New York City is poised to become the largest city in the nation to ban discrimination on the basis of a person’s height or weight.

Earlier this month, the New York City Council passed Bill INT 0209, new legislation that would add “height” and “weight” to the list of classes protected under the New York City Human Rights Law. If the mayor signs or takes no action, the bill becomes law and will take effect 180 days thereafter.

Currently, there are a number of jurisdictions with similar laws banning height and weight discrimination, including Michigan state, Washington State, Washington D.C., San Francisco and a handful of other smaller jurisdictions.  Potentially marking a trend, lawmakers in New York State, New Jersey, and Massachusetts have also eyed similar legislation.  

Here’s what New York City employers need to know about this likely new law:

  1. The law would not apply when the employer’s action is required by federal, state, or local law or regulation.
  2. The law empowers the NYC Commission on Human Rights to establish jobs or categories of jobs for which (a) a person’s height or weight could prevent the performance of the essential requisites of the job, and (b) the Commission has not found an alternative action an employer could reasonably take to allow the person to perform those requisites. Similarly, the Commission may identify jobs or categories of jobs for which consideration of height and weight is reasonably necessary for the execution of the normal operations of the jobs.
  3. Finally, the law offers employers an affirmative defense. Employers may consider height and weight if they can demonstrate that these characteristics are essential qualifications for performing the job.

What should employers do to prepare?

Continue Reading Height and Weight Set to Become Protected Classes in New York City

2023 is in full swing. While everyone is abuzz about ChatGPT taking over the world, a newly divided Congress is finding its sea legs and state capitols are eyeing new regulations. Agencies and courts have taken up hot-button labor and employment matters, from noncompetes to biometric privacy. And not to be left out, the NLRB and the FTC have taken aim at employment contracts and severance agreements.

What will this all mean for employers? There are challenges for sure, but with planning they are manageable. We take a look at the top trends that will shape labor and employment law in the months to come.

DISCRIMINATION AND EEO ISSUES

More enforcement

Given trends from last year and public messaging from top enforcers, we anticipate an increase in harassment and discrimination litigation, particularly for class-based claims.

In its recently released 2022 Financial Report, the EEO signaled its plan to strengthen enforcement around systemic discrimination. The Agency heralded several victories including obtaining $29.7 million in monetary benefits for victims and collecting over $28 million in damages from 10 lawsuits asserting systemic discrimination last year. Enforcers also recovered a combined $403 million from the Agency’s top 10 settlements of 2022 (nearly doubling rates from the previous year). Highlights include an $18 million settlement with Activision Blizzard over sexual harassment and pregnancy-bias claims and $8 million from Circle K stores over disability and pregnancy discrimination issues.

Even more, the EEOC’s enforcement hike has considerable support from the White House. The President’s proposed budget requests $481 million for the EEOC – a 5.7% increase over its 2023 allocations. While this money is unlikely to materialize in full, it does underscore the growing political support for anti-discrimination and harassment enforcement.

Continue Reading Employment Laws Shaping 2023

Two momentous decisions regarding the Illinois Biometric Information Privacy Act (BIPA) recently came down from the Illinois Supreme Court. First, the Court recently ruled in Cothron v. White Castle System Inc. that a BIPA violation occurs with every scan or transmission of biometric data, i.e. a new violation accrues every time an employee uses a biometric time clock, potentially several times per work shift. Many BIPA cases have previously been resolved on the premise that an individual could only accrue one BIPA violation and the damages would be limited to the first time a biometric marker is collected in violation of the statute. Going forward, however, the law of the land has changed and the potential damages are exponentially higher.

Continue Reading BIPA Becomes the Monster Employers Feared

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Thursday, February 2, 2023 at 12:30pm ET

The Federal Trade Commission’s (“FTC”) proposed rule banning the use of non-competes with employees and workers could regulate almost all employers in the nation. If this proposal becomes final it could also prohibit non-disclosure, non-solicitation, and non-recruitment agreements that prevent employees from jumping to rivals.  

Join Kelley Drye in

The FTC’s proposal to ban noncompete clauses is vulnerable to challenge. Kelley Drye’s Antitrust and Competition attorneys (who are also former FTC officials) share their thoughts on the most significant concerns. Read more on the agency’s authority to propose this ban, how to engage in the rulemaking, and what challenges we’re likely to see in

When the FTC proposes a rule that could regulate nearly every employer in the nation, we take notice. In this second installment of our series on the FTC’s proposed rule to ban noncompete agreements, we provide a pragmatic look at the road ahead.

What has the FTC actually proposed? How can individual firms and industry groups alike weigh in on one of the most substantial regulatory actions facing employers right now? And what should businesses do to prepare? Here’s your deep dive. 

Continue Reading FTC Insights: How Employers Can Prepare for a World Without Noncompetes

On January 5, 2023, the Federal Trade Commission announced a sweeping proposal to regulate virtually every labor and service relationship in the United States, and make it more lucrative for people to quit. leave their current jobs by removing the enforceability of non-compete clauses. If a final rule emerges from this proposal, virtually every employer

In a notable victory for the #MeToo movement, President Biden recently signed the “Speak Out Act” into law. It became effective December 7, 2022.

This bipartisan legislation targets and effectively prohibits the use of pre-dispute nondisclosure agreements, which would cover claims of sexual harassment or assault in the workplace. The law only prohibits enforcement of pre-dispute agreements, which means employers can still utilize NDAs in post-dispute agreements, such as settlements.

Many states, like New York, have already passed laws restricting the use of NDA’s in settlement agreements, so depending on the state where you are located, this may not be a major change. But for employment attorneys and HR professionals, this should be a signal to review all new employment contracts. In a broader sense, you may have to revisit how your company responds to workplace sexual harassment and assault allegations now that it has become more difficult to quietly resolve.     

