The top story on Employment Law This Week – San Francisco and New York state break new ground on paid parental leave.

Starting in 2017, businesses with more than 50 employees in San Francisco will be required to give new parents six weeks off, fully paid. San Francisco is the first city in the U.S. to require full salary for new mothers and fathers during their time off. Meanwhile, New York state has passed the most comprehensive paid parental leave policy in the country. New York state’s legislation mandates 12 weeks of partially paid leave for all new parents by 2021.

View the episode below and learn more about the New York legislation in an EBG Act Now Advisory or the San Francisco legislation in an earlier blog post.

John M. O’ConnorRetail employers and other businesses that serve the public in New York City should take particular notice of the New York City Commission on Human Rights’ detailed written guidance issued on December 21, 2015, reinforcing its desire that the protections afforded to transgender individuals by the New York City Human Rights Law (“NYCHRL”) be broadly interpreted to ensure that transgender individuals receive the full protection of the NYCHRL. The guidance includes specific examples of what the Commission believes constitutes unlawful discrimination based on an individual’s actual or perceived transgender status, gender identity, self-image, appearance, behavior or gender expression.

The Commission stresses the need for employers in New York City to use an employee’s preferred name, pronoun (he/she) and title (Mr./Mrs.) regardless of the employee’s “sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.”  Recognizing that many transgender and gender non-confirming individuals choose to use a different name than the one they were given at birth, or chose to use gender neutral pronouns (such as ze/hir), the Commission explains that employees expressing such a preference “have the right to use their preferred name.”  Refusal by an employer to use an employee’s preferred name, pronoun or title because they do not conform to gender stereotypes is a violation of the NYCHRL.  Thus, if a transgender woman advises that her preferred name is Jane, even though her identification states that her first name is John, it would be a violation of the NYCHRL for the employer to refuse to call her Jane.  The Commission suggests in its guidance that employers should consider creating a workplace policy of asking all employees what their preferred name and gender pronoun are so that employees can self-identify, and so that no single employee is singled out for such questioning (giving rise to a potential harassment claim).

The Commission also addresses employer dress code and grooming policies, advising that employers “may not require dress codes or uniforms, or apply grooming or appearance standards, that impose different requirements for individuals based on sex or gender.”  The Commission expressly rejects the federal standard that allows employers to apply different dress code or grooming policies to male and female employees unless the policies create an undue burden on employees.  Rather, the Commission opines that “holding individuals to different grooming or uniform standards based on gender serves no legitimate non-discriminatory purpose.”  Thus, while employers are entitled to enforce a dress code or require certain grooming/appearance standards, they must do so without imposing restrictions or requirements specific to gender or sex.  In this regard, polices such as allowing only women to wear jewelry, or requiring only male employees to maintain short hair would be violations of the NYCHRL, as would a policy requiring different uniforms for men and women.  Accordingly, to avoid violations, employers should create gender-neutral dress codes and grooming standards.

Retailers and other businesses that serve the public should also note the Commission’s position that the NYCHRL, “requires that individuals be permitted to use single-sex facilities, such as bathrooms or locker rooms … consistent with their gender, regardless of their sex assigned at birth, anatomy, medical history, appearance, or the sex indicated on their identification.”  Recognizing that other employees or customers may object to sharing a bathroom with a transgender or gender non-conforming person, the Commission warns that “such objections are not a lawful reason to deny access to that transgender or gender non-conforming individual.”  The Commission suggests that, to avoid violating the NYCHRL, employers should, “wherever possible,” provide single-occupancy restrooms (that can be used by people of all genders), or provide private space within multi-use bathrooms or locker rooms for anyone who has privacy concerns.  However, it would be a violation to force a transgender or gender non-conforming person to use a single-occupancy restroom if he/she/ze does not want to use it.  The Commission suggests that employers should post signs in all single-sex bathrooms or locker rooms that state that: “Under New York City Law, all individuals have the right to use the single-sex facility consistent with their gender identity or expression.”

