Earlier this month, Governor Jerry Brown signed A.B. 2282 into law, clarifying several unanswered questions concerning California’s salary history ban.
With the summer kicking off, it is a good opportunity for employers to review and refresh their employment practices to ensure compliance with developments on the federal, state and legal landscape. This Bubbler Post will review our earlier guidance and (hopefully!) prompt you to review your employment practices:
- Employment Applications: Equal pay laws have continued to gain traction on the state and local level, and there are a number of jurisdictions banning inquiries into the salary history information of prospective applicants. If you have employees working in the states, counties and/or cities listed below, you should review your application forms and employment documents to ensure that they do not request salary information.
- States Banning Pay Inquiry
- Counties Banning Pay Inquiry
- Albany County, New York (effective December 17, 2017)
- Westchester County, New York (effective July 9, 2018)
- Cities Banning Pay Inquiry
- New York City (effective October 31, 2017)
- Philadelphia (pending in federal court)
- San Francisco (effective July 1, 2018)
- Vendor Relationships: Given the pay inquiry laws discussed above, employers should communicate with recruiters and background check companies to ensure that these entities similarly comply with their obligations under applicable law. You can write a letter to your vendors detailing your expectations, you can enter into an amendment to your existing agreement outlining the legal framework, or you can reach out to your vendor contact to discuss the importance of compliance – from both a business and legal perspective – and request that they remove salary history inquiries from their screening process. Whatever you do, be conscious of the potential for joint liability to attach to these claims. Particular provisions to consider are ones regarding compliance with applicable laws and indemnification.
- Employment Agreements: In light of the Supreme Court’s landmark decision holding that employers can enforce class action waivers in arbitration agreements, employers should review and revise their employment agreements to include this language. You can include a class or collective action waiver either by (1) explicitly prohibiting class/collective claims or (2) explicitly requiring that all claims be brought by employees individually and not jointly. Here, we’ve laid out more guidance on this decision’s impact on employers, including factors employers should consider when deciding whether to adopt an arbitration provision with a class waiver and the impact on state law prohibitions on arbitration.
- Employee Trainings: In the wake of the #MeToo movement, workplace professionalism trainings are more relevant than ever. And, in some jurisdictions, they are required. Read more here about the steps New York State and New York City have taken to implement stronger protections against workplace harassment. Employers in other jurisdictions should take note, and perhaps jump on board. While not a complete defense, evidence of thorough and detailed trainings around appropriate workplace conduct can limit liability for an employer defending against a sexual harassment claim. We almost always suggest more training.
- Settlement Agreements: On the federal level, employers should be thoughtful of their obligations under the Tax Cuts and Jobs Act of 2017. Pursuant to a new provision in the tax code overhaul bill – Section 13307 – employers can no longer deduct the taxable income of any sexual harassment settlement amount subject to a non-disclosure agreement. We’ve discussed this here and will continue to track employers’ obligations as additional guidance is issued. In the meantime, employers should tread carefully and make an informed decision about whether to take a tax deduction or include a non-disparagement provision.
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:
The Ninth Circuit Court of Appeals issued an important decision last week in Rizo v. Yovino, holding that an employer may not use an employee’s prior salary history to justify gender pay disparity under the federal Equal Pay Act.
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.
March Madness isn’t the only thing we are excited about over here at Employment Matters. Right on the heels of the tournament, we will be hosting our annual Employment Law Summit. One of the issues my colleague Andrew Bernstein will address with a panel of key players is pay equity. No, not play equity – pay equity.
Today we continue with our Year in Review segment, which looks at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California, while offering our thoughts about 2017. Today we turn to the DC Metro Area. In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017. Register here.
The District of Columbia, Maryland (including Montgomery County) witnessed an active 2016 with respect to new and amended workplace laws that impose additional responsibilities on employers, and expand employee rights and avenues of enforcement. Employers should be aware of these new requirements and take immediate action to comply with them. We highlight below the most significant updates in both D.C. and Maryland; there were no changes or additions of significance in Virginia.
Over the next two weeks we will release our Year in Review segment, which will look at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California while offering our thoughts about 2017. Today we kick off this segment with New York. In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017. Register here.
2016 brought big changes for New York State and City employers, including expansive new discrimination protections and substantial increases in the minimum wage and exempt salary thresholds. While New York employers who successfully navigated 2016’s rush of legislative, regulatory and judicial obstacles might feel they’ve earned the right to shift their focus back from compliance issues to running their businesses, they should not lose sight of the additional challenges expected in 2017.
On April 6, 2017, Mintz Levin will be hosting its Third Annual Employment Law Summit at the Princeton Club in New York City. This half-day seminar will feature as its keynote speaker Liz Vladeck, the Deputy Commissioner for the Office of Labor Policy and Standards at the NYC Department of Consumer Affairs. Deputy Commissioner Vladeck will discuss NYC’s new Office of Labor Policy and Standards, its initiatives, and enforcement of the expanding universe of NYC employment laws (including the new Freelance Workers Act and the pending Fair Workweek legislation). The seminar will also offer various segments on the most important workplace issues of the day, including how the new Trump Administration will impact workplace law, employee cybersecurity issues, equal pay issues during the employment life cycle, dealing with the difficult employee, the latest in employee benefits, and more – it’s a program that you will not want to miss, so register now.
This event is intended for HR professionals, in-house counsel, and senior executives.
For more information and to register, click here.
The New York State Department of Labor has adopted regulations clarifying employers’ rights and obligations when implementing policies that limit the discussion of wages in the workplace. Under New York Labor Law section 194(4), an employer may not prohibit employees from discussing wages, but may establish “reasonable workplace and workday limitations on the time, place and manner for inquiries about, discussion of, or the disclosure of wages.” The DOL’s new regulations provide guidance on the permissible scope of policies that limit wage discussions as well as the notice employers must provide to employees about such policies.