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Workplace Initiatives and Strategies for Employers

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Undoubtedly, 2019 has been a year of change for Illinois employers, as businesses grapple with new minimum wages, legalized cannabis use, and a bevy of other legislative updates. Those changes are expected to continue, as the state legislature recently passed a comprehensive new anti-harassment bill, which is currently awaiting Governor J.B. Pritzker’s signature. SB 75  includes several impactful provisions, some of which are outlined below. Yearly Sexual Harassment Training Requirements The bill requires all employers to provide annual sexual harassment prevention training. The Illinois Department of Human Rights (IDHR) will be tasked with developing a model training program…
New York City Adds “Sexual and Reproductive Health Decisions” as a Protected Class In December 2018 the New York City Council passed legislation adding “sexual and reproductive health decisions” to the list of protected classes under the City’s Human Rights Law. As NYC employers are already aware, the New York City Human Rights Law is the primary local law in NYC protecting individuals against discrimination and harassment on the basis of, among other things, their race, religion, gender, sexual orientation, caregiver status or national origin. In the words of the law’s sponsor, Council Member Jumaane D. Williams, the law’s purpose…
District of Columbia Council To Allow Some City Employees to Access Medical Marijuana (For Now) While the District of Columbia (D.C.) has had a medical marijuana program on its books since 2013, there has been some debate regarding whether or not city workers are allowed to participate in the program, even if they have a written recommendation from a physician. Since 2016, it has been up to individual city government agencies to decide whether or not their employees can participate in D.C.’s medical marijuana program.  This policy has led to disparate treatment of employees from one agency to another, even…
Does your parental leave or “bonding time” policy provide more time off to one gender over the other following the birth or adoption of a child? If so, it is time to revisit the policy as the Equal Employment Opportunity Commission (“EEOC”)–the federal agency tasked with enforcing workplace anti-discrimination laws–is actively pursuing policies that are not gender-neutral but instead provides more parental leave to women compared to men. Many companies offer “two-tiered” types of leave policies, where the birth mother is entitled to more “bonding time” or parental leave than the father. Other policies sometimes distinguish between a “primary” and…
On June 5, 2019, Nevada became the first state to make it unlawful for employers to reject job applicants who test positive for cannabis. The new law will go into effect on January 1, 2020 and fits with existing Nevada law, which already prohibits employers from discriminating against employees who lawfully use “products” outside of the work premises which do not adversely affect job performance or the safety of other employees. However, there are exceptions for certain jobs and employers can still require that employees not engage in cannabis use while on-the-job. Nevada is one of nine states that have…
Maryland recently joined the growing number of states to enact laws that restrict the use of noncompete agreements for low wage employees with the passage of Senate Bill 328. A noncompete agreement is a contract executed between an employee and employer that typically states the employee is prohibited from working for a direct or indirect competitor of the company for a certain period of time, or within a certain geographic area, after the termination of employment. On May 28, 2019, the Noncompete and Conflict of Interest Clauses Act went became law and it will go into effect on October…
Last week, the Illinois legislature passed a landmark bill authorizing recreational marijuana. Shortly thereafter, Governor J.B. Pritzker tweeted that he looks forward to signing the bill into law. The bill, formally known as the Cannabis Regulation and Tax Act (the “Act”), will make it legal under state law for adults 21 and older to purchase and possess limited amounts of cannabis, beginning on January 1, 2020. As with the majority of state cannabis legislation, this bill also contains specific language that Illinois employers should review in order to understand their obligations under the new law.  While the legalization and regulation…
The U.S. Supreme Court recently issued a decision limiting the time in which employers can raise certain defenses to claims brought under Title VII. In Fort Bend County, Texas v. Davis, the plaintiff, Lois Davis, was an employee of Fort Bend County, Texas. In 2010, she filed an EEOC charge against Fort Bend, alleging retaliation, after she had reported sexual harassment in the workplace. While the charge was pending, Davis was fired for failing to report to work on a Sunday, when she was at a church event. In an effort to supplement her pending EEOC charge, Davis wrote “religion”…