By issuing the guidance, the Commission makes very clear its intention to protect transgender individuals from discrimination based on their transgender status and gender expression.  The guidance concludes with a bold reminder of the penalties for violating the NYCHRL’s prohibition of gender identity discrimination.  In addition to the remedies available at law to aggrieved individuals who prevail on claims under the NYCHRL, the Commission can impose civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the product of willful, wanton or malicious conduct.  Accordingly, to avoid potential violations, New York City employers should consult with counsel to ensure that they create new policies and/or amend existing policies to comply with the directives set forth in the Commission’s guidance, and to minimize the likelihood of a violation of the NYCHRL.

For additional information regarding the Commission’s guidance and other recent developments affecting New York City employers, see our January 28 Act Now Advisory, “NYC Employers Risk New Penalties in 2016: Gender and Caregiver Discrimination, Paying Freelancers.”

Employment Law This Week – Epstein Becker Green’s new video program – has a story about an effort to unite retailers against a restrictive scheduling law in Washington, D.C.

The National Retail Federation issued a letter urging the city council in D.C. to abandon new scheduling legislation for retailers and restaurants. The proposed law would require businesses to post schedules three weeks in advance, with heavy penalties if they make any changes to the posted schedule. The NRF argues that this legislation removes the benefit of flexibility for employees, and that it places businesses at a competitive disadvantage against similar companies in surrounding states.

See below to view the story.

On Monday, June 29, 2015, Mayor Bill de Blasio signed into law the bill passed by the New York City Council “banning-the-box.” The law goes into effect on Tuesday, October 27, 2015. As discussed in our earlier advisory, the ban-the-box movement removes from an employment application the “box” that requests criminal conviction history. New York City’s law also imposes additional requirements upon the employer when making an adverse employment decision on the basis of criminal conviction history.

By:  Anna A. Cohen and Nancy L. Gunzenhauser

A number of states and localities will require paid sick and bereavement leave, as well as caregiver leave benefits in 2014.

Paid Sick Leave

New York City, Jersey City, New Jersey and Portland, Oregon will require employers, with some exceptions, to provide paid sick leave in 2014.  Portland’s law becomes effective on January 1, 2014, Jersey City’s law becomes effective on January 24, 2014, and New York City’s law becomes effective April 1, 2014.  As we previously reported, these cities join San Francisco, California, Seattle, Washington, the District of California and Connecticut in requiring paid sick leave.

Bereavement Leave

Oregon’s Family Leave Act (OFLA) will require employers to provide bereavement leave, effective January 1, 2014.  The first law of its kind, employers with 25 or more employees will be required to provide eligible employees with two weeks of leave per death of a family member (defined as spouse, same-sex domestic partner, child, parent, parent-in-law, grandparent, grandchild, or the same relations of an employee’s same-sex domestic partner or spouse), up to a maximum of 12 weeks in a 12-month period.  Leave may be taken to make arrangements necessitated by the death, to attend the funeral or memorial service, or to grieve.

Caregiver Leave

Rhode Island will become the third state to permit employees to collect temporary disability benefits for caregiver leave.  California and New Jersey are the only other states that permit employees who are not disabled to collect state sponsored short-term disability. Rhode Island’s Temporary Caregiver Insurance law, effective January 1, 2014, will apply to all employers, regardless of size, and provides employees with up to four weeks of job-protected leave per year to care for a seriously ill child, spouse, domestic partner, parent, parent-in-law or grandparent, or to bond with a newborn child, newly adopted child or new foster-care child.

Bottom line

Employers that already provide leave that is at least as generous as what is required under these new laws will not be required to provide additional paid leave.  Most companies, however, will need to implement or amend existing paid leave and other policies to ensure compliance with the new laws.

By Jennifer Nutter and Amy Messigian

’Twas the night before the holiday party and all through the halls,
Human Resources was stirring, and posting on walls!
The policies were hung on the blackboard with care with the knowledge that 2014 soon would be there!

Like a holiday carol sung every December, a tune repeats this December for California employers as in years past:  review your policies.  In light of the bevy of new laws that take effect on January 1, it is time to conduct a handbook and policy review to ensure compliance as the new laws roll out.

