While the rest of the country was celebrating with fireworks, last week California celebrated the Fourth of July with Governor Newsom signing the CROWN Act (Creating a Respectful and Open Workplace For Natural Hair) into law. It had already passed unanimously in the California Assembly and Senate. The Act prohibits the enforcement of dress codes or grooming policies in the workplace or K-12 schools that disproportionally affect people of color, in particular black people. The prohibition includes hairstyles such as afros, braids, twists, and dreadlocks.

The bill was introduced earlier this year by Los Angeles Democrat, Senator Holly Mitchell. Senator Mitchell was spurred to action after a black woman from Alabama brought her case to the U.S. Supreme Court in 2018 after she lost a job offer allegedly due to her refusal to cut her dreadlocks. Also gaining national attention last year was a New Jersey high school wrestler who was forced to cut his dreadlocks or forfeit his match.

The impetus behind the bill was to allow for a respectful and open workplace or school environment, irrespective of hairstyle. It also challenges what defines “professionalism” in the workplace.

In February, New York City passed a similar law protecting employee’s rights to have hairstyles that are connected with racial, ethnic or cultural identities. And other states are considering similar laws.  Check out our earlier blog on the New York City law HERE.

At the close of its 2019 session, the New York General Assembly passed substantial changes to the state’s anti-harassment and discrimination laws, which Governor Andrew Cuomo has indicated that he will sign into law.  The new law applies to all protected classes under NY law.

The changes to the New York anti-harassment and discrimination laws are as follows:

  • Employers of all sizes will now be covered by the law. The new law will expand the definition of employer to include all employers within the state of New York, including the state and political subdivisions.  Previously, the definition of employer included only employers with four or more employees.

  • Non-employees and domestic workers will now be covered. The new law will expand its protections to domestic workers and non-employees including contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract in the workplace or an individual who is an employee of such non-employers.
  • Employees will no longer be required to prove that the harassment or discrimination was severe or pervasive. Under the new law, harassment, discrimination, and retaliation based on a protected characteristic will be unlawful “regardless of whether the conduct was severe or pervasive.”  This new standard is a departure from the long-held burden of proof for these claims.  The new law, however, will provide an affirmative defense if an employer can show that a reasonable person with the same protected characteristics would consider the conduct petty slights or trivial inconveniences.  Without further guidance or court decisions, this affirmative defense may prove difficult to establish.
  • The Faragher/Ellerth Defense will no longer be available. Recall that employers may invoke an affirmative defense under Title VII, called the Faragher/Ellerth defense, if there was no adverse action taken against the complainant, the employer exercised reasonable care to prevent and correct promptly the harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer (e.g., the employer’s internal complaint procedure.)  The new law will remove this affirmative defense under NY state law.
  • Employees will no longer be required to prove that they were treated different than another individual outside the same protected class.
  • Punitive Damages will now be available as a remedy.
  • Attorney’s Fees. The new law will allow a court or the New York Division of Human Rights (“NYDHR”) to award reasonable attorney’s fees to any prevailing or substantially prevailing party.  Employers seeking attorney’s fees must show that the Plaintiff’s claim was frivolous, meaning that the complaint was filed in bad faith and without reasonable basis.
  • Statutory Construction. Under the new law, the state law is to be construed liberally regardless of whether the federal civil rights laws are worded similarly.  Further, exceptions to the law are to be construed narrowly in order to “maximize deterrence of discriminatory conduct.”
  • Non-disclosure Agreements (“NDAs”) will be prohibited in most circumstances for all harassment and discrimination claims. Last year, New York generally prohibited NDAs in settlements of sexual harassment claims unless the employee preferred such an agreement.  The new law will extend this prohibition to NDAs for harassment and discrimination claims based on any protected class unless the employee prefers the agreement.  Employers must give the Complainant the nondisclosure agreement in writing and in plain English or, if applicable, the primary language of the Complainant.  Further, like the Older Workers’ Benefit Protection Act, employees must be given 21 days to review the NDA and 7 days to revoke the NDA after signing it.
  • Exception for NDAs. Effective January 1, 2010, NDAs in any employment contract or other agreement between an employer and employee that prevents the disclosure of factual information related to any future claim of discrimination will be void and unenforceable unless the provision notifies the employee or prospective employee that it does not prohibit him or her from speaking with law enforcement, the EEOC, the NYDHR, a local commission on human rights, or an attorney retained by the employee or potential employee.
  • Mandatory arbitration will be prohibited. Last year, New York also prohibited mandatory arbitration of sexual harassment claims.  The new law will extend this prohibition to all claims of harassment and discrimination.
  • Sexual harassment policy distribution requirements. The new law will require that employers provide to their employees a copy of their sexual harassment policy at the time of hire and at the time of the employee’s annual sexual harassment prevention training.  Employers will be required to provide this information in English or in the language identified by the employee as his or her primary language.  New York will create model sexual harassment policies and model training programs in English and other languages (in its discretion.)  If New York does not create templates in the language required by the employee, an employer may satisfy this requirement by presenting the policy in English.  Further, an employer will not be penalized for errors or omissions in the non-English templates provided by NY.
  • Statute of limitations. Employees will now have three years to bring claims of sexual harassment in the employment context.

