Biden signs federal law restricting sexual harassment and assault arbitration

On March 3, President Joe Biden signed into law one of the most significant modifications ever made to federal arbitration law. Known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the Act), the new law essentially restricts employers from forcing workplace sexual harassment or assault claims to be resolved by arbitration.

Specifically, as previously reported, the Act provides that an employee asserting allegations of sexual harassment or assault – either on an individual basis or as a proposed class representative – and who previously signed an agreement with their employer to arbitrate claims between the parties, has the right, notwithstanding such agreement, to elect to pursue their claims in court rather than in an arbitral forum. Beyond this, the Act also includes several ancillary yet notable provisions, including that any disputes as to whether the Act applies will be decided by a court (rather than an arbitrator) and that the Act applies with respect to any dispute or claim that arises or accrues on or after March 3, 2022.

As the new law does allow for employees to choose to arbitrate their sexual harassment and assault claims, employers do not need to altogether halt the usage of arbitration agreements. Given the choice, some employees may prefer to arbitrate their claims. That being said, employers should review their arbitration agreements immediately to ensure compliance with the Act.

New York legislature proposes sweeping changes to workplace laws

On March 1, 2022, the New York State Senate passed a suite of landmark employment legislation. Though several of the bills still need to be passed by the State Assembly – and, of course, ultimately signed into law by Governor Kathy Hochul – Empire State employers should nevertheless review the measures now so they will be prepared if and when the bills become law. Below is a high-level summary of the key bills that were passed last week:

  • Additional limitations on non-disclosure clausesSenate Bill S.738 would invalidate any releases of claims – which are most typically included in separation and settlement agreements – where (i) the employee is required to pay liquidated (i.e., contractually pre-determined) damages, or is required to forfeit all or part of the separation/settlement payment, if they violate the agreement’s confidentiality or non-disparagement provisions; or (ii) the agreement contains an affirmative statement, assertion, or disclaimer that the employee was not subjected to discrimination, harassment, or retaliation.
  • Unenforceability of “no rehire” clauses – If enacted, Senate Bill S.766 would invalidate any releases of claims where the agreement at issue also includes a no rehire clause. Perhaps most critically, if a release is rendered unenforceable under this proposed law, the employer would still remain bound by all other provisions of the settlement agreement, including the obligation to provide the full separation or settlement payment to the employee as set forth in the agreement.
  • Expanded definition of retaliation under the NYSHRLSenate Bill S.5870 proposes an expansion of the New York State Human Rights Law (NYSHRL) to prohibit retaliation in the form of disclosing an employee’s personnel files because the employee opposed any practices forbidden under the NYSHRL, filed a complaint, or testified or assisted in any proceeding under the NYSHRL, unless such disclosure is made in the course of commencing or responding to a complaint in any proceeding under the NYSHRL or any other civil or criminal action or other judicial or administrative proceeding as permitted by law. According to the bill’s sponsor, “retaliation frequently appears in the form of a leaking of personnel files with the intent to disparage or discredit a victim or witness of discrimination in the workplace. This bill would clarify that the release of these files because of the employee’s filing of a complaint or cooperation with an investigation counts as retaliation and is completely prohibited under the Human Rights Law, except where such release is necessary to comply with an investigation or an administrative or judicial proceeding.” Further, the proposed amendment provides power to the Attorney General to commence an action or proceeding if, upon information or belief, the Attorney General is of the opinion that an employer has been, is, or is about to retaliate against an employee. Under existing law, the only enforcement mechanism is a private right of action.
  • Proposed extension of the statute of limitations under the NYSHRL – Two bills seek to drastically expand the statute of limitations under the NYSHRL. Senate Bill S.566A proposes modifying the statute of limitations to report discrimination to the New York State Division of Human Rights from one year to three years. Senate Bill S.849A proposes extending the statute of limitations for claims based upon unlawful discriminatory practice in employment from three to six years.

We will continue to monitor these bills and provide updates on their status as they make their way through the legislature.

Virginia begins process to revoke permanent COVID-19 workplace safety standard

On Wednesday, February 16, 2022, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) convened and voted to recommend revoking the Commonwealth’s COVID-19 permanent workplace safety standard. This action comes after newly-elected Governor Glenn Youngkin issued Executive Order 6 directing the Board to convene an emergency meeting to consider whether there is a continued need for the permanent workplace safety standard.

The Board’s vote begins the process of revoking the permanent standard. The Board will now report its recommendation and findings to the Governor followed by a public comment period. After the comment period, the Board will meet to finalize the action, which will become effective upon publication in a newspaper of general circulation.

