UPDATE: 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.As we reported in our blog post, and our summer newsletter, in late June, the New York Legislature passed a bill that vastly changed the discrimination and harassment landscape for employers. Today, Gov. Cuomo signed that bill into law. 

 As a result, employers likely now need to change their New York state-required anti-harassment policies and training. Specifically, policies and training should be reviewed to ensure that any reference to the severe and pervasive standard be eliminated and a strong emphasis be placed on the employer’s receptiveness to any and all complaints and how the employer will react swiftly to such complaints. Additionally, policies and training should be reviewed to ensure that they include the enhanced protections the law provides to other protected classes that previously only applied to sexual harassment. 

 Under the new law, employers can be held responsible even when an employee has not complained internally, so employers also should start making additional efforts to ensure their employees are happy and harassment is not occurring. It is also imperative for employers to play up their anti-retaliation provisions in this new construct – if employees are concerned they will be retaliated against, they are sure to not report problems to the company, and under this new law, they don’t have to. To accomplish both of these goals – instilling good morale and creating an open atmosphere where employees feel comfortable speaking to managers – employers might consider instituting town hall meetings or other similar touch-base meetings between management and employees, utilizing an anonymous hotline, hiring an ombudsperson, undertaking an immediate investigation of any complaints made (including those that do not meet the old standard of severe and pervasive), and providing and encouraging team-building activities. Perhaps most important, employers should ensure that management is present and engaged in all training and team-building activities and that management (not just those in human resources and legal) take immediate action with regard to any inappropriate behavior, not just behavior that meets the old standard of severe or pervasive.  


California Supreme Court reopens the door for SLAPPing retaliation and discrimination claims

The California Supreme Court has ruled that a former employee’s retaliation or discrimination claim can be dismissed at the initial stages of litigation via California’s anti-SLAPP statute. In Wilson v. CNN, decided July 22, 2019, the court overturned decisions of several courts of appeal that held otherwise and returned a strong tool to employers in defending against suits challenging an employee’s termination.

Anti-SLAPP background

California’s anti-SLAPP statute (SLAPP stands for “Strategic Lawsuit Against Public Policy”), Code of Civil Procedure 425.16, allows a defendant to have a plaintiff’s claim dismissed at the very beginning of litigation if (1) the employer can establish that the plaintiff’s claim implicates activity protected by the statute and (2) the plaintiff is unable to show that his or her claim has minimal merit. California’s Legislature enacted the statute to allow the quick dismissal of claims that implicate a defendant’s First Amendment-related acts. Filing the motion automatically stays discovery and, if the defendant wins, entitles the defendant to attorney’s fees.

In order to trigger the anti-SLAPP statute, the defendant must establish that the actions the plaintiff complains of fall under one of four categories of activity protected by the anti-SLAPP statute. The fourth category of activity protected by the anti-SLAPP statute is “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Continue Reading

New York State Bans Race Discrimination Based on Hair Texture and Hairstyles

We previously reported that the NYC Commission on Human Rights issued legal enforcement guidance for employers regarding racial discrimination on the basis of hair under the New York City Human Rights Law (NYCHRL). Although that guidance does not reflect a change in the NYCHRL, it makes clear that employers’ grooming and appearance policies may not prohibit hairstyles historically associated with certain racial communities, such as those who identify as “African, African American, Afro-Caribbean, Afro-Latin-x/a/o or otherwise having African or Black ancestry.”

Recently, New York state went a step further by passing a law that amends the definition of “race” in the New York State Human Rights Law (NYSHRL) to include “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” This would include, but is not limited to, hairstyles such as “braids, locks, and twists.” As a result, the NYSHRL now prohibits racial discrimination based on natural hair or hairstyles. Interestingly, the amendment contemplates the protection of traits historically associated with race other than hair or hairstyles, which traits are not clearly identified in the law.

The passing of this law makes New York the second state, after California, to prohibit discrimination based on hairstyles. New Jersey is considering similar legislation.

New York employers should review their discrimination, harassment, grooming and appearance policies to ensure such policies prohibit discrimination based on traits historically associated with race, including, but not limited to, hair texture and protective hairstyles. Employers should also train their HR personnel and management about this new law. Our New York team is available to advise regarding this amendment and best practices for your company.


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

This is an update to a previous post from June 24, 2019.

Earlier today, Dallas became the last of the three Texas cities to face a legal challenge to its paid sick leave ordinance, which is scheduled to take effect this Thursday, August 1. The lawsuit and request for preliminary injunction were filed by two north Texas businesses in the U.S. District Court for the Eastern District of Texas, and attack Dallas’ ordinance on substantially the same grounds as earlier lawsuits filed to enjoin the enforcement of similar ordinances in San Antonio and Austin. The lawsuit also comes on the heels of an agreement between the City of San Antonio and business plaintiffs in the parallel litigation to postpone the implementation of San Antonio’s sick leave ordinance for four months. The presiding Bexar County judge signed off on that agreement less than a week ago, changing the effective date of San Antonio’s ordinance from August 1, 2019 to December 1, 2019.

While businesses operating in San Antonio can take solace in this short reprieve from the city’s new regulations, Dallas businesses have not been so lucky. Absent swift action by the Eastern District of Texas or a voluntary delay in the ordinance’s implementation by the City of Dallas, Dallas businesses will be required to comply with the sick leave starting on August 1, as scheduled. Additional guidance regarding Dallas’ paid sick leave ordinance, including answers to Frequently Asked Questions, can be found on the city’s website. In addition, our Texas Labor and Employment Group would be happy to answer any specific questions you may have regarding these changes.

Paid Family and Medical Leave Is Coming to Oregon

Earlier this month, Oregon passed its own paid family and medical leave act (the act), making it the eighth state in the country to pass such a law. Oregon joins California, Massachusetts, New Jersey, New York, Rhode Island, Connecticut and the District of Columbia in providing paid family and medical leave benefits to employees.

In contrast to other states, Oregon’s new law is particularly expansive. Among other things, the act broadly defines “family,” grants employees a generous amount of leave, and provides 100% paid leave to “low-income workers,” as defined by statute. The act also establishes the Paid Family and Medical Leave Insurance (FAMLI) program to be administered by the Oregon Employment Department to help fund payroll contributions.

Eligibility and Leave Length

Under the new law, employers must provide their employees with a maximum of 12 weeks of paid leave to (i) care for a serious medical condition of the employee; (ii) care for a serious medical condition of the employee’s family member, which broadly includes any spouse, child, parent, domestic partner, grandparent or grandchild of the employee or any individual related by blood or affinity whose close association is the equivalent of a family relationship; (iii) care for or bonding with a newborn, adopted or foster child; or iv) deal with circumstances related to domestic violence, harassment, sexual assault or stalking.

In addition, employees may take up to four weeks of unpaid leave for which the employee may be eligible under the Oregon Family Leave Act (OFLA) and up to two additional weeks of benefits for limitations related to pregnancy, childbirth or a related medical condition.

Notably, leave taken under the act must be taken concurrently with any OFLA leave and with any leave taken under the federal Family and Medical Leave Act. Employees may also use vacation or sick time to supplement their weekly benefit amount, up to 100% of their wages. Continue Reading

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