Smoke Clears For Employers Under New Illinois Marijuana Law

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

As marijuana legalization laws spread, some states are more focused on employee protections, but Illinois recently adopted a new marijuana law that includes extensive workplace protections for employers. Last month, the Illinois legislature passed and Illinois Governor Jay Pritzker signed the Cannabis Regulation and Tax Act. The Cannabis Act goes into effect on January 1, 2020. Beginning on that date, Illinois residents over 21 may legally possess 30 grams of marijuana flower and five grams of marijuana concentrate.

The workplace protections for employers include:

  • It expressly permits employers to adopt and maintain zero tolerance policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace or while on call (provided that the policy is applied in a non-discriminatory manner);
  • It permits employers to prohibit use of cannabis in the workplace (defined as any building, real property and parking area under the control of the employer, any area used by an employee while in performance of the employee’s job duties, and vehicles, whether leased or rented); and
  • It permits employers to discipline or terminate employees who violate an employer’s workplace drug policies.

The Cannabis Act also states that it does not provide a cause of action against an employer who subjects employees or applicants to reasonable drug and alcohol testing, or who disciplines or terminates an employee based on a good faith belief that the employee was impaired as a result of cannabis use or under the influence of cannabis while at work or on call. Continue Reading

PEOs, Staffing Companies: Watch Proposed New Joint Employer Rule

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Employment Investigations & Audits, Wage & Hour

Professional Employer Organizations, franchisors, business advisors, and staffing agencies should take a close look at their contracts if the Department of Labor’s proposed new standard for what constitutes a joint employer becomes final. The proposed rule implements a new four-factor test to evaluate whether a joint employer relationship exists.

The DOL’s proposed rule reflects the new administration’s narrower perspective of joint employers, and rejects the “not completely disassociated test” (with no definable scope) in favor of a balancing test based on four factors to determine if the potential joint employer: Continue Reading

New York State Approves Broadly Expanded Protections for Employees and Applicants

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Note: This blog post has been updated to include all relevant effective dates now that Governor Cuomo has signed the bill into law.

New York State has enacted comprehensive reforms to broaden the scope of its discrimination and harassment laws, including one of the most robust anti-harassment bills in the #MeToo era, amendments to the State’s Equal Pay Act to prohibit wage differentials based on protected class, and a ban on salary history inquiries.

Anti-Harassment and Discrimination Amendments to the New York State Human Rights Law

On August 12, 2019, Governor Cuomo signed a bill which would broadly expand coverage and anti-harassment protections to employees under the State Human Rights Law (“NYSHRL”).  The legislation’s expanded protections against harassment in the workplace are not limited to sexual harassment; rather, it broadens protections for harassment based on any protected characteristic under a wide array of categories.  In its key provisions, the legislation would: (1) expands the definition of “employer”; (2) expands the liberal construction  of the NYSHRL; (3) lowers employees’ burden of proof in harassment cases; (4) increases employer obligations for providing notice of sexual harassment prevention and training; (5) prohibits non-disclosure agreements in all discrimination cases (with an exception for a plaintiff’s preference); (6) prohibits mandatory arbitration; (7) creates a right for punitive damages to prevailing plaintiffs; (8) delineates the conditions under which attorneys’ fees are available to a prevailing party; and (9) increases the statute of limitations in sexual harassment cases brought under the NYSHRL from one to three years.

  1. Coverage Expanded To Employers Of All Sizes

The NYSHRL currently applies to employers with four or more employees.  Beginning on February 8, 2020, it will apply to all employers, regardless of size.

  1. An Expanded Liberal Construction of the NYSHRL

Effective immediately, state law is to be construed liberally – and exceptions to the law is to be construed narrowly – to “maximize deterrence of discriminatory conduct.”

  1. Employees’ Lower Burden Of Proof

Up until now, the NYSHRL resembled federal law by requiring a complainant to meet a “severe or pervasive” standard – the same standard required under Title VII – to prove that his or her harassment was unlawful.  The new legislation does away with that higher burden, and brings the NYSHRL in line with New York City law.  Employees will now only need to demonstrate that harassment rises above the level of “what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”

Moreover, the new law eliminates employers’ ability to utilize the Faragher/Ellerth  affirmative defense.  This defense, named after two 1998 Supreme Court decisions in a Title VII context, allowed employers to shield themselves from liability in certain circumstances by demonstrating that an employee failed to take advantage of the employer’s internal complaint procedures.  Now, whether an individual complains about harassment to the employer will no longer be determinative of the employer’s liability.

