Join Kelley Drye’s Labor and Employment team for the 2022 WORKing Lunch Series, which includes five webinars focused on the latest trends and developments in workplace law. Sign up for one, some, or all of the programs below. Invite a colleague, grab your lunch and let’s take a deep dive into these timely employment topics.
Tuesday, September 13, 2022 at 12:30pm ET
Concerning the ongoing assault on mandatory arbitration agreements, we recently blogged about the passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (P.L. 117-89), colloquially the “MeToo” law. The MeToo law formally amended the Federal Arbitration Act (“FAA”) to ban mandatory arbitration agreements for sexual assault and harassment claims. The MeToo law is “partially” retroactive: it bars mandatory arbitration of sexual harassment claims arising from conduct that occurred after the law went into effect, but not of claims where the alleged conduct occurred before the law’s passage.
On March 17, 2022, a mere two weeks after the MeToo Law’s passage, the U.S. House voted to advance the Forced Arbitration Injustice Repeal, or FAIR Act (H.R. 963), a bill which could effectively void all pre-dispute mandatory arbitration agreements in employment, antitrust, consumer and civil rights disputes as well prohibit waivers of joint, class, or collective action in such matters. So from an employment perspective, the FAIR Act, if enacted, would go far beyond the MeToo law’s prohibition against arbitration of sexual harassment claims—it would bar mandatory arbitration of all employment-related claims.
Continue Reading The FAIR Act: A New Bill Banning Mandatory Arbitration Agreements
President Biden just signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” known informally as the “Me Too” law. It becomes effective immediately, and amends the Federal Arbitration Act (FAA) to ban the mandatory arbitration of sexual assault and harassment claims.
What does the new law mean for the future of employment arbitration? Can employers still have any type of a mandatory arbitration program? The answers to these questions are not immediately obvious, but you can be assured that the Me Too Bill will make harassment claims more expensive and more complicated to resolve. It is also not a surety that the end of arbitration will be good for victims or potential plaintiffs.
What the law will mean for your business will depend on a number of factors, including where you are doing business (as mandatory arbitration is already prohibited in some states), and whether your company had a mandatory arbitration program in place for customers or employees. However, all businesses may see an uptick in harassment claims, as that often happens whenever there is a very public legal development in this area.
What does the Me Too law say?
The main provision of the law is short enough to reproduce here:
“[A]t the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispose arbitration agreement or predispose joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”
The terms “sexual assault dispute” and “sexual harassment dispute” are not confined to federal claims, but is any such claim as defined according to “applicable Federal, Tribal, or State law.”…
Continue Reading The End of Arbitration? What the “Me Too” Law Means for the Future of Employment Arbitration
The start of a new year is the time for annual retrospectives, predictions, and promises to get back into the gym. Although we can’t help with that last one, we wanted to take this opportunity to offer our own analysis on the state of employment law in 2021, and to see if we can predict the hot-button issues for the rest of 2022.
For now, the headline issue remains COVID. 2021 had seemed to offer a glimmer of hope that the pandemic was coming to an end, only for those hopes to be dashed by the virulent Delta and Omicron variants. Big cities like New York implemented sweeping vaccine mandates for businesses and customers, while some states and even the federal government issued more targeted mandates for healthcare workers and contractors. Earlier this year, we saw the Supreme Court issue two seemingly divergent rulings on vaccine mandates, eliminating President Biden’s requirement for employers with 100+ employees to mandate vaccination or masking for those in the workplace. Meanwhile, a New York judge in Nassau County struck down the state’s masking requirement for public spaces (the order is currently stayed pending appeal).
Employers are left with a hodgepodge of COVID-related rules and regulations depending on where they and their workers reside. New laws and lawsuits are inevitable, but they only amplify the collective wish for the pandemic to be extinguished—here’s hoping.
The onset of COVID-19 ushered in the remote-work revolution. But this phenomenon, coupled with the so-called “great resignation” has led to employers confronting some novel legal issues. When seeking to enforce a restrictive covenant against a former worker, which law applies? The question was a simpler one in the Before Times—back when it was obvious that the worker lived and worked in the same state as the employer. But now, a vague restrictive covenant might no longer apply to an employee who made a big move.
Even after confronting choice-of-law issues, expect to see more arguments over what restrictions are now viable in a world where an employee can work remotely for a competitor across the country just as easily as your competitor down the block.
Of course, these are just the issues exacerbated by the pandemic. As ever, restrictive covenants remain a thorny issue and fodder for frequent legislation. For instance, Oregon has passed a law making any restrictive covenant lasting for more than a year to be unenforceable. Expect a lot of activity in this area throughout 2022.
Continue Reading Top 5 Employment Law Trends for 2022
UPDATE: December 17, 2021
In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.
In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.
What is Long COVID and when is it a disability?
The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.
The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.
Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).…
Do you have 100 or more employees? Are you a federal government contractor? A healthcare provider? A large entertainment venue? If the answer to any of these questions is yes—and as you’ve already probably heard—President Biden has instructed the Occupational Health and Safety Administration (OSHA) to exercise its rulemaking authority to require all such employers to either mandate COVID-19 vaccination or to require weekly COVID-19 testing. You should review your current COVID-19 policies and President Biden’s COVID-19 Action Plan, particularly the new executive orders and mandates announced this past week, which cover about 100 million Americans, or two-thirds of the U.S. workforce.
