In This Issue
May 2019 – August 2019 | Volume 6 Issue 5
- 2019: The Mid-Year Outlook for Employers
- July Is Always the “New January” for Employment Laws, But This Year Takes the Cake!
- Don’t Delay FMLA: DOL Makes Clear that Employers Must Designate Leave
- Rumors and Gossip in Workplace Can Create Employer Liability for Harassment, Fourth Circuit Holds
- U.S. District Court for the District of Columbia Lifts OMB’s Stay of the Revised EEO-1’s Component 2 Data Reporting Requirements
- Overtime Rule May Be Issued Faster Under New DOL Leadership
- New Jersey Adds to Recent Flood of Salary History Ban Laws
- California Extends Paid Family Leave Benefits from 6 to 8 Weeks
- New York Adopts Laws Aimed at Combating Salary Inequality and Race Discrimination
- Florida Employee Privacy Alert: No Expectation of Privacy for Contents of Employee’s Flash Drive Attached to Work Computer
2019: The Mid-Year Outlook for Employers
The first six months of 2019 have proven to be busy, challenging professionals in the labor and employment communities to keep up with a number of newly enacted laws and regulations. In the 2019: Mid-Year Outlook for Employers, Jackson Lewis attorneys provide a snapshot of activity from the first half of the year as well as a preview of what may lie ahead for employers in the U.S. and abroad.
- OFCCP will publish CSALs on its website and provide notice of the CSAL only to those on its email list.
- Federal legislation affecting retirement plans is moving through the U.S. House of Representatives and Senate.
- Worksite investigations, including I-9 audits, are on the rise. The SSA is also stepping up enforcement efforts sending out No-Match Letters — notifications to employers that an employee’s W-2 form does not match SSA records.
- States across the nation are strengthening their legislation to keep in line with California’s CCPA and the EU’s GDPR including Illinois, Maine, New York, Nevada, Oregon, Texas and Washington.
- Connecticut, Illinois, Maryland and New Jersey have joined the growing number of state and local jurisdictions enacting $15-an-hour minimum wage laws.
- The DOL issued a new proposed rule regarding the minimum salary requirements for FLSA white-collar overtime exemptions and proposed updates to the agency’s joint-employer and regular rate regulations.
- The NLRB ruled that unions no longer can require objectors to contribute toward union lobbying costs.
- “Protecting the Right to Organize Act of 2019” has been filed in the Senate and House of Representatives, proposing to make pro-union changes to the NLRA.
- The NLRB has narrowed the circumstances under which a complaint made by an individual employee is considered concerted activity.
July Is Always the “New January” for Employment Laws, But This Year Takes the Cake!
By: Bruce Sarchet, Littler Mendelson P.C.
Every year, there are numerous state laws and local ordinances that take effect after the first of the year — and 2019 is no exception. Indeed, if anything, this year has seen a dramatic surge in the number of measures adopted, many of which are soon to take effect. This article briefly discusses key labor and employment laws and ordinances that will become effective during the latter half of 2019.
The following measures run the gamut of topics, from independent contractor classification to gender neutral bathrooms and medical marijuana use. These various amendments and laws go into effect on July 1, 2019, unless otherwise noted. While this article does not cover all July 1 minimum wage developments, readers may consult this month’s WPI Wage Watch for that information.
Don’t Delay FMLA: DOL Makes Clear that Employers Must Designate Leave
By: Donna M. Glover, Baker, Donelson, Bearman, Caldwell and Berkowitz, P.C.
Rumors and Gossip in Workplace Can Create Employer Liability for Harassment, Fourth Circuit Holds
By: Stephanie E. Lewis and Jonathan A. Roth, Jackson Lewis P.C.
U.S. District Court for the District of Columbia Lifts OMB’s Stay of the Revised EEO-1’s Component 2 Data Reporting Requirements
By: Matthew D. Davison, Baker, Donelson, Bearman, Caldwell and Berkowitz, P.C.