DC Circuit Clarifies Employer’s Burden to Demonstrate A “Legitimate, Nondiscriminatory Reason” For Taking an Adverse Employment Action WHAT HAPPENED: Earlier this month the U.S. Court of Appeals for the DC Circuit released an important decision that articulates the substantive burden an employer faces to defend against an allegation of disparate treatment discrimination. The case, Figueroa v. Pompeo, articulates a more stringent view of an employer’s burden in litigation than many courts have applied, and highlights the importance of detailed fact collection, preservation and  record keeping to avoid liability. No. 1:16-cv-649 (D.C. Cir. May 10, 2019). Disparate treatment discrimination is the…
Uber drivers are “independent contractors” and not “employees” under the National Labor Relations Act (“NLRA”), according to an Advice Memorandum issued on May 14, 2019, by the Office of the General Counsel (“OGC”) of the National Labor Relations Board (“NLRB”).  Acknowledging the virtually unfettered control Uber drivers’ have over their cars, work schedules, and log-in locations, as well as their freedom to work for Uber’s competitors, the OGC determined that such autonomy provides the drivers with significant entrepreneurial opportunity, making them independent contractors. Three separate unfair labor practice charges had been filed with the NLRB by UberX and UberBLACK drivers,…
In an opinion letter released on April 29, 2019 the Department of Labor Wage and Hour Division (WHD) provided guidance on the standards for establishing an employment relationship in today’s modern gig economy. In doing so, the WHD took a narrow view, and found that digital platforms that connect individual service providers to customers are better characterized as “referral services,” than employers. The letter addressed a question posed by an unnamed internet/smartphone gig economy platform, which, by the description, calls to mind companies like Uber, TaskRabbit and Care.com. The question the WHD sought to answer was whether the service providers…
On Wednesday, April 24, 2019, the U.S. Supreme Court struck another blow to employees who seek to arbitrate class claims against their employer under employment arbitration agreements.  In a 5-4 decision, the Court ruled that class arbitration should not be allowed unless the arbitration agreement clearly authorizes class claims.  This case stems from a 2016 phishing attack against Lamps Plus, Inc., which resulted in the theft of employee tax and income statements. Frank Varela, a Lamps Plus employee, filed suit in federal court on behalf of himself and a putative class of approximately 1,300 employees, alleging that Lamps Plus failed…
Most New York employers know about the state’s election leave law, but may have never thought much about it since hanging the required poster in the break or copy room. However, new changes passed by the state legislature will require employers to give this law their attention soon, and that poster will need an update. Under the prior version of N.Y. Election Law 3-110, employees registered to vote had a right to “up to two hours” of paid time off to vote, if the employee did not have “sufficient time” outside of the working hours to make it to the…
A federal judge in the Eastern District of Pennsylvania dismissed a lawsuit last week where a former employee alleged that she was fired because she was a lesbian, in violation of Title VII of the Civil Rights Act. The judge dismissed the case by upholding Third Circuit precedent (to which Pennsylvania federal courts are bound) from 2001 holding that Title VII does not protect employees because of their sexual orientation. The case is Doe v. Parx Casino, Case No. 2:18-cv-05289 The Case In her complaint, the former employee who was a table dealer at Parx Casino, alleged numerous instances of…
On April 9, 2019, the New York City Council approved a bill which will prohibit employers from testing prospective employees for marijuana in a pre-employment drug test. While there are exceptions in the bill for safety sensitive positions and other specific types of employment, this bill demonstrates a change in pre-employment drug testing in New York City and employers should take note. The bill is expected to be signed into law by Mayor DeBlasio imminently.  The language in the bill specifically prohibits employers, labor organizations, and employment agencies from requiring a “prospective employee to submit to testing for the presence…
On March 28, 2019, the General Assembly overrode the gubernatorial veto to enact the Minimum Wage Act, which raises Maryland’s minimum hourly wage to $15.00 by 2025. Maryland now becomes the sixth state to enact a $15.00 hourly minimum wage. It is estimated that around 570,000 Maryland workers (about 22 percent of the state’s workforce) will receive a raise under the new law. The annual raises in minimum wage are: January 1, 2020: $11.00/hour January 1, 2021: $11.75/hour January 1, 2022: $12.50/hour January 1, 2023: $13.25/hour January 1, 2024: $14.00/hour January 1, 2025: $15.00/hour For “small employers,” the minimum wage…