Will Title VII Damage Caps Go Away?
As I reported previously, Congress has debated whether to remove damages caps that are set forth in Title VII of the Civil Rights Act of 1964. Now, House and Senate Democrats presented legislation Wednesday that would eliminate ceilings on the amount of damages workers can receive under if a jury finds they've been discriminated against, claiming existing limits are outdated.
Employer May Avoid Wage Theft Law Violation For Good Faith
The California Supreme Court on Monday held that if an employer had a good faith belief it was providing complete and accurate wage statements to its employees, it has not knowingly and intentionally violated state labor law, meaning workers cannot recover civil penalties That’s not to say that you shouldn’t try to be in compliance with the various state laws, which include specifics that must be contained on a pay stub.
Chamber's Noncompete Challenge On Hold
A Texas federal court has paused the U.S. Chamber of Commerce's case challenging the Federal Trade Commission's pending ban on noncompetes and encouraged the group to join a case filed a day earlier by tax services and software company Ryan LLC. Consolidating can be more judicially economical and can eliminate the possibility of inconsistent rulings.
And, a clarification: the Final Rule was published in the Federal Register on May 7, 2024 and will therefore become effective on September 4, 2024 barring judicial intervention.
NLRB Plans To Appeal Joint Employer Decision
The National Labor Relations Board is fighting a Texas federal judge's decision striking down the board's 2023 joint employer rule, telling the court on Tuesday that the agency will appeal the ruling to the Fifth Circuit.
Windy City Publishes Sick Leave Rules
On April 30, 2024, the Chicago Department of Business Affairs and Consumer Protection (BACP) published the final rules interpreting the Chicago Paid Leave and Paid Sick and Safe Leave Ordinance (the “Ordinance”) which is set to take effect on July 1, 2024. As a reminder, the Ordinance replaces the current Chicago Paid Sick Leave Ordinance. Under the new ordinance, Chicago employees will remain entitled to earn up to 40 hours of Paid Sick Leave per 12-month period but also will be entitled to earn up to 40 hours of Paid Leave, usable for any reason, per 12-month period.
President Vetoes Bill to Overturn NLRB's Joint-Employer Rule
President Joe Biden has vetoed a measure to repeal the National Labor Relations Board's joint-employer rule, which broadens the standard for companies to be deemed jointly liable for labor violations and required to engage in negotiations with workers' unions. A federal judge in Texas has placed the rule on hold, although the NLRB is likely to appeal that decision.
A two-thirds majority in the House and Senate would be required to overturn the veto, an unlikely scenario as an overwhelming majority of congressional Democrats endorse the rule.
CROWN Act Reintroduced
The Creating a Respectful and Open World for Natural Hair, or CROWN, Act has been reintroduced in the House, where the legislation was approved in 2019 and 2022 before it failed in the Senate. The bill would prohibit discrimination based on hairstyle or hair texture. Such legislation is in place in 25 states and the US Virgin Islands, and it has been introduced in 20 additional states and the District of Columbia.
MD Pay Transparency Law
The Maryland Wage Range Transparency Act will go into effect on October 1, 2024 and requires employers to provide:
- A good faith wage and salary range,
- a general description of any benefits, and
- a general description of any other compensation that might be offered in job postings for any work “that will be physically performed, at least in part,” in MD.
Employers must also disclose this information to an applicant upon request, or at any time before a discussion of compensation is has with an applicant.
CT PSL Will Apply To All Companies
Gov. Ned Lamont signed H.B. 5005 into law Tuesday, which requires companies of all sizes to provide paid sick leave (PSL) benefits to workers under a series of annual deadlines, the first of which is set for Jan. 1, 2025. Starting in 2025, the law will apply to businesses that employ 25 or more workers. Effective Jan. 1, 2026, the law will cover businesses that employ 11 or more workers, and in 2027 it will apply to businesses that employ at least one person.
TX’s Challenge to EEOC Guidance Over Gender Identity
The Texas attorney general requested Tuesday that a federal judge set aside the EEOC's enforcement guidance over gender identity and Title VII, arguing that the agency must be stopped from requiring employers' compliance with pronoun and bathroom accommodations.
NJ Says Civil Rights Laws Apply to Out-of-State Remote Workers
NJ’s Division on Civil Rights issued Guidance on Discrimination and Out-of-State Remote Workers, confirming that the state’s Law Against Discrimination (LAD)—which prohibits employers from discriminating on the basis of actual or perceived sexual orientation, gender, gender identity, gender expression, age, race, color, national origin, ancestry, religion, disability, and other protected characteristics—extends to remote employees of NJ employers who reside and work outside of NJ. But, the Guidance says that while the LAD “does not necessarily extend to individuals who work for an employer based” in a state other than NJ, federal laws and the laws of other states may also offer employment-based protections against discrimination.