Many employers also remember that in 2016, under the Obama Administration, the EEOC finalized regulations expanding the information collected in the annual EEO-1 report to include pay data. This expanded requirement became known as “Component 2” of the EEO-1. More specifically, employers would be required as part of Component 2 to collect aggregate W-2 earnings and report the number of employees in each of twelve specific pay bands for the ten EEO-1 job categories, classified by race, sex and ethnicity. Moreover, the employers were also required to report the total hours worked during the year by these same categories.
The new reporting requirements making up Component 2 were immediately and widely criticized by employers who claimed that the collection of W-2 earnings, without any context to explain legitimate non-discriminatory reasons for pay disparities (e.g., education, training, experience, tenure, merit, etc.) would unnecessarily open the door to increased EEOC scrutiny and investigations. Hearing these concerns, the Trump Administration’s Office of Management and Budget (OMB) issued a memorandum in 2017 announcing the immediate stay of the required use of the revised EEO-1 form. According to the OMB, aspects of the new form “lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”
The OMB’s stay remained in effect until March 4, 2019, when the U.S. District Court for the District of Columbia vacated the stay as part of an opinion issued in a lawsuit filed against the EEOC and the OMB by several advocacy groups, including the National Women’s Law Center, in furtherance of their mission to close the gender wage gap by educating the public and policymakers about pay disparity in the workplace. Specifically, the D.C. District Court found that the OMB’s stated concerns directly contradicted the EEOC’s findings when it issued the regulations in 2016 and the OMB failed to explain these inconsistencies or provide a reasoned explanation for changing its policy. The Court noted that employers had more than a year to collect pay data before the OMB issued the stay, so the reinstatement of the pay data reporting requirement should not have disruptive consequences.
After the D.C. District Court’s March 4 opinion, the EEOC requested court approval to extend the deadline for employers to report Component 2 data until September 30, 2019 – later than the deadline for other EEO-1 data, which remains due May 31, 2019. In an Order on April 25, the Court granted the EEOC’s request, but ruled that the EEOC must “immediately take all steps necessary to complete the EEO-1 Component 2 data collections for calendar years 2017 and 2018 by September 30, 2019.” The Court also gave the EEOC an option of foregoing Component 2 data collection for the year 2017, in favor of collecting the same data for the year 2019.
As part of the Court’s rulings detailed above, the EEOC was required to provide notice on its alerting employers of the new EEO-1 pay data requirement. As ordered, the following amended notice was posted on the EEOC’s website on May 3, 2019:
Notice of Immediate Reinstatement of Revised EEO-1: Pay Data Collection for Calendar Years 2017 and 2018
EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court’s recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available.
On May 3, 2019, the Department of Justice filed a Notice of Appeal in National Women’s Law Center. The filing of this Notice of Appeal does not stay the district court orders or alter EEO-1 filers’ obligations to submit Component 2 data. EEO-1 filers should begin preparing to submit Component 2 data as described above.
Filers should continue to use the currently open EEO-1 portal to submit Component 1 data from 2018 by May 31, 2019.
As indicated by the EEOC’s notice above, the OMB has appealed the D.C. District Court’s recent rulings. Additionally, the U.S. Senate confirmed Janet Dhillon on May 8 to become the new chair of the EEOC, which could potentially pave the way for additional change down the road. However, unless and until the U.S. Court of Appeals for the D.C. Circuit enters an Order stating otherwise, employers must still prepare to comply with the new Component 2 requirements by September 30, 2019.
Overtime Rule May Be Issued Faster Under New DOL Leadership
By: Allen Smith, J.D., Roy Maurer and Dana Wilkie, SHRM
Employers can expect to see change more quickly at the Department of Labor (DOL), including issuance of a final overtime rule perhaps as soon as year’s end, under the new leadership of Acting Labor Secretary Patrick Pizzella, who will likely move ahead with his efforts as the nomination process for Eugene Scalia proceeds.
Pizzella is completely committed to ensuring the rule is finalized by year’s end, said Michael Lotito, an attorney with Littler in San Francisco, “knowing that once 2020 begins, all focus turns to the election and any new rules take on heightened politization.”