In July 2020, Virginia was the first in the nation to implement an emergency COVID-19 workplace safety standard. That standard became permanent in January 2021. Since then, employers and other stakeholders have expressed frustration with the permanent standard as inconsistencies developed between it and the CDC’s often changing COVID-19 guidance. The Board attempted to align the permanent standard with CDC guidance in August 2021, but given the evolving nature of the CDC’s guidance, inconsistencies continued to exist. When making its recommendation, the Board specifically considered the U.S. Supreme Court’s decision in NFIB v. OSHA, 595 U.S. ____ (2022), rejecting federal OSHA’s justification for its vaccine/testing mandate on “grave danger” grounds, given that the Board’s authority to mandate the permanent standard was implemented using a similar “grave danger” justification. The Board specifically noted that based on emerging scientific and medical evidence that the current widespread variants of the COVID-19 virus no longer constitute a “grave danger” to employees in the workplace under Virginia law.

Once the permanent standard is rescinded, the Virginia Occupational Safety and Health Program (VOSH) will still have workplace safety enforcement authority under its General Duty Clause as informed by applicable federal and state public health guidance. Virginia employers should be aware of these forthcoming changes to determine how their operations may be impacted. If you have any questions on these developments, need assistance developing policies and procedures to adjust for such changes, or have other questions regarding your workforce related to COVID-19, please contact Betty Graumlich at bgraumlich@reedsmith.com, Noah Oberlander at noberlander@reedsmith.com, or the Reed Smith lawyer with whom you normally work.

Congress passes bill prohibiting sexual harassment and assault arbitration

On February 7, 2022, the United States House of Representatives passed H.R. 4445, which would modify the Federal Arbitration Act by carving out an exception for cases involving sexual harassment and assault. The bill titled, “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” – which was passed by the Senate on February 10, 2022 and now heads to President Biden’s desk for his signature – will ultimately transform how businesses resolve allegations of workplace sexual harassment and assault.

If enacted, the bill will undoubtedly be a significant reform in the workplace. The bill prohibits pre-dispute arbitration agreements and pre-dispute joint-action waivers and renders existing agreements unenforceable for any case filed under Federal, Tribal, or State law and relates to a sexual assault dispute or a sexual harassment dispute. Additionally, the bill expressly applies retroactively, stating it covers “any dispute or claim that arises or accrues on or after the date of enactment.” Thus, the bill would prohibit enforcement of contract provisions that mandate third-party arbitration of workplace sexual harassment or assault claims, regardless of when the alleged act occurred.

Employers should not scrap arbitration agreements entirely just yet. Notably, although the bill bans pre-dispute agreements to arbitrate such claims, potential employee-plaintiffs still have the option to choose arbitration, rather than go to court, after the claim arises. There will remain potential employee-plaintiffs that prefer arbitration. Indeed, this is reminiscent of the continued use of confidential settlement agreements when claims relate to sexual harassment or discrimination in jurisdictions that have thrown down additional hurdles for parties to enter into confidential agreements.

Based upon messaging emanating from the White House earlier this month that appear to support the passage of H.R. 4445, it appears the President will likely sign the bill. Employers should now begin to evaluate their current arbitration agreements and be highly cognizant of the bill’s new limitations when addressing issues regarding sexual assault and harassment in employment contracts.

Pennsylvania businesses with COVID-19 vaccine requirements may have to provide new exemption for employees

Pennsylvania House of Representatives members have proposed House Bill 2318, which proposes that employers must provide a “natural immunity” exemption to employees under any employer COVID-19 vaccine mandate policy. The bill defines “natural immunity” as possessing immunity to the COVID-19 virus as a result of previous infection caused by the virus. Thus, if the proposed bill becomes law, unvaccinated employees who have natural immunity from COVID-19 will be exempt from employer vaccination requirements. HB 2318 includes two ways for an employee to establish “natural immunity” such that the employee may opt out of receiving the COVID-19 vaccination required by their employer: (1) the employee can provide proof from a physician that they were previously infected with COVID-19; or (2) the employee can provide an approved serology test demonstrating the presence of antibodies for COVID-19 no more than 90 days since the date the medical test was administered.

Additionally, the bill states that when an employee who receives this exemption no longer possess the natural immunity required, they have at least 30 days to provide additional evidence of natural immunity, can seek the alternative exemptions, or comply with the employer COVID-19 vaccine requirement. Unfortunately, the proposed bill does not provide enough detail on how an employer will be able to identify when an employee no longer possesses the natural immunity required.

