On July 12, 2019, New York Governor Andrew Cuomo signed into law a bill prohibiting race discrimination based on natural hair or hairstyles. The measure, which took effect immediately, amends the New York State Human Rights Law and the Education Law by prohibiting discrimination based on “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” The measure defines “Protective hairstyles” to include “such hairstyles as braids, locks, and twists.”

The state-wide changes in the law follow New York City’s similar ban earlier this year, as we reported in our previous alert on February 21, 2019, in which the New York City Commission on Human Rights issued legal enforcement guidance on hair-based race discrimination.

Takeaway for Employers

New York covered employers should ensure their existing grooming and appearance policies comply with the new changes in the law.

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If you have any questions regarding the new changes in the law, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On July 2, 2019, the State of New Jersey passed Assembly Bill 20 (the Compassionate Use of Medical Cannabis Act (“CUMCA”)), which extended employment protections to authorized users of medical cannabis. The CUMCA applies effective immediately and prohibits employers from taking adverse employment actions against current or prospective employees based on an individual’s status as a qualifying user of medical cannabis.

Adverse Employment Action

Under the CUMCA, an adverse employment action occurs when an employer refuses to hire an applicant, discharges an employee, forces an employee to retire, or otherwise discriminates against an individual in compensation or in any terms, conditions, or privileges of their employment.

Drug Testing Policies

The CUMCA requires that employers, who drug test employees and applicants, offer those individuals the opportunity to respond to testing positive for cannabis. Employers must provide written notice offering an individual who tests positive the right either to provide a legitimate medical explanation for a positive test result or to request a retest of the sample.

The positively tested individual has three business days after receiving the notice to

  • provide an explanation that may include an authorization to use medical cannabis issued by a health care practitioner;
  • proof of registration with the state’s Cannabis Regulator Commission, or both;
  • alternatively, an individual may request a retest of the original sample at his or her own expense.

Additional Protection

The CUMCA’s protections also extend to health care practitioners who engage in conduct authorized by the law. A health care facility may not take adverse employment action against a health care practitioner or terminate a professional affiliation with a health care practitioner for engaging in conduct permitted by CUMCA, which includes

  • authorizing patients for the medical use of cannabis
  • issuing written instructions to patients about cannabis use, or
  • consulting with a patient about the use of medical cannabis to treat the patient’s qualifying medical condition.

The CUMCA does allow employers to take adverse action against healthcare practitioners and medical cannabis users if their affiliations with such individuals would cause the employer to lose federal money or benefits.

Takeaway for Employers

New Jersey employers should train their human resources staff and supervisors on the CUMCA and should review internal policies and protocols to ensure compliance with the law. Employers should create a procedure to deliver swift responses to positive drug-test results, which includes providing written notice that complies with the law.

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We are, of course, available to assist with any questions regarding this new law and with the drafting of such notices and policies.

Putney, Twombly, Hall & Hirson LLP

On July 3, 2019, National Labor Relations Board (“NLRB” or “Board”) issued a 3-1 decision finding that Johnson Controls, Inc.’s anticipatory withdrawal of recognition to a United Auto Workers affiliate (“Union”) was lawfulThe decision modified the Board’s existing legal framework for an employer to cease bargaining prior to the expiration of a collective bargaining agreement (“CBA”). The Board also announced that employers questioning the majority status of an incumbent union may force a Board supervised election. In determining that Johnson Controls, Inc. lawfully withdrew recognition of the Union, the Board overturned portions of th. e its ruling in Levitz Furniture Company of the Pacific, Inc., 333 N.L.R.B. 717 (2001), reasoning that elections best protect the free choice of employees and resolve disputes of employees’ representational preferences.

Background

On April 21, 2015, while in negotiations with the Union for a successor CBA, Johnson Controls, Inc. was presented with a union disaffection petition (“petition”). The petition was signed by 83 of the 160 bargaining-unit employees and expressed the employees’ desire to no longer be represented by the Union. That same day, Johnson Controls, Inc. notified the Union of the petition and that it would no longer recognize the Union as the employees’ bargaining representative upon the expiration of the existing contract on May 7, 2015. The Union responded on April 22, 2015 that it had not received the petition or any other verified evidence it no longer had majority support from bargaining-unit employees, and demanded Johnson Controls, Inc. continue bargaining for a new agreement. Johnson Controls, Inc. did not provide the petition or continue bargaining.

Shortly thereafter, the Union solicited authorization cards from bargaining-unit employees and collected 69 signed authorization cards from April 27, 2015 to May 7, 2015. Among the 69 signed authorization cards, six were signed by employees who had also signed the petition, so called “dual signers”. The Union stated it had credible evidence that it retained majority support and suggested a meeting with Johnson Controls, Inc. to compare evidence. Johnson Controls, Inc. declined to meet and on May 8, 2015, withdrew recognition from the Union.