Pot Designation Proposal
The DOJ has published in the Federal Register a rule that would change marijuana's classification from a Schedule I substance to Schedule III, which would designate it as a less dangerous drug and potentially allow more marijuana research. The DEA will now accept public comment on the proposal for 60 days.
BIPA Damages Limited?
The Illinois legislature approved Senate Bill 2979, which would amend the Illinois Biometric Information Privacy Act (BIPA) to limit damages to one violation per individual, rather than each time biometric information is captured, collected, disclosed, redisclosed, or otherwise disseminated. The bill also amended the definition of “written release” to include an electronic signature. BIPA initially allowed an individual $1,000 or actual damages for each negligent violation, or $5,000 or actual damages for each reckless or intentional violation. This bill would amend Sections 15(b) and 15(d) of BIPA to state that an “aggrieved person is entitled to, at most, one recovery under this Section.”
Color, Disability Bias Charges On The Rise
The EEOC saw a 10% increase in discrimination charges filed in fiscal year 2023, with a highest number of allegations involving either disability or color bias ever.
SCOTUS Says Pause Lawsuits for Arbitration, Not Dismiss
The US Supreme Court held that federal courts lack the discretion to dismiss lawsuits after determining that all the underlying claims are subject to mandatory arbitration agreements.
The justices on Thursday ruled unanimously that the Federal Arbitration Act (FAA) requires district courts to put on hold lawsuits pending the outcome of private dispute resolution proceedings. The court noted that Section 3 of the FAA, which governs the enforcement of arbitration agreements, explicitly says that a district court referring a case to arbitration “shall on application of one of the parties stay the trial of the action until such arbitration has been had.”
“Indeed, this court previously noted that the use of ‘shall’ in neighboring sections of the FAA created a mandatory obligation that left ‘no place for the exercise of discretion by a district court,’” Justice Sonia Sotomayor wrote for the court.
The case is Smith v. Spizzirri, U.S., No. 22-1218, 5/16/24.
CT Sick Leave Law Updated
Starting in 2025, HB 5005 calls for an incremental increase in employer coverage under the sick leave law (from 25+ employees as of 1/1/25, down to 11+ as of 1/1/26 and finally at 1 employee by 1/1/27).
The law will apply to all employees except "seasonal employees" and certain union workers. Employees will be eligible for up to 40 hours of sick leave per year at an accrual rate of at least one hour for every 30 hours worked. Employees are still able to carry over up to 40 hours of paid sick leave per year.
Alternatively, employers may frontload a paid-sick-leave annually instead of annual carry-over, but the frontloaded amount must be available at the beginning of each year.
States Accuse EEOC Of 'Smuggling' Abortion Into PWFA Rule
Louisiana and Mississippi have sued the EEOC seeking to invalidate regulations implementing the Pregnant Workers Fairness Act, claiming the agency's stance that employers must provide workers accommodations if they get an abortion flouts U.S. Supreme Court precedent and the PWFA itself.
MN Family Leave Update
MN family leave is not available to employees until 2026; however, employer’s first wage detail reports are due on Oct. 31, 2024.
The October report will cover wages paid between July 1, 2024, and Sept. 30, 2024. The Department's update also stated that no action is required for employers already submitting quarterly reports within the unemployment system. However, employers not covered by the SUTA program will need to create a "Paid Leave Only" account in order to begin submitting quarterly reports. The Department plans to release instructions soon.
NJ Restricts Use of Nondisparagement Clauses.
The New Jersey Supreme Court recently has restricted the use of nondisparagement clauses in agreements resolving workplace discrimination claims, with experts saying the justices' stance clears up an ambiguity in state anti-bias law that will result in greater scrutiny being placed on the wording of settlements.
Although the New Jersey Supreme Court heavily restricted the circumstances under which a nondisparagement clause can be deployed, it is not a total ban.
In a unanimous ruling issued May 7, the state high court held that a 2019 #MeToo-inspired amendment to the New Jersey Law Against Discrimination known as N.J.S.A. 10:5-12.8(a), or Section 12.8, that bans nondisclosure agreements in employment discrimination-related cases also encompasses nondisparagement clauses.
The justices pointed to "critical language" in Section 12.8 that bars clauses in settlement pacts that have the "effect of concealing the details relating to a claim of discrimination, retaliation, or harassment."
