On Fox’s Immigration View blog, partner Alka Bahal provides a detailed exploration of the I-9 inspection process, in the wake of a recent surge in I-9 audits carried out by the U.S. Immigration and Customs Enforcement (ICE) agency. All employers in the United States are required to have a Form I-9 on file for all employees to verify their identity and authorization to work in the United States.

We invite you to read Alka’s information-packed post addressing concerns facing employers:

Employers Beware: ICE Is Ramping Up I-9 Audits to Record Levels

Yesterday,  I spent a large part of my day talking about harassment training.  Between completing a pitch for new work and scheduling training for existing clients, the questions I faced most were the following:

  1. Where is training required?
  2. How often should an employer do training?
  3. Where training is required, does the training have to be “live”?

With regard to the first question, even in this #metoo era where law makers have struggled to be proactive, the vast majority of states/cities do not have laws requiring harassment training.  In fact, only a handful of jurisdictions require that employees be trained on harassment and discrimination.  Earlier this year, New York State joined California, Connecticut and Maine and will require that employers provide training.  Details about those requirements can be found in our previous blog post here.

Not to be outdone, a few weeks later, the NYC City Council passed a law requiring annual harassment training.  On May 9, Mayor de Blasio, signed the bill into law.  The bill requires employers with 15 or more employees to provide annual harassment training beginning on April 1, 2019.

At least, in NYC, the second question has been affirmatively answered.  It is not yet clear if the New York state law will require annual training or some other frequency.  California requires supervisor training every two years. Maine requires training of all employees, but only requires it within the first year of hire and not on an annual basis.  Likewise, Connecticut requires two hours of supervisory training within six months of an employee obtaining a supervisory position.

That being said, even in jurisdictions where training is not required or is not requires on an annual basis, training should be regularly refreshed.  This helps insure that new hires receive the training but also that employees do not get too relaxed with their co-workers and slip into inappropriate conversations.

I have seen increasingly in litigation that Plaintiffs’ attorneys are attacking the lack of or infrequency of training to argue that the employer condoned harassment and did not have an effective complaint procedure.

The NYC and New York State laws also answer the question of whether training must be live (there is no requirement for live training in California, Connecticut or Maine).  Although training does not have to be live, it does have to be interactive or “participatory.”

The question is what is participatory?  Although the law specifically notes that a live facilitator is not necessary, and the Commission will develop a model training policy, it would seem that at the least an employee should have the opportunity to answer/ask questions.

In my experience, the more interactive training sessions are those that provide real life scenarios for employees to discuss and for managers to discuss how to handle. I think that is difficult to do in an online setting. I’m not saying that there is not a place for online training, I just think that employers should think about augmenting it with live or video conference sessions.

I liken it to the last time you got computer training on a new program.  If you are like me, you can read the instructions from your IT department and seemingly understand it in the training session you are provided, but until you are actually using the computer program on a daily basis, it is difficult to say that you truly understand the program.

As I mentioned above, the Commission will be developing a model online training policy that will set the floor for what NYC employers will be required to cover in the training.  We will keep you posted when that is issued.

Ok, dear readers, I feel that I have been neglecting you.  I was swamped with preparing for a trial right before my well-deserved vacation to France and Spain.  I know, excuses, excuses.

I came back from vacation feeling refreshed.

I mean who would not be refreshed with views like this:

 

 

 

 

 

 

I feel that I have so much to catch you up on.

The first thing is that, while I was on vacation, the Diane B. Allen Equal Pay Act went into effect in New Jersey on July 1, 2018.  As we previously reported, this law dramatically expands equal pay protections by making it illegal to pay employees for similar work differently because of any protected class, not only gender.

If you are thinking, I am not in New Jersey, so I do not need to worry about this, I would not be so sure.  Equal pay for equal work has been a hot topic in a lot of jurisdictions as reports continually show that women are still earning less than men.

Compensation reviews can be time-consuming and expensive.  However, it is far better to do one proactively, at your own leisure, rather than under the gun when facing an EEOC or DOL investigation or a lawsuit.

If you are planning your HR expenditures for this year, you may be wise to include a comprehensive compensation review in your budget.

E-Book Cover: Employment Compliance in the Age of Legalized MarijuanaThough cannabis is illegal under federal law, at least 30 states and the District of Columbia have legalized cannabis for medical use and nine states, as well as D.C., have legalized it for recreational use—a dichotomy that presents a unique and complex challenge for employers. In a new e-book, Fox attorneys Joseph A. McNelis III, Lee Szor, William Bogot and Joshua Horn provide an overview of federal and state marijuana laws, discuss specific aspects of the employment relationship affected by the legalization of marijuana in certain states, and offer practical guidance for employers on how to navigate this new and developing area of the law.

We invite you to download a PDF of the e-book.