NLRB Decision

Under prior precedent, an employer could give notice that it would withdraw recognition from the union when an existing contract expires and could also suspend bargaining or refuse to bargain for a successor contract. To exercise this “anticipatory” withdrawal of recognition, the employer needed to receive evidence, within a reasonable period of time before the existing contract expired, that the union representing the employees no longer had majority support. The law resolved disputes over a union’s post contract majority status by utilizing the “last in time” rule under which the union’s evidence would control the outcome if it postdated the employer’s evidence.

In Johnson Controls, Inc., the Board modified the “anticipatory” withdrawal of recognition in two ways: (1) the “reasonable time” before the contract expires in which the anticipatory withdrawal can be made is now defined as no more than 90 days prior to contract expiration; and (2) if an incumbent union wants to re-establish its majority status, it must file an election petition within 45 days after an employer effects an anticipatory withdrawal. 368 N.L.R.B. No. 20 (2019). This 45-day period remains in effect regardless of whether the contract expires within that period of time. Furthermore, pursuant to existing representation law, a rival union may still file its own petition during the 30-day open period regardless of whether the incumbent union files an election petition.

If no post-anticipatory withdrawal election petition is timely filed, the employer may rely on the disaffection evidence it possesses to lawfully withdraw recognition at contract expiration unless there are other grounds which render the withdrawal unlawful. If a post-anticipatory withdrawal election petition is timely filed, the employer may still withdraw recognition at contract expiration and may withhold recognition unless the union establishes its majority status through an election. The existing safe harbor rule remains in effect—an employer may choose to file an RM Petition (“Representation Petition”) to demonstrate it has evidence to demonstrate reasonable good-faith uncertainty that the union no longer has majority status. No employer that refrains from withdrawing recognition will be in violation of Section 8(a)(2) and no union that accepts such recognition will be in violation of Section 8(b)(1)(A). The one exception to the safe harbor rule is that if a rival union has filed an election petition or otherwise intervenes in the incumbent union’s case, the employer must withdraw recognition from the incumbent to ensure no unfair advantage to the incumbent.

Takeaway for Employers

New York City appears poised to follow other states such as California and New Jersey that have recently passed laws allowing striking workers to claim unemployment benefits shortly after declaring a strike. Employers are advised to consider how this significant shift in the cost of striking may affect their labor negotiations. At minimum, unions will be empowered to continue strikes in hopes of strengthening their bargaining positions.

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We are of course available to assist and provide counsel as these situations emerge.

Putney, Twombly, Hall & Hirson LLP

On June 20, 2019, New York State Assembly voted in favor of New York Assembly Bill 6592, which decreases the length of time individuals involved in a labor strike must wait before collecting unemployment benefits. Under the law, striking employees will be eligible to receive unemployment benefits after just one week. Under the current law, employees are not eligible to receive unemployment benefits until they have been off the job for seven consecutive weeks.

The New York State Senate previously voted in favor of the bill on May 1, 2019. If signed by Governor Cuomo, the bill represents a substantial shift in the balance of power between workers and management. Compensating striking union members for lost wages is a high cost for unions, and that burden may now be shifted onto employers.

Takeaway for Employers

New York City appears poised to follow other states such as California and New Jersey that have recently passed laws allowing striking workers to claim unemployment benefits shortly after declaring a strike. Employers are advised to consider how this significant shift in the cost of striking may affect their labor negotiations. At minimum, unions will be empowered to continue strikes in hopes of strengthening their bargaining positions.

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We are of course available to assist and provide counsel as these situations emerge.
Putney, Twombly, Hall & Hirson LLP

New York lawmakers unanimously passed legislation to amend the New York State Human Rights Law and increase both the protections for protected categories, as well as additional protections for victims of workplace related sexual harassment. The legislation would bring significant changes for employers throughout New York State and make it more difficult for employers to defend against claims of discrimination and harassment.

The bill passed on June 19, 2019 and is currently awaiting signature by Governor Cuomo, who has publicly expressed his support for the legislation and is expected to sign it into law in the coming days.

