As we close the books on 2019, and enter the new decade, New York employers should keep a list of all new legislation handy. Below is our brief summary of legislation effective 2020.

New York State Human Rights Law (NYSHRL)

In August 2019, Governor Cuomo signed groundbreaking legislation amending the NYSHRL, which we covered.  Several pieces of the law will become effective in the upcoming months, including the following:

  • January 1, 2020: Settlement agreements cannot bar individuals from speaking to an attorney, the New York State Division of Human Rights, the EEOC, local human rights commissions, or any other form of law enforcement.
  • February 8, 2020: NYSHRL will be applicable to employers of all sizes who do business in the state.
  • August 12, 2020: Statute of limitations for filing sexual harassment claims with the State Division of Human rights will be expanded from one to three years.

Continue Reading New York: 2020—New Decade, New Laws

On December 17, 2019, the National Labor Relations Board issued two decisions which dramatically overturn a pair of hotly debated Obama-era rules.

The first sets down a rule allowing employers to limit an employee’s use of workplace email to workplace-related subjects – a measure of control which was forbidden to employers under the earlier rule.

The second presents a new standard which allows employers to lawfully ban employees from discussing ongoing workplace investigations – another standard that make eminent sense in today’s “Me Too” environment.

NLRB Strengthens Employer Control Over Company-Owned Email Systems

The first of these game-changing decisions is Caesar’s Entertainment Corp, which overturns the much debated Purple Communications decision, which had limited an employer’s control over its own email system.  Caesar’s Entertainment lifts this restriction by allowing employers to prohibit workers from using company-owned email systems for non-work-related purposes, including communications regarding union organization.

Caesar’s Entertainment reverses the controversial 2014 decision Purple Communications, Inc., 361 NLRB No. 126.  In Purple, the NLRB declared that an employer may not ban employees from using company-owned email for union organizing activities after-hours unless the employer can show that “special circumstances necessary to maintain production or discipline justify restricting its employees’ rights” to use email for union-related purposes.  Equating email communications with oral communications, the NLRB reasoned that email use deserves the same special protection against employer interference as employee union organization talk.  Purple thus limited an employer’s property right in the email systems it creates and maintains, while fashioning only a frustratingly vague exception for “special circumstances.”

Caesar’s Entertainment takes a much more reasonable approach, and restores to employers their right to exert reasonable control over how employees may use company email systems.  This new ruling does away with the presumption put in place by Purple that employees may use employer email for union-organizing activities unless an employer can show “special circumstances.”  In place of this presumption, Caesar’s allows employers to limit employee use of company email for non-work purposes generally, so long as the employer does not single out union-related activities or communications for proscription.

The standard laid out in Caesar’s is effectively the same as that in The Register Guard, 351 NLRB No. 70, the 2007 decision in place before Purple Communications upended the landscape.  There is certainly an argument that a return to the earlier standard is a practical and reasonable one for the modern workplace.  With the popularity and proliferation of social media and personal devices, employees have the opportunity and the means to communicate freely outside of an employer-owned email system.  Detractors may claim the opposite – that allowing employers to forbid employees from using company email for anything other than work-related communications is draconian and out of touch with current workplace usage.

Notably, for employers who have a workplace email usage policy, Caesar’s may also be an enforcement challenge. It the rare employee who has never sent around an email concerning after-work activities or scheduled a dentist appointment through a work email address.  In light of the Caesar’s Entertainment decision, employers instituting a partial or complete workplace email usage policy should verify that their policy complies with the new standard.

NLRB Says Employers May Lawfully Restrict Employee Discussion of Ongoing Workplace Investigations

The second significant NLRB reversal of December 17, 2019 comes in the form of a paradigm-shifting standard involving thrift-store operator Apogee Retail, 368 NLRB No. 144.  The Apogee decision institutes the new standard that employers may ban employees from discussing workplace investigations without violating the employees’ collective action rights.

This is another totally reasonable standard, which recognizes that confidentiality allows an investigation to proceed in an orderly manner, without being tainted by employee gossip.

The Apogee ruling upends another Obama-era decision, Banner Health System, which held that prohibiting workers from discussing ongoing workplace investigations was an unlawful infringement of workers’ rights.  The NLRB ruled that employers cannot institute comprehensive policies which forbid employees from discussing ongoing investigations.  The decision did allow for a bit of give, however, in that an employer is allowed to decide, on a case-by-case basis, whether the investigation requires employee confidentiality to uphold a legitimate business interest, such as protecting witnesses or preventing the spoliation of evidence.