Former Labor Secretary Alexander Acosta resigned July 12 after he came under fire for having secured a plea deal for convicted pedophile and newly indicted Jeffrey Epstein.
Since the new indictments, “All the news about the DOL has been about Epstein and nothing about what it’s doing,” said Tammy McCutchen, an attorney with Littler in Washington, D.C., and former administrator for the DOL’s Wage and Hour Division. Acosta’s resignation means the Epstein controversy won’t “distract from everything good the DOL has accomplished.”
Paul DeCamp, an attorney with Epstein Becker Green in Washington, D.C., and a former administrator with the Wage and Hour Division as well, said, “Pat was at DOL when I was there and I know him pretty well.” He said Pizzella “is very focused on getting things done. He is the kind of leader who will quickly develop an understanding—if he has not already done so—of what the department can realistically achieve during the remainder of this term, and he will push to ensure that the various agencies at the department continue to make progress along that path.”
McCutchen observed that Pizzella provides continuity, as he was labor deputy secretary, which should help speed rule-making.
Status of the Overtime Rule
Employers are particularly interested in the overtime rule. In it, the DOL has proposed raising the salary threshold for white-collar exemptions to $35,308 annually. The proposed level is a compromise between the current $23,660 threshold and the now-blocked $47,476 cutoff that was adopted by President Barack Obama’s administration in 2016.
Of the 115,000 comments filed on the overtime rule from March 22 to May 21, only 200 are substantive, McCutchen said. Most of the filed comments are the same form letter. The DOL is already reviewing the comments. Employee advocates are saying the DOL should defend the 2016 final rule that was blocked by the courts and not go below $47,476. Some are saying the salary threshold, correcting for inflation, should be set at $51,000 and are “very much opposed” to the proposed $35,308 level, McCutchen observed. The Society for Human Resource Management (SHRM) stated in comments that it supports the threshold being set at $679 per week, or $35,308 annually.
“Certainly there are employers, particularly in rural or southern markets, that feel that the new proposed salary threshold for exempt status is too high,” DeCamp said. “But overall the sense in the business community seems to be that the proposed rule is more or less in line where things have been historically.”
[SHRM members-only toolkit: Complying with U.S. Wage and Hour Laws and Wage Payment Laws]
McCutchen said employers also are interested in the proposed rule on the regular rate of pay and the proposed rule on joint employers. Under Pizzella, she said, she is “more confident the DOL now will be able to complete all three regs this year or maybe in the first quarter of next year.”
In its proposed overtime rule, the DOL projected that the final rule would take effect by January 2020. If that winds up being the case, the final rule might be issued as early as September or October, noted Alfred Robinson Jr., an attorney with Ogletree Deakins and former acting Wage and Hour Division administrator in Washington, D.C. But the proposed rule’s estimation is only a projection.
Pizzella also will oversee other DOL agencies, including the Office of Federal Contract Compliance Programs (OFCCP).
During Acosta’s and OFCCP Director Craig Leen’s tenure, “The OFCCP has become more transparent in its dealings with government contractors,” said Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va. Horvitz said she hoped Pizzella would let Leen continue implementing the changes, including explaining how the OFCCP selects organizations for audits, that Leen has begun.
Connie Bertram, an attorney with Polsinelli in Washington, D.C., said, “Pizzella is known as an ally of management who may be more aggressive than Acosta in imposing a more business-friendly agenda.” She predicted Pizzella may be less deferential to the actions of career staff members.
Workforce Development and Immigration
Acosta stepped down just as Kentucky workforce chief John Pallasch has been confirmed to lead the DOL’s Employment and Training Administration, responsible for administering two big policy areas important to the White House—workforce development and foreign labor certification for the nation’s immigrant workers. Pallasch will finalize the department’s new industry-led apprenticeship rule.
