With the crowd’s chant of “equal pay” echoing at the Women’s World Cup soccer match and again as the champions float down the Canyon of Heroes, the issue of pay equality continues to be in the spotlight, and the New York legislature has jumped onto this moving train.

In addition to passing a powerhouse bill that strengthens protections for workers who claim workplace harassment, New York recently passed two pay equity bills that expand protections for current employees and job applicants.

Now, more than ever, employers in New York State should pay close attention to this rapidly changing legal landscape.

Continue Reading They Work Hard for Their Money, So You Better Pay Them Right– Governor Cuomo Signs Historic Pay Equity Legislation

Please join Kelley Drye’s Labor and Employment team for a virtual WORKing Lunch, a webinar series focused on bringing you the latest trends and developments in workplace law. If you or a colleague are interested in receiving an invitation to any of the webinars, please contact marketing@kelleydrye.com.

This webinar series is designed to provide in-house counsel, management and HR professionals with trends and developments related to workplace law. We can provide CLE, SHRM and HRCI credit if desired.

New York’s Groundbreaking Sexual Harassment Legislation
Date: Tuesday, July 16, 2019
Time: 12:30 pm ET | 11:30 am CT

The sexual harassment foundation you have known for 30 years – and upon which all your in-house training, HR policies, and legal and HR instincts are built – has just been neatly demolished with NY’s new sexual harassment bill. Find out what it means for employers.

Continue Reading WORKing Lunch: Kelley Dyre’s L&E Webinar Series

On June 25, 2019, Governor Jay B. Pritzker signed the Cannabis Regulation and Tax Act (HR1438) (“Cannabis Act”) into law. When the law goes into effect on January 1, 2020, Illinois will be the second largest state (after California) to allow the use and possession of recreational cannabis for all citizens over age 21. Notably, Illinois is the first state to legalize recreational cannabis use through legislative action, rather than ballot initiative.
Businesses in Illinois should have one simple question in mind: what can we do about drug testing now that employees have the right to use cannabis under state law? Can these employers still prohibit their employees from using cannabis when they are at work? Can these employers still prohibit their employees from partaking in cannabis when they are not at work?
The answer is, of course, it depends. Unfortunately, the Cannabis Act provides conflicting language on precisely what employers can do in terms of drug testing for employees.

Continue Reading Legalized Marijuana in Illinois: The Basics for Employers

As we reported on June 21, New York blew the lid off 30 years of sexual harassment and discrimination law by passing legislation that, among other things, bars mandatory arbitration of all claims of discrimination. That earthquake was followed by a substantial aftershock: according to a federal court, that provision of the state law doesn’t square with federal law, which specifically permits arbitration of these claims.

This latest monkey-wrench was thrown into the gears just last week by federal district court Judge Denise Cote when she held that New York’s arbitration law prohibiting arbitration of sexual harassment claims (effective as of July 2018 and reported on by this blog last year) is preempted by the Federal Arbitration Act (“FAA”), and is therefore invalid. This is the first case deciding the merits of this arbitration exclusion. And although Judge Cote didn’t formally rule on the more general, brand-new bar on arbitration of all discrimination claims (harassment or not), she observed in a footnote that the more general bar suffers from the same problem and is probably preempted by federal law, too.

This decision will likely result in a failure-to-launch of the arbitration prohibitions in this latest round of legislation. But for now, here’s the unsettling message for employers navigating the ever-shifting landscape of discrimination law obligations: the new provisions of New York law barring mandatory arbitration of all employment discrimination claims will be struck down, but for the time being, you can’t count on it.

Continue Reading Not So Fast: Southern District of New York Holds Federal Law Pre-Empts State Sexual Harassment Arbitration Law

Clichés like “seismic shift” and “paradigm change” do not begin to describe just how profoundly the New York legislature changed the standards for harassment claims in a bill passed June 19. HR professionals and employers beware: the sexual harassment foundation you have known for 30 years—and upon which all your in-house training, HR policies, and legal and HR instincts are built—has just been neatly demolished. Here’s why:

A Critical Bit of History

Boring history lesson now ensues (but will make you sound smart when you tell your HR and management colleagues about it):

Everybody knows that Title VII of the Civil Rights Act of 1964—the basic model for all state employment discrimination statutes—makes it unlawful to discriminate against employees on the basis of a number of protected characteristics, including “sex.” In 1964, and for a couple of decades after that, “discrimination” meant the big employment decisions: you couldn’t refuse to hire, fail to promote, or fire somebody because she was, say, a woman, or black, or a Baptist. Under the original conception of Title VII, those were the tangible, serious “adverse employment actions” that violated the law—that is, anything that involved getting a job, losing a job, getting promoted or paid on that job, etc. The big stuff only.

