On Thursday, Governor Andrew Cuomo signed several pieces of legislation that bolster New York’s growing workplace protections.

These laws will be implemented over the course of the next year. They will:

• Increase protections for employees who are members of protected classes as well as for those who have been sexually harassed;

• Prohibit nondisclosure agreements in discrimination cases, preventing employers from effectively silencing their employees;

• Prohibit mandatory arbitration provisions in discrimination cases, allowing employees to bring a claim and have it reviewed outside of their employer and potentially have their day in court;

• Require employers to give notice to employees regarding their sexual harassment prevention training programs in English and the employees’ primary languages, ensuring employees comprehend available resources;

• Extend the statute of limitations to three years for claims resulting from unlawful or discriminatory practices constituting sexual harassment;

• Require review and update of the model sexual harassment prevention guidance document and sexual harassment prevention policy; and

• Eliminate the strict “severe or pervasive” standard required to show that sexual harassment occurred;

• Eliminate the employer’s affirmative defense to avoid liability (requiring employees to follow the proper procedure for addressing a sexual harassment claim or else be prevented from moving forward with a claim);

• Broaden New York’s law to cover all employers of the state;

• Allow for punitive damages and attorney’s fees in employment discrimination cases; and

• Direct the commission of labor to run a study on strengthening sexual harassment prevention laws.

• Prohibit nondisclosure agreements from barring the disclosure of facts surrounding the discrimination case to particular parties.

Check out our recent blogs covering changes to New York laws and stay tuned for more:

Updates to the New York anti-harassment and anti-discrimination laws

New York City releases guidance on race discrimination on the basis of hair

Sweeping sexual harassment laws in New York

Carmody Torrance Sandak & Hennessey LLP will hold a training session for supervisors on Thursday, September 12th on the prevention of sexual harassment in the workplace. The program will be presented from our Waterbury office, but individuals may also participate by video conference in our New Haven and Stamford offices. Registration starts at 8:15 a.m. and the program begins at 8:30 a.m. The fee is $75 per person and includes a continental breakfast.

Connecticut law requires employers with 50 or more employees to provide sexual harassment training for supervisory employees. State law also requires that new supervisors receive this training within six months of assuming their positions. New York law requires employers with 15 or more employees to provide sexual harassment training. Our training session meets Connecticut and New York State requirements for supervisory employees. We will inform supervisors on how to identify and handle incidents concerning sexual harassment. We also will outline steps employers can take to assert and defend their rights against challenges of harassment.

We offer this training session in response to your requests for an efficient way to ensure that all of your supervisory personnel are in compliance with the law. We will provide written confirmation to your attendees upon completion of the session. If you or your supervisors are unable to attend this session, we can provide customized on-site training upon request.

Click here to register!

If you have any questions, please contact any member of the Carmody Labor and Employment Practice Group for more information:

D. Charles Stohler
(203) 575-2626; cstohler@carmodylaw.com

Giovanna T. Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Maureen D. Cox
(203) 575-2642; mcox@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Mark F. Williams
(203) 575-2618; mfwilliams@carmodylaw.com

Holly G. Wheeler
(203) 784-3158; hwheeler@carmodylaw.com

Carmody Torrance Sandak & Hennessey LLP is excited to announce Lauren M. Hopwood as a new Partner practicing immigration law in the New Haven office.

Lauren represents clients in a variety of industries, including the health care, science, financial services, information technology and educational sectors. She has extensive experience in a wide variety of business immigration matters, including nonimmigrant and immigrant visa petitions. She counsels employers on immigration considerations in the hiring context, including I-9 compliance and E-Verify. Lauren also regularly advises clients on immigration due diligence and compliance arising from mergers and acquisitions.

If Lauren may be of legal service to you, please contact her at (203) 784-3104 or lhopwood@carmodylaw.com.

Last week, the National Labor Relations Board (“Board”) announced that it had proposed three rules aimed at protecting employee free choice on questions concerning representation. These rules address the NLRB’s blocking charge policy, voluntary recognition, and collective bargaining in the construction industry.

  • Blocking Charge Policy. Generally, the Board suspends the processing of an election petition if an unfair labor practice charge is filed alleging that a party coerced workers to vote a certain way. Under the proposed rule, the Board would institute a “vote-and-impound” procedure where it would no longer pause the election and instead would seize the votes until the charges are resolved.
  • Voluntary Recognition Bar. Currently, a union that has been voluntarily recognized by an employer as a bargaining representative cannot have its status challenged during a “reasonable period” for bargaining, which is defined as six months to a year.  Under the proposed rule, the Board would return to the standard articulated in the Dana Corp.  Under this standard, employees and rival unions would be given a 45-day window after voluntary recognition to either file a decertification petition or election petition respectively before the voluntary recognition bar period takes effect.
  • Section 9(a) Recognition in the Construction Industry. Section 9(a) of the National Labor Relations Act (the “Act”) covers most unions and requires that unions obtain support from a majority of workers, which is usually obtained by a vote. However, the construction industry is unique in that Section 8(f) of the Act allows unions and employees in the construction industry to enter into “pre-hire” agreements before the union achieves majority status.  This is usually done for short-term construction work on a project.  The proposed rule would overrule a decision titled Staunton Fuel which held that a full-fledged Section 8(f) bargaining relationship can transition to a Section 9(a) bargaining relationship based on the contract language alone.  The Board’s proposed rule would require a construction union to show “extrinsic evidence” of a majority of support and will no longer allow the union to rely on contract language alone.

