Key Takeaways

• Covered employers and affordable housing providers may not consider or rely on certain out-of-state arrests or convictions involving conduct that is lawful in California.
• Employers should update background-screening procedures, notices, templates and decision-making processes.
• The amendments add deadlines to the adverse-action process and double administrative penalties for violations.

Four Newly Protected Categories

The amended ordinance bars covered employers and affordable housing providers from considering or relying on out-of-state arrests or convictions arising from conduct that is lawful in California and relates to:

• Abortion-related healthcare
• Drag performances
• Gender-affirming care
• Spontaneous abortion

The Updated Adverse-Action Process

Step 1: Send the Pre-Adverse Action Notice

If an employer intends to take adverse action based on an applicant’s or employee’s conviction history, it must provide a copy of the background check report.

The individual then has seven days to submit evidence that the information is inaccurate, evidence of rehabilitation or other mitigating information. If the individual responds within that period, the employer must:

• Confirm receipt of the information in writing within 14 days.
• Delay the proposed adverse action for a reasonable period after confirming receipt.
• Reconsider the proposed action in light of the information provided.

If the applicant or employee makes a reasonable factual showing that the proposed action is based solely on a conviction that is not directly related to the position, the employer must withdraw the proposed adverse action.

Step 2: Communicate the Final Decision

If the employer ultimately takes adverse action based on conviction history, it must notify the applicant or employee of the final decision.

The final notice must be sent within 30 days after the employer receives the individual’s response. If the individual does not respond, the employer must send the notice within 30 days after the pre-adverse action letter.

Penalties: Twice the Price of Getting It Wrong

The amendments double the administrative penalties for noncompliance:

First violation: $1,000, up from $500

Second violation: $2,000, up from $1,000

Each subsequent violation: $4,000, up from $2,000

What Employers Should Do Now

• Confirm whether the ordinance covers your workforce, including positions involving at least eight hours of work per week in San Francisco.
• Review background check criteria to ensure protected out-of-state records are excluded from consideration.
• Update job postings, pre-adverse action letters, final notices and internal checklists.
• Build the seven-, 14- and 30-day deadlines into the hiring process.
• Train recruiters, human resources personnel, hiring managers and third-party screening vendors on the new rules.

The bottom line: A background check should inform a hiring decision, not create a compliance problem. Our Labor and Employment Practice Group can help employers review their screening practices, revise forms and policies, and navigate the updated adverse-action process.

• The National Labor Relations Board’s (NLRB or Board) Division of Advice recently recommended that a Regional Office dismiss an unfair labor practice charge premised on the existence of employee noncompetes.
• This recommendation of dismissal follows the NLRB’s current view on noncompetes and is a further rebuke of the NLRB’s interpretation of noncompetes under the prior General Counsel.
• With the NLRB still on the sideline for noncompete regulation, the patchwork of state law obligations will continue to expand and dominate employers’ compliance requirements.

On June 26, the NLRB’s Division of Advice (Division) released a memorandum in Biotricity, Inc., Case 08-CA-326334, addressing whether an employer’s noncompete agreement violated Section 8(a)(1) of the National Labor Relations Act (Act).

The Division held, in line with then-Acting General Counsel William B. Cowen’s Feb. 14, 2025 General Counsel Memorandum, that “[u]nder current law, an employer does not violate the Act by maintaining non-compete provisions. . . . The General Counsel is of the view that non-compete agreements do not as a general matter impact employees’ rights under Section 7. Accordingly, the non-compete language within the Non-Compete Agreement does not violate Section 8(a)(1).”

The Division also found that the confidentiality obligation, although broad, was lawful. Specifically, the Division stated that claiming “all information not generally known to the public” is confidential is broad but that the enumerated examples, including “payroll information, . . . personnel information, [and] employee lists,” plus “dozens of other examples of purely business-related types of information” “clearly explains the Employer’s strong confidentiality interests in the highly competitive medical-technology industry.” The Division applied basic logic to conclude that “[v]iewed through this lens, employees would reasonably understand that the confidentiality provision restricts them from sharing confidential information with competitors, not Section 7-protected communications with fellow employees.”