The Michigan Civil Rights Commission has taken significant action to clarify that its state statute prohibiting discrimination in employment on the basis of sex (among other characteristics) extends to prohibit employment discrimination based on orientation and gender identity:

The Michigan Civil Rights Commission voted 5-0 to approve a statement legally interpreting the Elliott-Larsen Civil Rights Act’s ban on “discrimination because of . . . sex” to include discrimination against sexual orientation or gender identity . . .

The idea of an interpretive statement from the commission, initially requested by Equality Michigan last year, was revived after the 6th Circuit Court of Appeals ruled in favor of a transgender woman who said she was illegally fired by a funeral home in Garden City while transitioning from male to female . . .

The [Michigan Department of Civil Rights] will begin taking complaints related to sexual orientation or gender-based discrimination.

Regular readers of our blog will be familiar with this particular legal issue, as we have previously discussed the question of whether bans on sex discrimination necessarily also ban discrimination on the basis of sexual orientation and/or gender identity in the context of federal law.  This legal question is a hot topic in employment litigation in federal courts across the country.  Because of widely divergent outcomes in federal district and circuit courts across the country in addressing this question, we will likely have to wait until the U.S. Supreme Court weighs in to have a definitive interpretation of federal law.

Irrespective of the federal question, however, there appears to be a trend toward states considering this issue in the context of their own non-discrimination laws.  The Michigan Civil Rights Commission’s decision is similar to proposed guidance announced by the Pennsylvania Human Relations Commission from late 2017.  This development is important because a Supreme Court decision on this issue under federal law may not necessarily prove binding on states’ interpretations of state law.

We will, of course, continue to monitor this issue as it develops around the country.

Last week, Minnesota legislators introduced a bill to amend the definition of sexual harassment under state law.  Indeed, this legislation has already received significant attention in the media throughout Minnesota.  And although the bill adds only a single sentence to existing law, it has the potential to significantly reshape the legal landscape for employees who bring sexual harassment claims against their employers.  The substantive text of the amendment reads as follows:

An intimidating, hostile, or offensive environment … does not require the harassing conduct or communication to be severe or pervasive.

To unpack what this means, it’s necessary to first review some general principles of the law concerning sexual harassment.  Sexual harassment is a prohibited form of sex discrimination under state and federal employment non-discrimination law.  For a time, courts struggled to precisely define prohibited harassment.  In 1986, the Supreme Court, interpreting federal law, held that “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'”  Generally, state law in Minnesota has followed this interpretation.

The severe or pervasive standard is an attempt by courts to reconcile issues of degree (i.e., severity) and frequency (i.e., pervasiveness) into what constitutes unlawful sexual harassment in the workplace.  The standard recognizes that some acts of alleged harassment are so severe that the conduct may be actionable even if it occurred only once.  For example, a single instance of unwanted, inappropriate physical contact from a coworker might be sufficiently severe to be actionable, depending on the facts.

Simultaneously, the standard acknowledges that severity is not the only way by which illegal sexual harassment can occur.  Hence, the standard recognizes that some acts of alleged harassment, which may not seem as severe, can occur with such frequency as to create a hostile working environment.  For example, workplace remarks that might be considered only mildly inappropriate may, if made regularly or with a high frequency, constitute sexual harassment.  Note: the complained of conduct must only be severe or pervasive to be actionable; it is not necessary to be both severe and pervasive, although some complaints of sexual harassment may meet both standards.

Critics of the severe or pervasive standard, who presumably include the bill’s sponsors, have argued it discourages employees from making legitimate reports and/or claims of sexual harassment by setting the bar too high.  In removing the severe or pervasive standard, the Minnesota bill therefore redefines illegal sexual harassment in employment as “conduct or communication has the purpose or effect of substantially interfering with an individual’s employment . . . or creating an intimidating, hostile, or offensive employment . . .  environment.”  What, exactly, meets this standard would be determined by Minnesota courts.

Critics of the bill have argued that removing the severe or pervasive standard removes important guideposts for courts evaluating sexual harassment claims.  In their view, this bill risks creating a flood of new lawsuits, broad exposure for employers without large, sophisticated Human Resources departments, and potential inconsistencies in how the law of sexual harassment is applied.

Employers should keep an eye on this legislation as it proceeds through the legislative process.  If passed in its current form, the bill would apply to causes of action arising on or after August 1, 2018.  Employers can track the status of this legislation at the Minnesota Legislature’s website.

Today, as expected, Governor Murphy signed into law the Paid Sick Leave Act.  The Paid Sick Leave law is effective October 29, 2018.

The Law requires all New Jersey employers, regardless of size, to provide up to 40 hours of paid sick leave per year.  Full details about the law can be found in our alert here.

Employers do have some time to get ready for the new law.  Employers should review their paid time off policies to determine if changes need to be made.

In the meantime, we will keep an eye out for the required poster that will be developed by the Department of Labor and let you know when it is issued.

The NJ legislature has been busy in recent weeks with new employment laws.  Yesterday, Governor Murphy signed the Diane B. Allen Equal Pay Act, which will go into effect on July 1, 2018.

