The effects of the #MeToo movement for employers continue with Governor Abbott recently signing two new bills into law (effective September 1, 2021) that greatly amplify legal protections against sexual harassment. One bill extends the statute of limitations for sexual harassment claims from 180 days to 300 days. The other opens the door for small employers, and even individual supervisors and coworkers, to be held liable for sexual harassment.  Also, Texas employers must now take “immediate and appropriate corrective action” to avoid liability for sexual harassment. We explain these new laws in more detail below, and discuss steps Texas employers may want to consider before the new laws go into effect.

Statute of limitations lengthened for sexual harassment claims (House Bill 21)

Currently, employees must file a charge of discrimination with the Texas Workforce Commission within 180 days of the alleged harassing conduct. House Bill 21, which Governor Abbott signed into law on June 9, 2021, lengthens the statute of limitations for filing sexual harassment claims from 180 days to 300 days from the date of the alleged harassment. The longer limitations period applies only to sexual harassment claims based on conduct that occurs on or after September 1, 2021. The current 180 day statute of limitations remains unchanged for other types of alleged discrimination (e.g., based on race, age, etc.).

Because the statute of limitations under federal law for sexual harassment claims is 300 days, plaintiffs who miss the 180-day deadline under Texas law were typically only able to pursue their sexual harassment claims in federal court (assuming, of course, they initiated legal proceedings within the 300-day federal deadline). Beginning this fall, those plaintiffs will be able to pursue such claims in either federal or state court. 
Continue Reading Attention Texas employers: Starting September 1, 2021, companies with just one employee—as well as individual supervisors and coworkers—can be liable for sexual harassment

Following last year’s wave of new employment laws (previously covered as follows: Part 1, Part 2, and Part 3), Virginia has adopted a variety of new laws that will take effect July 1 and continue to transform the Commonwealth’s employment law landscape. Virginia employers should carefully review these new laws to ensure compliance in this changing environment and in light of newly expanded enforcement mechanisms.

Minimum wage increase

While Virginia adopted incremental increases to the minimum wage set to reach $15 per hour by 2026, the first step-increase was delayed due to the pandemic. Effective May 1, 2021, the minimum wage increased to $9.50 per hour and is set to increase again effective January 1, 2022.  The Virginia Department of Labor and Industry (DOLI) has issued a minimum wage guide for employers that includes an optional workplace posting announcing this increase.

The Virginia Overtime Wage Act

Governor Ralph Northam signed the Virginia Overtime Wage Act, which will take effect on July 1, 2021 and now provides overtime protections for employees under state law (previously overtime protections were only under federal law). While the new law incorporates the exemptions from overtime under the federal Fair Labor Standards Act (FLSA) and purports to graft the FLSA’s overtime protections into state law, there are several notable differences between the FLSA and Virginia’s new law.

Unlike the FLSA, Virginia’s new law (i) establishes a three-year statute of limitations thereby allowing recovery of up to three years of back wages, unlike the FLSA’s typical 2-year lookback; (ii) does not provide for any good faith defense for employers; and (iii) forecloses an employer from using the fluctuating workweek method or from paying a fixed amount to cover straight time wages for all hours worked. Accordingly, non-exempt employees paid a salary or on some other non-hourly basis are entitled to overtime for any hours worked over 40 at “one and one-half times” a regular rate of 1/40th of all wages paid for that workweek.  Also unlike the FLSA, the new law’s definition of “employer” includes derivative carriers within the meaning of the federal Railway Labor Act. Unlike prior Virginia law, the new law provides for a private right of action under Virginia’s wage payment statute (with enhanced remedies enacted last year).
Continue Reading Virginia adopts new laws effective July 1 that continue to transform the employment landscape

Federal contractors and other employers should anticipate greater scrutiny related to their compensation policies and practices as a result of recent policy shifts. President Biden has made it clear that a key priority of his administration is closing the gender and racial wage gap that currently exists in the United States, and that he plans to encourage changes at both the state and federal levels. At the federal level, that means the reintroduction of the Paycheck Fairness Act, the rollout of new policy initiatives, and the issuance of executive orders. This prioritization of pay equity will likely result in renewed enforcement efforts related to pay discrimination from the Office of Federal Contract Compliance Programs (OFCCP). State legislatures also continue to pass laws enhancing pay equity and transparency.

Background

The Equal Pay Act (EPA), passed in 1963, was one of the first anti-discrimination laws enacted and was intended to abolish wage disparity based on sex. The act prohibits wage discrimination between men and women who perform jobs that require substantially the same skill, effort and responsibility within the same company. Despite the existence of the EPA, however, the gender-wage gap still exists with the focus on pay disparities across both gender and race, as evidenced by statistical data.