Notably, the Division did not simply rubber-stamp Biotricity’s entire agreement. Rather, it found that certain unidentified “portions of the non-solicitation, inducement-of-third-parties, and non-disparagement clauses are arguably unlawful.” However, it found that those provisions were moot in the current case because the employer did not seek to enforce them, and thus the allegations related to them were “dismissed on noneffectuation grounds.”

The ‘Biotricity’Dispute

Biotricity involved two former employees who signed six-month noncompete agreements restricting their ability to work for competitors and their use of confidential information, along with nonsolicitation and nondisparagement provisions.

After the employees joined a competitor, Biotricity sued to enforce the agreements, and the employees responded by filing unfair labor practice charges alleging the noncompete agreement violated Section 8(a)(1) of the Act.

A Shift Away from Prior NLRB Guidance

During the Biden administration, NLRB General Counsel Jennifer Abruzzo took the position, reflected in GC 23-08, that certain restrictive covenants and workplace agreements could unlawfully restrain employees’ Section 7 rights by discouraging protected activity, including seeking better working conditions, organizing or acting together with co-workers.

That position formally shifted on Feb. 14, 2025, when Cowen issued GC 25-05, which rescinded several of Abruzzo’s memoranda, including GC 23-08. The Biotricity Advice Memorandum reflects this change in interpretation.

What ‘Biotricity’ Means for Employers

The Biotricity memorandum, although not binding on the Board, is a further signal that the Board is moving away from the prior administration’s expansive view that noncompete obligations generally interfere with employees’ Section 7 rights. However, even if lawful under the Act, employers must still ensure that their noncompete, confidentiality, and other restrictive covenants comply with state law, which is quickly evolving into a further patchwork of disjointed and technical obligations across the country.

ORIGINAL TEXT: On May 15, 2026, the Illinois Department of Human Rights (IDHR) introduced proposed regulations that would specify how employers must give notice to workers when they use artificial intelligence (AI) in hiring or employment decisions.

Public Act 103-084, which went into effect on Jan. 1, 2026, as part of the Illinois Human Rights Act (Act), requires employers to give notice to workers when using AI “with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment.” It also establishes civil rights violations against employers whose use of AI in employment decisions “has the effect of subjecting employees to discrimination” based on protected class or ZIP code. However, the legislature delegated authority to the IDHR to promulgate regulations fleshing out the notice requirement. These newly proposed amendments broadly instruct when notice would be required and what information employers would need to include.

Using computer-based assessments for measuring a worker’s aptitude or personality, screening resumes, directing job advertisements to targeted groups, analyzing data received from third parties concerning prospective or current employees, and monitoring productivity are some examples outlined in the proposed regulations that would trigger required notice requirements.

For prospective hires, employers that use AI in covered employment decisions would need to provide notice of that in the job posting. For current employees, the employer would be required to provide notice of AI usage – on an annual basis and within 30 days of adopting any new AI solution – in the employee handbook, manual or policy document and at a “conspicuous location” both on the employer’s website and at a physical location where the organization’s notices are usually posted.

The notice would need to specify which AI system is being used, for which positions it is being used and which covered employment decisions the technology is influencing, such as hiring or discipline. The notice would also have to explain which personal data it is analyzing and why, such as summarizing resumes or evaluating video interviews. Employers would need to provide contact information for hiring managers or human resources specialists to or from whom workers could direct questions or request reasonable accommodations.

The notices would have to be written in plain language and be reasonably accessible to workers with disabilities. Employers would have to provide notice on an annual basis and within 30 days of implementing a new system.

In general, the proposed amendments would not require notice if the employer does not use AI to “make, influence or facilitate” a covered employment decision. For example, notice would not be necessary if an employer uses AI for other purposes, such as for designing a job posting or generating text or images for promotional material. Similarly, notice would not be triggered if an employer used an automated computer system, such as word processing software or web hosting, that does not constitute AI as defined in the Act.

Members of the public have 45 days to review and submit comments on the proposals. A public hearing is scheduled for June 10, 2026, which will be held virtually and in person. Written comments are due Monday, June 29, 2026.

It is important for Illinois employers to monitor the progress of these proposed regulations and to be ready to implement any changes to their current AI notices that may be needed once a final version is promulgated.