The law is probably one of the broadest equal pay laws in the country. Unlike most equal pay laws that prohibit pay disparity based on gender, the law prohibits employers from discriminating against employees in compensation based on membership in any protected class.  This means employers might see claims raised based on race, national origin, sexual orientation, etc.

More details about the new law can be found in our alert here.

Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018, which awaits Gov. Larry Hogan’s signature, imposes stricter waiver and disclosure requirements regarding sexual harassment on Maryland employers beginning on October 1, 2018.  The bill was passed by both houses of the Maryland General Assembly and a Governor’s veto is not anticipated.

The bill impacts Maryland employers in two ways.  First, the bill prevents employers from asking employees to waive their future rights to come forward with sexual harassment complaints and provides that such waivers are void as a matter of public policy.  Second, the bill requires employers with 50 employees or more to disclose: 1) how many settlements the employer has made after a sexual harassment allegation; 2) how many times an employer has settled allegations of sexual harassment made against the same employee; and 3) the number of settlements of sexual harassment complaints that included non-disclosure provisions.  The Maryland Commission on Civil Rights will collect and compile the data and make it publicly available, including the employers’ identities (although not the identities of the alleged harassers or victims).

Maryland employers should  pay close attention to whether any of their contracts, policies, or agreements require employees to waive a future right to assert a sexual harassment claim or complaint.  Any waiver requirements should be eliminated by October 1, 2018, in accordance with the new law.  Additionally, employers subject to the reporting requirement should develop a reliable method of accurately tracking the data required to be disclosed.  This is a good opportunity for employers operating in Maryland to perform a comprehensive review of their sexual harassment policies, make any necessary revisions, and provide training to their managers in an effort to educate their employees as well as reduce the risk of sexual harassment claims being asserted in the future.

 

This week, the 9th Circuit issued a decision that many say represents a sea change in how employers may defend against Equal Pay Claims. The decision in Rizo v. Yovino issued on April 9, 2018 overturned decades of interpretation of the Equal Pay Act and held that prior salary history may not be considered by employers.  However, there is some language in the ruling that appears to muddy the general rule announced by the Court.

Under the Equal Pay Act, it is illegal for employers to pay men and women different salaries for substantially similar work.  However, an employer may defeat an Equal Pay Act claim by proving that there were legitimate, non-discriminatory reasons for the salary differential.  Traditionally, courts have found that one of those legitimate, non-discriminatory reasons might be that the employer based the salary on the compensation the employee received at a prior job.

Indeed, many employers routinely ask what salaries applicants are currently making.  In that way, employers understand applicants’ salary expectations but also have an awareness of where to set the salary being offered to the applicant.

In recent times, some jurisdictions have passed laws prohibiting employers from asking about prior salary history.  The stated reason for these laws is that it perpetuates prior gender pay discrimination.  Basically, if an employee was subjected to a discriminatory wage rate at a prior employer, using that salary at the new employer would set the employee’s salary lower than other employees and, even if the new employer is not overtly acting in a discriminatory manner, would continue the past discriminatory practice.

Right now, the number of jurisdictions with such laws is limited.  However, the Rizo decision may change that.

Rizo, a school teacher, was hired by Fresno County as a math consultant.  Fresno County had a standard operating procedure that set ten salary steps.  When a teacher was hired, salary was set based on taking the teacher’s former salary and adding 5%.  Once the salary was calculated, the teacher was placed in the appropriate step of the pay scale.  After her hire, Rizo discovered that male math consultants had been hired at higher salary steps.  For its part, Fresno County claimed that the use of prior salary was a long-recognized legitimate factor and that if salaries were reviewed as a whole, more women were placed at higher salary steps than men.

The Ninth Circuit heard the case en banc in order to clarify the law as to whether prior salary history alone or in combination with other factors could be a legitimate factor “other than sex” that justified the salary differential.

The Ninth Circuit held that prior salary alone cannot be a legitimate factor other than sex. It then went even further, which caught most people off guard, and said that prior salary is never a legitimate business factor even if taken into consideration with other factors. The Court did say that there might be individualized cases where salary was negotiated and past salary came into play  and that it took no position on whether prior salary could be considered in those cases.

This ruling is contradictory and employers should not consider this language a safe harbor.  Given the other language in the opinion that repeatedly states that asking about prior salary frustrates the entire purposes of the Equal Pay Act and should never be considered, employers should not bank on the fact that there might be some conceivable fact pattern that allows employers to consider prior salary history.  This is true, despite the very valid points brought out in the concurring opinions, that there are times that prior salary history has nothing to do with gender.  For example, prior salary may have been set based on cost of living or demand for particular jobs.

Based on this ruling, the safest course of action would be for employers within the Ninth Circuit to never ask about prior salary history.  However, what happens if the applicant volunteers it while trying to negotiate terms and conditions of the new job?  This decision doesn’t really answer that question.

At this point, there are other circuits that allow for the consideration of prior salary history in combination with other factors.  It will be interesting to see if the Supreme Court decides to take up the split.