Biden priority

On International Women’s Day, March 8, 2021, President Biden created the White House Gender Policy Council via Executive Order, to ensure that gender equity and equality are pursued in domestic and international policy. Specifically, the Council is tasked with advancing gender equity and equality by coordinating federal policies and programs that address the structural barriers to women’s participation in the labor force and by decreasing wage and wealth gaps. The Council is to work closely with the Domestic Policy Council, which is coordinating the interagency, whole-of-government strategy for advancing equity, as set forth in Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.) In addition, the President has promised additional funding for agencies such as the Equal Employment Opportunity Commission (EEOC), the U.S. Labor Department’s Office of Federal Contract Compliance Programs, and the Justice Department’s Civil Rights Division to investigate violations and enforce pay equity laws.Continue Reading Biden’s pay equity priority: federal and state updates, and what federal contractors can expect going forward

Recently the California Department of Fair Employment and Housing (DFEH) released guidance stating that employers generally may require their employees to receive a Food and Drug Administration approved vaccination against COVID-19. Under California’s Fair Employment and Housing Act (FEHA), an employer may implement a mandatory vaccination policy so long as the employer:

  1. Does not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
  2. Provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and
  3. Does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

Continue Reading The California Department of Fair Employment and Housing blesses employers’ use of mandatory vaccination policies

On February 22, 2021, New Jersey Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) and other related bills into law which legalize and regulate recreational cannabis use and possession for adults over the age of 21.  With the enactment of NJCREAMMA, New Jersey now prohibits employers from discriminating against employees for off-duty recreational marijuana use (or decision not to use).  These requirements are effective immediately.

Prior to the enactment of NJCREAMMA, New Jersey employers were prohibited from discriminating against individuals who are certified to use medical marijuana and required to engage in the interactive process with employees who request accommodations for medical marijuana use.  NJCREAMMA extends the discrimination prohibitions to recreational marijuana users and prohibits employers from refusing to hire, discharging, or taking “any adverse action against an employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.”  In addition, these prohibitions extend to positive drug tests where solely cannabinoid metabolites are present in the employee’s system.
Continue Reading New Jersey legalizes recreational marijuana use: What this means for employers

The release of the COVID-19 vaccine came as welcome news for employers. With it, however, employers will now confront myriad new questions about how the vaccine will affect workplace terms and conditions. The foremost question across all sectors has been simple: Can and should employers mandate that their employees get vaccinated? While issuing a mandate may seem appealing, doing so creates a variety of both legal and practical risks that, for many businesses, may militate in favor of a voluntary compliance program.

Faced with this reality, many employers have begun exploring incentive-driven voluntary programs, including offering additional PTO, gift cards, and even cash “bonuses” to employees who provide proof of vaccination.  While such a voluntary system avoids many of the pitfalls of a mandatory system, it also carries its own complexities and risks in an already complicated and unsettled area of law.  This post examines some of those risks while also highlighting the unique uncertainty surrounding this emerging issue. 
Continue Reading Managing the risks of incentivizing COVID-19 vaccines for employees

The Biden administration issued new guidance immediately following his Jan. 20 inauguration abrogating former U.S. President Trump’s Executive Order 13950 on Combating Race and Sex Stereotyping (the Order). Implementation of EO 13950 had previously been stayed by a preliminary nationwide injunction entered Dec. 22, 2020, in California federal court. As a result, federal contractors or organizations with a federal contract currently have no obligation to revise their diversity and equity training to omit the prohibited training topics set forth in EO 13950.

As previously discussed, EO 13950 sought to reshape the way government contractors performed diversity and equity training. It prohibited, among other things, restrictions on training about affirmative action, discussion of reparations and implicit bias, and guidance regarding limiting micro aggressions. Further, the Order mandated employer postings in the workplace as well as compliance communications with organized labor groups.Continue Reading DOL stops enforcing Executive Order 13950 on diversity training

Last week, the Pittsburgh City Council and the Allegheny County Council unanimously voted to ban discrimination on the basis of race-based hairstyles by passing the Creating a Respectful and Open World for Natural Hair Act (known as the CROWN Act).

The CROWN Acts amend provisions of the City and County Codes addressing employment, housing, real

**Please note this blog has been updated as of January 25, 2021. Read our update here.

Beginning November 20, 2020, President Trump’s Executive Order 13950 On Combating Race and Sex Stereotyping (“EO 13950” or “The Order”) will fundamentally reshape the way government contractors conduct diversity training.  Signed September 22, 2020, the Order prohibits federal workplace trainings that “promote race or sex stereotyping or scapegoating.” Importantly for private employers, federal contractors also “will not be permitted to inculcate such views in their employees.” On October 7, 2020, the Department of Labor issued guidance in the form of “frequently asked questions” regarding EO 13950.
Continue Reading Executive Order 13950 on diversity training: Hidden traps for employers

On July 14, 2020, the Illinois Department of Human Rights (IDHR) released guidance for employers regarding the state’s new “adverse judgment or administrative ruling” reporting requirement.  Following amendments to the Illinois Human Rights Act, employers with at least one adverse judgment or administrative ruling must disclose to the IDHR the total number of final, non-appealable judgments or final, non-appealable rulings against the employer in which there was a finding of sexual harassment or unlawful discrimination.

The guidance released this month resolves ambiguity by clarifying employers’ deadlines for reporting to the IDHR.  The deadline to report for calendar year 2019 is now October 31, 2020, and the reporting deadline will be July 1 for subsequent years.

The reporting requirement is not limited to employers with a physical presence in Illinois.  As the guidance reiterates, the reporting requirement applies to “any person employing one or more employees in Illinois.”
Continue Reading Illinois releases guidance regarding reporting rule for sexual harassment and discrimination judgments