Relevant links

Announcement from Illinois Department of Human Rights: https://dhr.illinois.gov/about-us/legislative-updates/artificial-intelligence-in-employment.html

Public Act 103-0804: https://www.ilga.gov/Legislation/publicacts/view/103-0804

Illinois Register: https://www.ilsos.gov/departments/index/register.html

Summer Associate Stephanie Haines co-authored this blog post.

The FCRA prohibits employment discrimination because of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. Generally speaking, a person claiming to have been discriminated against in violation of the Act must file an administrative complaint with the FCHR within 365 days of the alleged violation.  In lieu of filing a complaint with the FCHR, a charging party may “dual file” with the Equal Employment Opportunity Commission (“EEOC”) or with any county, local, or municipal fair-employment-practices agency (“FEPA”), seeking relief under both federal and state or local anti-discrimination laws. The date the complaint is filed with the Commission for purposes of the FCRA is the earliest date of filing with the EEOC, the FEPA, or the FCHR itself.  Once the administrative complaint is filed, it will be investigated by one of the above-mentioned agencies pursuant to a work-sharing agreement between those agencies. 

If within 180 days after the administrative complaint is filed, the FCHR determines that there is reasonable cause to believe that discrimination occurred, the “aggrieved person” has one year to file a lawsuit alleging the violation of the FCRA raised in the administrative complaint.  If the Commission finds that there is no reasonable cause, then the aggrieved person is limited to proceeding with an administrative hearing, which (unlike civil lawsuits) is non-jury and provides limited relief.  Lastly, when the Commission fails to make any determination within 180 days, the aggrieved person has one year to file a lawsuit from receipt of a notice from the FCHR stating that it had been unable to determine whether there was reasonable cause. 

Confusion over the one-year statute of limitations in the case of reasonable cause determinations by the FCHR (or the Commission’s failure to timely reach such determinations) has plagued parties in situations where the Commission has not investigated the matter but instead deferred to the EEOC.  In Florida, the EEOC historically has not rendered reasonable cause determinations within 180 days (if at all).  Instead, it will typically issue a Notice of Right to Sue without a substantive determination as to the merits of its investigation (with the FCHR never touching the administrative complaint). Similarly, even when the FCHR has undertaken the responsibility to conduct the investigation, parties have complained that it has been tardy sending out notices of the expiration of the 180-day period.    

HB 1407 provides that when the FCHR determines there is reasonable cause to believe a discriminatory practiced occurred, or the EEOC issues a Notice of Right to Sue in connection with a dual-filed complaint alleging violations of both state and federal anti-discrimination laws, the aggrieved person may file a civil action with respect to the alleged FCRA violation no later than one year after the earlier of the: (a) date of the Commission’s determination of reasonable cause (as provided in the existing Act); or  (b) issuance of a Notice of Right to Sue by the EEOC.  If the FCHR does not make a reasonable cause determination or the EEOC does not issue a Notice of Right to Sue within 180 days after the administrative complaint’s filing, a lawsuit alleging an FCRA violation may be commenced no later than 18 months after the administrative complaint’s filing.  The law takes effect on July 1, 2026.[1]

Nothing in the Act impacts a party’s ability to bring a claim under federal anti-discrimination laws, which provide separate procedural requirements.  Clarification of when parties can bring lawsuits under the FCRA, however, is important to employees claiming discrimination, and the employers that must defend such claims.  For instance, because the FCRA provides for unlimited compensatory damages (versus capped damages under Title VII or the ADA, or no such damages under the ADEA), many plaintiff-side lawyers prefer to file lawsuits alleging violations of the FCRA in state court rather than federal lawsuits alleging violation of Title VII, the ADEA, or the ADA.  In addition, many plaintiff-side lawyers prefer the more informal, less labor-intensive litigation format in state court over the more formalistic, paper-driven method of litigation in federal courts. 

BakerHostetler has a strong group of employment lawyers in Florida that litigate in federal and state court constantly.  Feel free to reach out to our Orlando-based Labor and Employment Team with any questions or concerns.

[1] HB 1407 also eliminates the requirement that the FCHR send respondents copies of charges and the Commission’s determinations via registered mail.

