HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

The Supreme Court Rules that the Age Discrimination in Employment Act Applies to Small Government Employers

Posted in Age Discrimination, Discrimination, Diversity, Equal Employment Opportunity Commission, Fair Labor Standards Act, General Labor and Employment News and Updates, Government, Supreme Court

The Age Discrimination in Employment Act of 1967 (“ADEA”) forbids employment discrimination against employees who are 40 years of age or older.  Private employers with less than 20 employees are not subject to the ADEA.  On November 6, 2018, the U.S. Supreme Court unanimously[1] held that the ADEA’s 20-employee threshold does not apply to government employers, and that state and local government entities are subject to the ADEA even if they have fewer than 20 employees.  See Mount Lemmon Fire District v. John Guido.

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Jury Okays Firing Transgender Employee for Negative Glassdoor Review

Posted in Discrimination, Equal Employment Opportunity Commission, Gender Identity, General Labor and Employment News and Updates, LGBTQ Employees, Reasonable Accommodation, Sexual Orientation Discrimination, Terminations

On October 29, 2018, a San Francisco federal jury unanimously found that a Silicon Valley tech company did not commit unlawful retaliation by firing a transgender employee who accused the company of discrimination in a two-star Glassdoor review.

Adrian Scott Duane, a transgender man, alleged on the job review website that IXL Learning, Inc. (IXL), an educational technology provider, gave unequal treatment to employees on the basis of race, sexual orientation, and gender identity.  In an anonymous post titled “Micromanaged and Problematic,” Duane claimed that:

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Judge with Disabled Child Recuses Self from Disability Discrimination Suit

Posted in Americans with Disabilities Act, Discrimination, Equal Employment Opportunity Commission, General Labor and Employment News and Updates, Government, Labor Relations

Despite the sensitive nature of employment-related claims like discrimination and retaliation and harassment and hostile work environment, it is rare for judges to admit to personal biases that could influence their decision-making.

But a federal district court judge has recently just done exactly that.  On August 30, 2018, the Hon. Lewis T. Babcock, a Senior United States District Judge for the District of Colorado, recused himself from a disability discrimination lawsuit because his son is quadriplegic and was a plaintiff in another disability discrimination suit.  Judge Babcock shared this family tie, and suggested that it might create the appearance of impartiality, while overseeing oral argument on an unrelated motion.

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Don’t Be Spooked: New Jersey’s Paid Sick Leave Law Takes Effect on October 29, 2018

Posted in Employee Benefits, Employee Leave Management, Labor Relations, Paid Sick Leave, Reasonable Accommodation, Wage & Hour, Wellness Plans, Workplace Policies

Earlier this year, HR Legalist posted a blog entry about the New Jersey Earned Sick Leave Law.  This new law (full text available here) takes effect on October 29, 2018 and requires most private sector employers in New Jersey to provide paid sick leave to its New Jersey employees.  But don’t let this scare you.  We’ve got some ghouls—I mean, tools—to help keep employers from getting tangled in this latest web of sick leave laws.  The New Jersey Department of Labor (NJDOL) recently issued proposed regulations to implement the new law. The following is a summary of the key regulations:

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In a Win for Employers, Ninth Circuit Upholds Arbitration Clause in UBER Misclassification Lawsuit

Posted in Employment Agreements, General Labor and Employment News and Updates, Labor Relations, New Jersey Law, Wage & Hour

On September 25, 2018, the Ninth Circuit Court of Appeals ended an aggressive five-year legal battle between Uber and its drivers regarding whether or not drivers should be considered employees versus independent contractors.  In O’Connor v. Uber, the court avoided the central issue of the proper classification of drivers by ruling that drivers suing for expenses and tips must submit their claims to arbitration in accordance with Uber’s driver agreement.  The Ninth Circuit’s opinion, which relied upon the U.S. Supreme Court’s ground breaking decision in Epic Systems v. Lewis, dealt a significant blow to drivers who can no longer pursue employment claims against Uber via a class-action claim in federal court, and instead must bring their claims individually to arbitration.

