Hunton Employment & Labor Perspectives

As we ring in the new year, California employers face an important new compliance requirement: an updated Whistleblower Rights Notice must be prominently posted in the workplace beginning January 1, 2025.

As 2025 approaches, the legal landscape for employer use of artificial intelligence (“A.I.”) is poised for further evolution.

A bill seeking to eliminate Diversity, Equity, and Inclusion practices passed out of the House Oversight Committee on a 23-17 vote. The Dismantle DEI Act, led by Congressman Michael Cloud (R-TX), outlines an effort to end all DEI-related activities within federal agencies, prevent DEI mandates in federal contracting and grants, and ensure that federal accreditation bodies prioritize merit and qualifications.

California’s governor signed into law SB 988, which is known as the “Freelance Worker Protection Act.”  SB 988 establishes new contractual protections for freelance workers starting January 1, 2025.

“Ban-the-Box” legislation has seen steady growth throughout the country for more than two decades.  Currently, there is no federal legislation on the topic for private employers but a good number of states have limited their ability to inquire about or make decisions based on a prospective employee’s criminal background history.

On August 9, 2024, Illinois Governor J.B. Pritzker signed H.B. 3773 into law, requiring all Illinois employers to notify employees and applicants when they use artificial intelligence (A.I.) to make employment decisions.

In an era where pay equity and transparency are becoming increasingly important, Massachusetts has taken a significant step with the enactment of House Bill 4890 (HB 4890), the Commonwealth’s new pay transparency law, which expands its previously enacted Massachusetts Equal Pay Act.

Last week, we reported Governor Gavin Newsom had announced that business and labor groups in California had reached a deal to preserve and reform the Labor Code Private Attorneys’ General Act of 2004, Cal. Lab. Code § 2698, et seq. (“PAGA”).  At the time of our report, the text of the new bills had not yet been released, but additional details are now available as the bills race to the Governor’s desk.

Last week, New York’s Governor signed a bill into law that effectively prohibits employers from accessing employees’ or job applicants’ personal social media accounts. The law goes into effect on March 12, 2024.

On February 15, 2024, California lawmakers introduced the bill AB 2930.  AB 2930 seeks to regulate use of artificial intelligence (“AI”) in various industries to combat “algorithmic discrimination.”  The proposed bill defines “algorithmic discrimination” as a “condition in which an automated decision tool contributes to unjustified differential treatment or impacts disfavoring people” based on various protected characteristics including actual or perceived race, color, ethnicity, sex, national origin, disability, and veteran status. 

A few months ago, we wrote about the National Labor Relations Board (“NLRB” or “Board”) publishing its widely anticipated final joint-employer rule (the “Final Rule”).  The Final Rule overrules the NLRB’s 2020 joint-employer rule and broadly expands the definition of joint-employer under the National Labor Relations Act (“NLRA” or “Act”). See Standard for Determining Joint Employer Status, 88 Fed. Reg. 73946 (October 27, 2023) (to be codified at 29 C.F.R. pt. 103).   

Washington, D.C. is the latest in a growing list of jurisdictions to require employers to have “pay transparency” in job postings. Starting in June of 2024, Washington, D.C. will require all employers with at least one employee in the District to post the minimum and maximum projected salary in all job listings or advertisements. The salary projections must be the lowest and highest salary or hourly pay the employer “in good faith believes” it would pay for the role.

Starting January 1, 2024, eligible California employees are entitled to protected leave following a reproductive loss.  This law, California Senate Bill 848, codified at California Government Code section 12945.6, builds on California’s 2023 bereavement leave law, which provided five days of unpaid bereavement leave to eligible employees following the death of a covered family member.

If you are a New Jersey employer with remote employees in New York, Alabama, Delaware, or Nebraska, you should review New Jersey’s newly introduced Convenience of the Employer Rule to ensure you are properly withholding state income and payroll taxes for those remote employees.

In the wake of the #MeToo movement, New York, like other states, enacted legislation aimed at limiting employers’ use of non-disclosure provisions in settlement agreements to resolve claims of workplace discrimination. Recently, Governor Kathy Hochul signed legislation that amends those existing laws to further strengthen the restrictions on non-disclosure provisions in settlement agreements for discrimination, harassment, and retaliation claims. The legislation also extends the statute of limitations for filing such claims with the state enforcement agency. 

On September 30, 2023, California Governor Gavin Newsom signed Senate Bill 553 creating new workplace violence prevention standards in California. The law consists of the first general industry workplace violence prevention requirement in the United States.  Under the law—specifically Labor Code Section 6401.9, this law amends California’s Code of Civil Procedure (“CCP”) to change the process by which employers may petition for temporary restraining orders (“TROs”) on behalf of employees.  CCP Section 527.8 previously allowed employers to petition for a ...

