Texas Legislature and Courts Clash With Cities Over Mandatory Sick Leave: What Employers Need to Know

Dallas has become the third city in Texas, following Austin and San Antonio, to pass a city ordinance requiring private-sector employers to offer paid sick leave to their employees. The ordinances have yet to be implemented in any of these cities. However, with the effective date of Dallas’ and San Antonio’s ordinances looming (and with Austin’s ordinance hanging in the balance of legal challenges), it is time for employers to take a hard look at the new requirements that may be imposed on them. Continue Reading

New York State Expected to Vastly Overhaul Harassment/Discrimination Laws Again

The Dictionary definition of the word “discrimination” photo taken through magnifying glass from a page of a dictionary with selective focus.Late on June 19, New York lawmakers passed a bill that makes wide-sweeping changes to New York State discrimination and harassment law. Gov. Andrew Cuomo has indicated that he will sign the bill, but he has not done so at this point. The bill implements changes related to the construction, definitions, proofs, affirmative defenses, policies and remedies related to discrimination and harassment.

Construction, Definitions and Proofs

First, the bill amends the definition of “employer” in the New York State Human Rights Law (NYSHRL) to include all employers within the state, including state and political subdivisions.

Second, it extends the filing deadline for Division of Human Rights sexual harassment complaints from one year to three years.

Third, the bill makes clear that the NYSHRL should be interpreted on its own and construed “in order to maximize deterrence of discriminatory conduct,” regardless of how comparable federal law is construed. This amendment likely means that courts will interpret the NYSHRL more akin to the far more employee-friendly New York City Human Rights Law, rather than federal law as they currently do. Continue Reading

High Times for Employees in Nevada: New Restrictions on Preemployment Drug-Screening of Applicants Who Test Positive for Marijuana

Beginning in 2020, Nevada employers can no longer refuse to hire a job applicant for failing a preemployment marijuana screening test. The law, known as “AB132,” became effective on June 5 and is the first of its kind among the states. Although the law is limited in scope to drug screenings involving the presence of marijuana, it has broad implications for employers operating in Nevada (and potentially for employers in other states).

The full text of the law can be viewed here. Continue Reading

Connecticut Passes Generous Paid Family and Medical Leave Law

Joining a steadily growing national trend, the Connecticut Legislature recently passed a generous paid family and medical leave bill, which will make Connecticut the seventh state — in addition to California, Massachusetts, New Jersey, New York, Rhode Island and Washington, not to mention the District of Columbia — to offer paid family leave.

Assuming the bill is signed into law, Connecticut employees will be eligible for 12 weeks of paid time over a 12-month period for reasons allowed under Connecticut’s Family Medical and Leave Act (FMLA). An additional two weeks of leave will be available for serious health conditions resulting in incapacitation during pregnancy. Continue Reading

Colorado Shores Up Employee Protections for Criminal History Inquiries, Wage Theft and Pay Equity During Busy 2019 Legislative Session

Colorado’s 2019 legislative session was busy, including producing a trio of new employment laws that tighten regulations on employers in the areas of pay equity, criminal history inquiries and wage theft. Employers face comprehensive changes and should review pay practices, application processes, advancement and promotion policies, and employee record-keeping to comply with these new laws. Continue Reading

Panic Buttons for New Jersey Hotel Housekeepers

On June 11, Gov. Phil Murphy, D-N.J., signed into law legislation that will require hotels that have 100 or more guest rooms to provide their housekeepers and room service employees with panic buttons effective January 2020. Panic buttons have gained widespread attention as a result of the #MeToo movement – the idea being that a housekeeper is isolated from other employees and an easy target for sexual harassment and assault. Recently several pieces of legislation have been introduced that would require the provision of the buttons. Some cities (such as Chicago and Seattle) have already passed similar measures, and some hotel chains have voluntarily agreed to provide panic buttons, regardless of local laws. Hotels in New Jersey will no longer have the choice, and failure to comply with the new law will result in fines. Continue Reading

Bank settles $5 million parental leave discrimination lawsuit

The Dictionary definition of the word “discrimination” photo taken through magnifying glass from a page of a dictionary with selective focus.In a follow-up to our August 2018 blog post regarding a $1.1 million class settlement of the Equal Employment Opportunity Commission’s (EEOC) first parental leave lawsuit against a large cosmetics company, a large financial institution has just agreed to pay $5 million to settle a class action parental leave lawsuit brought by the American Civil Liberties Union (ACLU) and a plaintiff-side firm on behalf of an employee. The lawsuit alleges that the bank discriminated against fathers based on gender stereotypes by giving mothers more parental leave. The settlement, once approved by the court, will be payable to a class of hundreds, if not thousands, of male employees who can demonstrate that they would have taken the full 16 weeks of primary caregiver leave between 2011 and 2017 if they had not been deterred from doing so. Continue Reading

Colorado Takes a Strict Stance in New Equal Pay for Equal Work Act

Colorado tightened its protections for pay equity when the state’s Equal Pay for Equal Work Act (the “Act”) was signed into law on May 22. The Act, which will take effect on Jan. 1, 2021, provides protections more demanding than those of federal laws and results in changes that employers should immediately consider.