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Start Spreadin’ the News: NYC’s “Cooperative Dialogue” Requirement for Accommodations is Effective Today

Posted in Americans with Disabilities Act, Civil Rights, Discrimination, General Labor and Employment News and Updates, Harassment, Labor Relations, New York Law, Pregnancy Discrimination, Reasonable Accommodation, Religious Discrimination, Workplace Policies

A spate of new state and local regulations is making it tougher to be an employer in the City That Never Sleeps.  As previously covered by HR Legalist, new requirements for sexual harassment policies went into effect across New York State on October 9, 2018, and burdensome new requirements for harassment-related training will go into effect statewide on October 9, 2019.  In addition, New York City employers must comply with the Stop Sexual Harassment Act, which includes its own training requirements, beginning in April 2019.

If that wasn’t enough to keep employers in The Big Apple busy, a new amendment to the NYC Human Rights Law (NYCHRL), effective October 15, 2018, adds new requirements for how employers must respond when employees request workplace accommodations.  The new rule requires employers to engage in a “cooperative dialogue” with employees who request accommodations, similar to the “interactive process” required under federal law (including the Americans with Disabilities Act).  However, NYC’s requirements significantly expand on the ADA’s requirements.

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New York State Harassment Training Deadline Extended to October 2019

Posted in General Labor and Employment News and Updates, Harassment, Labor Relations, New York Law, Sexual Harassment, Workplace Policies

As previously covered by HR Legalist, employers across New York State have until October 9, 2018,  to implement sexual harassment policies that meet specific minimum requirements defined in the law.  On Monday afternoon, the State of New York issued final guidance which granted employers a significant reprieve on the portion of the law governing mandatory sexual harassment prevention and training. Thanks to this new guidance, employers in New York State now have until October 9, 2019 to provide the requisite training (a significant extension from the previous training-related deadline of January 1, 2019).  However, the deadline for the adoption of compliant sexual harassment policies remains October 9, 2018.

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Attention New York Employers: First Deadline for New Sexual Harassment Policy and Training Requirements is October 9th

Posted in Civil Rights, Discrimination, Harassment, New York Law, Sexual Harassment, State Law, Workplace Policies

In April 2018, Governor Cuomo signed the 2019 New York State budget, which includes sweeping new requirements for sexual harassment policies and training for private employers of all sizes.  The October 9th deadline for all New York State employers to create, publish and implement sexual harassment policies is fast approaching. Even more burdensome for employers in New York State, is the January 1, 2019 deadline for all employees to have completed sexual harassment training (NOTE: this deadline has been extended to October of 2019, as noted in our blog update here). The next phase of implementation for the New York City area begins on April 15, 2019. The New York City training mandate includes far more extensive training requirements that will force employers to invest in sexual harassment training beyond cursory videos or training materials. Continue Reading

#Metoo reaches the federal courts

Posted in Civil Rights, General Labor and Employment News and Updates, Harassment, Retaliation, Title VII of the Civil Rights Act, Workplace Investigations, Workplace Policies

On July 3, 2018 the United States Court of Appeals for the Third Circuit[1] ruled on the case of Minarsky v. Susquehanna County et al, 17-2646 (Jul. 3, 2018). The case clarifies and limits the scope of the Faragher-Ellerth affirmative defense in workplace harassment cases.

Established by the Supreme Court in 1988, the Faragher-Ellerth defense  provides the employer a defense to workplace harassment claims when it can show that (1) it exercised reasonable care to prevent harassment and to promptly correct it when it might occur; and (2) that the employee failed to reasonably take advantage of preventative or corrective measures provided by the employer, or to otherwise avoid harm.  Usually, this means that if the employer implements a policy prohibiting harassment, and the employee fails to report harassment that violates that policy, then the employee cannot successfully bring a harassment claim.  Because this is an affirmative defense, the employer must prove both of the above elements to avoid liability. Continue Reading

Non-Compete Agreements and H-1B Visa Workers

Posted in Employment Agreements, H-1B, Hiring, Immigration, Noncompetition Agreements, Restrictive Covenants

 

Some employers require employees to enter into non-competition agreements at the time of hire, preventing them from competing with their employer during employment and during a certain time period after their employment ends. Non-compete agreements are often presented to employees with access to intellectual property, trade secrets, customer lists, business plans and strategies, and other valuable information that could potentially allow the employee to engage in unfair competition after leaving employment.  Along with confidentiality, non-disclosure, and non-solicitation agreements, non-compete agreements are important tools to protect an employer’s business.  However, asking a foreign worker with an H-1B visa  to enter into non-compete agreement can present additional complications. Continue Reading