Discrimination & Harassment

On May 15, 2018, Governor Hogan signed into law the “Disclosing Sexual Harassment in the Workplace Act of 2018” (the “Act”).  The Act will go into effect on October 1, 2018, and contains two new obligations with which Maryland employers will need to comply.

Continue Reading Maryland Jumps on #MeToo Bandwagon With New Act Creating Significant Obligations for Employers

Over the past several years, health care entities have increasingly become the target of private and government plaintiffs complaining of disability discrimination. A crescendo of litigation has engulfed the health care industry—and most notably of late, “drive-by” litigation attacking the perceived failure of health care entity facilities and websites to accommodate the needs of persons with disabilities consistent with the requirements of the Americans with Disabilities Act (ADA).

Read the full article below or here: The Rising Tide of ADA Litigation Against Health Care Entities (©Copyright 2018, American Health Lawyers Association, Washington, DC. Reprint permission granted.)

Continue Reading The Rising Tide of ADA Litigation Against Health Care Entities

Welcome back for this month’s edition of the Bubbler!  There’s plenty to talk about, so let’s jump right in.

The California Supreme Court issued an important decision this week addressing the test for whether a worker is an independent contractor or an employee.  The U.S. Supreme Court declined to review a Seventh Circuit decision upholding an employer’s rule that a months-long leave of absence was not a reasonable accommodation. The Ninth Circuit held that employers are prohibited from using an employee’s past salary as a legitimate “factor other than sex” for purposes of defeating a Fair Pay Act claim, emphasizing that allowing the inclusion of prior salaries would only perpetuate gender pay disparity. The Fifth Circuit downsized ERISA fiduciary standards in a ruling that invalidated a set of seven expansive fiduciary rules. The Northern District of Illinois issued an unusual ruling, holding that two plaintiffs’ claims were subject to an enforceable arbitration agreement, yet refused to compel arbitration. The DOJ challenged a set of competitors’ no-poaching agreements as per se violations of the Sherman Act, which regulates concerted anti-competitive action. Finally, in the wake of the #MeToo movement, New York (state and city) have passed new laws concerning workplace sexual harassment.

As always, stay tuned for more employment matters updates!

Following in the footsteps of neighboring jurisdictions such as New York City, Albany County, and Massachusetts, on April 10, 2018, Westchester County enacted legislation to ban inquiries into a job applicant’s salary history. The stated purpose of the law is to halt the perpetuation of the gender wage gap and to assist older workers and others returning to the workforce after a long hiatus.

Continue Reading Update on Salary History Laws: The Ban Expands to Westchester, NY

New Jersey Governor Phil Murphy recently signed into law a bill that provides equal pay protections for members of certain protected classes.  Governor Murphy also signed into law a bill that requires New Jersey employers to provide paid sick leave to employees.

A summary of both laws is provided below:

Continue Reading New Jersey Legislative Update: Equal Pay and Paid Sick Leave

In the wake of the #MeToo movement and the nationwide discourse over the prevalence of sexual harassment in the workplace, New York State and New York City have taken aggressive steps to implement stronger protections against workplace harassment.  These new protections, which are now law in New York State and New York City, will require New York employers to revise their policies, procedures and agreements, deliver new training, and provide employees with additional information about sexual harassment.  Below, we summarize the new requirements and other changes in the law and discuss next steps.

Continue Reading New York Says #MeToo to Stronger Sexual Harassment Protections: A Summary of Action Items for Employers

Lots to talk about in the Labor & Employment world!  The Massachusetts Pregnant Workers Fairness Act went into effect on April 1, 2018, imposing stricter non-discrimination rules on employers of pregnant workers. The U.S. Department of Labor launched the Payroll Audit Independent Determination program, which encourages employers to self-report wage and hour violations. The Sixth Circuit issued a decision in EEOC v. R.G. & R.G. Harris Funeral Homes, holding that transgendered employees are protected under Title VII, even mounted against an employer’s religious objections under the Religious Freedom Restoration Act.  The Commonwealth of Massachusetts lost a step in the legal challenge to the contraceptive mandate exemptions in the Affordable Care Act, on the grounds that it did not have standing to assert the relief it sought. Still on the federal landscape, Congress added an amendment to the FLSA in the recent omnibus budget bill, providing that an employer may not keep tips received by its employees for any purpose. The Supreme Court issued an important ruling holding that service advisors are exempt from the FLSA’s overtime requirements and rejecting the principle that FLSA exemptions should be narrowly construed.   The State of Washington followed suit with many other states, including California, New York, and Massachusetts, becoming the most recent state to add an updated Equal Pay Act, and a “Ban the Box” law.  In the wake of the #MeToo movement, Washington also barred nondisclosure agreements in sexual harassment suits.  As always, stay tuned for further updates and more details on these developments which we will be covering more extensively here in the coming weeks, including a post on the Massachusetts Pay Equity Act coming up later this week.

Finally, there’s still time! Don’t forget to register to attend our Fourth Annual Employment Law Summit on April 19.

Back in July 2016, the Massachusetts legislature passed an Act to Establish Pay Equity (Mass. Gen. Laws c. 149 § 105A, referenced herein as the “Law”), which amends the Massachusetts Equal Pay Act (“MEPA”) and serves to bolster gender-based pay inequity protections provided to employees and to generally address gender pay inequality in the Commonwealth. When the Law goes into effect on July 1, 2018, it will be widely-regarded as one of the most expansive pay equity laws in the United States.

On March 1, 2018, the Massachusetts Attorney General issued long-anticipated guidance on the amendments to MEPA, available here (the “Guidance”), which provides useful information and insight to employers, including several concrete examples and guidelines designed to assist employers in evaluating their existing policies and complying with the updated MEPA.

This post reviews the key provisions of the Law against the backdrop of the new Guidance, and offers strategies and tips to help employers proactively plan for the Law.

Continue Reading Massachusetts Attorney General Issues Guidance on Pay Equity Law

On April 19, my colleague Andrew Bernstein and I will be discussing the increasingly complex web of federal, state, and local leave and accommodation laws that employers must navigate. As many companies are aware, the federal Family and Medical Leave Act provides up to 12 weeks (and in some cases, up to 26 weeks) of unpaid, job-protected leave to eligible employees and the Americans with Disabilities Act requires employers to provide reasonable accommodations, which may under some circumstances include flexible schedules and leaves of absence, to qualified individuals with disabilities.

Continue Reading Mintz Levin 4th Annual Employment Law Summit – Managing the Increasingly Complex Web of Leave and Accommodation Requirements