In Apogee, the NLRB undertook a similar analysis by comparing workers’ rights to organize with employers’ interest in maintaining the confidentiality of workplace investigations.  In Apogee, the Board came out the other way.  It reasoned that banning employee discussions of ongoing investigations has little effect on the rights of workers, but serves to protect the privacy of employees involved, as well as maintain the integrity of the pending investigation.

The Board cautioned, however, that the benefits derived from restricting employees from discussing an investigation normally manifest only where the investigation is active and ongoing.  Therefore, policies which institute blanket bans on discussing workplace probes may still be likely unlawful.

Apogee Retail had policies in place requiring employees to “maintain confidentiality” surrounding workplace investigations and prohibiting employees from “unauthorized discussion” of these investigations.  The policies did not limit the bans to pending investigations.  While such widely applicable policies would almost certainly have been unlawful under the earlier Banner Health standard, the blanket ban adopted by Apogee Retail may not fare any better under the more relaxed standard recently laid down in Apogee.

Workplace investigations are already a fraught subject for both employers and employees.  Employers who impose confidentiality policies around workplace probes now face a changed landscape following the Apogee decision.

On October 13, 2019, California Governor Gavin Newsom signed into law Assembly Bill 51 (“AB 51”).  In a momentous upheaval of existing law, AB 51 prohibits California employers from requiring employees to agree to arbitrate certain disputes as a condition of new or continued employment.  AB 51 also prohibits employers from retaliating against any employee who refuses to agree to arbitration.  AB 51 takes effect January 1, 2020.

AB 51 is one of many bills to pass the desks of California governors since the beginning of the #MeToo movement.  This bill specifically forbids employers from requiring employees to “waive any right, forum, or procedure” for claims arising from the Labor Code or the California Fair Employment and Housing Act (“FEHA”), California’s principal statute outlawing employment and housing discrimination.  While AB 51 is a response to the #MeToo movement, and gained popularity as a measure aimed at bringing to light workplace sexual misconduct, AB 51’s reach is extensive, and touches any mandatory employment agreement which compels arbitration of any claim brought pursuant to the Labor Code or the FEHA.

Continue Reading California Employers Forbidden to Require Employees to Agree to Arbitrate Certain Disputes

In June 2019, the Illinois’ Cannabis Regulation and Tax Act (HR1438) (“Cannabis Act”) was signed into law, legalizing the use and possession of recreational cannabis for adults age 21 or older beginning January 1, 2020.  In a previous Labor Days blog post, we discussed the likely impact of this law on employers in Illinois.  In short, the Cannabis Act (1) permits employers to establish non-discriminatory, “reasonable zero tolerance or drug free workplace policies” that prohibit employees from using or being under the influence of cannabis at work, (2) allows employers to discipline employees for using or being under the influence of cannabis at work and for other violations of these “reasonable zero tolerance or drug free workplace policies,” and (3) insulates employers against liability for taking the aforementioned actions, as long as there existed a good faith basis for the employer to believe that the disciplined employee was under the influence of cannabis.  Cannabis Act at § 10-50.

Despite these provisions, the Cannabis Act, as originally enacted, left employers with several unanswered questions.  One of the key questions was whether employers would face liability for adverse employment actions based solely on a positive marijuana test, including refusing to hire a job applicant who tests positive for marijuana use.  The challenge with testing employees and prospective employees for marijuana use is that under Illinois’s Right to Privacy in the Workplace Act, an employer may not discriminate against an individual who uses “lawful products off the premises of the employer during nonworking and non-call hours.”  820 ILCS 55/5(a).  Adding to the confusion is the fact that the Right to Privacy in the Workplace Act referred back to the Cannabis Act’s provisions allowing employers to enforce reasonable drug-free workplace provisions.

Continue Reading Illinois Cannabis Law, Amended: What Employers Should Know

On Wednesday, December 4th, Barbara Hoey, Co-Chair of Kelley Drye’s Labor and Employment Practice and David Frulla, Chair of the firm’s Campaign Finance and Political Law Practice hosted a one hour webinar focused on best practices of handling all aspects of politics in the workplace. They reviewed federal and state rules regarding employees’ political activity and speech in the workplace, and compliance issues related to federal campaign finance laws when a company or its executives engage in political activity. Additional topics covered include:

  • Political statements on social media,
  • When talking politics can turn into discrimination and harassment,
  • Corporate partisan and non-partisan political communications,
  • Employee volunteer activity, and
  • Do’s and don’ts for executive fundraising.

To view a recording of the webinar, click here.