California employers must revamp their sick leave policies ahead of the New Year.  On October 4, 2023, Governor Newsom signed SB 616 into law, thereby amending the Healthy Workplaces, Healthy Families Act of 2014.  The new law goes into effect January 1, 2024.

On June 14, 2023, Texas Governor Greg Abbott signed HB 2127, the Texas Regulatory Consistency Act (“TRCA”), into law. Once the TRCA goes into effect on September 1, 2023, it will preclude all municipalities and counties in Texas from adopting or enforcing ordinances regulating conduct with respect to certain subject matters, including labor.

California employers: take notice.  On July 24, 2023, the Office of Administrative Law approved changes to the Fair Employment and Housing Act (FEHA) regulations governing how California employers can use and consider criminal history in employment decisions.  These new changes, modifying Cal. Code Regs. Tit. 2, § 11017.1, go into effect on October 1, 2023.

Pending legislation in New York (Senate Bill S3100A/Assembly Bill A1278B) will result in the sharp curtailment of post-employment non-competes if passed into law.  This development is concerning to many employers operating in New York or employing individuals currently living there, but for the moment, it is far from clear whether the current (or any) form of the bill may be passed into law.

The Consolidated Appropriations Act of 2021 (the CAA) requires group health plans and health insurance carriers to attest on an annual basis that they are in compliance with the CAA’s gag clause prohibition. While the prohibition of gag clauses was effective December 27, 2020, the first annual attestation is due December 31, 2023. Group health plan sponsors should begin taking steps now to prepare.

As pay equity has drawn more attention in recent years, employers need to stay abreast of the patchwork of federal, state, and local laws related to pay equity issues. Importantly, employers should understand the varying standards for protected characteristics, appropriate comparators, and accepted defenses under the varying laws of different jurisdictions. At a high level, this post summarizes the federal and state legal frameworks for pay equity claims and highlights the important differences in analyzing such claims.

As pay equity and transparency continues to trend in the news, states and localities have passed pay disclosure and transparency laws to further assist employees in evaluating whether they are being paid fairly. These laws vary in scope – some require the disclosure of pay ranges on job postings, others require employers to provide the pay scale for a position upon an applicant or employee’s request, and others require employers to automatically provide pay scale information at the time of hire. Despite their differences, all of these pay disclosure laws are aimed at adding transparency to conversations about pay.

Pay equity and transparency have become hot topics across the country as states and the federal government seek to ensure pay equity for employees, regardless of protected class. Federal anti-discrimination laws like the Equal Pay Act and Title VII provide legal recourse for employees who have experienced pay discrimination. As many employers know, federal law prohibits employers from demanding pay confidentiality from employees. Pay transparency laws go a step further and require employers to publish ranges for open positions, adding transparency to the conversations about ...

On December 21, 2022, New York Governor Kathy Hochul signed New York State’s pay transparency bill into law.  Effective September 17, 2023, the new law will require employers to disclose the anticipated compensation range for any advertised job posting.  See N.Y. Lab. Law § 194-b.

As part of the bill funding the federal government, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) and the PUMP for Nursing Mothers Act (PUMP Act). These relatively unknown laws are important pieces of legislation carrying with them significant changes to the workplace for pregnant employees.

On December 7, 2022, New York City Council Member Tiffany Cabán along with three other co-sponsors introduced a proposed bill that would prohibit all employers from terminating employees without (1) “just cause” or (2) a bona fide economic reason.  The bill would amend current law which protects “fast food” employees from being terminated without just cause.

It is no secret that legislators and regulatory agencies have taken note of companies’ increasing reliance on artificial intelligence (“AI”).  In the employment context, vendors market AI as an efficiency tool that can streamline HR processes and guard against human bias and discrimination.  But as we have previously blogged, undisciplined use of AI may accelerate or introduce discrimination into the workplace.

We previously posted about Washington, D.C.’s new law governing non-competes, which became effective on October 1, 2022.  D.C. employers, however, should be aware of a provision buried in the law that has nothing to do with non-competes and requires action by the end of this month.   

On September 18, 2022, California Governor Gavin Newsom signed into law Assembly Bill (“AB”) 2188, which prohibits employer discrimination based on employees’ use of cannabis off the job and away from the workplace.  While recreational use of cannabis, or marijuana, has been legal in California since 2016, the new law goes farther in specifically providing protections for employees who consume the substance.  AB 2188 makes California the most recent state to provide workplace protections for use of marijuana away from the workplace.  The bill will become effective beginning January 1, 2024.

Since we last reported on the delay of the District of Columbia’s Ban on Non-Compete Agreements Act of 2020 (the “Act”), the D.C. Council passed the Non-Compete Clarification Amendment Act of 2022 (the “Amendment”), effective October 1, 2022, which significantly rolled back some of the more prohibitive features of the original 2020 version of the Act. 

Editor’s Note: The California legislature failed to enact the proposed CCPA exemption amendments to Assembly Bill 1102.