The DOL also has appropriated funds to expand its registered apprenticeships. “The majority of this money that has been spent already has gone to states, with a lot of flexibility in how they spend it,” said Katie Spiker, director of government affairs at the National Skills Coalition, a Washington, D.C.-based public-policy research and advocacy group. “Congress is likely to add to that investment and continue funding apprenticeships at least at those levels this year, too.”
It is unclear if Acosta’s departure will result in any changes to the DOL’s responsibilities for foreign labor certification, a necessary first step in hiring workers for employment-based visas and guest worker visas such as the H-1B, H-2A and H-2B.
During his tenure, demand had grown exponentially for the temporary visas, prompting the DOL to start holding lotteries for available slots. Acosta had said he would support an overhaul of the H-2B system that would take into consideration the needs of highly seasonal regional economies.
New Jersey Adds to Recent Flood of Salary History Ban Laws
By: William J. Simmons, Littler Mendelson, P.C.
Continuing the recent deluge of salary history ban laws,1 on July 25, 2019, New Jersey Lieutenant Governor Sheila Oliver signed Bill A1094 into law.2 Like other recent laws limiting salary history inquiries, New Jersey’s law prohibits employers from screening job applicants based on the applicant’s prior salary history, which includes prior wages, salary or benefits. In addition, employers may not require that an applicant’s salary history satisfy any minimum or maximum threshold to be considered for a job. The new law takes effect on January 1, 2020.
The law provides for a private right of action as well as civil penalties from $1,000-$10,000 per violation depending on the circumstances. The law does not expressly define what conduct will be considered as a single “violation” for purposes of calculating penalties.
Fortunately for employers, New Jersey’s law contains examples of expressly permitted activities and exceptions from coverage in certain key areas:
- Employment Application: If an employer has a multi-state employment application that includes operations outside of New Jersey, the employer is allowed to have a salary history question with a disclaimer that an applicant for a position located in whole or in substantial part in New Jersey is instructed not to answer the question.
- Voluntary Disclosure: If an applicant voluntarily discloses (defined as without prompting or coercion) his or her salary history, the employer may both: (1) verify that the information the applicant provided was accurate and (2) use the information to determine the applicant’s compensation.
- Post-Offer Verification: An employer may obtain written authorization from the applicant to confirm salary history after an offer of employment that contains an explanation of the offered “overall compensation package.”
- Internal Transfers or Promotions: The law does not apply to applications for internal transfer or promotion.
- Background Checks: If an employer informs its background check vendor that salary history information is not to be disclosed to the employer, but for some reason the background check includes a disclosure, the disclosure will not violate the law. However, the employer will have to destroy the salary history information and not use it.
- Incentive and Commission Plans: Employers are allowed to discuss the “terms and conditions” of incentive and compensation plans the applicant was subject to at a prior employer, provided that: (1) the employer does not ask about the specific dollar amounts involved in the plans and (2) the job the applicant applied for with the prospective employer includes an incentive or commission component.3
New Jersey’s law also contains perhaps the most nuanced approach to employment agencies compared to similar salary history laws. The law provides that (a) applicants may disclose salary history information and information regarding the applicant’s experience with incentive and commission plans to employment agencies the applicant is using to search for work and (b) the employment agency may provide that information to employers as long as it has the applicant’s express written consent. Employers will have to await further guidance as to how courts and the N.J. Commission of Labor and Workforce Development will interpret the specifics of this provision given the overarching prohibition on employers’ using salary history information to screen applicants otherwise.
Finally, unlike some recent laws and ordinances, New Jersey’s law does not require that the employer affirmatively disclose a wage scale for applicants.4
- Employers with operations in New Jersey or other affected salary history ban states should consider evaluating the contents of job applications, interview guidelines or templates, recruiter instructions and background check vendor instructions to ensure that no impermissible salary history inquiries or screening is conducted.
- Employers with operations in multiple states should consider forming a working group to assess business needs with respect to applicant wage data and the best multi-state or “50-state” approach to salary history inquiries and use given those needs. As New Jersey’s law demonstrates, there is no “template” or “model” law adopted for salary history bans, as every law is unique in its coverage, prohibitions and exemptions.