According to the final rule, titled “Restoring Integrity to the Issuance of Non-Domiciled Commercial Drivers Licenses (CDL),” the only non-domiciled drivers eligible to obtain or retain their CDL credentials will be those individuals with H-2A, H-2B or E-2 visas. All other non-domiciled CDL holders are no longer eligible for CDLs, including certain asylum seekers, refugees and individuals who participate in the Deferred Action for Childhood Arrivals program. Approximately 200,000 truck drivers are expected to lose their CDLs as a result of the final rule, which affects drivers and employers alike across the country.

The final rule has the stated purpose of “rectify a critical gap in the Nation’s non-domiciled licensing system,” but its potential impact is currently the subject of litigation. On Feb. 26, the AFL-CIO, the American Federation of Teachers and two employee drivers with CDLs set to expire filed an emergency motion to stay the effective date of the FMCSA final rule pending review.[2] The drivers and their unions argue that the final rule will cause them and several other drivers irreparable harm, as they face the loss of their jobs. On March 5, Waste Pro USA Inc., a Florida-based waste collection company that services approximately 2.1 million residential and commercial customers, filed an amicus brief in support of the motion to stay the final rule. Waste Pro argues that the final rule threatens essential sanitation services by reducing the CDL workforce and has already disrupted route-based services, which will only worsen absent relief.

The court has not yet ruled on the petition for an emergency stay, and state driver’s license agencies have implemented the final rule’s requirements in their review of CDL applications. For some businesses, the rule has already created a shrunken pool of eligible non-domiciled drivers. Transitioning to a visa-based vetting system will require businesses relying on CDL drivers to extensively review employee license records; plan for vacancies created by expired, non-renewable licenses; adjust recruiting strategies to target drivers with eligible immigration status under the final rule; and identify solutions for potential disruptions in route-based service plans.

For more information on the potential impacts of the FMCSA final rule, please contact Jeremy Hart (jhart@bakerlaw.com) or Lee Solomon (rlsolomon@bakerlaw.com).

[1] https://www.federalregister.gov/documents/2026/02/13/2026-02965/restoring-integrity-to-the-issuance-of-non-domiciled-commercial-drivers-licenses-cdl

[2] https://www.citizen.org/wp-content/uploads/2026.02.26-Motion-to-Stay.pdf

Navigating the border between independent contractor and employee status is usually more Rome airport than Vatican City, but a proposed new regulation from the Department of Labor (DOL) would make it a bit easier to support independent contractor status under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).

The proposed rule would adopt a five-factor “economic reality” test, consistent with the test adopted during the first Trump administration. The defining feature of this test is that it highlights two core factors. If these two factors are met, the worker would almost always be an independent contractor under the FLSA and FMLA.

Core factor No. 1 is “The nature and degree of control over the work.” This factor weighs toward independent contractor status if the individual, not the potential employer, “exercises substantial control over key aspects of the performance of the work, such as by setting his or her own schedule, by selecting his or her projects, and/or through the ability to work for others, which might include the potential employer’s competitors.”

Notably, the proposed rule makes clear that certain types of control are not considered when conducting the analysis: “Requiring the individual to comply with specific legal obligations, satisfy health and safety standards, carry insurance, meet contractually agreed-upon deadlines or quality control standards, or satisfy other similar terms that are typical of contractual relationships between businesses (as opposed to employment relationships) does not constitute control that makes the individual more or less likely to be an employee under the [FLSA].”

Core factor No. 2 is “The individual’s opportunity for profit or loss.” This factor weighs toward independent contractor status when “the individual has an opportunity to earn profits or incur losses based on his or her exercise of initiative (such as managerial skill or business acumen or judgment) or management of his or her investment in or capital expenditure on, for example, helpers or equipment or material to further his or her work.”

The three other factors are:

• The amount of skill required for the work. More highly skilled work suggests contractor status.
• The degree of permanence of the working relationship.Defined projects of limited duration suggest contractor status.
• Whether the work is part of an integrated unit of production. Work that is segregable from the potential employer’s production process suggests contractor status. The importance of the work is not part of this analysis.

Additional unspecified factors may also be considered, if relevant. The parties’ actions – not what the contract says – are what matter most.

But how much will this rule really change things? Probably not much.

