees with a written, good faith estimate of their work schedule, including the average number of hours the employee can be expected to work each week;
  • Provide employees with at least ten days’ written notice of their work schedules (which will increase to fourteen days as of January 1, 2021);
  • Notify employees of any proposed changes to their work schedules as promptly as possible and before the change takes effect; and
  • Give consideration to employee work schedule requests, including requests not to be scheduled for certain times or locations.

Employers may make changes to schedules for up to 24 hours after they are posted. Subject to certain exceptions, schedule changes made after 24 hours will trigger “predictability pay” for employees, which is measured by the employee’s hourly rate of pay and must be paid each time the employer makes a qualifying change (in addition to the employee’s regular pay for hours worked).

The Ordinance also provides a right to rest between work shifts by permitting employees to decline additional shifts, without penalty, that would begin less than nine hours after the end of a previous shift. Alternatively, employees who accept such shifts will receive an additional payment of $40 for each accepted shift.

Employees subject to a collective bargaining agreement may waive the requirements of the Ordinance provided such waiver is explicitly set forth in the agreement in “clear and unmistakable terms and only so long as the agreement is in effect contractually.” Unilateral implementation of a waiver is prohibited.

In addition to including a notice requirement and record retention requirements, the Ordinance provides employees with a private right of action for violations of the law. Available remedies include back pay, liquidated damages up to $2,000, attorney’s fees and other equitable relief.

Proskauer Delivers Webinar on Settling Employment Claims

On December 12, Proskauer partners Allan Bloom, Elise Bloom, and Harris Mufson delivered a webinar focused on how recent developments in the law impact the ground rules and key strategies for settlement in four distinct areas of employment litigation.

Wage and Hour. Mr. Bloom explained that, in most jurisdictions, settlements of Fair Labor Standards Act (FLSA) claims require U.S. Department of Labor (DOL) supervision or judicial approval. In the Second Circuit, the 2015 decision in Cheeks v. Freeport Pancake House changed the landscape for resolving FLSA claims that are already in federal court litigation, by requiring judicial approval even in the context of a stipulated dismissal under Federal Rule of Civil Procedure (FRCP) 41(a). In light of Cheeks, FLSA settlement agreements entered into in the context of pending litigation are more likely to become matters of public record.

Class and Collective Actions. Ms. Bloom explained that courts are obligated to scrutinize settlements for fairness and satisfaction of the prerequisites under FRCP. And with the recent Rule 23 amendments, parties who come forward with a settlement must be prepared to demonstrate the agreement will be approved after the notice period. Ms. Bloom outlined four key factors for this preliminary determination: adequacy of representation, fair negotiation, adequacy of relief, and equitable treatment of class members. Because many of the records satisfying these factors will be in the defendant’s possession, Ms. Bloom underscored the importance for employers to come to court prepared to address these issues, even though the burden is on the plaintiff to file for approval of the settlement.

Sexual Harassment. Ms. Bloom emphasized four key issues in the wake of the #MeToo Movement: confidentiality, non-disparagement, claim allocation, and tax consequences. For example, a number of states, including New York and California, have limited the enforceability of confidentiality provisions in agreements settling sexual harassment claims. Turning to the recent tax reform, Ms. Bloom explained that tax deductions are no longer allowed for settlement payments (or the related attorney’s fees) on sexual harassment claims if the settlement is confidential.

Whistleblower. Mr. Mufson noted that after a whistleblower complaint is filed with the Occupational Safety and Health Administration (OSHA), an investigation will occur, and if the claims settle during this investigatory period, any agreement must be approved. Mr. Mufson specifically drew attention to OSHA’s general disapproval of gag provisions, and the need for employers to scrutinize confidentiality provisions as a result. Turning to the Securities and Exchange Commission’s (SEC) anti-chilling regulation, Mr. Mufson explained that agreements may not prohibit employee cooperation with governmental agencies. Although Mr. Mufson observed that the recent administration change has led to a sharp decrease in SEC enforcement actions, covered employers should make clear that agreements do not prohibit government cooperation and that notice is not required before doing so. Finally, Mr. Mufson explained key settlement strategies for resolving whistleblower claims, including obtaining important representations from the whistleblower.

We are happy to answer any questions you have related to these topics. For additional information, please contact the speakers directly or a member of the Labor & Employment Department.

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