- Employers may want to consider appointing an employee with subject matter experience on this issue (or consulting employment counsel) to remain up-to-date on salary history ban laws as well as the full array of state and local laws impacting hiring compliance, such as the Fair Credit Reporting Act, ban-the-box laws and fair chance acts, credit check bans, social media inquiry prohibitions, revamped pay equity laws, and others.
1 See, e.g., Jean L. Schmidt and Sean A. Malley, New York Expands Pay Equity Law Beyond Equal Work and Gender and Bans Inquiries into Salary History, Littler ASAP (July 11, 2019); Katherine Suttle Weinert, Alabama Enacts Pay Equity Law, Littler ASAP (June 13, 2019); Alexandra Hemenway and Dylan Long, Kansas City, Missouri Joins National Movement to Ban Salary History Inquiries, Littler ASAP (May 31, 2019); Breanne Martell and Alexandra Hemenway, Washington Amends its Equal Pay Law to Enact Salary History Ban and Require Disclosure of Salary Ranges, Littler ASAP (May 16, 2019); Jennifer Harpole, Colorado Legislature Passes Significant Equal Pay Bill, Including Salary History Ban and Job Posting Requirements, Littler ASAP (May 8, 2019); Toledo, Ohio Ordinance O-173-19.
2 Lt. Gov. Oliver is serving as New Jersey Acting Governor while Governor Phil Murphy is on vacation.
3 The law also exempts any employer actions taken because a federal law or regulation requires the disclosure or verification of salary history for employment purposes or requires knowledge of salary history to determine an employee’s compensation.
4 This is a requirement under the California, Colorado, Cincinnati, Toledo, and Oregon laws.
California Extends Paid Family Leave Benefits from 6 to 8 Weeks
By: Michelle Barrett Falconer and Sebastian Chilco, Littler Mendelson, P.C.
On June 27, 2019, Governor Gavin Newson (D) signed Senate Bill (SB) 83, which, beginning on July 1, 2020, will extend from six to eight weeks the maximum duration of paid family leave (PFL) benefits individuals may receive from California’s State Disability Insurance (SDI) program:
- to care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner; or
- to bond with a minor child within one year of the birth or placement of the child via foster care or adoption.
In signing SB 83, the governor fulfills a campaign promise to expand the state’s paid family leave benefits. SB 83 also requires the governor to propose, by November 2019, further benefit increases – in terms of duration and amount – and job protections for individuals receiving PFL benefits.
California was the first state to create a PFL program, which became operative in July 2004. Since then, the District of Columbia,1 Massachusetts,2 New Jersey,3 New York,4 Rhode Island,5 Washington State, and – most recently – Connecticut,6 have adopted similar programs. Moreover, San Francisco,7 California has a complementary requirement for covered individuals receiving PFL benefits for new child bonding purposes. Before SB 83’s enactment, the duration of California’s PFL benefits was shorter than most other states. Generally speaking, concerning family care and new child bonding,8 the District of Columbia allows six weeks for family care or eight weeks for bonding (eight weeks aggregated); Massachusetts allows 12 weeks; New Jersey allows six weeks, which increases to 12 weeks beginning July 1, 2020; New York allows 10 weeks, which increases to 12 weeks in 2021; Rhode Island allows four weeks; Connecticut allows 12 weeks. Although at first blush SB 83 does not put California on par with all other states, it lays the foundation to do just that.
Under SB 83, by November 2019, the governor must submit a proposal to increase PFL duration “to a full six months by 2021–22.” Note, however, the proposal will be limited to bonding purposes, and “six months” represents the total duration if two parents claim PFL benefits. Describing current PFL benefits, SB 83 notes “these paid leave benefits provide families with approximately three months of paid leave when used consecutively;” two six-week periods – 12 weeks – is approximately three months. Before making his proposal, the governor must consult a to-be-formed task force, which itself must “consult with representatives from employer groups, labor, early education representatives, other employment experts, and the Legislature when developing the proposal.”