These changes will significantly impact an employer’s obligations with regard to harassment and discrimination in the workplace and will change the way employment cases are litigated.  We will continue to update you as the new law develops.

On June 20, 2019, the firm hosted a 2019 Legislative Updates Seminar at the Hilton Garden Inn in Wallingford, Connecticut. We covered the passage of two major employment bills from this past legislative session that will affect virtually every employer: paid FMLA and new requirements for sexual harassment prevention training. We also reviewed other important federal and state law developments such as the increase in the minimum wage, the federal DOL’s proposed new overtime rule, and new U.S. Supreme Court cases.

Our newest attorney at the firm and State Representative, Stephanie E. Cummings, provided an inside view on what transpired during the session and how these laws would impact businesses.

Thank you to all of our client-subscribers for coming. If you subscribe to our blog, but have not attended our seminar before please join our mailing list by clicking here.

We look forward to seeing you at future seminars!

The U.S. Supreme Court ruled unanimously this week that in certain cases federal courts may hear discrimination claims under Title VII of the Civil Rights Act even if the claims were not brought first to the Equal Employment Opportunity Commission or a state administrative agency.

Added Allegations

Employees still generally must bring Title VII discrimination claims to the EEOC or a state agency before going to court.  However, if an employee adds another discrimination claim in the court proceeding (that was not included in the charge when it was filed with the administrative agency), and the employer does not object to the addition at that time of the addition, then the employer cannot later assert the defense that the additional claim must also go through the EEOC or administrative agency.

The Case

In Fort Bend County v. Davis, a former worker, Lois Davis, had filed a retaliation and sex bias charge with Texas’ EEOC.  In the margin of a supplemental form to the original charge, Davis had written “religion.”  The employer, Fort Bend County, argued that the additional charge was not valid because it had not been reviewed by the EEOC with the original charge prior to Davis suing Fort Bend in court.  The Supreme Court upheld the Fifth Circuit’s ruling that Fort Bend lost the defense that Davis did not file the additional claim with the EEOC because it waited too long to object.

What it Means for Employers

Employers should pay close attention to complaints to be sure they match up with administrative charges filed.  If they do not raise objections in their answer to the complaint or in a motion to dismiss.  As a result, employers could risk losing the defense that an employee has an obligation to exhaust administrative remedies.  It is not unusual for an employee to add additional claims after a charge has been filed.  The ruling puts the burden on the employer to closely review the administrative charge filed by the employer.

Stay tuned for more labor and employment news!

There are a number of major legislative proposals being considered by the Connecticut General Assembly that could have a significant impact on ALL employers in Connecticut. One such proposal – increasing the minimum wage to $15 per hour by 2023 – has been passed by the General Assembly and is expected to be signed by the Governor. Other proposals that are pending:

Enacting Paid FMLA
Legalizing Recreational Marijuana
Strengthening Sexual Harassment and Discrimination Laws
Creating Restrictions on Captive Audience Speeches
Establishing Civil Rights Division of the Attorney General’s Office

In addition, the federal Department of Labor has proposed revisions to the federal overtime rules that would increase the salary for employees to be considered exempt.

It is crucial for both business-owners and human resources professionals to understand what these developments could mean for their businesses and how to prepare for them.

We invite you to join us for a Labor and Employment Seminar on these topics on Thursday, June 20th at the Hilton Garden Inn Wallingford/Meriden. We will discuss what passed (and perhaps what didn’t), and what employers should be doing now to prepare. We will also be joined by State Representative, Stephanie Cummings, who will provide us with an insider’s look at how this legislative session unfolded.

Registration and breakfast will be at 8:30 a.m. and the seminar will begin promptly at 9:00 a.m.

Reminder: this session is included in the Human Resources Roundtable Breakfast Series.

Click here to register!

Last Friday, the Connecticut Senate voted to approve House Bill 5004 titled “An Act Increasing The Minimum Wage”, which was approved by the Connecticut House of Representatives. As the title suggests, this bill would increase the minimum wage to $15 by year 2023. However, there are several other important changes. It is expected that the Governor will sign this bill into law.

Yearly Increases

The bill would increase the minimum wage gradually from $10.10 to $15 as follows:

  • $11 on October 1, 2019
  • $12 on September 1, 2020
  • $13 on August 1, 2021
  • $14 on July 1, 2022
  • $15 on June 1, 2023

Thereafter, beginning January 1, 2024, the bill would create annual minimum wage adjustments based on the percentage change in the employment cost index (or its successor index) as calculated by the United States Department of Labor. Any of the minimum wage increases, however, could be suspended by the Connecticut Labor Commissioner if there are two consecutive quarters of negative growth in the state’s gross domestic product.