Continue Reading Read This Now: New York’s Groundbreaking Sexual Harassment Legislation

Ah, summer: less-demanding schedules, lighter workloads, and a more relaxed work wardrobe. In keeping with the professional reputation of lawyers as killjoys, however, we recommend that HR professionals act more like Aesop’s ants—using the summer to prepare for fall—than the grasshopper, who was so busy partying that he failed to prepare at all. So listen, Grasshopper: savvy HR leaders know to use their summer downtime to set themselves up for success when we all go “back to school.”

Here are seven suggestions of what New York HR professionals can get ahead of over the summer:

1. Coordinate Sexual Harassment Prevention Training – Under New York State law, all employers must provide annual sexual harassment prevention training that satisfies the State’s training requirements by October 9, 2019 (NYC has its own requirements, as we describe here). An employer can satisfy these requirements by either adopting the State’s model training documents or by providing live or interactive online/video training which meets or exceeds the State’s minimum standards. With a mid-fall deadline quickly approaching, summer is the perfect time to think about, and possibly complete, your workforce’s first annual training.

Continue Reading Seven Ways Savvy HR Leaders in New York Are Spending Their Summers

On June 2, 2019, the Illinois General Assembly passed SB75, a legislative response to the #MeToo movement. Governor J. B. Pritzker is expected to sign SB75 soon, as it aligns with his campaign promise to tackle sexual harassment.

SB75 creates three laws and amends a number of others to increase protection for employees in Illinois who are victims of sexual harassment, sexual assault, sexual violence, and domestic and gender-based violence. Employers should be aware of the following highlights:

Continue Reading Illinois Tackles Sexual Harassment

On Monday May 6, 2019, a Florida federal judge denied a strip club’s bid for sanctions against an exotic dancer and her lawyer who filed a so-called “cookie-cutter” Fair Labor Standards Act lawsuit, depriving the strip club of the chance to recoup.

The next day, on Tuesday, May 7, 2019, a Texas state jury awarded a plaintiff $80 million – of which $75,000,000 was in punitive damages – to a truck driver who fell asleep and crashed behind the wheel, when his supervisors forced him to alter his log book and drive without the required amount of rest.

What could these two cases possibly have in common? Both impart the same basic lesson: adherence to good record-keeping practices can save employers money.

Continue Reading The Importance of Record-Keeping: Lessons from an Exotic Dancer and Truck Driver

If you’re waiting for a reversal of the trend at the Supreme Court to limit employers’ ability to insist on arbitration instead of litigation, or of the trend limiting class claims, keep waiting.

The Supreme Court continues to limit the ability of employees to pursue class arbitration against their employers. The latest salvo—the Court’s decision in Lamps Plus, Inc. v. Varela—comes on the heels of last year’s Epic Systems Corp. v. Lewis, which found that class action waivers in individual arbitration agreements between employers and employees are enforceable. Taking the next natural step in limiting class actions, Lamps Plus now requires arbitration agreements to specifically permit class claims; if an arbitration agreement leaves the issue unaddressed, no class claim is available at all.

Continue Reading Going It Alone: The Supreme Court Continues to Limit Class Arbitration for Employees

This is an update to our March 28th post – EEO-1 Reporting Requirements Become More Onerous . . . Maybe.

Employers with 100 or more employees, and federal contractors with 50 or more employees, have until September 30, 2019 to file EEO-1 Component 2 pay data for calendar years 2017 and 2018 with the Equal Employment Opportunity Commission (“EEOC”). Component 1 demographic data, which includes identification of the number of employees by race, ethnicity, and sex, is still due to the EEOC on May 31, 2019. Employers may request a two week extension to submit Component 1 data.

In her Order, Judge Chutkan ordered the EEOC to notify filers via its website that the 2018 calendar year pay data collection must be submitted no later than September 30, 2019. The Court also gave the EEOC the option to either 1) collect Component 2 EEO-1 pay data for calendar year 2017, or 2) collect Component 2 EEO-1 data for 2019 during the 2020 EEOC reporting period. On May 2, 2019, the EEOC stated that it will collect both 2017 and 2018 pay data from employers. Both calendar years of data must be submitted to the EEOC by September 30, 2019. The EEOC stated that it expects to begin collecting 2017 and 2018 Component 2 data in mid-July, 2019, though it did not specify the exact date.

Judge Chutkan’s Order, as well as the EEOC’s update, resolves any ambiguity regarding the reporting deadlines. The EEOC has always required employers with 100 or more employees to submit annual reports, known as “EEO-1” submissions, to the Commission. These reports are required to include data concerning the number of employees the company employs based on gender, race, and ethnicity. At two pages long, they were relatively straightforward and the data fairly easy to submit.