Analysis and commentary by Reed Smith attorneys on developments in employment and labor law
With the 2020 presidential primaries underway, now is the time for employers to review their voting leave policies to ensure that supervisors and human resources departments understand applicable law. In addition to avoiding legal liability, compliance with voting-related laws helps employers maintain workplace harmony during a potentially contentious period.
Currently, 30 states[1] (and Puerto…
Beginning January 1, 2020, an individual’s deadline to exhaust their administrative remedies through advancing a charge of unlawful workplace discrimination, harassment, and retaliation with the California Department of Fair Housing and Employment (DFEH) will be extended from one year to three years.
Assembly Bill 9, known as the Stop Harassment and Reporting Extension (SHARE) Act, is a significant departure from California’s long-standing one-year statute of limitations and from the six-month statute of limitations period under federal law for claims made to the Employee Equal Opportunity Commission. In California, employment claims brought under the Fair Employment and Housing Act cannot be directly filed in court. Individuals must first exhaust their administrative remedies by filing a charge with the DFEH. Once the DFEH receives the charge, it can investigate the claim. If it determines that a violation of the FEHA has occurred, the DFEH may use its discretionary power to file a civil action on behalf of the aggrieved individual. If the DFEH is unable to determine whether a violation took place, or if an individual asks for an immediate right-to-sue letter (which is commonly the case, especially if the individual is represented by counsel), the DFEH closes its investigation and the individual has one year from the date of receipt of the right-to-sue letter to file a civil action against the employer.
Continue Reading California extends deadline to file employment claims from one year to three years
New York lawmakers had a busy summer overhauling many of the state’s existing workplace laws. Many of the newly enacted changes, as well as others enacted within the past year, become effective in October 2019. Below we will highlight the new laws taking effect in October and discuss measures employers should take to ensure their workplaces are compliant.
Already in effect:
While the law does not indicate precisely what information presented during the training must be provided, we recommend that employers provide new hires with the handouts and a copy of the presentation (presumably, PowerPoint slides) used at the training program.…
Continue Reading Fall to bring more than just foliage for New York employers
The New York state legislature recently passed two bills providing additional protections to employees asserting unpaid wage claims. These changes are the latest in the state’s overhaul of its employment law landscape this summer. As we discussed in previous posts, New York recently enacted limitations on the use of nondisclosure provisions in settlement and separation agreements, new standards for litigating and defending harassment claims, expanded equal pay protections, a statewide ban on salary history inquiries, and additional changes to the state’s anti-discrimination laws. We will address the two new laws and their implications in this two-part series.
The first bill expands the definition of retaliation under the New York Labor Law. By way of background, New York has long prohibited retaliation against employees who complain of alleged wage violations or otherwise cooperate with state regulators regarding an alleged violation of wage and hour laws. Specifically, an employer cannot “discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee” for complaining about wage practices such as minimum wage violations, unpaid overtime, improper deductions, and the like.…
Continue Reading New York Continues Expansion of Worker Wage Protections (Part 1)
On March 18, 2019, New Jersey Governor Phil Murphy signed new legislation (S121) that significantly impacts the scope of certain employment agreements and settlement agreements between employers and employees/former employees. The controversial legislation addresses the following:
The legislation voids any provision in an employment contract that waives “any substantive or procedural right or remedy relating to a claim of discrimination, retaliation or harassment.” In addition, the legislation prohibits an employer from prospectively waiving any right or remedy under the New Jersey Law Against Discrimination (NJLAD).
This language could impact agreements such as jury trial waivers and arbitration agreements. To the extent that the law touches arbitration agreements, however, it will likely face challenges on the grounds that the law conflicts with, and is preempted by, the Federal Arbitration Act.…
Continue Reading New Jersey bans NDAs and certain waivers of rights in agreements with employees
On May 15, a new law takes effect in New York City that will require written agreements between many, if not most, independent contractors and the entities that engage them. As we previously reported, the “Freelance Isn’t Free” Act (the Act) requires that virtually all entities that engage a “freelance worker” for $800 or…
On October 27, the New York City Council, long known for pushing the envelope when it comes to employment legislation, passed a first-of-its-kind bill, known as the “Freelance Isn’t Free” Act, that requires written agreements between certain independent contractors and the entities that engage them (the Act). The Act also bars wage theft and…
The New York City Council, long-known for pushing the envelope when it comes to employment legislation, is at it again. The legislature is poised, in the near future, to pass a first-of-its-kind bill that would require written agreements between independent contractors and the entities that engage them (the Bill). The Bill would also impose substantial penalties on businesses that fail to comply with this and other requirements surrounding the independent contractor relationship.
Specifically, the Bill would require most entities that engage an independent contractor for $200 or more in services to execute a written agreement with the contractor before the contracted-for work begins. Such agreement must be written in plain language, in a dialect understood by both parties, and include, at a minimum:…
Continue Reading NYC Mulls Bill Requiring Written Independent Contractor Agreements
This next installment of our ongoing series takes a closer look into the U.S. Equal Employment Opportunity Commission’s (EEOC) Proposed Enforcement Guidance on Retaliation and Related Issues. Last week, we discussed the EEOC’s changing views regarding the elements of a retaliation claim. This week, we delve deeper into the EEOC’s proposed guidance, exploring the agency’s attempt to expand the so-called “participation clause,” and to broaden the definition of protected opposition conduct. We will also examine what, in the EEOC’s employee-friendly estimation, constitutes an adverse employment action in the retaliation context.
Expansion of “Participation Activity”
Perhaps the most noteworthy aspect of the EEOC’s proposed guidance is the agency’s expansive interpretation of “participation activity.” As discussed last week, in order to prove a claim of retaliation, a plaintiff must first show that (s)he engaged in a “protected activity.” Protected activity, in turn, consists of either “opposition activity” or “participation activity.”…
Continue Reading EEOC Guidance on Retaliation: An Unprecedented Interpretation of Federal EEO Law
This installment of our ongoing series on federal regulatory actions impacting employers examines the U.S. Equal Employment Opportunity Commission’s (EEOC) Proposed Enforcement Guidance on Retaliation and Related Issues.
The proposed update would replace the 1998 version of the EEOC Compliance Manual on Retaliation and address the courts’ significant rulings in the decades following the current Manual’s publication. This Manual is particularly significant as the percentage of EEOC charges alleging retaliation has virtually doubled since 1998. Today, retaliation is the most frequently alleged basis of discrimination. …
Continue Reading EEOC Guidance on Retaliation: Make It Easier For Employees To Prove Their Case