UPDATE: The Second Circuit Finds Title VII Protects Against Sexual Orientation Discrimination

As we discussed in our May 22, 2017 blog post, the Second Circuit agreed to hold an en banc hearing to determine whether an estate for a gay man, who alleged he was terminated as a result of a customer complaint related to his sexual orientation, may revive its previously dismissed case against the deceased’s former employer. Yesterday, the Second Circuit decided that the estate can.

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Massachusetts Pregnant Workers Fairness Act Will Be in Effect Before You Know It

As you may know, Massachusetts Governor Charlie Baker signed the Massachusetts Pregnant Workers Fairness Act in July, expanding state protections for pregnant women and new mothers, and setting new rules for employers with six or more employees. Below is a brief synopsis of some of the most important changes that you should know about, and what you should do to prepare for the law’s effective date of April 1, 2018, which will be here before you know it.

Prohibition Against Workplace and Hiring Discrimination Related to Pregnancy and Nursing

The law expressly adds the following as protected categories against discrimination to the Massachusetts state code, Chapter 151B: “Pregnancy or a condition related to said pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child.”

As a result, victims of pregnancy discrimination can now win the same remedies available under any Chapter 151B action, including but not limited to back pay, front pay, punitive and compensatory damages, and attorneys’ fees. Continue Reading

California Imposes New Rules on Employers in Worksite Enforcement Actions

Authorship credit: Matthew W. Hoyt, James D. Levine, Pamela D. Nieto and Alan C. deVries

With clear indications from the Trump administration that worksite immigration enforcement is near the top of the agenda for 2018, the state of California has taken a pre-emptive step to protect workers who may be affected. On Jan. 1, 2018, Assembly Bill No. 450 (AB 450) will take effect and impose new rules governing how public and private employers in California interact with Immigration and Customs Enforcement (ICE) and other immigration enforcement agents.

California lawmakers cited the Trump administration’s call to hire 10,000 more ICE agents and its intent to make undocumented immigrants an enforcement priority as reasons for enacting AB 450. AB 450 became even more relevant in October when acting ICE director Thomas Homan said ICE would increase worksite enforcement actions by four to five times in 2018, targeting unauthorized workers and the employers who hire them. Continue Reading

New York City Expands Paid Sick Leave Law With Creation Of ‘Safe Time’

On Monday, Nov. 6, newly re-elected Mayor Bill de Blasio signed into law “Intro. 1313-A,” a bill that amends and expands the coverage of New York City’s paid sick leave law. The bill renames the sick leave law as the “Earned Safe and Sick Time Act” (ESTA) and increases the reasons for which an employee is entitled to use paid time off.

Intro. 1313-A implements two major changes. First, the bill expands the types of circumstances for which employers must allow employees to use paid time off. Specifically, an employee may now use paid time off for a wide range of circumstances related to any situation where the employee or “family member” of the employee becomes a victim of a family offense, sexual offense, stalking or human trafficking. The bill defines sexual offenses, stalking, human trafficking and family offense matters by reference to the New York Penal Law. An employee’s use of paid time off for any of these circumstances is referred to as “safe time.” Continue Reading

New California Law Prohibits Asking Job Applicants About Their Salary History

A new California law (AB 168) was signed by Governor Jerry Brown on October 12, 2017 that prohibits employers from inquiring about the salary histories of its job applicants. AB 168, which takes effect on January 1, 2018, and applies to all California employers (including state and local governments) represents an expansion of California’s fight against the gender wage gap. Gender wage discrimination is already unlawful in California, but AB 168 goes a step further by banning salary history inquiries in most circumstances. Read More >>

Predictable Schedules – A Right, Not a Privilege, in NYC Fast Food and Retail Industries

Earlier this year, New York City signed into law the “Fair Work Week” legislative package, which aspires to ensure more predictable schedules and paychecks for fast food and retail workers by setting restrictions on how and when their employers can schedule them for work. Those restrictions take effect on November 26th, which will be here before we know it.

The idea is to assist workers who are, as Mayor Bill de Blasio stated, “forced to deal with an arbitrary schedule at a job where they still don’t always make ends meet.” The result, however, requires covered employers to make some serious changes.  Continue Reading

DOL Overtime Regulations: The End of an Era

At least once a week we get a call from a client inquiring about the status of the new salary threshold overtime regulations. We have an update, and the news is good for employers!