Board Chairman Jonathan Ring is a proponent of using the rulemaking process to change Board Rules.  For example, the Board proposed a new rule to overturn the current joint employer rule last year.  Based on his support, we can expect the Board to continue to use the rulemaking process in the future.

If you are interested in commenting on any of these proposed rules you can do so here until October 11, 2019.

The U.S. Department of Labor’s Wage and Hour Division has announced proposed changes to the information forms used by employers in the administration of the Family and Medical Leave Act (FMLA). Qualification for FMLA leave requires disclosure of information to employers and employees about their FMLA rights and it also requires collection of information to determine whether FMLA leave is applicable. The proposed changes include the following:

  • Questions requiring written responses replaced by statements answered by checkboxes
  • Reorganized medical certification forms to expedite determination of seriousness of health condition
  • Reduce follow-up information required of health care providers
  • Added details on notification forms to communicate leave conditions to employees
  • Clarification to qualifying exigency certification form noting what information is required
  • Changes to military caregiver leave forms for consistency and ease
  • Formatting changes to improve readability

The public has a 60-day comment period on the proposed revisions before they can go into effect.

Stay tuned!

Please save the date for our 2019 Annual Labor and Employment Seminar on Friday, October 18th at the Aqua Turf Club in Plantsville, CT. This year’s seminar is particularly important because of new Connecticut laws that affect all employers.

Schedule of Events:

8:00 a.m. Registration and Networking Breakfast
9:00 a.m. Program
12:30 p.m. Lunch

For more information, please click here.

On August 1, 2019, the United States Senate voted to confirm Attorney Sharon Gustafson as the General Counsel of the Equal Employment Opportunity Commission (“EEOC”) and Obama-era appointee Charlotte Burrows to another four-year term on the Commission.  General Counsel Gustafson was sworn into her position today (August 8, 2019).

EEOC Confirms New General Counsel

The EEOC now has its first General Counsel in over two years.  The position had been vacant since Obama-era General Counsel David Lopez resigned in late 2016.

General Counsel Gustafson practiced employment law in Virginia for nearly 25 years, having represented both employers and employees.  Gustafson is most known for representing the plaintiff, Peggy Young, before the United States Supreme Court in Young v. United Parcel Service.  In that case, the Supreme Court held that employers were required to provide reasonable accommodations for pregnancy and related conditions in certain situations.

As General Counsel, Gustafson will be responsible for determining which cases the EEOC will bring on behalf of former and current employees and will issue guidance clarifying the EEOC’s position on importance issues of employment law.

EEOC Regains A Quorum With Confirmation of New Member

After confirming Charlotte Burrows to another four-year term, the EEOC has regained a quorum.  By way of background, the EEOC is a commission comprised of five presidentially appointed members including a Chair, Vice Chair, and three Commissioners. A quorum, meaning three of five members, is necessary for the EEOC to make any important decision.  Prior to Burrows’ confirmation to another term, the EEOC was functionally down to two members (Chair Janet Dhillon and Commissioner Victoria Lipnic.)  Now, the EEOC again has enough members to make important decisions, however, there are still two vacancies.

President Trump recently nominated United States Department of Labor Wage and Hour Division Deputy Administrator Keith Sonderling to fill one of the remaining commission vacancies.

We will keep you updated as the EEOC continues to fill its leadership positions.

A year ago, the California Supreme Court’s Dynamex ruling complicated the classification of workers as independent contractors. Employers are still trying to determine how the decision affects them, especially as the decision did not address whether it applied retroactively.

In April 2018, the California Supreme Court ordered courts to apply the strict “ABC test” to job misclassification claims, putting pressure on businesses to show that workers must provide services distinct from their core business in order to be classified as contractors. Typically, employees cost businesses more and have more protections than those of a contractor. As a result, classifying a worker as an independent contractor can be more appealing to businesses.

To prove a worker is an independent contractor under the ABC test, a company must show that the worker (1) is free from the company’s control, (2) performs work outside the company’s usual business, and (3) separate from their work for the company, is regularly working in the trade they have been hired to work.