First, the rule would apply only to two laws – the FLSA and FMLA. Different tests are used for determining whether someone is an employee under federal and state tax laws, employee benefits laws, state wage and hour laws, and state workers’ compensation and unemployment laws.

Second, the rule would likely apply only to DOL proceedings. The courts know how to interpret the FLSA and FMLA and do not need guidance from whatever presidential administration is in power at a given time. The courts are unlikely to grant any deference to the DOL’s regulation.

Third, as of now, this is only a proposed rule. There is a public comment period that runs through April 28. At the end of the comment period, the DOL may issue a final rule. The final rule might differ somewhat from the proposed rule, but probably not by much.

There is one particularly bright spot for employers if this rule is adopted. Under 29 U.S.C. Section 259, an employer has a complete defense to an FLSA claim alleging that it failed to pay minimum wage or overtime if the employer, in good faith, relied upon and acted in conformity with a regulation.

Therefore, if the proposed rule becomes a final rule, companies retaining independent contractors should strongly consider adding text to their independent contractor agreements that indicates reliance on the new regulation. It can also be helpful in the contract to highlight facts that demonstrate conformity with the regulation, such as that the contractor determines his or her schedule, selects projects and may work for others.

For now, companies should continue to monitor the rule. If it passes, try to take advantage of the safe harbor provision in Section 259. But remember, this rule is limited in scope and does not affect a worker’s status under any law other than the FLSA and FMLA. A worker can simultaneously be a contractor under one law and an employee under another.

Even if this rule is eventually adopted, and it likely will be, the final rule will not provide an easy exit from classification challenges. The rule is certainly more like exiting Vatican City than like passing through customs in Rome, but navigating misclassification claims will never be as simple as walking through a gap in the gate.

Arrivederci!

Please contact the author of this blog or your BakerHostetler attorney contact if you have any questions.

The notice must be provided in a manner the employer normally uses to communicate employment-related information – e.g., personal service, email, text message – if it can reasonably be anticipated that the notice will be received by the employee within one business day of its being sent. The law also requires employers, upon an employee’s request, to notify the employee’s designated emergency contact in the event the employee is arrested or detained at work. Employers must provide current employees the opportunity to designate this emergency contact no later than March 30.

Please contact any member of the BakerHostetler Labor and Employment Practice Group with any questions.

• Beginning in 2027, New York hospitals and nursing homes will need to adopt protocols to help prevent or minimize workplace violence.

• Hospitals will also need to conduct annual security assessments and update their plans to address new risks and to add security personnel to their emergency departments as necessary.

New York hospitals and nursing homes will soon have to adopt and implement measures aimed at preventing workplace violence. These new requirements are part of an effort to address security concerns for healthcare workers and patients.

Workplace Violence Plans and Assessments

By September 2027, New York hospitals and nursing homes will need to establish workplace violence protection programs that identify and address potential workplace violence threats or hazards. Hospitals must adopt programs that, at a minimum, comply with the federal Centers for Medicare & Medicaid Services (CMS) Hospital Conditions of Participation regulations for safe settings and emergency preparedness (42 CFR § 482.13(c)(2) and §§ 482.15(a) and (d)(1)) and with the workplace violence standards of the hospital’s CMS-deemed accreditor.

Pursuant to this law, the hospital emergency plans, which must be reviewed and updated at least once every two years, must:

• Be based on facility and community risk assessments
• Provide strategies for specific emergency events
• Address patient populations, the types of operations the facility can provide during an emergency and plans for continuity of operations
• Include a process for coordination with federal, state and local authorities

The plans that nursing homes in New York need to adopt must, at a minimum, comply with the federal regulations for facility risk assessments and long-term care emergency preparedness plans outlined in 42 CFR §§ 483.71(a)(3) and (b)(1) and § 483.73(a)(1), “provided that such assessments and plans address workplace violence threats and hazards.”