The legislation provides for significant changes to the Human Rights Law, including:

  • Expanding the New York State Human Rights Law to cover all employers. The current law excludes employers with fewer than four employees. This provision of the bill takes effect 180 days after the bill becomes law.
  • Extending the statute of limitations for sexual harassment claims being brought before the State Division of Human Rights from 1 year to 3 years. This provision of the bill takes effect 1 year after the bill becomes law.
  • Eliminating the “severe or pervasive” standard required to state a claim for harassment. Presently, claims of harassment can be dismissed if the complained of inappropriate conduct is not sufficiently hostile. Under the new legislation, harassment will be considered unlawful when it subjects an individual to inferior terms, conditions, or privileges of employment because of his or her membership in a protected class. The legislation only requires that harassment rise above the threshold of petty slights or trivial inconveniences in order to be deemed unlawful. An employer may, as an affirmative defense, argue that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristics would consider to be petty slights or trivial inconveniences. This provision of the bill takes effect 60 days after the bill becomes law.
  • Significantly weakening the Faragher-Ellerth defense, which allows employers to prevail in sexual harassment cases if the aggrieved employee unreasonably failed to take advantage of the employer’s preventive or corrective measures. The legislation protects employees who do not make complaints of harassment out of fear of retaliation. While the bill does not eliminate the Faragher-Ellerth defense, it is no longer determinative as to an employer’s liability. This provision of the bill takes effect 60 days after the bill becomes law.
  • Extending punitive damages in employment discrimination actions brought before the State Division of Human Rights, without limitation on the amount. It also provides for punitive damages and attorney’s fees to the prevailing party in all employment discrimination actions. This provision of the bill takes effect 60 days after the bill becomes law.
  • Extending protections for non-employees in the workplace and extending liability to employers for all forms of unlawful discriminatory conduct in the workplace. This provision of the bill takes effect 60 days after the bill becomes law.
  • Liberal construction of the Human Rights Law, regardless of how federal laws are construed. This provision of the bill takes effect immediately after the bill becomes law.
  • Prohibiting mandatory arbitration clauses related to discrimination. This provision of the bill takes effect 60 days after the bill becomes law.
  • Prohibiting non-disparagement provisions in employment contracts that prevent employees from disclosing information related to future claims of discrimination with law enforcement, enforcement agencies and private counsel. This provision of the bill takes effect 60 days after the bill becomes law.
  • Prohibiting non-disclosure agreements that bar the complainant from initiating, testifying, or otherwise participating in an investigation by a government agency or disclosing facts necessary to receive public benefits that the complainant would be entitled to. This provision of the bill takes effect 60 days after the bill becomes law.
  • Requiring that any term or condition in a non-disclosure agreement be provided in writing to all parties in plain English and if applicable, the primary language of the complainant. This provision of the bill takes effect 60 days after the bill becomes law.
  • Expanding the prohibition on non-disclosure agreements, unless it is the preference of Plaintiff, to all discrimination cases not just sexual harassment cases. This provision of the bill takes effect 60 days after the bill becomes law.
  • Voiding any agreement between an employer and employee or potential employee, entered into after January 1, 2020, that prevents disclosure of facts related to any future claim of discrimination unless the provision notifies the employee or potential employee that he or she is not prohibited from speaking with law enforcement, the Equal Employment Opportunity Commission, the State Division of Human Rights or a similar local entity, or his or her attorney.
  • Expanding the State Attorney General’s power to prosecute cases of discrimination based on all protected classes. This provision of the bill takes effect 180 days after the bill becomes law.
  • Requiring employers to provide a notice containing the employer’s sexual harassment policy to all employees at the time of hire and at every annual sexual harassment prevention training. Such notice must be in English and the primary language of the employee. This provision of the bill takes effect immediately after the bill becomes law.
  • Requiring the Commissioner of Labor to prepare templates of model sexual harassment prevention policies in languages other than English. This provision of the bill takes effect immediately after the bill becomes law.
  • Beginning in 2020, and every four years thereafter, the Department of Labor and the State Division of Human Rights must evaluate the impact of the model sexual harassment prevention policies and update them as necessary.

Takeaway for Employers

When signed into law, this legislation will have a significant impact on New York employers. Not only does it lower the bar for employee’s claiming harassment to “petty slights” or “trivial inconveniences”, it also increases the employer’s liability and essentially eliminates an affirmative defense. The legislation also impacts an employer’s ability to resolve claims of harassment by imposing greater restrictions on non-disclosures agreements and banning mandatory arbitration clauses for all discrimination claims. Employers will have to revisit their sexual harassment prevention policies and training materials to ensure compliance with the new legislation in the event it is signed into law by Governor Cuomo as anticipated.

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If you have any questions regarding this legislation, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP

On June 14, 2019, the National Labor Relations Board (“NLRB” or “Board”) issued a 3-1 decision providing that the University of Pittsburgh Medical Center Presbyterian Shadyside (“UPMC”) did not commit an unfair labor practice when it ejected two union representatives from the hospital’s cafeteria despite the fact that the cafeteria is open to the public. The decision overturned almost forty years of precedent that had permitted nonemployee union representatives to access so-called “public areas” of an employer’s premises.