These changes will take place effective October 11, 2019.

  1. Notice of Sexual Harassment Prevention

Effective immediately, all employers are required to provide notice of their sexual harassment policy and the information presented at their annual sexual harassment training.  The notice must be in writing and in employee’s primary languages.  However, employers need not provide the notice in another language if the state has not published a template for that language.  In such a case, defaulting to the English notice is acceptable.  The notice must be given to current employees as well as new hires, and annually to all employees as part of annual sexual harassment training.

  1. Non-Disclosure Agreements (“NDAs”)

Last year, New York limited NDAs in sexual harassment cases to situations in which the NDA was the plaintiff’s preference.  Now, NDAs will be limited for all types of discrimination, rather than just sexual harassment claims.  The new legislation retains the exception allowing an NDA where it is the plaintiff’s preference.  This rule will also apply for judgments, stipulations, decrees, or agreements of discontinuance, and will go into effect on October 11, 2019.

  1. Mandatory Arbitration

As with NDAs, last year New York prohibited mandatory arbitration for sexual harassment claims.  Now, effective October 11, 2019, mandatory arbitration to resolve allegations of discrimination of any kind will be prohibited.

  1. Punitive Damages

Effective October 11, 2019, punitive damages will become available in all employment discrimination cases against private employers.

  1. Attorney’s Fees

Effective immediately upon enactment, attorneys’ fees must be awarded to prevailing plaintiffs for employment discrimination claims.  However, prevailing defendants will only be awarded attorneys’ fees if plaintiffs’ claims are deemed “frivolous.”  The legislation defines a “frivolous” action as one that was filed or continued in bad faith, to prolong or delay the litigation, or to harass the defendant, or continued in bad faith “without any reasonable basis and could not be supported by a good faith argument for an extension, modification or reversal of existing law.”

  1. Extended Statute Of Limitations

Effective August 12, 2020, the statute of limitations for sexual harassment in employment complaints to the NYSDHR will be extended from one year to three years.

Prohibition of Wage Differentials Based on Protected Class

New York’s Equal Pay Act provides that employees shall not be paid less than employees of the opposite sex in the same establishment for equal work, for a job requiring equal skill, effort and responsibility, and performed under similar working conditions. A new bill signed by Governor Cuomo on July 10, 2019 requires employers to provide employees with equal pay for substantially similar work across all protected categories under the NYSHRL – not just gender.  The bill broadens protections under the Equal Pay Act by requiring that no employee who falls into any one or more protected classes under the NYSHRL be paid a wage at a rate less than the rate at which an employee outside the same protected class in the same establishment is paid for either: (1) equal work; or (2) “substantially similar work, when viewed as a composite of skill, effort and responsibility, and performed under similar working conditions.”

Employers can still justify pay differentials, for example, due to a seniority or merit system, a system which measures earnings by quantity or quality of production, or a bona fide factor such as education, training or experience. However, employees may still prevail on a claim if they can demonstrate that: (i) the employer’s practice causes a disparate impact on the basis of a protected class; (ii) a viable alternative practice exists that would remove the wage differential and serve the same business purpose; and (iii) the employer refused to adopt the alternative practice.

This law will go into effect on October 8, 2019.

Salary History Inquiry Ban

Finally, Governor Cuomo signed a bill that prohibits employers from asking job applicants and employees about their wage or salary history.  The bill becomes effective on January 6, 2020.  Specifically, it will be unlawful to rely on an applicant’s wage or salary history in determining whether to offer employment or in determining the wages or salary offered to the applicant.  Additionally, employers may not seek, request, or require wage or salary history from an applicant or current employee as a condition of being interviewed for, considered for, or receiving employment or a promotion.  It will also be unlawful to retaliate against an individual by refusing to hire, promote, or otherwise employ or retaliate against an applicant or employee “based upon prior wage or salary history,” or a refusal to provide wage or salary history.

The law does allow for exceptions where: (1) an applicant or employee voluntarily, and without prompting, discloses or verifies wage or salary history; (2) an employer can confirm wage or salary history after an offer of employment with compensation has been made, but only if the applicant or employee responds to the offer by providing prior wage or salary information to support a wage or salary higher than offered; and (3) where any federal, state, or local law enacted prior to the effective date of the legislation requires the disclosure or verification of salary history information to determine an individual’s compensation.

Notably, the enactment of this law will nullify Westchester County’s salary inquiry ban, because that law provides that it will become null after statewide legislation is passed.