Wages For Employees Under The Age of 18

The bill would require that all persons under the age of 18 years (except for emancipated minors) be paid not less than the greater of $10.10 or 85 percent of the minimum wage for the first 90 days of employment and then the current minimum wage thereafter.

Beginning October 1, 2020, the bill would prohibit employers from taking action to displace an employee for the purpose of hiring persons under the age of 18 at a wage below the minimum wage. Displacing an employee means “partial displacement of an employee, such as reducing the employee’s hours, wages or employment benefits.”

Tip Credit

The bill would maintain tip credits for bartenders and hotel and restaurant staff. Employers would still be able to pay $6.38 to hotel and restaurant staff and $8.23 to bartenders so long as the employees’ tips make up the difference between their reduced wage and the minimum wage.

We will continue you to keep you updated on this bill and any changes before it is signed into law.

Democratic leaders are at it again, pushing a bill that would topple the United States Supreme Court 2018 decision in Epic Systems v. Lewis. In effect, the proposed bill would bar employers from requiring class action waivers and mandatory arbitration, thus allow workers to bring employment claims as a group as well as bring claims to court.

The Restoring Justice for Workers Act was introduced in the House of Representatives by Rep. Jerrold Nadler, D-New York (who also sponsored a similar bill in early March), and Rep. Bobby Scott, D-Virginia, and in the Senate by Sen. Patty Murray, D-Washington. The purpose of the bill is “to prohibit forced arbitration in employment disputes” among other things.

Epic Systems decided that employees may be required to waive their rights to bring an employment claim as a class. The proposed bill argues that mandatory arbitration of individual claims prevents employees from protecting their rights, since a class action can be more affordable and less intimidating. The bill would also amend the National Labor Relations Act to prohibit employers from stopping employees from bringing class actions in employment claims, whether in agreements or practices.

Proponents for the proposed bill believe that arbitration clauses are often overlooked in employment agreements and protect the employer and abusers, while dissuading victims from coming forward.

Read more about other recent proposed bills seeking to reverse the Epic decision in our Carmody@Work Blog.

On May 3, 2019, the Equal Employment Opportunity Commission (“EEOC”) announced that it would collect EEO-1 Component 2 pay data from required EEO-1 filers (“Filers”) for the calendar years 2017 and 2018 by September 30, 2019.

This announcement was a result of a federal district court’s decision in a case titled National Women’s Law Center, et al. v. Office of Management and Budget, et al..

By way of background, in September 2016, the EEOC proposed expanding the EEO-1 reporting to include compensation data, called “Component 2” data. In August 2017, the Office of Management and Budget (“OMB”) stayed (or paused) the EEOC’s obligation to collect Component 2 pay data. In November 2017, the National Women’s Law Center and other plaintiffs sued to challenge the OMB’s decision to stay.

In April 2019, the federal district court ruled in favor of the plaintiffs and ordered the EEOC to (1) select two years for which it would collect the Component 2 pay data and (2) to issue a Press Release announcing its obligation to collect data and the two years for which it would collect. Thus, the EEOC made its announcement on May 3.

What does this mean for us?

This announcement only applies to required Filers, which are:

  • private employers with 100 or more employees; or
  • private employers with fewer than 100 employees if that employer is owned by or affiliated with a company that employees over 100 employees; or
  • federal contractors with 50 or more employees that are not otherwise exempt.

What do I have to file?

If you are a Filer, you are required to report:

  • annual compensation data based on Box 1 of the Form W-2 for all employees by race, ethnicity and sex and within the 12 proposed pay bands for the 10 EEO-1 job categories for the calendar years 2017 and 2018.
  • all hours worked for the same categories for the same calendar years.

It should be noted that the United States Department of Justice filed an appeal of the federal district court’s decision on May 3. Despite the appeal, the EEOC will move forward with collecting the data. We will keep you updated of any developments.

The 2019 Human Resources Roundtable Breakfast Series begins on Tuesday, May 22nd!

Topic: “Your Leave of Absence Toolkit: We will review policies, request forms and form letters to help HR professionals manage employee leaves of absences.

For more information and to register, please click here.

The U.S. Supreme Court will hear three cases in the next term to determine whether Title VII of the Civil Rights Act protects employees from workplace discrimination based on sexual orientation, gender identity or sex stereotyping.

Federal courts have been divided on whether Title VII protects employees from sex discrimination based on sexual orientation or gender identity.  The Supreme Court will hear two of the cases together in order to resolve a circuit split on the issue. One of the cases, from New York, ruled that Title VII prohibits discrimination on the basis of sexual orientation. The other case, from Georgia, ruled the opposite, namely that Title VII does not apply to discrimination based on sexual orientation. The third case, from Michigan, found that Title VII protects an employee from sexual discrimination on the basis of gender identity or expression.

Connecticut law already provides some of the most robust protections against discrimination based on sexual orientation and gender identity.  However, the Supreme Court’s decision will likely provide a definitive answer as to whether such protections also arise under federal law. In addition, the Court’s decision could have an impact on the next Presidential campaign and other states’ discrimination laws.

Stay tuned as we track the latest developments in labor and employment law!