Here’s what you need to know:

What does the Speak Out Act do, exactly?

Under the Act:   

  • Any agreement to keep the details of any future sexual harassment or assault dispute confidential is unenforceable. This applies to all employment contracts: past, present, or future.
  • Any prospective nondisparagement clause that purports to limit an employee’s ability to speak out about sexual harassment or assault is also unenforceable.
  • Trade secrets and proprietary information are explicitly protected under the law and employers may use NDAs to safeguard this information.
  • States may continue to enforce laws that are more protective of an employee’s right to speak publicly about sexual assault and harassment.

Throughout the #MeToo era, NDAs have come under fire for preventing victims from speaking publicly but remain commonly used in hiring, promotion, and severance contracts. In fact, approximately one third of workers have signed broader agreements not to disparage their employers or disclose details of their employment.

Despite its seemingly clear purpose, the Act’s ambiguities are likely fodder for future court challenges. For instance, the law targets only “pre-dispute” agreements but does not define the term. This means courts may interpret a “dispute” to include a narrow set of actions (such as a formal complaint or even litigation) or broader swath (say an informal HR complaint).

Also, the law does not specify what a company must do to address existing employment agreements which may contain clauses that violate the new law.  We would advise leaving those agreements in place, as trying to get new agreements signed again could be impossible. Just be aware that a requirement of an NDA could be unenforceable.

The Act also looks to other federal, tribal, or state law in defining the terms “sexual assault” and “sexual harassment. ” Notably, in 2020, the Supreme Court interpreted Title VII’s sex protections to include protection against discrimination based sexual orientation and gender identity. The scope of these definitions may be contended.  And while the law does not prohibit the use of NDAs in other contexts, such racial bias or disability, discrimination claims are often intersectional and contain several allegations. For now, employers may be wise to interpret the Act broadly.

How does this compare to state law trends?

The federal law creates a floor, not a ceiling. More than a dozen states have already passed legislation limiting employee NDAs, including California and New York.  

California: California has severely limited NDA enforcement for all forms of workplace harassment and discrimination.  The state prohibits confidentiality agreements as a condition of employment that prevent an employee from disclosing most unlawful workplace conduct. And unlike the federal law, California’s law also bans confidentiality provisions in settlement agreements that prohibit an employee from discussing the underlying facts of the case. Agreements to protect the worker’s identity or safeguard the amount paid are permitted. Again, California law applies to all forms of harassment and discrimination, including sex, religion, color, national origin, disability, familial status, gender, age and others.

New York: The Empire State has similarly outlawed agreements that prevent the employee from disclosing the underlying facts and circumstances related to an employment discrimination claim. Like California, the legislation originally applied only to sex discrimination, but was expanded in subsequent iterations. New York lawmakers have also introduced legislation that would ban most NDA and nondisparagement clauses that prevent disclosure of harassment or discrimination in employment contracts.  

What should employers do now?

The Speak Out Act is hardly the first of its kind. Last March, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, prohibiting enforcement of any pre-dispute arbitration agreement in these types of cases. With these trends in federal and state law, employers must take action:

  • Update your new employment contracts. While the law does not prohibit broad agreements full-stop, HR departments should review new agreements and ‘form’ agreements, to ensure they will withstand legal scrutiny. You do not need to change or try to get existing agreements signed anew.  Just be aware that a requirement of an NDA is likely not enforceable.  
  • Refresh your training materials and HR response policies. Ensure your company’s response is in compliance with federal and state laws. This includes training supervisors and updating company policies.
  • Consult counsel. Speak with an attorney if you have any questions about this new federal law or your obligations under state law.

We’re monitoring employment law trends on Capitol Hill and across the nation. Subscribe to stay up-to-date with the legal developments that will most impact your company in the months to come.

Continue Reading The Fall of the NDA: Compliance and Litigation Following the Speak Out Act

The Illinois Biometric Information Privacy Act (BIPA) has been on the books as one of the nation’s most protective biometric privacy statutes since 2008. It was also one of the first to give individuals a cause of action for monetary damages against individuals or companies that violate the law. For the first time in the Act’s 14 year history, however, a case has been tried before a jury to a verdict. The Rogers v. BNSF trial recently wrapped up in the U.S. District Court for the Northern District of Illinois, with Judge Matthew Kennelly presiding and the $228 million verdict stunning, but not surprising, many who have been following BIPA developments.

Despite BIPA’s relatively maturity, basic questions still remain as to the scope of the statute. Most pressingly, the applicable statute of limitations for violations of the Act (how many years a plaintiff has to file a lawsuit after a violation), and the number of BIPA violations that may accrue have not been decided.
Continue Reading BIPA Goes on Trial

The NYC Pay Transparency Law will go into effect this week. Starting November 1, 2022, employers with four or more employees advertising jobs in NYC must include the minimum and maximum salary that the employer believes in good faith at the time of the posting they are willing to pay for the advertised job, promotion, or transfer opportunity.

Employers can access the City’s most recent and complete guidance here, but below are a few highlights:

  • Employers should comply with the new requirements when advertising for positions that can or will be performed, in whole or in part, in NYC, whether from an office, in the field, or remotely from the employee’s home.
  • “Good faith” means the salary range the employer honestly believes at the time they are listing the job advertisement that they are willing to pay the successful applicant(s).
  • Salary includes the base annual or hourly wage or rate of pay, regardless of the frequency of payment, and does not include other forms of compensation or benefits (e.g., health insurance, severance pay, or 401(k)).
  • An “advertisement” is a written description of an available job, promotion, or transfer opportunity, regardless of the medium by which the description is disseminated (e.g., internal bulletin boards, internet ads, printed flyers).


Continue Reading Compliance Reminder – NYC Pay Transparency Law Takes Effect November 1, 2022