Takeaway For Employers

This flurry of legislation will impact virtually all stages of employment, from the hiring process, to employee trainings, settlement negotiations, and in the courtroom.  With some of the legislation’s provisions taking immediate effect upon enactment, employers are well advised to immediately review their employment practices and policies to ensure compliance.  If you have any questions regarding these expected changes, please do not hesitate to contact Akerman’s Labor and Employment attorneys.

Minimizing Exposure for Employee Termination Claims

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation

Assessing whether to terminate an employee and how best to deliver the news are challenges every employer faces. Whether it’s a low-performing employee who shows no sign of improvement or an employee who egregiously violates a company policy, having policies and procedures in place and following them will help minimize exposure to claims.

In the absence of a collective bargaining agreement or a contract for a definite term of employment, most employees in the U.S. are employed on at-will basis. That means either the employer or employee can terminate the employment for any reason or no reason, so long as it is not an unlawful reason. Despite the at-will nature of most employment relationships, employers can face claims that a termination was unlawful because it was based on discrimination or retaliation.

Employers contemplating terminating an at-will employee should first consider these five things: Continue Reading

Employers Beware: Wage Theft Soon to be a Felony in Colorado and Minnesota

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

Recent legislation in Colorado and Minnesota imposes harsh criminal penalties—including potential felony convictions—for the failure to pay wages.  To limit their exposure under these strict new laws, employers with operations in either state should familiarize themselves with these upcoming changes.

Colorado Increases Criminal Penalties under the Wage Claim Act

On May 16, 2019, Colorado Governor Jared Polis signed HB 19-1267, into law, addressing penalties for failure to pay wages.  While Colorado currently imposes misdemeanor penalties for nonpayment of wages, the new law classifies that nonpayment as theft under Colorado law, punishable by a felony when the amount of theft exceeds $2,000.  Penalties vary based on the amount of the theft: Continue Reading

Sanctuary Cities in the United States: Sinking or Swimming?

Posted in Immigration Planning & Compliance

U.S. Immigration and Customs Enforcement (ICE) is one step closer to eliminating protections availed in so-called sanctuary cities. On May 6, 2019, the federal immigration authority launched a new program that encourages local law enforcement to arrest foreign nationals in cities that have chosen to be a safe haven for immigrants. This program, which debuted in Largo, Florida, comes on the heels of a controversial bill passed by the Florida legislature prohibiting sanctuary cities in the sunshine state. According to ICE Director, Mathew Albence, the agency’s latest initiative was put forth to promote public safety and protect vulnerable populations from violence, drugs and gang activity. While opponents of sanctuary cities point out crimes committed by illegal immigrants, sanctuary jurisdictions argue that enforcing federal immigration laws through state authorities will deteriorate cooperation between immigrant communities and local law enforcement. Continue Reading

DOL and NLRB Agree: Gig Economy Workers Are Contractors, Not Employees

Posted in Wage & Hour

According to recent guidance issued by the DOL and NLRB, workers in the so-called “gig,” “on-demand,” or “sharing” economy are independent contractors, not employees. This represents a significant departure from Obama-era policy and is expected to have significant consequences for both employers and workers in that sector. Continue Reading

Trending: Fair Workweek Laws

Posted in Employee Handbooks & Policies, Employment & Consulting Contracts, Wage & Hour

“Fair workweek” laws are sweeping the nation, bringing new challenges for employers. Also referred to as “predictable scheduling,” “advanced scheduling,” or “secure scheduling laws,” these laws typically require larger employers in restaurant and retail industries to provide employees with advanced schedules and “predictability pay” if schedules are changed after a certain time period before an employee’s shift.  Continue Reading

U.S. Supreme Court Rules that Ambiguous Arbitration Agreements Do Not Authorize Class Arbitration

Posted in Employment & Consulting Contracts, Employment Litigation

Ambiguous language in an arbitration agreement is not a sufficient basis for concluding a party has agreed to class arbitration, the U.S. Supreme Court ruled last week. In Lamps Plus, Inc. v. Verela, the Court held that, under the Federal Arbitration Act (“FAA”), courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide, rather than individual, basis. Instead, class arbitration must be expressly authorized in the contract. Continue Reading

FMLA Qualifying Leave Must Be Under FMLA

Posted in Medical & Other Leaves

Employers cannot permit employees to use PTO or other paid leave prior to using unpaid FMLA leave for an FMLA qualifying condition, according to a new Department of Labor Opinion Letter.  The Opinion Letter also provides that employers cannot designate more than 12 weeks of leave per year as FMLA (or 26 weeks per year if leave qualifies as FMLA military caregiver leave).  Continue Reading