As a result of this ruling, California employers have been left wondering whether they should reclassify independent contractors as employees. Additionally, the decision did not clarify whether it applied only to cases brought after the 2018 decision or whether it would also apply retroactively to claims as far back as four years. In late July, the Ninth Circuit issued an order stating that it would ask the California Supreme Court to determine whether the ABC test applies retroactively. Simultaneously, in the California legislature, Assembly Bill 5 is under consideration. That bill would codify the ABC test. Business are fighting to add many exemptions to the bill. The next few months will be pivotal in California as the courts and legislature could change the standard for worker classification.

Stay tuned!

Last month, Governor Ned Lamont signed into law Public Act 19-16 (and certain amendments to that Act contained in Public Act 19-93), widely referred to as the “Time’s Up Act.” The Act (and subsequent amendments) makes substantial changes to Connecticut’s harassment and discrimination laws, which will mostly take effect on October 1, 2019.

Changes To Training Requirements

The law makes the following long-anticipated changes to Connecticut’s sexual harassment training requirements:

  • All employers are now required to provide training to current supervisors by October 1, 2020 and to all new supervisory employees within six months of assuming the supervisory role. Employers that trained their supervisors hired on or after October 1, 2018 are not required to provide the training a second time.  Previously, only employers with 50 or more employees were required to provide such training.
  • Employers with three or more employees must provide training to all current employees (supervisors and non-supervisors) hired on or after October 1, 2019 within six months after hire.

The new law also requires that employers provide supplemental training at least every 10 years.  Failure to comply with the training requirements can be considered a discriminatory practice and will result in a fine of $750.

Notice Requirements

Currently, Connecticut law requires employers with three or more employees to post information concerning the illegality of sexual harassment and the remedies available to victims “in a prominent and accessible location.”  The new law requires that employers with three or more employees provide the same information to employees by e-mail within three months of hire: (1) if the employer provides an e-mail account to the employee, or (2) if the employee has provided the employer with an e-mail address.  Employers must include the words “Sexual Harassment Policy” or “words of similar import” in the subject line.  Employers may satisfy this notice requirement by providing the employee with a link to the section of the CHRO’s website which contains information on the illegality of sexual harassment and the remedies available.  Failure to comply with the new notice requirements will also result in a $750 fine.

Employee Consent Required For Corrective Action

Under the new law, when taking “immediate corrective action” to address sexual harassment claims, employers may not modify the conditions of employment of the complaining employee unless the employee agrees in writing.  Corrective action is defined by the law as: (1) complaining employee relocation; (2) assigning the complaining employee to a different work schedule; or (3) other substantive changes to an employee’s terms and conditions of employment.  However, there is an exception to this requirement if the CHRO determines that the corrective action was “reasonable” and “not harmful” to the Complainant.

Filing Deadline Extended for All Harassment, Retaliation and Discrimination Claims

Beginning October 1, 2019, the CHRO filing deadline for claims of harassment, retaliation and/or discrimination will be increased from 180 to 300 days from the adverse action.  Although this is a significant increase, the CHRO deadline is now aligned with the federal standard.

Available Remedies Expanded

The new law significantly expands the remedies available at the CHRO and in court.  The CHRO may now: (1) “make the complainant whole” by determining the actual damages suffered, including awarding actual costs incurred and (2) award reasonable attorney’s fees to a prevailing complainant.  Regarding attorney’s fees, the law explicitly states the amount of attorney’s fees cannot be contingent upon the damages requested by or awarded to the Complainant.

Further, a court may now award punitive damages to a prevailing plaintiff.  These changes were meant to address a recent Connecticut Supreme Court case which held that punitive damages were not available under CFEPA because the statute did not expressly state that punitive damages were an available remedy.

Other Interesting Changes

The new law makes the following other changes:

  • Appointment of Magistrates. The CHRO may now appoint magistrates from the Chief Administrator of the Connecticut Superior Court’s list of available magistrates to conduct public hearings when there is a backlog of more than 100 cases.
  • Limited Discovery at Public Hearings. The new law provides that parties have the opportunity to “inspect and copy relevant and material records, papers, and documents” of the other party at CHRO public hearings.  The presiding officer may also order production of documents.
  • Actions in the Public Interest. The CHRO may now assign legal counsel to pursue action in court on behalf of the Complainant rather than conducting a public hearing.  If the CHRO is successful in establishing discrimination or harassment by “clear and convincing evidence” the court may award the CHRO’s costs and legal fees and civil penalties up to $10,000.
  • Authorization to Enter Premises for Inspection. The new law allows the CHRO to enter an employer’s premises during business hours to ensure compliance with the posting requirements and to inspect all records, policies, procedures and training materials.  The CHRO’s authority is limited to situations in which the CHRO’s executive director “reasonably believes” the employer is violating the law or during the 12-month period following the date on which a complaint was filed against the employer.  In addition, if the place of business is the employer’s residential home, the homeowner must give the CHRO express permission.

These changes to the law will significantly affect the workplace and how cases are litigated.  We will keep you updated as the new law develops.

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.