Federal/State/Local Laws

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.

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.

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.

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.

 

Monday, New York’s budget bill for FY 2019 was presented to the Governor for signature.  Buried among the usual budget line items are several provisions that will drastically affect employers.

In what seems to be a direct response to the #metoo movement, the bill sets training requirements, prohibits mandatory arbitration of discrimination claims, and outlaws confidentiality provisions in settlement agreements unless specifically requested by the complainant.

The employment related provisions are set forth in S7507-C.  Here are the highlights (or low lights depending on your point of view):

  • Mandatory Harassment Policies:  All employers must have a policy against harassment that complies with or exceeds the model harassment policy that will be developed by the Division on Human Rights.  At a minimum, the policy must:
    • prohibit sexual harassment consistent with guidance issued by the department in consultation with the division of human rights and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
    • include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
    • include a standard complaint form;
    • include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
    • inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
    • clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
    • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
  •  Mandatory Training:  All employers must also provide “interactive” training to their employees.  The Division will also be developing a model training program that must include:
    • an explanation of sexual harassment consistent with guidance issued by the department in consultation with the division of human rights;
    • examples of conduct that would constitute unlawful sexual harassment;
    • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
    • information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
    • address conduct by supervisors and any additional responsibilities for such supervisors.
  • Statements by Public Contractors:  Public contractors submitting a bid for work with the State must include a statement that they have a policy against sexual harassment and that they provide training to employees on that policy.  Public Contractors must generally comply with the policy and mandatory employment training that applies to all employers under new Labor Law §201-g which sets for the policy and training requirements.
  • Prohibition on Mandatory Arbitration Agreements:  No employer may require that a claim of unlawful discrimination or sexual harassment be submitted to mandatory arbitration.  Voluntary arbitration provisions are still okay.  Collective bargaining agreements trump this provision, so if the CBA requires arbitration of discrimination or sexual harassment, then that would not run afoul of the law.  The law only bans this on a prospective basis and the law will not apply to any agreements entered into prior to the effective date of the law.
  • Bar on Most Confidentiality Agreements:  Settlement agreements may not contain confidentiality provisions requiring the complainant to keep the facts of the harassment or discrimination confidential unless the complainant voluntarily agrees to it.  Employers may still put a draft provision in agreements requiring confidentiality for the complainant to review.  The complainant must be given 21 days to review the provision. If the complainant accepts the provision, there must be a separate writing stating that.  Complainants must also have 7 days to revoke their acceptance of the agreement.
  • Provides Protection (and a Cause of Action) for Non-Employees:  the bill makes clear that an employer may be held liable if one of its employees sexually harasses a contractor, subcontractor, vendor, consultant or other non-employee providing services to the employer.

These provisions will go into effect 180 days after the law is enacted.  We assume that the forthcoming regulations may clarify certain aspects of the law such as how frequently harassment training must occur.  We will keep you updated when the regulations are issued.

In the meantime, employers should begin assessing their harassment policies and training programs.  Employers should also review settlement agreements and employment agreements for compliance with the law.

Volvo Group North America, LLC will pay $70,000 and institute a three-year consent decree to resolve a federal disability discrimination suit brought by the U.S. Equal Opportunity Employment Commission (EEOC).

According to the suit, Volvo made a conditional job offer to a qualified applicant for a laborer position at its Hagerstown, Maryland facility.  The applicant, a recovering drug addict enrolled in a supervised medication-assisted treatment program, disclosed during his post-offer physical that he was taking medically prescribed suboxone.  When he arrived for his first day of work, a human resources representative told the applicant that Volvo could not hire him because of his suboxone use, the EEOC said.

The EEOC filed suit (EEOC v. Volvo Group North America, LLC, Civil Action No. 1:17-cv-02889) alleging that Volvo violated Americans with Disabilities Act by failing to conduct an individualized assessment to determine what effect, if any, the suboxone had on the applicant’s ability to perform the job.

In addition to the $70,000 in monetary relief to the applicant, the consent decree prohibits Volvo from violating the ADA in the future. Additionally, Volvo will distribute to all employees at its Hagerstown facility an ADA policy explaining the right to a reasonable accommodation and will amend its policy on post-offer medical and drug evaluations to explain how it will assess whether an employee’s or applicant’s lawful use of prescription medication poses a threat under the ADA.  Volvo will also provide ADA training, report to the EEOC about its handling of future complaints of disability discrimination, and post a notice regarding the settlement.