What’s happening at McDonald’s should serve as an important lesson for many employers.  In the past two weeks, it was reported that its CEO resigned or was terminated (depending on what news outlet you read) because he exercised “poor judgment” by having an affair with a subordinate.  McDonald’s is facing a brave new world without its CEO with the added expense and distraction of defending new and outstanding sexual harassment lawsuits. What lessons can be learned?

In my management training I have been very direct with executives – do not date people in your division or line of report.  Full stop.  I now have many clients who – like McDonald’s – have enacted polices that prohibit workplace romances.

Why are these policies good and why should you consider one?  Several reasons: workplace romance is often a distraction to the business; it takes up time; it causes resentment and jealousy, and it is simply bad for business.

Continue Reading It Starts at the Top

Date: Tuesday, October 8, 2019
Time: 12:30 pm ET | 11:30 am CT

Managing employee requests related to disabilities (actual, perceived or alleged) remains a trap for the unwary Human Resources department. Requests may involve leave for extended or unlimited periods of time, workplace changes and more. Employers must consider numerous laws, including the Family and Medical Leave Act, the Americans with Disabilities Act, and state and local counterparts. Know your legal obligations and reduce your risk.

RSVP HERE

So imagine that your biggest pothead friend from college has opened up a cannabis dispensary that sells weed for recreational use. Your old pal would be selling something that remains utterly unlawful under federal law, the recent and sweeping changes to state law notwithstanding. But two wrongs don’t make a right, according to the Tenth Circuit Court of Appeals:  if you’re going to sell something that federal law treats just like heroin, you’d at least better comply with federal wage and hour laws. Yes, cannabis sellers: thou shalt not rip off your employees for wages, even when they’re doing something illegal under federal law.

In its recent decision in Robert Kenney v. Helix TCS, Inc. (September 20, 2019), the Tenth Circuit affirmed the notion that an employer does not escape its responsibilities under federal law by virtue of its violations of other federal laws. Ergo:  a cannabis company cannot deem its employees exempt from the protections of the Fair Labor Standards Act (“FLSA”) solely on the basis that their job functions violate the Controlled Substances Act (“CSA”).

Continue Reading Federal Wage Laws Protect Cannabis Workers? Yes, They Do

The labor movement sent a powerful and potentially revolutionary signal to the tech industry this past week on September 24: contract employees of HCL Technologies, working under a renewable contract with Google, voted to unionize for better salaries, benefits, and working conditions. Nearly 80 contract HCL employees stationed in Google’s Pittsburgh office joined the United Steelworkers trade union, which represents more than 850,000 American employees across various industries. Significantly, this marked the first time contract tech workers have unionized in the United States in an industry that is almost entirely non-union.

The vote for union representation strikes at the heart of the business model used by companies like HCL, a multinational Indian IT services company. Although the HCL employees who have been contracted out to Pittsburgh work alongside Google employees in similar positions, they contend that they receive less favorable benefits and less compensation for their work than do those employed directly by Google. This is often the case for contract workers, who are heavily utilized in the technology industry thanks to the lower costs of employing them. But these same contract employees have historically been less inclined to unionize, fearing that their employers will respond by declining to renew their contracts when the time comes. Indeed, some HCL Technologies employees expressed this exact concern, recognizing the possibility that Google would decline to renew its contract with HCL as a result of Tuesday’s vote.

Continue Reading A Union Strikes a Revolutionary Blow in Tech

A Los Angeles jury awarded a black former UCLA phlebotomist nearly $1.6 million in damages for being subjected to racial harassment by co-workers. Birden v. The Regents of the University of California, No. BC6681389 (Los Angeles Superior Court May 30, 2017).

Birden, who worked at UCLA as a per diem phlebotomist for approximately one year, alleged that she was subjected to racial slurs and disparaging remarks by Latino co-workers who referred to her as “lazy,” a “dark woman,” and used the “N” word in her presence. Birden claims that she reported the harassment to her supervisors but the school did not take action.

In his opening statement at trial, the attorney for the UC Board of Regents described one of Birden’s co-workers as a “good guy,” claimed “[h]e wasn’t doing it to try to offend somebody” with the use of the “N” word and argued that Birden was fired because of a clear pattern of performance issues. Birden’s counsel argued that Birden had no disciplinary history and offered testimony of Birden’s strong work ethic.

Ultimately, the jury agreed that Birden was subjected to severe and pervasive harassment by her co-workers due to her race and awarded Birden (1) $500,000 for past emotional distress and mental harm, (2) $800,000 for future emotional distress and mental harm, (3) more than $190,000 for past economic loss and (4) more than $86,000 for future economic loss. However, the jury did reject Birden’s claim that she was terminated because of her race.

Continue Reading Employers’ Non-Action Resulted in $1.6 Million Awarded in Harassment Claim