In addition, beginning on Jan. 1, 2027, New York hospitals will be required to conduct annual safety and security assessments in order to further inform their violence prevention plans and revise them as necessary. These annual reviews must be tailored to each individual facility, but the following items must be considered:

• Workplace violence incident reports and incident logs
• Complaints raised by employees, patients, unions and visitors
• The hospital’s layout and access points
• Protective factors like visitor management, engineering controls to limit violence or protect employees, access control, alarms, and communications systems
• Employee training policies and security procedures, including those relating to the handling of disruptive or violent individuals

This law requires that the assessment process involve employees and, if applicable, unions. Any updated plans that hospitals then adopt are required to specify the measures that they will undertake to address the risks identified, such as through employee training, increased staffing and security, new controls like barriers or alarms, etc. Further, hospitals will be required to provide employees (and unions) with a written detailed summary of their safety and security plans and information about how to report incidents of workplace violence.

New York hospitals will also need to maintain logs of any incidents of workplace violence and to provide a redacted summary of these records, along with analysis of any trends, to their general security or safety committee. These records will then need to be included in the annual safety assessment process.

Additional Security Personnel

The new law may also require supplementation of a hospital’s security staff. Hospitals in cities or counties with a population of 1 million or more are required to maintain at least one off-duty law enforcement officer or trained security personnel at all times in the emergency department, subject to emergency situations that result in an adjustment in personnel. Hospitals elsewhere in the state must have at least one off-duty law enforcement officer or trained security personnel present at all times in a manner that prioritizes physical presence near or in proximity to the emergency department. The law includes some limited exceptions, such as for rural emergency hospitals, unless there is a specific increase in the rate of violence or abuse of security personnel at the facility.

*          *          *          *          *

As the deadlines for these new requirements approach, the New York team within BakerHostetler’s Labor and Employment Practice Group is available to assist hospitals and nursing homes with compliance, policy drafting and training services.

In the matter of Wargo v. MJR Partridge Creek Digital Cinema 14, Case No. 25-1143 (6th Cir. Nov. 25, 2025), the Sixth Circuit determined that the alleged harassment was decidedly the opposite because it was neither sufficiently fast nor intense – the alleged conduct was not near enough in time or severe enough to qualify as actionable. The appellant, Terra Wargo, worked at a movie theater in Michigan. She initially started behind the concession stand and eventually was promoted to full-time manager. Wargo then applied to be the general manager of the theater, but the company elected to transfer Paul Finnigan from another branch to fill the role. Wargo declined the offer to transfer to Finnigan’s old theater and decided to work with him instead.

The relationship between the two was immediately rocky. Wargo felt Finnigan was a bad manager and communicated poorly, and she suspected that Finnigan believed she was insubordinate. Additionally, Finnigan texted Wargo on her personal phone, telling her things such as “I will teach you everything,” “You just have to trust me, and my methods” and “I can show you everything … [i]f you let me.” Finnigan offered to treat her to dinner, but Wargo declined.

The conflict escalated until Finnigan confronted Wargo at the theater and asked her why she didn’t like him and to tell him what he had done wrong. They openly argued, at which point Finnigan followed Wargo to an office next door where, Wargo alleges, Finnigan blocked the door and “touched [her] arm” for “five to 10 seconds” to prevent her from leaving. Wargo subsequently filed an internal complaint, and the company investigated the incident. Finnigan was placed on a PIP, and Wargo was transferred to a different theater.

Despite the fact that she no longer worked there, Wargo returned to her original location to hold a closed-door meeting with her former co-workers. The next day, one of the co-workers quit and filed a harassment complaint against Finnigan. This meeting, in combination with her earlier outburst with Finnigan, resulted in Wargo’s termination for insubordination and failure to follow the directive not to discuss the allegations and investigation with her co-workers.

As a result, Wargo brought claims for sexual harassment and discrimination under federal and Michigan state law. The Eastern District of Michigan granted summary judgment in favor of the company. The Sixth Circuit, affirming, found that Finnigan’s repeated invitations to a restaurant occurred only three times in a three-month period, were “sporadic” and did not involve “explicit sexual pressure or sexual conduct,” and that Finnigan’s texts, while ambiguous, were tied to specific workplace problems, such as teaching Wargo how to break down the concession stand sales.

Moreover, the heated argument between Finnigan and Wargo did not rise to the level of a hostile work environment. They “argued about work problems,” and Finnigan’s blocking the door and making physical contact with Wargo for “five to 10 seconds” did not constitute harassment because, simply put, it was not intense enough. The one-time touching was not sexual or sufficiently pervasive.