On August 16, 2022, California Assembly Member Cooley introduced amendments to Assembly Bill 1102 that would extend the California Consumer Privacy Act’s (“CCPA’s”) temporary exemptions for HR and B2B data for an additional two years – until January 1, 2025. Under the CCPA, these exemptions are set to expire on January 1, 2023, when the amendments to the CCPA made by the California Privacy Rights Act (“CPRA”) become operative.

Yesterday, a California State Assembly Committee killed a bill that would have extended collective bargaining rights to a larger group of state employees – namely, legislative staffers. Existing state law excludes certain state employees from collective bargaining. The Legislature Employer-Employee Relations Act would “provide employees of the Legislature the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.” If passed, the bill would extend collective bargaining rights to nearly 2,000 California legislative employees. California’s Public Employment and Retirement Committee rejected the bill in a 2-3 vote this Wednesday, due to unresolved “procedural, legal, and administrative problems,” according to the Committee Chair.

Earlier this year, Harris County, Texas, which encompasses a substantial majority of the City of Houston, became the sixth Texas city or county to embrace a “ban the box” policy when it adopted the Fair Chance Policy.

Earlier this month, Democrats in the House of Representatives introduced the “Wage Theft Prevention and Wage Recovery Act” (“Act”). This proposed legislation seeks to amend the Federal Labor Standards Act (“FLSA”) in several key ways.

First, the Act would require all employers to provide regular pay stubs and initial salary disclosures.

Second, the Act would change wage recovery by requiring payment at an employee’s agreed-upon wage rate, rather than at the minimum wage or minimum overtime wage rates, which the FLSA has never done and has traditionally been within ...

In February, we examined newly passed New York City Local Law 32, which required employers to disclose salary ranges in job advertisements. The law was set to take effect on May 15, 2022, but, on April 28, 2022, the New York City Council passed an Amendment to Local Law 32 that pushed the effective date of the law back to November 1, 2022.

On April 11, 2022 Governor Glenn Youngkin signed HB 1173 into law, which replaces various provisions of the Virginia Overtime Wage Act (VOWA) with provisions largely consistent with the Fair Labor Standards Act (FLSA).

Assembly Bill 1651 or the Workplace Technology Accountability Act, a new bill proposed by California Assembly Member Ash Kalra, would regulate employers, and their vendors, regarding the use of employee data.  Under the bill, data is defined as “any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular worker, regardless of how the information is collected, inferred, or obtained.”   Examples of data include personal identity information; biometric information; health, medical, lifestyle, and wellness information; any data related to workplace activities; and online information.  The bill confers certain data rights on employees, including the right to access and correct their data.

On April 9, 2022, Maryland became just the tenth state (in addition to the District of Columbia) to enact a paid family and medical leave law that covers private-sector workers, after overriding Governor Larry Hogan’s (R) veto.

As we previously reported, in late 2020, the District of Columbia’s Council passed the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”), but more than a year later, employers and employees may still legally enter into binding covenants not to compete.  So what happened, and what’s next for non-competes in the District?

On February 9, 2022, California Governor Gavin Newsom signed into law Senate Bill 114, which reestablishes the state’s COVID-19 supplemental paid sick leave requirements. Employers will not be able to simply dust off their 2021 policies and reimplement them, however, because the 2022 law contains some important changes from prior laws.

Following enactment of a similar law in Colorado in 2021, the New York City Council passed a bill on December 15, 2021 amending New York City’s Human Rights Law to require New York City employers to disclose the salary range of open positions in all advertised job postings. Mayor Eric Adams had until January 14, 2022 to veto the bill, but declined to do so, which means the law will take effect on May 15, 2022. The implications for New York City employers are far reaching.

This year has seen an increase in state legislation addressing noncompetition agreements (“non-competes”). Following Washington, D.C.’s passage of a ban on non-competes in January 2021 (addressed in greater detail here), Oregon, Nevada, and Illinois undertook revisions to their respective non-compete statutes. These legislative updates are summarized below.

The New York State Department of Labor released its anticipated airborne infectious disease standard and sample plan on July 6.  Employers have until August 5, 2021 to adopt or create a plan to comply with the standard.

President Joe Biden signed a new executive order on July 9, called the Executive Order on Promoting Competition in the American Economy, aimed at cracking down on monopolies in Big Tech, labor and other sectors.  According to a Fact Sheet released by the White House, the Executive Order includes 72 initiatives the President wants over a dozen federal agencies to undertake for the stated purpose of promoting competition throughout the U.S. economy.

On March 25, 2021, Virginia Governor Ralph Northam signed into law new protections for employees related to the medicinal use of cannabis oil.  Effective July 1, 2021, the newly enacted § 40.1-27.4 will prohibit employers from disciplining, discharging, or discriminating against an employee for his or her lawful use of cannabis oil so long as the use is pursuant to a valid written certification issued by a health care practitioner for the treatment of the employee’s diagnosed condition or disease.