Background

On February 21, 2013, two nonemployee union representatives entered UPMC’s cafeteria and met with a group of employees. The union representatives sat with several employees at two tables, ate lunch, and discussed union organizational campaign matters. Union flyers and pins were displayed on the two occupied tables, and an off-duty hospital employee passed out flyers to employees in the cafeteria.

Shortly thereafter, a hospital security official received two complaints that nonemployees were soliciting employees in the cafeteria and that union flyers were being distributed. As a result, the security official reported to the cafeteria and asked the union representatives why they were present. The union representatives responded that they were discussing the union with some employees. The security official told the union representatives to leave because the cafeteria was only for the use of patients, their families and visitors, and hospital employees. After the union representatives refused to leave, the security official called 911 and six police officers escorted them out.

NLRB Decision

In determining that UPMC did not commit an unfair labor practice when it removed the two union representatives from the hospital’s public cafeteria, the Board reviewed the United States Supreme Court’s 1956 decision in NLRB v. Babcock and Wilcox Co., 351 U.S. 105 (1956), which permitted an employer to deny nonemployee union organizers access to its premises unless the premises were inaccessible or if the employer permitted other non-employees access to the property. For instance, an employer’s private property rights would have to yield to the union if the union had no other reasonable means of communicating its message to employees or if the employer discriminates against the union. The Board noted that the Supreme Court intended for both exceptions to be narrowly construed given the importance of private property rights.

Despite applying the principles of Babcock, the Board acknowledged that over the years it had created an additional exception, the “public space” exception, which requires employers to permit nonemployees to engage in promotional or organizational activity in public cafeterias or restaurants as long as they are not disruptive. In the case at bar, the Board overruled the “public space” exception on the basis that it has been soundly rejected by multiple circuit courts and is inconsistent with the principles established in Babcock. The Board further stated the fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employer must allow any nonemployee access for any purpose as long as the employer does not discriminate between nonemployee union representatives and other nonemployees.

Applying the Babcock standard, the Board determined that UPMC’s employees were not inaccessible and that UPMC did not discriminate against nonemployee union representatives because UPMC prohibited all solicitation or promotional activity in its cafeteria by all nonemployees. UPMC demonstrated specific instances in which the hospital removed nonemployees who engaged in solicitation or promotion of their organizations in the cafeteria.

Regarding the unlawful surveillance issue, the Board held that the security officer did not engage in unlawful surveillance since he was alerted of the promotional activity by other hospital personnel and did not stay in close proximity to the employees in the cafeteria. Moreover, the NLRB has recognized that “management officials may observe public union activity, particularly where such activity occurs on company premises, without violating Section 8(a)(1) of the Act, unless such officials do something out of the ordinary.”

Takeaway for Employers

Employers with areas of their facilities open to the public, such as cafeterias, may now ban any nonemployee, including union representatives, from engaging in promotional and organizational activity in these public spaces. However, if an employer bans nonemployee union representatives from organizing in its public cafeteria, the employer must also ban all other nonemployees from engaging in similar activities in the cafeteria to avoid engaging in discrimination. Employers must be cognizant that they are treating all nonemployees equally with respect to their use of such public spaces.

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If you have any questions regarding the Board’s decision in UPMC, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP

On June 3, 2019, the United States Supreme Court unanimously held that the charge-filing requirement of Title VII of the Civil Rights Act (“Title VII”) is not jurisdictional. The Court reasoned that: (1) the word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (i.e., subject-matter jurisdiction) and the persons over whom a court may exercise adjudicatory authority (i.e., personal jurisdiction); and (2) Title VII’s charge filing requirement is a nonjurisdictional claim-processing rule. As a result, the failure to file a charge is simply a defense that must be asserted as part of the normal litigation process.

Background

Title VII instructs a complainant, before commencing a Title VII action in court, to file a charge with the Equal Employment Opportunity Commission (“EEOC”). A complainant is then entitled to a “right-to-sue” notice 180 days after the charge is filed. Upon receipt of the right-to-sue notice, the complainant may, within 90 days of receipt of the right-to-sue notice, commence a civil action against her employer.

Lois M. Davis (“Davis”) filed a charge against her employer, Fort Bend County (“Fort Bend”) alleging sexual harassment and retaliation for reporting the harassment. While her EEOC charge was pending, Fort Bend fired Davis because she failed to appear for work on a Sunday, instead going to a church event. Davis attempted to supplement her EEOC charge by handwriting “religion” on a form called an “intake questionnaire,” but she did not amend the formal charge document. Upon receiving a right-to-sue letter, Davis commenced suit in Federal District Court, alleging religion-based discrimination and retaliation for reporting sexual harassment.