Pennsylvania now joins states like Ohio, South Carolina, Indiana, and Idaho which are also pursuing bills seeking natural immunity exemptions to employer mandated vaccine requirements. Florida, West Virginia, Arkansas, Texas, and Utah have already carved out this exemption for unvaccinated employees. As more studies are done to determine the protection of natural immunity versus vaccinations, legislation in states will likely be proposed to address this issue in one way or the other.

Currently, HB 2318 is under review by the Pennsylvania House Health Committee. While it is unclear how the Wolf administration will respond to the bill, employers should keep an eye on this proposal.

Real Time Video Chat: Workplace vaccination policies in the UK: Latest trends and issues

Next up in our Real Time Video Chat series, David Ashmore, Carl De Cicco and Alison Heaton explore the latest trends and issues regarding workplace vaccination policies in the UK. The group discusses the current statutory position on mandatory COVID-19 vaccinations, sick pay policies affecting the unvaccinated and what the term “fully vaccinated” means for vaccination policies.

Tune in to future episodes for issues surrounding legal developments in the employment law space.

Please note that the law is stated as at the date of recording.

New York judge strikes down statewide mask mandate

On December 13, 2021, New York State Governor Kathy Hochul announced that the wearing of masks would once again be required in “all indoor public places unless businesses or venues implement a vaccine requirement.” This meant that for any business that did not have a proof of vaccination requirement in place, all of the business’s patrons and employees aged two years and older had to wear a mask at all times while indoors. Our prior posts on the mandate can be found here and here.

Challenges to the mask mandate quickly ensued and, yesterday, Nassau County-based Justice Thomas Rademaker granted the challengers’ request to enjoin to mandate. While Justice Rademaker did not doubt “the good intentions” behind the mandate, he nevertheless concluded that the rule exceeded the scope of the State Department of Health’s authority.

In response to the ruling, the State Attorney General’s office filed an appeal early this morning. The appeal is particularly important because it means that Justice Rademaker’s decision is stayed pending a decision by the appellate court. We will continue to monitor developments as they unfold.

NYC wage transparency law to go into effect in May 2022

As we previously reported, the New York City Council passed legislation in December 2021 requiring New York City employers to include a maximum and minimum salary in all job postings (for new jobs as well as internal promotions and transfer opportunities). Mayor Eric Adams returned the bill unsigned to the city council on January 14, 2022, which means the law will become effective in mid-May 2022. We anticipate that the city will issue guidance on the law closer to its effective date.

To ensure compliance with this new law, New York City employers should set salary ranges for all existing positions and be prepared to revise job postings accordingly. In addition, employers should begin reviewing any other related human resources documents (e.g., job descriptions and compensation policies) to ensure that any salary representations are consistent with the salary range set for a given position.

If you have any questions about how this new law impacts your job postings and application process, Reed Smith’s Labor & Employment attorneys are ready to speak with you.

Supreme Court blocks federal vaxx-or-test rule for large employers

The highest court in the land has, at long last, weighed in on the permissibility of the federal government’s November 2021 vaccine-or-test rule for large employers. Specifically, on January 13, 2022, the U.S. Supreme Court stayed the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), which had required that private employers with 100 or more U.S. employees adopt either (1) a mandatory vaccination policy or (2) a policy that allows employees to choose between vaccination and submission of weekly COVID tests (as we previously discussed here).

As a result, employers previously covered by the ETS will not have to comply – at least for now – with its requirements. Below we will discuss the Court’s ruling and, equally if not more importantly, what this means for U.S. employers.

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Violations of Colorado’s non-compete statute to become a criminal offense

On March 1, 2022, Colorado Senate Bill 21-271 (SB 21-271) goes into effect. This new law will make the violation of a number of statutes, including Colorado’s non-compete law, C.R.S. § 8-2-113, a criminal offense, specifically a class 2 misdemeanor. See Colorado Senate Bill 21-271, Section 81.

In Colorado, covenants not to compete that restrict the right of any person to receive compensation for the performance of skilled or unskilled labor are void unless one of the following four exceptions are met:

  1. Any contract for the purchase and sale of a business or the assets of a business
  2. Any contract for the protection of trade secrets
  3. Any contractual provision providing for recovery of the expense of educating and training an employee who was employed by the employer for less than two years
  4. Executive and management personnel and officers and employees who constitute professional staff to executive and management personnel

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