 

This case is a good reminder to employers that the ADA protects recovering addicts who are not currently using illegal drugs and prohibits discrimination on the basis of past drug addiction. Of course, employers are allowed to hold such individuals to the performance standards applicable to their jobs, may prohibit the use of illegal drugs in the workplace, and may require that employees not be under the influence of illegal drugs in the workplace.  However, recovering addicts prescribed medication as part of a treatment program are likely entitled to full ADA protection, including the right to a reasonable accommodation that does not cause undue hardship to the employer.  This means that employers cannot simply dismiss individuals in such a treatment program as unfit for employment.  Instead, employers should routinely review their policies regarding the use of prescribed medications to ensure compliance with the ADA.

 

Several recent New York City human rights law amendments in the past year have steadily increased worker protections applicable to New York City employers. As is no surprise, the mayor’s office recently adopted yet another new amendment passed by the New York City Council amending the New York City Human Rights Law (NYCHRL) effective October 15, 2018.

What is particularly noteworthy here are the administrative obligations placed on New York City employers under this new law. Once effective, New York City employers are required to engage in a “cooperative dialogue” when an employee requests a reasonable accommodation (whether for disability-related, religious, or other covered reasons) and to document that process. Employers with operations in New York City should be aware of these new changes and grow accustomed to their administrative burdens prior to the enactment’s effective date.

Under the NYCHRL, as most New York City employers are already aware, reasonable accommodations (such as workplace rule changes and unpaid leave) must generally be provided to employees for any covered reasons. The recent amendment expands upon this existing requirement, and requires employers to engage in a “cooperative dialogue” with an employee who requests a reasonable accommodation: (1) for religious needs; (2) due to a disability; (3) as a result of pregnancy, childbirth or a related medical condition; or (4) as a result of domestic violence, sex offenses or stalking. This is similar to already existing “interactive process” requirements commonly applied to disability accommodations.

However, the new amendment now explicitly requires such dialogues by law for all covered reasons found within the NYCHRL. Employers are specifically required to engage in a good faith written or oral conversation with the employee regarding the employee’s accommodation needs, potential accommodations (including alternatives to the accommodation proposed by the employee), and any difficulties that the proposed accommodations could pose for the employer. At the conclusion of this cooperative dialogue, the employer must provide the employee with a written final determination identifying any accommodation that was granted or denied.

That last part, involving required written determinations, is likely to be the most difficult issue for employers (from an administrative standpoint). While documenting accommodation requests is already a best practice, this amendment makes such documentation mandatory. Now, failure to provide a written determination will potentially constitute grounds for an unlawful discrimination finding. Moreover, it is unclear if this written determination requirement would apply to all accommodations, including the littlest and most mundane of accommodations granted in the workplace. For example, would a written determination be required for a request to attend a doctor’s appointment, to leave early for a migraine, or to take a religious holiday? Most likely the answer is “yes” as of now, and any failure to provide a determination could result in liability under the law.

If prior to the effective date additional guidance is issued by the New York City Commission on Human Rights that helps clarify or to mitigate the law, we will prepare a follow-up to this piece. Otherwise, employers should update their employee handbooks and leave policies accordingly, and begin training managers and human resources professionals to comply with these newest legal requirements in New York City.

On January 12, the Maryland General Assembly overrode Governor Larry Hogan’s veto and passed the Healthy Working Families Act. The Act will go into effect on February 11, 2018, unless the General Assembly passes legislation delaying its implementation.  Yesterday, one of the principal sponsors of the law did introduce legislation that would delay enforcement of the law until April 2018.  We will keep you posted on whether the implementation of the Act is delayed.

In the meantime, the Act requires Maryland businesses with at least 15 employees to offer paid sick and safe leave as well as requiring smaller businesses to provide unpaid sick and safe leave.

More specifically, the Act requires employers with at least 15 employees, regardless of whether those employees are seasonal, temporary, part-time, or full-time, to offer eligible employees the ability to earn up to 40 hours of paid leave a year.  The 40 hours can be awarded at the beginning of each year or accrued at a rate of one hour for every 30 hours worked.  Moreover, employees can carry over up to 40 hours of paid leave a year.  Employers can cap use of paid leave at 64 hours per year and are not required to pay out unused, accrued sick leave when an employee is terminated.  Employers with up to 14 employees must provide unpaid earned sick and safe leave under the same terms.