After years of litigation, only the religion-based discrimination claim remained in the case. Fort Bend then asserted — for the first time — that the District Court lacked jurisdiction to adjudicate Davis’ case because her EEOC charge did not include a claim of religious discrimination. The District Court agreed and granted Fort Bend’s motion to dismiss Davis’ suit. On appeal from the dismissal, the Court of Appeals for the Fifth Circuit reversed, holding that Title VII’s charge-filing requirement is not jurisdictional but rather a prudential prerequisite to suit, which Fort Bend forfeited in Davis’ case by waiting too long to raise the objection. The Supreme Court affirmed.

Supreme Court Decision

In affirming the Fifth Circuit’s decision, the Supreme Court reasoned that the word “jurisdictional” is generally reserved for subject-matter jurisdiction and personal jurisdiction. A claim-processing rule requiring parties to take certain procedural steps in, or prior to, litigation, may be mandatory in the sense that a court must enforce the rule if timely raised. But a mandatory rule of that sort, unlike a prescription limiting the kinds of cases a court may adjudicate, is ordinarily forfeited if not timely raised. In short, an employee’s failure to file a charge is simply a defense that an employer must assert in a timely manner.

 

Takeaway for Employers

Employers should keep in mind that the Supreme Court has not nullified Title VII’s charge-filing requirement. Complainants must still file charges with the EEOC or state agencies before filing suit in court. However, employers are cautioned they can lose the defense that a plaintiff did not comply with the charge-filing requirement if they wait too long to assert it. Thus, employers are encouraged to file exhaustion defenses early on.

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If you have any questions regarding the Supreme Court’s ruling in Fort Bend County, Texas v. Davis, Case No. 18-525, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

Earlier this month, Westchester County joined NYC in enacting a Safe Leave Law (the “Law”), granting up to 40 hours of paid leave in any consecutive 12-month period to any employee who is a victim of domestic violence.

The Law applies to all businesses of five or more employees, and is quite broad going beyond physical abuse to “emotional or financial manipulation or other kinds of abuse,” according to its sponsor. The 40 hours are separate and in addition to any other employer leave policies.

The bill had “tripartisan” support, was unanimously passed, and has the support of a number of employer groups as well. It becomes effective October 30 at which time posting notices are also required.

An employee wishing to take Safe Leave need not provide advance notice to the employer, but documentation after the fact may be required if requested. The time may be applied to attending any applicable court proceedings or moving to a “safe” house.

The Law has the usual prohibitions against discrimination and retaliation, fines, actual damages, equitable relief, attorneys’ fees, reinstatement and backpay. All proceedings must be confidential and records kept separate from the personnel file. Essentially, Westchester County has now created an additional protected category for its residents.

Takeaway for Employers

Employers should be particularly sensitive to requests for leave under this new law, and be prepared for the proper notice posting and issues of eligibility. The County should issue FAQs in the coming months as guidance.

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If you have any questions regarding the Safe Leave Law, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On April 24, 2019, the United States Supreme Court held that under the Federal Arbitration Act (“FAA”), an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration. The Supreme Court considered whether the FAA bars an order requiring class arbitration when an agreement is not silent, but rather ambiguous about the availability of such arbitration. In a 5-4 decision, the Court overturned the Ninth Circuit’s ruling that allowed a worker’s data breach class arbitration to move forward.

Background

In 2016, Frank Varela (“Varela”) filed a putative class action against his employer, Lamps Plus, Inc. (“Lamps Plus”), in federal district court on behalf of about 1,300 employees whose tax information had been compromised by a hacker. Relying on the arbitration agreement in Varela’s employment contract, Lamps Plus sought to compel arbitration—on an individual rather than a classwide basis—and to dismiss the suit. The district court rejected the individual arbitration request, but authorized class arbitration and dismissed Varela’s claims. Lamps Plus appealed, arguing that the district court erred by compelling class arbitration, but the Ninth Circuit affirmed. Even though the Supreme Court ruled in Stolt-Nielson S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) (“Stolt-Nielson”), that a court may not compel arbitration on a classwide basis when an agreement is silent on the availability of such arbitration, the Ninth Circuit ruled that Stolt-Nielson was not controlling because the agreement in the case was ambiguous rather than silent on the issue of class arbitration. The Ninth Circuit’s contrary conclusion was based on the state law contra proferentem doctrine, which requires contractual ambiguities to be construed against the drafter. The Supreme Court disagreed.

Supreme Court Decision

The Supreme Court reasoned that the Ninth Circuit’s contrary conclusion based on the state law contra proferentem doctrine, is based on public policy considerations rather than on the intent of the parties. The Supreme Court found that such an approach is flatly inconsistent with the foundational FAA principle that arbitration is a matter of consent and that the task of the courts and arbitrators is to give effect to the intent of the parties.