For the moment, covered employers have to sit tight: Biden’s announcement last week was simply that OSHA will issue the new vaccination rule “in the coming weeks.” We will continue to update this blog on the many complicated issues arising from the anticipated OSHA rules, including how to comply with the rule when various Republican state governors and right-leaning interest groups have already promised litigation to challenge the rule from the moment the rule is implemented.
For now, however, here are the key takeaways for employers:
- Employers (100+ Employees): OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Given the practical challenges with implementing weekly testing, many employers may simply mandate vaccination to comply with this new rule—and many already have. What happens if they don’t? This requirement is to carry substantial fines to be enforced by OSHA. In addition to the mandate, OSHA is developing a rule that will require employers with 100+ employees to provide PTO for the time it takes workers to get vaccinated and to recover.
- Federal Workers & Contractors: The President also signed an Executive Order (EO) to require all federal executive branch workers and contractors that do business with the federal government to be vaccinated. This EO eliminates the exception to the July vaccination mandate for federal employees and contractors that allowed them to opt out if they wore masks, socially distanced, and were tested for COVID-19 at least weekly.
On August 24, 2021, Kathy Hochul was sworn in as the first female governor of New York, assuming office in the wake of the resignation of Andrew Cuomo. The former Governor, a once-powerhouse politician with a decade in the executive office, departed Albany in disgrace.
Cuomo did not leave office alone—at least four former senior aides and state officials have also resigned, as well as several prominent supporters who found themselves caught up in the scandal created by his conduct. That number does not include those who left their positions due to the harassment they allege to have faced. Hochul must now rebuild from the rubble left behind by her predecessor, as the leadership team in the executive branch, as well as those of prominent organizations throughout New York, have been left in disarray.
The allegations against Cuomo are voluminous, and range in severity from his usage of “pet names” to his inappropriate touching of female subordinates. The report concluded that beyond the Governor himself, “the Executive Chamber’s culture” was “filled with fear and intimidation, while at the same time normalize[ed] the Governor’s frequent flirtations and gender-based comments[.]”
Cuomo’s downfall was shocking on one level, as he was long seen (or wanted to be seen) as a champion of women’s rights. In fact, on August 12, 2019, he signed groundbreaking legislation establishing some of the strongest anti-harassment legislation in the country. However, it may not have shocked many who knew him, as the report commissioned by Attorney General Letitia James’ detailed years of questionable behavior and cover-ups by those around Cuomo.
Continue Reading Lessons From a Former Governor
As PRIDE month concludes, we look back at a historic year for the rights of LGBTQ+ employees, and ahead for what this means for employers as they manage their workforce.
Looking back, it was June 2020 when the Supreme Court held that discrimination on the basis of sexual orientation and transgender status constitutes unlawful sex discrimination under Title VII of the 1964 Civil Rights Act. We’ve discussed the landmark Bostock v. Clayton County decision in-depth before. Fast forward, one year later on Bostock’s first anniversary, the EEOC issued a slate of new resources to help employers comply with new LGBTQ+ protections.
According to Catalyst.org, members of the LGBTQ+ community still face high rates of discrimination in the workplace. At least 20 percent of LGBTQ+ employees report being discriminated against when applying for jobs and 52 percent report having been subjected to lesbian or gay jokes in the workplace.
Discrimination is bad for business, as it impacts employee retention. Nearly half of LGBTQ+ workers in the United States are closeted at work with 10 percent having left a job because of an intolerant environment. Meanwhile, 25 percent reported staying in a job because of an inclusive culture.
As discrimination in the workplace persists, so too do related lawsuits. In fact, before we were able to finalize this short blog, two new cases hit the press. One involved a former Boeing contractor’s suit against a staffing agency claiming she was fired for being a transgender woman. The other involved a former Iowa Democratic official’s suit against the state’s prior Republican governor alleging the governor cut his salary and urged him to resign because he was gay. Without commenting on those claims, no employer wants to be in that headline.
So how do you avoid being in the headlines? Start by knowing the law. Here’s what you need to know about the new EEOC guidance:…
Continue Reading Pride at Work: What Employers Need to Know about LGBTQ+ Rights
Tuesday, June 22nd at 12:30pm ET
A company’s confidential information and customer relationships are its lifeblood—and are the assets that can walk out the door too easily with a departing employee. Too few companies take a considered approach to protecting those assets. NDAs…
Employers have been waiting for some definitive guidance from the EEOC on the issue of vaccines in the workplace – and here it is!
On May 28, the EEOC updated its Technical Assistance Guidance and has now stated with certainty that employers CAN indeed require employees to be vaccinated before coming in to the office or workplace. The updated guidance also addresses accommodations for the vaccinated, vaccine incentives, and vaccines for pregnant employees, among other questions. However, since this was drafted before the CDC came out with its latest guidance, it does not specifically address all issues related to the handling of unvaccinated and vaccinated employees in the workplace.
Below are some key points of the new guidance:
Mandatory Vaccination is Lawful, But Accommodations Must Be Offered
Even though many employers have opted against mandatory vaccination for their employees, the EEOC made clear that they can, in fact, mandate vaccinations for those who want to report to work. The key for employers, however, is they must engage in the interactive process and provide reasonable accommodations under the ADA and Title VII, for eligible employees seeking an exception to the mandate.
The EEOC offers some examples of possible accommodations, most of which are no surprise, such as allowing unvaccinated employee to wear a face mask, maintaining social distance from others, working a modified shift, periodic COVID-19 testing, being allowed to telework or, as a last resort, reassignment to another position.
Continue Reading The EEOC’s Latest Guidance on COVID Vaccine