SB 83 also requires the proposal to assess and address:
- Job protections for employees. Currently, California PFL does not provide employment protections when employees are absent from work; instead, any protections must derive from other related laws like the federal Family Medical Leave Act (FMLA), the California Family Rights Act (CFRA), or the state New Parent Leave Act (NPLA).
- Increasing wage replacement rate up to 90% for low-wage workers. Currently, California PFL provides wage replacement of approximately 60 to 70%, depending on an individual’s income.
- A plan to implement and fund expanded PFL benefits. For example, beginning July 1, 2019, SB 83 separately decreases the worker contribution rate, so the state will decrease the amount it will hold in reserve to fund the program.
Next Steps for Employers
During the one-year period before SB 83’s extension takes effect, employers may consider reviewing leave policies, procedures and practices, and their parental or other paid leave benefits. Additionally, companies that operate state-approved voluntary plans in place of California’s SDI program should consider consulting with knowledgeable counsel to determine whether SB 83’s amendments affect their plan. Businesses with San Francisco operations also should monitor activity of the Board of Supervisors to see whether, and how, it may amend the Paid Parental Leave Ordinance in response to these state-level changes. Additionally, companies with Los Angeles operations should monitor activity of the L.A. City Council, which is currently exploring adopting an ordinance (similar to San Francisco’s) that would require employers to provide up to 18 weeks of supplemental compensation to employees receiving SDI or PFL benefits prior to the birth of a child and/or for recovery from birth and for new child bonding.
1 To learn more about D.C.’s law, see Libby Henninger and Eunju Park, District of Columbia Passes Expansive Paid Leave Law, Littler Insight (Dec. 22, 2016), and District of Columbia Enacts the Universal Paid Leave Act, Littler Insight (Apr. 24, 2017).
2 To learn more about Massachusetts’ law, see Christopher Kaczmarek and Alice Kokodis, Massachusetts Increases Minimum Wage, Eliminates Premium Pay For Sunday Work, And Enacts New Paid Leave Program, Littler ASAP (June 29, 2018), Alice Kokodis and Shannon Berube, Updated Massachusetts Paid Family and Leave Act Regulations Offer Additional Guidance as July 1 Effective Date Draws Near, Littler Insight (Apr. 3, 2019), and Christopher Kaczmarek, Alice Kokodis, and Shannon M. Berube, New Deadlines For Massachusetts Employers Under the Paid Family Medical Leave Program, Littler ASAP (June 14, 2019).
3 To learn more about recent updates to New Jersey’s law, see Alison Andolena and Keith Rosenblatt, More Family Time and Money: New Jersey Expands its Family Leave Entitlements, Littler Insight (Feb. 27, 2019).
4 To learn more about New York’s law, see Stephen Fuchs and Bruce Millman, Understanding New York’s New Paid Family Leave Law, Littler Insight (May 23, 2016), Stephen Fuchs and Jill Lowell, New York Issues Final Paid Family Leave Law Regulations, Littler Insight (Aug. 9, 2017), Stephen Fuchs and Tom Cryan, New York State Issues Guidance on Tax Treatment of Paid Family Leave Contributions and Benefits, Littler ASAP (Aug, 29, 2017), and Stephen Fuchs and Jill Lowell, New York Paid Family Leave Benefits Law Deadline for Employers to Apply for Approval as a Self-Insured Employer Rapidly Approaching, Littler ASAP (Sept. 12, 2017).
5 To learn more about Rhode Island’s law, see John Doran and Shannon O’Connor, Rhode Island Enacts Paid Temporary Caregiver Leave Law, Littler Insight (Aug. 21, 2013).
6 To learn about Connecticut’s law, see Sharon Bowler and Jason Stanevich, Connecticut Set to Offer Most Generous Paid Family Leave Benefits in the Country, Littler ASAP (June 13, 2019).