Background

The Act applies to all Colorado employers regardless of size and contains provisions regarding wage discrepancy, wage history, wage notice requirements and wage transparency in promotion and advancement opportunities. Notably, the Act also provides an applicant or an employee with a private right of action against an employer for alleged violations. This private right of action is in addition to the Colorado Division of Labor’s ability to enforce and investigate alleged violations of the Act on behalf of individuals, and it does not foreclose an applicant’s or an employee’s ability to seek relief from the Colorado Civil Rights Commission for pay discrimination. Continue Reading

Connecticut to Raise Minimum Wage to $15 Per Hour

On May 28, Connecticut Governor Ned Lamont signed Public Act No. 19-4, entitled “An Act Increasing the Minimum Fair Wage,” that will raise the Connecticut minimum wage to $15.00 per hour in 2023, which is more than double the current federal minimum wage of $7.25 per hour.

Under the new law, the current Connecticut minimum wage of $10.10 an hour will increase incrementally to $11.00 per hour on October 1, 2019, to $12.00 per hour on Sept. 1, 2020, to $13.00 per hour on Aug. 1, 2021, to $14.00 per hour on July 1, 2022, and then to $15.00 per hour on June 1, 2023. Future minimum wage increases will be tied to the federal employment cost index, which is calculated by the U.S. Department of Labor. Continue Reading

Washington State’s New Noncompetition Laws

Washington state employers that rely on noncompetition agreements will face a dramatically different legal landscape beginning Jan. 1, 2020, when a new noncompetition law takes effect.

ENGROSSED SUBSTITUTE HOUSE BILL 1450

Key Elements of the New Law

Under the new law, noncompetition agreements will be void and unenforceable against an employee under the following conditions:

  • The employer fails to disclose the terms of the agreement in writing to the prospective employee no later than the time of acceptance of the offer of employment.
  • The noncompetition agreement is entered into after the start of employment, unless the employer provides independent consideration (such as a promotion, bonus or other benefit).
  • The employee’s earnings from the employer do not exceed $100,000 per year annualized, to be adjusted for inflation.
  • The employee is laid off, unless the employer provides compensation equivalent to the employee’s base salary for the period of enforcement minus compensation earned through subsequent employment.

Noncompetition agreements with a duration exceeding 18 months will also be presumed unreasonable and unenforceable, but this presumption will be rebuttable with clear and convincing evidence that a longer duration is necessary to protect the party’s business or goodwill. And employees earning less than twice the state minimum wage of $12.00 per hour may not be prohibited from having an additional job, supplementing their income by working for another employer, working as an independent contractor or being self-employed.

Interestingly, noncompetition agreements will also be void and unenforceable against independent contractors unless their earnings from the party seeking enforcement exceed $250,000 per year, to be adjusted for inflation. And noncompetition agreements also may not require an employee or an independent contractor to adjudicate the noncompetition agreement outside of Washington state.

Penalties Under the New Law

The new law will apply to any legal proceeding that is commenced after Jan. 1, 2020, regardless of when the cause of action arose or when the noncompetition agreement was signed.

There will be stringent penalties for employers who craft or seek to enforce noncompetition agreements that violate the above requirements. Specifically, if a court or arbitrator determines that an agreement violates the new law or reforms, rewrites, modifies or only partially enforces a noncompetition agreement, the employer must pay the employee/independent contractor the greater of their actual damages or a $5,000 statutory penalty, plus reasonable attorneys’ fees, expenses and costs incurred in the proceeding.

Importantly, for noncompetition agreements signed on or after Jan. 1, 2020, employees or independent contractors may bring a declaratory judgment action to invalidate unlawful noncompetition agreements and receive the above remedies. However, after Jan. 1, 2020, employers that seek to enforce unlawful noncompetition agreements, including agreements signed before Jan. 1, 2020, will be subject to the above remedies.

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Given this new legal landscape, employers should begin the process of re-evaluating their existing noncompetition agreements to ensure they will be enforceable when the new law takes effect in six months.

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