Last month, the State of New York passed legislation which permits New York employees up to four hours of paid leave to receive a COVID-19 vaccination. While this new legislation became effective immediately upon passing on March 12, 2021, employers were left with many questions regarding their obligations under the law. In an effort to resolve some of these questions, the New York Department of Labor issued guidance in the form of FAQs to provide clarification for employers.

The American Rescue Plan Act (“the Act”) signed in March 2021 provides for a 100% COBRA premium subsidy for certain individuals who are eligible for and enroll in COBRA coverage between April 1, 2021 and September 30, 2021. Employers sponsoring health plans should take action quickly to ensure that the subsidy is properly administered and consider its effects on any planned layoffs or other severance events.

Employers with more than 25 employees must provide COVID-19 supplemental paid sick leave to their California employees under a recent law signed by the Governor.  This new law is broader than California’s prior COVID-19 paid sick leave law and, unlike the prior law, also covers employees who telework. The new sick leave entitlement is retroactive to January 1, 2021 and extends until September 30, 2021.

Who Must Provide Supplemental Paid Sick Leave?

SB 95 covers all employers with more than 25 employees. California’s prior COVID-19 sick leave law (Assembly Bill 1867) expired on December 31, 2020, and applied only to private businesses with 500 or more employees.

Since taking office, President Biden has issued Executive Orders covering topics from climate change to mask mandates.  Some of these new Executive Orders are aimed at eliminating discrimination and promoting equity at the federal level.  These directives will likely result in new requirements for private sector companies that are government contractors or subcontractors, and could require them to revise practices and policies in order to keep, or procure new, government contracts.

Last month, Washington, D.C. Mayor Muriel Bowser signed the Ban On Non-Compete Agreements Amendment Act of 2020 (“the Act”), which becomes effective next week.  This law is a statutory ban on non-compete agreements that has the strength of similar bans in California, North Dakota, and Oklahoma.

The Act applies to all D.C. private employers and applies broadly to most employees who perform work in D.C. or whom a prospective employer reasonably anticipates will perform work in D.C.  The law does not have a minimum salary threshold.  Under the Act, employers are prohibited from ...

As most employers are well aware, the Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex national origin, age, disability or genetic information. After an individual submits a charge of discrimination to the EEOC—and if the parties cannot come to an agreement to settle the charge through the EEOC’s mediation process—the EEOC investigates the allegations to determine whether there is reasonable cause to believe that discrimination has occurred. Generally, the EEOC does not make a finding, and instead issues a “Dismissal and Notice of Rights” (more commonly known as a “right-to-sue” letter) notifying the charging party that they have 90 days to file a discrimination lawsuit, or their right to sue based on the charge will be lost.

Virginia became the first state in the country to pass a workplace safety standard specific to COVID-19 on July 15.  It includes hazard assessment, communication and training requirements, depending on the types of tasks employees perform at work.

As we have previously reported here, here, and here, Virginia has enacted several new labor and employment laws that are poised to dramatically change the legal landscape for employers in Virginia.  In addition to the laws discussed above, Virginia has also enacted “ban the box” legislation for simple possession of marijuana.

The new Democratic majority in the Virginia General Assembly wasted no time in passing numerous pieces of legislation that will change dramatically the landscape of Virginia labor and employment law and increase the employer’s compliance burden and litigation dockets. Please join us for an informative and interactive discussion of these changes. Our Labor and Employment team will discuss the new labor, discrimination, minimum wage, and employee misclassification statutes and detail what Virginia employers need to do now to prepare. Our Global Economic Development ...

As states have worked to process the millions of unemployment claims arising out of the pandemic, many questions have arisen about who is eligible for the federal Pandemic Unemployment Assistance (PUA) benefit under the CARES Act.  The Department of Labor’s most recent guidance attempts to answer many of these questions posed by the states and may be helpful to employers considering furloughs or layoffs.

On April 17, 2020 the EEOC updated its’ Technical Assistance Questions and Answers to provide employers with additional guidance interpreting the ADA, Rehabilitation Act, and other EEO Laws in the midst of the COVID-19 pandemic.  The EEOC first reminds employers that while these laws continue to apply, employers should still adhere to the ever-changing guidelines and suggestions made by the CDC or state/local health authorities.  With that in mind, the new guidance addresses several topics, summarized below.

The Department of Labor released posters that employers with fewer than 500 employees must use to meet the notice posting requirements of the Families First Coronavirus Response Act.

The DOL issued two posters, one for federal employers, available here and one for all other covered employers, available here.  The DOL also provided a questions and answers page regarding the notice posting requirement here.

The Department of Labor (“DOL”) released guidance Tuesday regarding the implementation of the Families First Coronavirus Response Act, including details on how employers can determine whether they are covered by the Act.

