Last week, the NYC Commission on Human Rights issued legal enforcement guidance on racial discrimination on the basis of hair under the New York City Human Rights Law (NYCHRL). The guidance indicates that natural hair or hairstyles are closely associated with racial, ethnic or cultural identities, and it specifically addresses natural hair or hairstyles most commonly associated with black people because “there is a strong, commonly-known racial association between Black people and hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locs.” The phrase “Black people” is defined as those who identify as “African, African American, Afro-Caribbean, Afro-Latin-x/a/o or otherwise having African or Black ancestry.” The guidance indicates that grooming policies may implicate other protected classes and religious groups such as Rastafarians, Native Americans, Sikhs, Muslims and Jews.
The California Supreme Court has cut off another avenue for employees to sue payroll provider companies for unpaid wages. California courts have previously found that employees cannot sue a payroll company under a theory that the company is the “employer.” In a new decision, the California Supreme Court held that employees cannot sue payroll companies for unpaid wages under theories that the employee is a third-party beneficiary of the contract between the employer and the payroll company or that the payroll company acted negligently in not paying the employee the wages owed.
California employers and their legal counsel reasonably had assumed that California law distinguishes employee non-solicitation agreements from noncompetition agreements and that the former were enforceable. That assumption was based largely on a 1985 decision by the California Court of Appeal in Loral Corp. v. Moyes, 174 Cal. App. 3d 268, which enforced an agreement prohibiting a former company executive from soliciting the employees of his former employer to join his new venture. However, that assumption has been upended by recent decisions by the California Court of Appeal and the United States District Court for the Northern District of California invalidating employee non-solicitation agreements. Because it is now possible that California courts will invalidate employee non-solicitation agreements, employers will need to carefully consider eliminating those provisions from agreements with their employees.
As many of you have probably heard, late last year, the New York City Council passed two laws that will amend the NYC Human Rights Law to expand the requirements of employers to provide lactation space for breastfeeding employees and to develop lactation policies and processes for employees to request accommodations for nursing. These new laws take effect March 17, 2019, which is right around the corner!
Check your background check disclosure forms. Now.
The Ninth Circuit has now declared that background check disclosure forms that include state law disclosures are illegal. Gilberg v. California Check Cashing Stores, LLC, Case No. 17-16263 (9th Cir. Jan. 29, 2019).
Last week, following 16 years of discussion and debate, the New York state legislature finally passed the Gender Expression Non-Discrimination Act (GENDA). The act would amend the state New York Human Rights Law to prohibit discrimination on the basis of gender identity or expression in housing, employment and public accommodations. The act defines gender identity or expression as “a person’s actual or perceived identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” Although the act has amended the New York State Human Rights Law to specifically include gender identity and gender expression as protected classes, the change may be less significant than one would expect. Notably, in October 2015, New York adopted regulations to prohibit harassment and discrimination on the basis of gender identity, transgender status and gender dysphoria. In addition, the Model Sexual Harassment Policy for New York Employers issued by New York in October 2018 prior to the passage of the act states that sexual harassment includes harassment on the basis of gender expression, gender identity and the status of being transgender, and that harassment and discrimination on the basis of gender identity are prohibited. New York state follows several other states; cities, including New York City; and counties that have passed legislation protecting gender identity and gender expression. The act goes further to amend the state penal law to include certain offenses motivated by gender identity and expression in the hate crime statute.
Earlier this year, Gov. Charlie Baker signed a comprehensive bill titled “An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday,” which brought a variety of new protections for employees in Massachusetts. These protections include the implementation of a state-administered paid family and medical leave program, an increase of the state’s minimum wage to $15 per hour by 2023, and a phaseout of time-and-a-half pay on Sundays and holidays. In addition to these highly publicized provisions, the bill included new requirements regarding the calculation of the wages for tipped employees.
Reminder – Earlier this year (as we reported in this post), the New Jersey Paid Sick Leave Act (NJPSLA) was approved. The NJPSLA mandates that employees will accrue one hour of paid sick leave for every 30 hours worked, up to a maximum of 40 hours of sick leave time during a consecutive 12-month period. The NJPSLA goes into effect October 29, 2018.
Since we last reported on this, the New Jersey Department of Labor released proposed regulations related to the NJPSLA. The regulations are still in the comment period and are not anticipated to be enacted prior to 2019, which means they will not be enacted prior to the effective date.
On Sept. 17, 2018, the Ninth Circuit Court of Appeals certified to the Washington Supreme Court the question of whether obesity qualifies as an “impairment” and thus a “disability” under the state’s anti-discrimination law. The case, titled Casey Taylor, et al. v. Burlington Northern Railroad Holdings Inc., et al., Case No. 16-35205 (9th Cir. Sept. 17, 2018), not only affects employers within Washington state but also could have serious consequences for employers operating in the Ninth Circuit (Washington, Oregon, California, Arizona, Nevada, Idaho and Montana) and throughout the country as federal appeals courts continue to “weigh in” on whether and to what extent obese job applicants and employees are entitled to protective treatment under the law.
On Sept. 14, 2018, the Department of Labor (DOL) conducted a fourth public listening session on proposed changes to the Fair Labor Standards Act (FLSA) overtime exemption. The session was one of four public listening sessions offered by the DOL last month. The series is part of a larger rulemaking and comment period being offered by the DOL in the wake of ongoing litigation to determine the appropriate salary threshold for overtime-exempt employees.