By way of background, on May 23, 2016, the U.S. Department of Labor (DOL) announced its final rule (Rule) to increase the threshold salary requirements for exemptions from overtime entitlement under the Fair Labor Standards Act (FLSA). We previously discussed the DOL’s Rule here. In short, the Rule more than doubled the salary threshold (from $455 per week to $913 per week) for professional, administrative and executive employees to qualify as exempt from the FLSA’s overtime requirements, and it increased the salary requirement for exempt highly compensated individuals from $100,000 to $122,148, thereby entitling millions of additional employees to overtime pay under the FLSA at a significant cost to employers, particularly small businesses and not-for-profit organizations.

The Rule was enjoined on Nov. 22, 2016, just days before it was scheduled to go into effect on Dec. 1, 2016. Two groups of plaintiffs – one composed of 55+ businesses and the other composed of 21 states – challenged the Rule on various grounds, including that the drastic increase in salary requirements effectively overtook the rest of the statute and wrongly required the reclassification of certain employees who were performing bona fide executive, administrative and/or professional duties and thus were rightfully categorized as exempt from overtime. Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas granted the injunction. Continue Reading

Second Circuit Lowers Causation Standard for Employees Alleging FMLA Violations

Last week, the Second Circuit joined the Third Circuit in lowering the causation standard in evaluating alleged Family and Medical Leave Act (FMLA) violations against employers. Under a lower “motivating factor” standard established in Cassandra Woods v. START Treatment & Recovery Centers, courts within the Second Circuit must consider whether the exercise of an employee’s rights under the FMLA was one “motivating factor” in the decision to fire the employee. Previously, the Second Circuit had adopted a higher “but for” standard, which considers whether the employer wouldn’t have fired the employee “but for” the employee exercising his/her FMLA rights.

Cassandra Woods v. START Treatment & Recovery Centers

In Cassandra Woods v. START Treatment & Recovery Centers, Woods, a former substance abuse counselor at START, a nonprofit that offers treatment to narcotic-addicted patients, alleged she was unlawfully terminated after she exercised her rights under the FMLA. START defended that Woods’ termination was due to her poor performance, for which she received enhanced training and was even put on probation. Woods suffered from severe anemia and other medical conditions. She alleged that START improperly denied her requests for FMLA leave on several occasions, at least once because she was on probation. While on probation, she was hospitalized for seven days. START conceded that the leave due to Woods’ hospitalization was protected under the FMLA, yet it fired her a few weeks later due to her poor performance. Woods then sued START, alleging interference and retaliation under the FMLA. Continue Reading

Massachusetts Supreme Court Holds Employee Can Pursue State Law Disability Discrimination Claim for Failure to Accommodate Off-Duty Use of Medical Marijuana

On July 17, 2017, the Massachusetts Supreme Judicial Court concluded that an employee could sue her employers for state law disability discrimination for failing to accommodate her use of medical marijuana after she failed to pass a drug test. In so holding, the court interpreted workplace protections not explicitly stated in Massachusetts’ medical marijuana law.

Massachusetts’ Medical Marijuana Act and the Federal Controlled Substances Act

In 2012, Massachusetts passed a law called “An Act for the Humanitarian Medical Use of Marijuana” (the Act), which legalized medical marijuana. Under the Act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. The Act further provides that medical marijuana patients shall not be denied “any right or privilege” on the basis of their medical marijuana use. In 2016, Massachusetts also legalized recreational marijuana. Unlike other state medical marijuana laws, such as New York’s Compassionate Care Act, the Massachusetts Act does not contain anti-discrimination provisions or deem medical marijuana users automatically disabled under disability discrimination laws. Continue Reading

Update Regarding New York’s Paid Family Leave Law (Effective Jan. 1, 2018)

As we reported previously New York recently joined several other states that offer paid family leave benefits for employees. Effective Jan. 1, 2018, the New York Paid Family Leave Law (PFLL) will provide eligible employees with eight full weeks of paid family leave, funded exclusively through employee payroll deductions. The benefit amount and length of the leave will increase gradually through 2021.

On June 1, 2017, the New York State (NYS) Department of Financial Services (DFS) established the maximum employee contribution rate for PFLL coverage as 0.126 percent of an employee’s weekly wage, not to exceed the current NYS average weekly wage ($1,305.92). Thus, the maximum weekly deduction for employees earning $1,305.92 or more per week is $1.65 (0.126 percent of $1,305.92). The DFS will reset the employee contribution rate annually. Continue Reading

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