500 Employee Threshold

One of the most common questions among employers regarding the Families First Act, which Congress passed last week to provide up to 12 weeks of paid leave for coronavirus-related reasons, involved how to count employees towards the 500 employee threshold for coverage under the law.  If an employer has 500 or more employees, then it is not covered by the law.  The DOL provided three key pieces of guidance to help employers determine whether they are covered.

The United States Senate today passed the Families First Coronavirus Response Act and sent it to President Trump’s desk.  The President is expected to sign the bill into law this week.

The bill, which provides for paid sick leave and expanded family leave for certain employees for coronavirus-related reasons, passed the Senate without substantive changes.  The House initially passed the bill on Friday night, but made technical corrections to it late Monday.

For full details on how the legislation may affect employers, see our previous coverage of the bill here and here.

The House amended its Coronavirus Response Bill late on March 16, 2020 and sent it on to the Senate.

Paid Sick Leave Changes

 The sick leave provisions of the bill remained largely intact, and would entitle employees of employers with fewer than 500 employees to take up to 80 hours of paid sick leave for coronavirus-related reasons, including required quarantining, caring for family members with the illness, or for emergency school closings.  To review our initial summary of the bill, which includes discussion of portions of the bill that were unaffected by the technical amendments, click here.  The amendments include a $511 daily cap for leave benefits for employees with their own personal coronavirus-related medical conditions, and a $200 cap for employees caring for others with such symptoms or for school closings.

Importantly, the sick leave amendments also allow the Secretary of Labor to grant exemptions to employers where the secretary determines that imposition of the paid sick leave requirements would “jeopardize the viability of the business as a going concern.”  It also allows healthcare and emergency response employers to apply for exemptions from the Secretary of Labor so that the law would not apply to their employees.

With the age of artificial intelligence (AI) unfolding, products aimed at automating the recruiting and hiring process are hitting the market with increasing frequency.

Companies have been utilizing AI for tasks such as screening resumes, and even interviewing candidates and assessing whether they will be successful employees.  These automated tools range from algorithms that “weed through” resumes to personality assessments and biometric analyses that employ AI to analyze a candidate’s facial expressions, body language, voices, and inflections in video interviews.

Virginia’s 2020 legislative session is not scheduled to wrap-up until March. But Virginia employers need to pay attention now to several game-changing bills moving through the legislative process and expected to be signed into law this spring.  The Hunton government relations team, working with several lobbying clients, has already helped defeat  several of these measures including a proposed repeal of Virginia’s right to work statute.  But others are expected to become law, and could dramatically increase the volume of employment litigation in Virginia.  Employers are therefore well advised to begin planning for these changes now.

February is a great time for employers with New York operations to check on their progress regarding New Year’s resolutions for revising policies, training supervisors and implementing other changes to ensure compliance with recent developments in the law. The changes in employment laws during 2019 provide strong incentives for employers to update their practices. Following are 13 employment law developments that New York employers should make a part of their 2020 “resolutions” and employment practices.

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On December 17, 2019, the Fair Chance to Compete for Jobs Act of 2019 (the “Fair Chance Act”) was signed by the President as an amendment to the National Defense Authorization Act.  This federal “ban-the-box” law proscribes federal agencies and contractors from asking about a job applicant’s criminal history until after they make a conditional offer of employment.  For federal contractors, the law only extends to positions related to a federal contract.  The Fair Chance Act will go into effect on December 17, 2021.  The Office of Personnel Management and General Services Administration will issue implementing regulations before the law goes into effect.

In the last days of 2019, New Jersey Governor Phil Murphy signed a law that bans employers from discriminating against employees based on hairstyles that are associated with race. In doing so, New Jersey joined New York and California—both of which enacted similar legislation earlier in 2019—in prohibiting hair discrimination in the workplace.

The California Department of Fair Employment and Housing (“DFEH”) recently updated its Sexual Harassment Prevention Training FAQ guidance to address some of the questions surrounding SB 1343, which requires employers with five or more employees to provide classroom or “other interactive training” for all California employees (not just supervisors) every two years. SB 1343 was initially set to go into effect on January 1, 2020. But in 2019, Governor Newsom signed two amendments to SB 1343 that push the effective date out to January 1, 2021. The deadline to comply with SB 1343 does not change the obligation of an employer with 50 or more employees to train new supervisory employees within six months of their promotion or hire.

New York joins a handful of other states when its broad prohibition on employer inquiries into applicants’ prior wage or salary information takes place today, January 6, 2020.  As detailed in our previous alert on this issue, New York previously had expansive pay equity laws in effect for public employers, but the new law expands the prohibition to private employers throughout the state.

Illinois joined the growing list of states to legalize marijuana as of January 1, 2020.  Employers with employees in Illinois should consider how the new law may affect their business, and review their policies to ensure compliance with the statute.