The Supreme Court also highlighted the importance of recognizing the fundamental difference between class arbitration and the individualized form of arbitration envisioned by the FAA. Individual arbitration is, the Court noted, cheaper and quicker, while class arbitration takes longer, costs more, and is procedurally more complex. Similar to its reasoning in Stolt-Nielson, the Supreme Court reasoned that, like silence, ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to sacrifice the principal advantage of arbitration.

Takeaway for Employers

Employers should keep in mind that if they intend to permit class arbitration, it must be explicitly authorized in arbitration agreements. Employers are cautioned however that in incorporating by reference the rules of various arbitration forums, which permit class-wide arbitration, they may unwittingly be consenting to class-wide arbitration. Employers are encouraged therefore to make explicit that they are agreeing only to individual, rather than class-wide arbitration.

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If you have any questions regarding the Supreme Court’s ruling in Lamps Plus, Inc., et al., v. Varela, Case No. 27-988, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

The EEOC previously informed employers that it would not be seeking pay data for the 2018 EEO-1 reporting period despite the reinstatement of the pay data collection rule. The Hon. Tanya S. Chutkan of the United States District Court for the District of Columbia issued an order today requiring the EEOC to collect 2018 pay data by September 30, 2019. For further information on the pay data collection requirement, see our prior alerts: https://putneylaw.com/client-news/eeoc-pay-data-collection-eeo-1-reports-reinstated and https://putneylaw.com/client-news/pay-data-not-required-2018-eeo-1-cycle-according-eeo.

In addition to setting a September 30th deadline, Judge Chutkan ordered the EEOC to collect a second year of pay data. The EEOC has until May 3, 2019 to decide whether it will collect 2017 pay data or 2019 data in the 2020 reporting period. Additionally, a statement must be issued on the EEOC website informing employers of the Court’s decision no later than April 29, 2019.

Takeaway for Employers

Large employers with 100 or more employees are now required to provide data on wage information and hours worked for all employees by race, ethnicity, and sex by job category for 2018. Employers should begin to collect pay and hours worked data as soon as possible in order to comply with the September 30, 2019 deadline. Employers are still required to submit their 2018 EEO-1 reports, which include employees’ race, ethnicity, and sex by job category by May 31, 2019. As always, we encourage you to contact us for assistance in complying with your EEO-1 reporting requirements.

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If you have any questions regarding your EEO-1 reporting obligations, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

The New York City Council has passed a bill that would prevent employers from requiring pre-employment marijuana testing during the hiring process. The legislation, Intro. No. 1445-A, which was passed on April 9, 2019 on a 41-4 vote, prohibits employers from requiring a job candidate to submit to testing for tetrahydrocannabinols (THC), the active ingredient in marijuana, as a condition of employment. Exceptions are provided for jobs that are safety and security sensitive, and those tied to a federal or state contract or grant.

The law, which currently awaits the mayor’s signature, will take effect one year after enactment. Upon enactment, the law would amend the New York City Human Rights Law (“NYCHRL”).

Background

In a Committee Report on the bill, Council members cited to the history of disparate impact based on race in the enforcement of marijuana prohibition. The report explained that positive results of THC can occur weeks after use and do not necessarily indicate that a person is impaired at the moment of testing. According to the report, as New York City residents freely travel to the 34 states that have some form of marijuana legalization, those who engage in legal marijuana consumption should not be penalized for legal use of a product in another state.

Although the possession and sale of recreational marijuana is currently illegal under New York State Penal Law Article 221, there has been a push by Governor Andrew Cuomo, Mayor Bill De Blasio, and state legislators to legalize recreational marijuana. Medical marijuana has been legal in New York since the enactment of the Compassionate Care Act in 2014.

Exceptions

The bill would not apply to a job candidate applying to work in the following positions:

  • police officer or peace officer;
  • positions with a law enforcement or investigative function at the department of investigation;
  • certain positions in the construction industry;
  • positions requiring a commercial driver’s license;
  • positions requiring the supervision or care of children, medical patients or certain vulnerable persons;
  • positions that impact the health or safety of employees or the public;
  • positions tied to a contract entered into between the federal government;
  • positions in which testing is required by the departments of transportation of the federal, state, or city government; or
  • positions that require drugs testing for purposes of safety or security under federal or state statute, regulation, or order.

Additionally, the ban on pre-employment marijuana testing would not apply to any position with the potential to significantly impact the health or safety of employees or the public, as determined by the commissioner of citywide administrative services or the chairperson. The bill also would not apply to drug testing required by a collective bargaining agreement between an employer and a union.

Takeaway for Employers

As a reminder, the NYCHRL currently prohibits most employers, labor organizations, and employment agencies from inquiring about or considering the criminal history of job applicants, including prior convictions related to marijuana possession, until after a conditional offer of employment is extended. If this new bill is enacted, New York City employers would be further prohibited from submitting job applicants to a drug test for marijuana use as a condition of employment. Once enacted, employers will have one year to modify any existing hiring practices to comply with the law. Employers should stay tuned to whether the bill is signed and the effective date of compliance.