7 To learn more about San Francisco’s law, see Michelle Barrett Falconer and Sebastian Chilco, Bonding by the Bay: San Francisco Mandates Paid Parental Leave, Littler Insight (Apr. 21, 2016), San Francisco Amends Paid Parental Leave Law to Adapt to State Law Changes and to Clarify Requirements, Littler Insight (Sept. 21, 2016), and Local and State Developments Impact San Francisco Paid Parental Leave Obligations, Littler Insight (Feb. 13, 2017).
8 Other PFL laws may allow individuals to claim benefits for their own health condition or under certain circumstances when the family member is in the armed services. In California, individuals can claim disability benefits, but this benefit is not PFL. For example, a birth mother could claim individual disability benefits for an illness or injury resulting from pregnancy, childbirth, or related medical condition.
New York Adopts Laws Aimed at Combating Salary Inequality and Race Discrimination
By: Jonathan L. Bing, Richard I. Greenberg and K. Joy Chin, Jackson Lewis P.C.
n the final days of its 2019 Session, the New York State Legislature passed three bills that, respectively, will bar employers from inquiring about applicants’ past salary history, prohibit wage differentials based on protected class status, and ban race discrimination based on an employee’s hair or hairstyle. Governor Andrew M. Cuomo is expected to sign these bills.
Following New York City
The measures are similar to laws enacted in New York City in recent years. This is hardly surprising in light of the flip of the New York State Senate as a result of the 2018 election from a nominally Republican-majority to an overwhelmingly Democratic- and Downstate-majority. That election ushered in one-party control of the Executive and Legislative branches of New York State, leading to the passage of a host of progressive legislation — some of which had been bottled up for years — on employment discrimination and other issues. (See our article, New York Expands Harassment Laws.)
The political developments in the state capital mirror those of New York City following the 2013 municipal elections. In 2014, Bill de Blasio, who ran on a progressive platform, succeeded the moderate Mayor Michael Bloomberg, who ran on the Republican and Independent lines during his three terms in office. At the same time, the 2013 elections brought the ascendency of the New York City Council’s Progressive Caucus, which has driven policy in New York City government since 2014. The one-party rule in New York City over the past six years has led to numerous pro-worker reforms, including paid sick leave and requirements that fast food employees be paid when their shifts are canceled close to the time they were scheduled.
The new state law barring inquiries about an employee’s salary history, A. 5308-B (Crespo) / S. 6549 (Carlucci), will take effect 180 days after enactment. It will prevent employers from orally or in writing requesting or relying on the wage or salary history of an applicant in determining whether to offer employment or the amount of salary to be offered. An employer cannot refuse to consider or retaliate against an applicant who refuses to divulge his or her salary history. The applicant may voluntarily provide this information if he or she is not coerced or promoted into doing so.
The law applies to job applicants not currently employed by the employer, as well as the employer’s current employees seeking a new position within the company.
The Legislature’s action mirrors the law passed in New York City to ban employers there from inquiring about the salary history of a job applicant. (See our article, New York City Council Approves Legislation Limiting Prospective Employers’ Ability to Obtain and Use Salary History Information.) The state and city laws differ in certain respects. For example, the city law prevents employers from “conduct[ing] a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history.” This is not prohibited by state law. This difference is significant, particularly for applicants for positions with a public employer, because government salaries for state employees are available online and employers outside of New York City will be able to review this information without violating state law. Further, the New York City law applies only to applicants, not to current employees; the state law bars salary history inquiries of both applicants and current staff seeking promotions or transfers.
The state’s action also follows other New York localities, such as Suffolk and Westchester Counties, that have adopted similar measures. (See our articles, Salary History Ban Arrives in New York’s Suffolk County and Localities and the Salary History Ban: Next Stop, Westchester County, New York.)
Wage differentials based on protected class status will be prohibited by S. 5248-B (Biaggi) / A. 8093-A (McMahon). The new law will expand current law that protects against gender-based pay inequity by requiring equal pay for “substantially similar work” and prohibiting pay differentials based on a person’s membership in a host of protected class or classes, including age, race, sexual orientation, disability, and domestic violence victim status.