As an initial matter, state legalization will not affect employees in certain job positions.  The Illinois law states that corrections officers, law enforcement officers and several other public employees cannot use marijuana, even when they are off-duty.  In addition, employees with commercial drivers’ licenses subject to federal Department of Transportation regulations will remain subject to federal restrictions.

On December 6, 2019, a coalition of both national and state business organizations and trade associations filed a Complaint in the U.S. District Court for the Eastern District of California.  The lawsuit seeks both a preliminary and permanent injunction against implementation and enforcement of the recently enacted California law that makes it unlawful for California employers to require employees to sign arbitration agreements, under certain circumstances.

Dollar General and the Equal Employment Opportunity Commission (“EEOC”) recently settled a six-year-old Title VII lawsuit.  The EEOC brought its race discrimination claim on behalf of a Charging Party and a class of Black job applicants, alleging that Dollar General’s use of criminal justice history information in the hiring process had a disparate impact on Black applicants.

Imagine a future in which Artificial Intelligence (“AI”) does the recruiting and hiring at U.S. companies.  Every new hire will be the uniquely perfect candidate whose skills, personality, presence, temperament, and work habits are a flawless match for the job.  Performance management and poor performance become extinct, relics from an age in which humans brought primitive instincts, biases, and flawed intuition to hiring and employment decisions.  While there are risks and challenges to employers in introducing this technology, manufacturers of AI software say that some version of that future may not be too far off.  AI software such as Mya, HireVue, and Gecko are among the numerous platforms that employers are now leveraging to hone in on and hire the best candidates more quickly. Generally speaking, AI interviewing products combine mobile video interviews with game-based assessments. The AI platform then analyzes the candidate’s facial expressions, word choice, and gestures in conjunction with game assessment results to determine the candidate’s work style, cognitive ability, and interpersonal skills.

Earlier this year, we wrote about a proposed bill in California, AB 51, which would prevent employers from requiring their employees to bring all employment-related claims, including discrimination, harassment, retaliation, and wage and hour claims, in arbitration instead of state or federal court.  Earlier this month, Governor Newsom signed AB 51 into law.

This month, California Governor Gavin Newsom signed several employment-related bills into law. The laws go into effect January 1, 2020, and include an extension to the deadline to file certain state discrimination claims and address harassment training and prevention, as well as mandatory arbitration agreements.

As we blogged about earlier this year, a U.S. District Court in Washington, D.C., in April ordered the EEOC to collect two years’ worth of EEO-1 Component 2 pay data from mid-size and large employers by a deadline of September 30, 2019.  In its most recent status report on the subject, however, the agency revealed it did not collect enough data to satisfy the judge’s response criteria, having received submissions from only 39.7% of eligible employers.  Perhaps unfortunately for employers, the EEOC said it will continue accepting compensation data for reporting years 2017 and 2018 until it satisfies the court’s criteria that Component 2 data “be equal to or exceed the mean percentage of EEO-1 reporters” that turned in EEO-1s in each of the past four years.  On its official website, the EEOC encourage all employers to “submit their data as soon as possible.”

The IRS has issued final regulations amending the hardship distribution rules for qualified retirement plans, including 401(k) and 403(b) plans. The final regulations are substantially similar to the proposed regulations that were issued in November 2018, but provide a few clarifications.  Plans that have been complying with the proposed regulations will satisfy the final regulations.  Below is a summary of the key changes and action items for plan sponsors.

On July 11, 2019, the House Financial Services Committee, led by Chairwoman Maxine Waters (D-CA), considered The Restricting Use of Credit Checks For Employment Decisions Act (the “Act”) as one of four bills designed to reform the Fair Credit Reporting Act (FCRA) and the credit reporting system.

After a nearly six-year legal battle, the Fifth Circuit has struck down the U.S. Equal Employment Opportunity Commission’s 2012 Enforcement Guidance on the consideration of criminal history in employment decisions.  On August 6, a three-judge panel held that the Guidance was a substantive rule the EEOC had no authority to issue and that the EEOC can no longer enforce the Guidance or treat it as binding in any respect.

On June 5, 2019, Nevada Governor Steve Sisolak signed into law Assembly Bill No. 132 (“A.B. 132” or the “new law”), which is the first state law to curb pre-employment marijuana drug tests.  The new law has two primary effects: 1) it makes it unlawful for Nevada employers to fail or refuse to hire a prospective employee because the applicant submitted to a screening test and the results of the test indicate the presence of marijuana; and 2) it provides employees who test positive for marijuana with the right to, at their own expense, rebut the original test results by submitting an additional screening test within the first 30 days of employment. 

As we previously detailed, the Virginia General Assembly enacted an employment records disclosure law requiring employers to furnish Virginia employees certain personnel documents upon request.  That law took effect on July 1, 2019.