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If you have any questions regarding the new legislation or pre-employment practices, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

Effective immediately, employees in New York who are registered to vote may take up to three hours of paid time off to vote in any election. The 2019-2020 New York State budget amended New York Election Law §3-110 to read as follows:

A registered voter may, without loss of pay for up to three hours, take off so much working time as will enable him or her to vote at any election.

Unless otherwise mutually agreed, an employer may designate that such time be taken at the beginning or end of an employee’s shift. Under the new law, an employee must notify his or her employer not less than two working days before the day of the election that he or she requires time off to vote. There is no language in the law allowing an employer to deny a request.

Employers remain obligated to post notice of this law at least ten working days before any election and may only remove the notice when the polls close on the day of the election.

Takeaway for Employers

Under the new law, employees are no longer required to vote before or after their shifts. Employers should designate the paid time off to be taken at the beginning or end of employees’ shifts to decrease the interruption in the work day.

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If you have any questions regarding the new election law, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

New Jersey Governor Phil Murphy recently approved legislation that represents the nation’s first state-wide requirement to offer commuter benefits to employees. The law, Senate Bill No. 1567 (“New Jersey Transit Benefits Law” or the “Law”), requires New Jersey employers that employ 20 or more employees to offer pre-tax transportation fringe benefits to employees. Employers must implement these benefits by March 1, 2020, or the effective date of the New Jersey Department of Labor and Workforce regulations, whichever occurs first.

Various cities have enacted similar pre-tax transportation fringe benefits laws at a local level, including New York City, Washington, D.C., San Francisco, and Seattle.

Covered Employees

Under the New Jersey Transit Benefits Law, an employee is one who is hired or employed by the employer and who reports to the employer’s work location. Such definition mirrors the one used in New Jersey’s unemployment compensation law. Employers are not required to provide transit benefits to employees who are currently covered under a collective bargaining agreement until the expiration of the agreement. For federal government employees, if the employee is eligible for a transit benefit due to employment with the government, then the federal government will not be required to provide pre-tax transportation fringe benefits.

Commuter Benefits

Employers must offer a pre-tax election transportation fringe benefit that provides commuter highway vehicle and transit benefits, consistent with the provisions of the federal tax code, Internal Revenue Code (“IRC”) § 132(f)). The benefits must be provided at the maximum benefit levels permitted under federal law, to be deducted for those programs from an employee’s gross income under IRC § 132(f). For the 2019 taxable year, the maximum benefit levels are $265 per month for commuter highway vehicle benefits and any transit pass, and $265 per month for qualified parking.

No Tax Deduction Permitted for Employers

Employers will not be permitted to deduct the expense of the pre-tax transportation benefits from federal corporate income taxes. The 2017 Tax Cuts and Jobs Act, PL 115-19, amended Section 274 of the IRC to eliminate the employer deductions for qualified transportation fringe benefits that are excluded from employees’ taxable income.

Compliance Deadline

Although the New Jersey Transit Benefits Law takes effect immediately, the legislation specifies that it is “inoperative” for 365 days following the date of enactment, or upon the effective date of the rules and regulations adopted by the New Jersey Department of Labor and Workforce regulations, whichever occurs first. As such, the Law will not be enforced until March 1, 2020, unless final regulations are adopted on an earlier date.

Penalties for Noncompliance

Pursuant to the Law, any employer who fails to provide pre-tax transportation fringe benefits will be liable for a civil penalty between $100 and $250 for a first violation. Employers will have 90 days to offer commuter benefits before the civil penalty is imposed. After 90 days, each additional 30-day period in which an employer fails to offer the commuter benefits will be considered a subsequent violation, incurring a penalty of $250 for each violation. Any penalties incurred may be recovered with costs and interest charges, if applicable, in a summary proceeding.

Takeaway for Employers

New Jersey employers that do not currently offer pre-tax transportation fringe benefits will need to offer a transit benefits program. Employers should consider adopting such a program as soon as possible, instead of waiting until March 1, 2020, as the implementing regulations may be adopted earlier. Employers may also want to discuss the tax implications of a transit benefit program with their tax advisors.

As a reminder, New York City employers are required to comply with New York City’s Commuter Benefits Law, which requires private employers with 20 or more full-time, non-union employees in New York City to offer covered employees the opportunity to enroll in commuter benefits programs to pay for mass transit costs with pre-tax earnings.