The new law will lower the burden of proof for a person claiming wage or salary discrimination based on his or her protected class membership by not requiring a showing of “equal” work.
Pay differentials will be permitted when they are based on a seniority system, a methodology measuring earnings by quantity or quality, or a bona fide reason other than the individual’s membership in a protected class. The pay differential must be job-related and due to business necessity, such as geography, education, or experience. Treble damages are possible under New York Labor Law Section 198 for violations of this law.
The law will take effect 90 days after being signed by the Governor.
Race Discrimination Based on Hair or Hairstyle
“Race” in the Executive and Education laws will be amended to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles” under A. 7797 (Wright) / S. 6209 (Bailey). Protective hairstyles include, but are not limited to, “such hairstyles as braids, locks and twists.” This law will take effect immediately upon signing by the Governor.
The state’s effort to prevent race discrimination on the basis of natural hair or hairstyles follows guidance issued on the same topic by the New York City Commission on Human Rights (CCHR) in February 2019. The stated purpose for this action is to prevent employer policies issued on the purported grounds of “neatness” that, in effect, limit “the way Black people move through workplaces, public spaces and other settings.” (See our article, New York City Releases Enforcement Guidance on Race Discrimination on Basis of Hair.) The Sponsor’s Memo on the bill favorably cites the CCHR’s guidance on this issue. The Memo also reiterates, from the guidance, that people have the right to maintain their natural hair or treated or untreated hairstyles as they would naturally.
Other bills introduced but were not taken up for a vote during the 2019 session that mirror recent New York City laws included efforts to “ban the box” to prevent criminal histories from being considered in the job application process and a measure that would bar employers from conducting credit checks of prospective employees. These measures will be considered again in the 2020 Legislative Session.
Please contact the authors or the Jackson Lewis attorney with whom you regularly work with any questions regarding your New York State legal compliance.
Florida Employee Privacy Alert: No Expectation of Privacy for Contents of Employee’s Flash Drive Attached to Work Computer
By: Aldo M. Leiva, Baker, Donelson, Bearman, Caldwell and Berkowitz, P.C.
- The employee shared an office with a co-worker who had access to the employee’s computer at all times because the employee left a sticky note with her computer password on her desk for that purpose;
- The work computer contained a login banner that clearly warned users about the police department’s computer policy, which included language confirming that the computer was for authorized use only and that all uses of the computer system were subject to monitoring, recording, copying, or auditing, followed by an acknowledgement of consent to use of the computer under these conditions;
- The employer had a protocol that anything attached to the work computer, including external media, such as a flash drive, is deemed to be part of the employer’s computer system; and
- The employee had left the flash drive plugged in to her work computer, which was seized along with the computer as part of an internal investigation into the allegations.
Although issued within the context of an official misconduct case, the decision reinforces Florida case law on the subject of limits on employee privacy and emphasizes the key role of employer privacy policies and employee acknowledgements of such policies. In addition to serving as an administrative safeguard to mitigate against such risks as employee theft, misconduct, and violation of any applicable non-competition agreement, clear delineation of such policies are useful in any subsequent litigation involving the employee, where privacy rights may be raised by the employee for various tactical reasons.
The facts of the case also serve as a reminder to employers to think about what their policies and practices allow or prohibit, and to consider instituting proper controls to manage the use of flash drives on workplace computers, as such devices may be used to download employer data, contacts, or trade secrets. From the employment litigation perspective, an early comprehensive litigation hold letter may include specific reference to any flash drives or similar portable media that are connected to employer computer networks at the time the hold letter is issued, with a clear prohibition on removal of any such devices that have been connected to the employer’s computer network as of the time of the litigation hold letter. But as the Florida court demonstrated, an employee’s claim to privacy may be rendered unreasonable when clearly communicated policies and related notices undermine the reasonableness of that employee’s expectation of privacy. Does this holding apply to an employee’s public social media posts or to emails sent and received on a personal email address? These questions and others like them all warrant a closer look at how this information is addressed by an employer, as waiting until there is an issue will likely mean the Company is unprepared to address it.