In a unanimous 9-0 decision authored by Justice Ginsburg, the U.S. Supreme Court resolved a split amongst the circuit courts of whether filing a charge of discrimination pursuant to Title VII is a jurisdictional prerequisite or a claims-processing rule. Prior to the Supreme Court’s resolution of the issue, the First, Second, Third, Fifth, Sixth, Seventh, Tenth, and D.C. Circuit Courts all held that the administrative exhaustion requirements under Title VII are not jurisdictional, but rather an affirmative defense that can be waived by an employer if not timely raised. On the other side of the circuit split, the Forth, Ninth, and Eleventh Circuit Courts held that the administrative exhaustion requirement is jurisdictional, and that a federal district court has no authority to adjudicate Title VII claims if the plaintiff has not first filed a charge with the EEOC. In its decision, Fort Bend County v. Davis, all nine justices agreed that the charge filing requirement under Title VII is not jurisdictional, and therefore can be waived by a defendant if not timely raised.

A new Virginia law will require employers to provide current or former employees with copies of certain employment-related documents upon request.

Effective July 1, 2019, Virginia employers must provide a copy of a limited set of employment documents to employees upon receipt of a written request for such information from the employee, her attorney or an authorized insurer.  The law applies to current and former employees, and allows an employer 30 days to produce the documents after receipt of the request.

The House of Representatives passed the Equality Act (H.R. 5 – 116th Congress) this past Friday, May 17, mostly along party lines – the resolution passed with a 236 to 173 vote, with only 8 of the “aye” votes cast by Republicans.  The Equality Act would amend various civil rights laws, including the Civil Rights Act of 1964 (“Civil Rights Act”), the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and other laws regarding employment with the federal government, to explicitly include sexual orientation and gender identity as protected characteristics.

To all employers in Washington DC who employ tipped workers, heed this warning: as of July 1, 2019, you must comply with new notice, reporting, and training requirements, as set forth in the Tipped Wage Workers Fairness Amendment Act of 2018 (the “Act”).  The Act, which became effective December 13, 2018, repealed a ballot initiative (Initiative No. 77) that would have changed how tipped workers in DC would have been paid to eventually match the standard minimum wage by 2026.  With the goal of protecting the rights of tipped workers, the Act sets forth the following requirements for all employers of tipped workers in the District:

Each year, the California Chamber of Commerce (“Chamber”) identifies proposed state legislation that the Chamber believes “will decimate economic and job growth in California.”  The Chamber refers to these bills as “Job Killers.” In March, the Chamber identified the first two Job Killers of 2019: AB 51 and SB 1. Both bills would negatively impact retailers in California. You can view the Chamber’s Job Killer site here.

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California’s legislature and courts have acted to curb an employer’s ability to recover its fees and costs when it prevails in a lawsuit brought under California’s Fair Employment and Housing Act (“FEHA”, Government Code § 12940 et seq.), even if the plaintiff employee rejected the employer’s Code of Civil Procedure Section 998 offer to compromise.

Voters in Michigan, Utah and Missouri passed marijuana-related ballot measures in the November 2018 elections.  Michigan, which legalized medical marijuana in 2008, became the tenth state to legalize recreational use of marijuana.  Utah voters agreed to institute a formal structured medical marijuana program, greatly expanding the scope of the state’s existing medical marijuana law, and Missouri voters for the first time authorized the state to create a system of licensed marijuana dispensaries for medical purposes. Each of these measures recognizes that marijuana remains a controlled substance, and illegal, under federal law, and that authorized users, growers, physicians, and any others who properly support or participate in these programs will be shielded from liability only under state law.

The opioid epidemic is causing employers to consider the best ways to ensure a safe workplace, but companies should be careful when addressing employees’ prescription drug use.  Recent court filings and settlements by the Equal Employment Opportunity Commission illustrate the potential pitfalls employers face when attempting to implement a drug-free workplace.

The #MeToo movement has galvanized many into taking action to fight workplace harassment. Since the movement began in the fall of last year, the Equal Employment Opportunity Commission (EEOC)—tasked with enforcing laws prohibiting sexual harassment—has indicated it has seen an uptick in the amount of traffic to its website. But, it also indicated this increase in website visitors has not translated into an increase in formal complaints to the EEOC filed by employees against their employers. Still, the EEOC has carried the torch of the #MeToo movement, signaling that the lack of an increase in claims will not stop the agency from vigorously enforcing anti-harassment laws.

Oregon’s Fair Work Week Act (also known as Oregon’s predictive scheduling law) (the “Act”) is proceeding full speed ahead and will add significant challenges and costs for retailers. The majority of the Act goes into effect on July 1, 2018. Following similar ordinances regulating employee hours passed at municipal levels in Emeryville, California; New York City; San Francisco; San Jose; Seattle; and Washington, D.C., Oregon becomes the latest jurisdiction and the first state to enact a predictive scheduling law.