While the law uses the term "non-disclosure provision" as a "shorthand reference," nondisparagement clauses that appear in settlements fall under the LAD's stated purpose of eradicating discrimination in workplaces and elsewhere if they prevent people from discussing discrimination-related claims, the justices said.
"That is true even if the details relating to a claim disparage an employer," Chief Justice Stuart Rabner wrote.
DOL and AI
On April 29th, the US DOL issued a new Field Assistance Bulletin No. 2024-1, titled “Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act and Other Federal Labor Standards,” which addresses the FLSA “and other federal labor standards” to the growing use of AI in the workplace.
- While the US DOL recognizes the benefit that AI technology, human oversight is necessary to avoid results that violate federal labor laws.
- The guidance comes in response to President Biden‘s executive order (EO) calling on federal agencies to coordinate their approach to the development of AI and similar technologies.
- Specifically, AI that tracks work time, breaks, or geographic location, must properly account for all hours worked and ensure that workers are “paid in accordance with federal minimum wage, overtime, and other wage requirements, even when those wage rates vary substantially due to a host of inputs.”
Eh, They Will Never Know
You think that the EEOC is not watching to see who has not filed EEO-1 reports (and who were required to do so)? Think again!
This week, the EEOC sued 15 employers in 10 different states for failure to submit prior years’ EEO-1 reports. As a reminder from the EEOC “Federal law requires employers with 100 or more employees to submit workforce data to the EEOC. The data collected includes workforce information by job category and sex, race, or ethnicity. This workforce demographic data is used for a variety of purposes including enforcement, analytics and research, and employer self-assessment.”
And, so that you are not the 16th employer to be sued, the deadline to file the 2023 EEO-1 Component 1 report is June 4, 2024.
Reminder: Changes To OR Leave Coming Soon
Paid Leave Oregon (PLO) and the Oregon Family Leave Act (OFLA) will undergo major changes as of July 1, 2024.
The Oregon legislature passed a new law on March 20, 2024, with changes such as:
- OFLA no longer covers parental leave and serious health conditions.
- OFLA will now only offer a total of four weeks of bereavement leave rather than 12 weeks.
- Sick child leave under OFLA will be expanded to allow employees to take leave to care for a sick child regardless of whether the child has a serious health condition.
- Leave under PLO and OFLA can no longer be taken concurrently. However, leave under OFLA and PLO must still be taken concurrently with FMLA.
The OR Bureau of Labor and Industries issued temporary rules on May 8, 2024. Per these rules, employers may rescind leave previously protected by OFLA but have limited time to do so. For example, employers who have employees scheduled to take parental leave under OFLA after July 1, 2024, can now rescind that leave. However, they must provide the employee written notice no later than June 1, 2024. Along with this notice, employers must inform employees in writing about their right to file for PLO.
Trade Groups Challenge DOL OT Rule
A lawsuit filed by a coalition of business groups is challenging the federal government over an expansion of mandatory overtime pay rules. The lawsuit seeks to block the implementation of the DOL rule that would require overtime pay for workers earning less than roughly $58,600 annually.
And, It’s Not Just Texas
A small tree trimming business has filed a lawsuit in a US District Court in Pennsylvania challenging the FTC’s rule that bans non-competes. It appears that the PA court will rule the plaintiff’s motion for an injunction by late July.
Meanwhile, the Texas federal court in the Ryan case (one of two filed in TX) has indicated that it will issue a decision on the Plaintiffs' challenge of the non-compete ban by July 3, 2024.
Note that the Rule is set to go into effect on September 4th.
Attorney’s Fees for NC Wage & Hour Claims No Longer A Certainty
Like many states, NC has its own Wage & Hour Act that differs from the FLSA. FLSA claims come with mandatory recovery of attorney’s fees, but a recent NC case (Brown v. Caruso Homes Inc.) found that the NC allows for judicial discretion as to whether to award attorney’s fees. In the case, the plaintiff’s counsel asked for in excess of $485,000 in fees even though the attorney was entitled to 1/3 of the recover under his fee agreement with the plaintiff (which was awarded $122,00). Accordingly, the court seemed to view the separate request for attorney’s fees as excessive.
Reminder: Respect Pronouns
An Eleventh Circuit Court of appeals decision (Copeland v. Georgia Department of Corrections) held that if management or coworkers kept referring to a transgender employee by the wrong name or by another pronoun not preferred by the employee, that could be a hostile work environment claim under Title VII. The opinion is consistent with SCOTUS’ holding in Bostock v. Clayton County which held that Title VII covers claims by transgender employees on the basis of sex.
Time to initiate training or update policies accordingly!