The paid leave can be used to: 1) care for the physical or mental health of the employee or a family member, including obtaining preventative care; 2) take maternity or paternity leave; or 3) obtain relief in response to domestic violence, stalking, or sexual assault of the employee or a family member.

There are some exceptions.  For example, the Act does not apply to workers who 1) regularly work less than 12 hours a week; 2) are under the age of 18; 3) are certain independent contractors; 4) are certain agricultural workers; or 5) work on an as-needed basis in the health and human services industry.  Additionally, there are exceptions for employers in the construction industry that are parties to collective bargaining agreements.

Additionally, employers may set some restrictions on the use of paid leave such as 1) only allowing the use of paid leave after an employee has worked 106 calendar days from the date of hire; 2) require up to seven days’ notice for foreseeable leave; and 3) implementing policies to prevent improper use.  Employers can also obtain verification regarding appropriate use of paid leave if it is used for more than two consecutive scheduled shifts or between the 107th and 120th calendar days of employment and the employee agreed to provide verification at the time of hire.

Employers are required to notify employees of their rights under the Act and to provide a written statement each pay period detailing the amount of earned leave available for use.  The Department of Labor, Licensing, and Regulation (DLLR) has been directed to create a model notice, but it is not clear when such notice will be available.

Next Steps for Employers

Employers should immediately review and revise their paid time off (PTO), sick, and other leave policies to ensure compliance with the Act.  At the same time, employers should monitor any action the General Assembly takes to delay implementation.  In the review and revision process, particular care should be given to:

  • Recordkeeping: employers must keep records regarding leave accrual and use for three years;
  • Notice: if DLLR does not issue a model notice before the implementation date, employers must create their own;
  • Payroll systems: employers must update payroll systems to report leave balances on pay stubs and meet the Act’s requirements;
  • Applicability: the Act applies to all part-time employees who do not fall into one of the exempt categories; and
  • Carryover: employers must allow employees to carry up to 40 hours of paid leave time over per year (subject to the 64 hour use limitation)

UPDATE (February 2, 2018): Today, the bill to delay the Act’s implementation received a favorable vote from the Maryland Senate Finance Committee and will move to the full Senate for a vote. The bill passed out of Committee with two important amendments that will benefit employers.

  • First, the Act would not take effect until July 1, 2018, rather than April 11, 2018, giving employers additional time to implement policies and procedures in compliance with the Act.
  • Second, leave accrual – currently slated to begin on February 11, 2018 – would also not begin until July 1. This should eliminate issues that would have arisen as leave accrued prior to employers being required to track it and in the absence of any regulations from the Department of Labor, Licensing, and Regulation.

The bill still has to pass both the Senate and the House of Delegates with a 3/5 vote if the Act’s implementation is to be delayed due to the bill’s designation as emergency legislation. The full Senate is expected to vote on the bill as early as Monday, February 5th.

UPDATE (February 8, 2018): The Senate passed the bill delaying the Act’s implementation, as amended, by a vote of 29-17.  The bill will now move to the House of Delegates for consideration where it will face an uphill battle due to the short time frame until the Act’s effective date.  Additionally, key legislators in the House have expressed opposition to delaying the Act’s implementation.

UPDATE (February 12, 2018): The Act is now in effect as the House of Delegates chose not to delay implementation.  A sample employee notice poster created by DLLR is here: http://www.dllr.maryland.gov/paidleave/paidleaveposter.pdf


Rachel Severance is an associate in the firm’s Labor and Employment Department, resident in its Washington D.C. office.

As of January 1, 2018, all New York employers, regardless of size, must offer paid family leave to their employees.  Hopefully, employers already have revised policies in anticipation of the law taking effect.

If employers have not revised handbooks or other policies, the law does not require employers to have a paid family leave policy.  However, the state is strongly suggesting that employers do so.

New York has a website devoted to Paid Family Leave that provides resources to employers.  They have also issued a guide that contains a sample handbook policy, which can be found here.

New York has also issued a fact sheet that outlines the basic responsibilities employers have under the law.

Employers with questions are encouraged to consult their labor counsel.