Likewise, the Sixth Circuit found that Wargo’s discrimination claim failed, as her transfer to another location with identical pay and benefits did not constitute an adverse employment action and she could not identify a similarly situated male employee whom the company had treated more favorably.

While the Sixth Circuit affirmed the district court’s grant of summary judgment, it noted that Wargo might have had direct evidence of retaliation when the company admitted that it fired her, in part, for discussing the investigation with her co-workers. However, the Sixth Circuit pointed out that Wargo never raised this theory of retaliation during the summary judgment briefing. As a result, she cannot raise it now, and the indirect evidence did not establish a question of fact to survive summary judgment.

The Bottom Line: The Sixth Circuit ruling here affirms that the timing, amount and intensity of comments and actions are critical to proving a hostile work environment. And, as always, raise every argument you need at summary judgment – otherwise, you may regret leaving something on the cutting room floor come appeal.

• Under AB 2499, effective Jan. 1, 2025, the California Fair Employment and Housing Act provides workplace protections for employees and their family members who have survived qualifying acts of violence.
• California employers with 25 or more employees must also provide time off work for certain activities related to the violence.
• Employers must provide employees with written notice of their rights under this new law. The model notice is now available.

The California Civil Rights Department (CRD) recently published new guidance in the form of FAQs regarding AB 2499 – the Survivors of Violence and Family Members of Victims Right to Leave and Accommodations law. Previously, California Labor Code Sections 230 and 230.1 provided protections for victims of domestic violence, sexual assault, stalking and certain other crimes, as well as time off to serve on a jury or comply with a subpoena. Under AB 2499, these protections are now part of the Fair Employment and Housing Act (FEHA) and will be enforced by the CRD. See Cal. Gov. Code § 12945.8. Under AB 2499, time off is now allowed for obtaining relief not just from a “crime or abuse” but also from a “qualifying act of violence,” which is defined as any of the following:

• Domestic violence
• Sexual assault
• Stalking
• Acts, conduct or a pattern of conduct involving injury or death
• Acts, conduct or a pattern of conduct involving a firearm (gun) or another dangerous weapon
• Acts, conduct or a pattern of conduct involving threats of injury or death

In its FAQs, the CRD reiterates that it does not matter whether anyone has been arrested for, prosecuted for or convicted of the qualifying act of violence.

Additionally, family members of victims may take time off to obtain relief from a qualifying act of violence. The definition of “family member” now follows the FEHA definition, which includes an employee’s child, parent, grandparent, grandchild, sibling, spouse, domestic partner or designated person. As noted in the new FAQs, a designated person can be someone related by blood, such as an aunt or uncle, or someone who is equivalent of a family member, such as a best friend. Employers may limit employees to taking leave for one designated person in a 12-month period.

Further, “obtaining relief” includes a broad range of activities, including taking time to obtain restraining orders, seeking medical attention, obtaining certain services or counseling, relocating, enrolling children in a new school, obtaining legal services and participating in safety planning.

Depending on the circumstances, employers may limit the amount of leave employees can take under the new law. First, a victim of a qualifying act of violence may take no more than 12 weeks of unpaid leave. Second, when an employee’s family member is a victim of a nonfatal crime, the employee may take no more than 10 days of leave. Third, if an employee’s family member is a victim of a nonfatal crime and the employee takes leave for the limited purpose of relocating or securing a new residence and enrolling a child in a new school or child care program, the employee may take no more than five days of leave.

Employees are not only able to take time off if they or a family member experiences a qualifying act of violence, but they are also eligible for reasonable accommodations, which may include, among other things, transfer, reassignment, modified schedule or changed work telephone number.

As noted in our previous client alert, AB 2499 also required the CRD to create and publish a model notice of employees’ rights under the law. The model notice is now available here. As a reminder, notice must be provided to all employees upon hire, annually, at any time upon request and any time an employee informs an employer that the employee or the employee’s family member is a victim of a qualifying act of violence.

Employers should review their policies and workplace notices to ensure compliance with AB 2499. Please contact any member of the BakerHostetler Labor and Employment Practice Group for compliance assistance.