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If you have any questions regarding the transit benefit programs and requirements, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On March 14, 2019, the United States Department of Labor (“DOL”) issued an opinion letter concerning whether an employee’s time spent participating in an employer’s optional volunteer program, which awards a bonus to certain participating employees, is hours worked under the Fair Labor Standards Act (“FLSA”). The DOL determined that participation in the program does not count as hours worked under the FLSA, so long as the employer does not unduly pressure its employees to participate. The DOL also determined that the employer may use a mobile device application to track a participating employee’s time spent volunteering, so long as the employer does not use the application to direct or control the employee’s activities.

The Optional Volunteer Program

The opinion letter concerns an employer that provides an optional community service program for its employees. Under the program, employees engage in certain volunteer activities that either the employer sponsors or the employees themselves select. The employer compensates employees for the time they spend on volunteer activities during working hours or while they are required to be on the employer’s premises. However, many of the hours that these employees spend on volunteer activities are outside normal working hours. At the end of the year, the employer rewards the group of employees with the greatest community impact with a monetary award. The winning group’s supervisor decides how to distribute the award among the employees. In making this decision, the supervisor may consider how many hours each employee volunteered. The employer does not require employees to participate in the program, or direct or control their participation. The employer is considering using a mobile device application to track each participating employee’s volunteer hours.

Legal Principles

Citing to several of its own opinion letters, the DOL outlines the following general legal principles:

  • The FLSA recognizes the generosity and public benefits of volunteering and allows people to freely volunteer time for religious, charitable, civic, humanitarian, or similar public services;
  • A person is ordinarily not an employee under the FLSA if the individual volunteers without contemplation or receipt of compensation;
  • A volunteer must offer his or her services “freely without coercion or undue pressure,” direct or implied, from an employer;
  • An employer may notify employees of volunteer activities and ask for assistance with them as long as there are “no ramifications if an employee chooses not to participate”; and
  • The practice of compensating employees when they participate in volunteer activities during normal working hours does not jeopardize their status as volunteers when they participate in volunteer activities outside of normal work hours.

Additionally, an employer may use an employee’s time spent volunteering as a factor in calculating whether to pay the employee a bonus, without incurring an obligation to treat that time as hours worked, so long as: (1) volunteering is optional, (2) not volunteering will have no adverse effect on the employee’s working conditions or employment prospects, and (3) the employee is not guaranteed a bonus for volunteering.

DOL’s Opinion

It is the DOL’s opinion that employee participation in the employer’s program is charitable and voluntary. The employer does not require participation in the program and does not control or direct volunteer work. The DOL stated that it did not appear that the employees suffer adverse consequences in their working conditions or employment prospects if they do not participate in the volunteer activities. Moreover, the employer does not guarantee participating employees a bonus for their volunteer work. Instead, the employer only awards the group with the most community impact and gives the winning group’s supervisor discretion to determine what amount of bonus, if any, to award to individual employees in the group.

Takeaway for Employers

Employers should remember that the FLSA is not intended to discourage or impede volunteer activities, but rather to prevent manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure on individuals to “volunteer” for their services. Thus, great care should be taken to ensure that volunteering is optional. Similarly, not volunteering should have no adverse effect on employees. Under no circumstances should employees be guaranteed a bonus for volunteering.

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If you have any questions regarding the DOL’s opinion letter, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

As we reported, on October 17, 2018, New York City passed two laws concerning workplace lactation accommodations. City of New York Local Laws 185 and 186 require New York City employers to provide their employees with reasonable unpaid or paid break time and a private space to express milk. They also require that employers provide employees with a written policy on lactation accommodations.

 

These laws went into effect on March 17, 2019. With the laws in effect, the City of New York has now clarified that the laws are greater in scope than legislators initially intended, and apply to all employers with four or more employees. To provide employers with further guidance, the New York City Commission on Human Rights has created three model policies. The model policies correspond to the type of accommodation an employer can provide its employees based on the design of its facility. They provide guidance to employers who supply their employees with dedicated lactation rooms, multi-purpose spaces that may be used as lactation rooms, and those employers who do not have the requisite space available for a lactation room.

Each of the three policies provides information about:

  • the lactation accommodation process,
  • the reasonable time an employee has to express breast milk,
  • circumstances in which providing accommodations may pose an undue hardship on an employer and the dialogue that must take place in those scenarios.

On top of this information, each of the individual policies corresponds to and includes recommendations specific to the type of accommodation an employer can provide.

Takeaway for Employers

Employers should compare their existing policy to the model policy that most closely resembles their work environment. After review, employers should take care to make sure that their policies incorporate all of the information in the model policies and that they are in compliance with applicable New York City, New York State, and federal law.

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We are of course available to assist in drafting and reviewing such policies, and in advising employers on the new lactation accommodation process.

Putney, Twombly, Hall & Hirson LLP