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Legislative responses to the #metoo movement continue to develop across the country.   Joining this movement, New York State and New York City recently have passed some of the strongest anti-harassment laws on the books.  Below is a summary of key elements for private employers: 

New Jersey’s Paid Sick Leave Act will go into effect on October 29, 2018, making it the tenth state plus Washington DC and dozens of localities to mandate paid sick leave.

New Jersey’s Act requires employers of all sizes to provide employees with up to 40 hours of paid leave per 12-month period.  Key aspects of the new law include:

On June 30, 2017, Missouri Governor Eric Greitens signed a bill into law, Senate Bill 43 (SB 43), that makes substantial changes to Missouri’s employment discrimination laws. The Bill, which goes into effect on August 28, amends the Missouri Human Rights Act (MHRA) and creates the “Whistle Blower Protection Act.”

Numerous changes have been made to the MHRA, so the Bill is worth a read.  A few key changes that are likely of particular interest to employers relate to who may be liable for violations, the level of proof required to establish a violation, and the amount of damages that may be awarded.

The New York City Commission on Human Rights recently amended its rules to establish certain definitions and procedures applying the Fair Chance Act.  The Act makes it unlawful to discriminate against job applicants and employees on the basis of criminal history, and is particularly important for employers for two reasons: (1) it applies not only to criminal background checks performed by third-party vendors but also to checks performed entirely by the company, and (2) out-of-state non-employers may be held liable for aiding and abetting violations of the Act.  For more on this latter point, read our prior post on the New York Court of Appeals opinion in Griffin v. Sirva, Inc.

Washington state has enacted a paid family leave program that will go into effect in 2020. Through this enactment, Washington has joined just four other states and the District of Columbia in requiring paid leave benefits for eligible employees. Under this new law, the state insurance program will provide private-sector employees up to 12 weeks of income for leave related to childbirth, a child’s adoption, a relative’s illness, or an employee’s own health condition. An employee’s maximum combined family and medical leave will be 16 weeks a year, with an additional two weeks in cases involving pregnancy complications. The new law also requires employers to hold the employee’s job open, regardless the size of the business, until he or she returns from leave. The employer may, however, hire a temporary worker to substitute for the employee on family or medical leave.

Georgia’s “kin care law” went into effect on July 1, 2017.  Under this new law, Georgia employers with 25+ employees must permit employees who work 30+ hours per week to use up to five hours of their earned sick leave to take care of immediate family members.  “Immediate family member” is defined as the employee’s child, spouse, grandchild, grandparent, parent, or dependents listed on the employee’s most recent tax return.

In a ceremonial signing on June 22, Philadelphia Mayor Jim Kenney signed a new municipal bill giving the City of Philadelphia authority to temporarily close businesses found to have repeatedly violated the City’s anti-discrimination statutes.  The new bill, which amends the City’s Fair Practices Ordinance, states that the Philadelphia Commission on Human Relations may, “upon a finding that [an employer] has engaged in severe or repeated violations without effective efforts to remediate the violations, order that the [employer] cease its business operations in the City for a specified period of time.” The bill, which went into effect immediately, does not state how long a business may be closed.  Nor does it define “severe or repeated violations” or clarify what constitutes “effective efforts to remediate.”

On May 24, 2017, Sen. Johnny Isakson (R-Ga.) and Rep. Francis Rooney (R-Fl.) each introduced the Representation Fairness Restoration Act in their respective Houses of Congress in an attempt to reverse the controversial 2011 ruling by the National Labor Relations Board in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. (2011). As has been discussed in previous posts, the Board in Specialty Healthcare announced a new standard for determining the appropriateness of a bargaining unit. Under the new standard, unless an employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other portion of the workforce, the requested bargaining unit will be approved. This new standard has encouraged the formation of smaller “micro-bargaining units.” These micro-bargaining units have been an administrative and managerial headache for employers, requiring them to bargain with multiple small units in the same workplace, and sometimes in the same department.

The continued proliferation of human trafficking for the purpose of labor exploitation remains one of the most serious threats facing companies.  But, it is not just a concern for companies doing business overseas. California has led the charge with its passage of the California Transparency in Supply Chains Act, a law that requires retail sellers and manufacturers doing business in that state to disclose their efforts to eradicate human trafficking in their direct supply chains.  (Cal. Civ. Code, § 1714.43).  The United Kingdom has enacted similar legislation with its passage of the Modern Slavery Act 2015.

Effective March 17, 2017, the District of Columbia will join a dozen other jurisdictions across the country that prohibit an employer’s use of “credit information” in employment decisions.  The new law, D.C. Act 21-673, amends the District of Columbia’s existing human rights law by adding credit information as a prohibited basis for discrimination for any employment decision (not just hiring), and applies to employers of any size.  See D.C. Code § 2-1402.11(a)(1) and (a)(1)(4)(D), as amended.