Employers should be mindful of the following key changes, each of which is effective on January 1 unless otherwise noted:

–          Minimum Wage Increases: The minimum wage in California is increasing to $9/hour effective July 1, 2014.  Employers should confirm whether currently exempt employees will continue to meet any minimum compensation requirements once the minimum wage increases (e.g., twice the minimum wage will become $720 a week or $37,440 a year).  Additionally, San Jose and San Francisco have increased the minimum wages in their municipalities to $10.15/hour and $10.74/hour, respectively, each effective January 1, 2014.  Come 2014, employers who fail to pay minimum wages may be subject to liquidated damages to the employee in addition to existing penalties.

–          Background Check Restrictions: Effective January 1, employers will be expressly prohibited from considering prior criminal convictions in employment decisions when the conviction has been judicially dismissed.  Effective July 1, state or local agencies will be prohibited from asking an applicant to disclose information regarding a criminal conviction until after there has been a determination that the applicant meets the minimum job qualifications with certain exceptions.

–          Breaks for Heat Illness Prevention: As we previously reported here, California has expanded an employee’s entitlement to breaks throughout the workday to cover “heat illness recovery periods.”  Under the new law, an employer cannot require a non-exempt employee to work during a recovery period, defined as a “cool down period afforded an employee to prevent heat illness.”  An employee who is not provided with a recovery period will be entitled to an additional hour of pay each workday that the recovery period is not provided.

–          Expanded Protection for Exercising Rights Under Labor Code: Current law protects employees who assert their rights under the Labor Code from discharge and discrimination.  This law has now been expanded to prohibit “retaliation” or other “adverse action” against such employees and to clarify that oral or written complaints regarding owed unpaid wages are protected.  A civil penalty of up to $10,000 per employee per violation has been added to the statutory provisions.

–          New Prohibited Bases of Discrimination: “Military and veteran status” has been added to the list of categories protected from discrimination under the Fair Employment and Housing Act (“FEHA”).  Such status is defined under FEHA as “a member or veteran of the U.S. Armed Forces, U.S. Armed Forces Reserve, the U.S. National Guard, and the California National Guard.”

–          Definition of Sexual Harassment Clarified: New law clarifies that sexual harassment may involve actions unmotivated by sexual desire.

–          San Francisco Caregiver Leave: The Family-Friendly Workplace Ordinance requires that covered employers consider requests for “flexible or predictable working arrangements to assist with care giving responsibilities.” Employees are protected from adverse action on the basis of “caregiver status.” Employers with San Francisco worksites will be required to include a poster on this ordinance in the workplace with other required postings (poster not yet available).

–          Protections for Stalking, Domestic Violence and Sexual Assault Victims: New law extends the protections for victims of domestic violence or sexual assault to victims of stalking as well.  All California employers are prohibited from discharging, discriminating or retaliating against an employee who needs to take leave to appear in court or attend any related legal proceedings.  Employers with 25 or more employees must provide leave for psychological or medical treatment, including safety planning.  The law prohibits discrimination or retaliation against the employee due to his or her status as a victim of domestic violence, sexual assault or stalking and requires that an employer provide reasonable accommodations, which may include the implementation of safety measures.

–          Whistleblower Protections Expanded: Whistleblower protections have been expanded to include reporting alleged violations of local rules or regulations. The law was also expanded to protect employees who disclose, or may disclose, information regarding alleged violations “to a person with authority over the employee or another employee who has authority to investigate, discover or correct the violation.”  The law also prohibits retaliating against the employee based on a belief “the employee disclosed or may disclose information.”

–          Increased Protection of Immigrants: New law prohibits employers from engaging in “unfair immigration-related practices” when an employee asserts rights under the Labor Code and provides a variety of penalties including a private right of action and civil penalties as high as $10,000 per employee per violation for retaliation against the employee.  The law also permits the court to order the suspension or revocation of a business license due to violation of these provisions.

In addition to the above key changes, the following changes should also be noted:

Leave Laws

–          Time Off for Emergency Duty: California has expanded its law providing leave for volunteer firefighters to train for emergency duty.  Now, employers of 50 or more employees must also permit employees to take up to 14 days off to train to perform emergency duty as reserve peace officers, or emergency rescue personnel.

–          Time Off for Crime Victims: California has expanded the rights of certain crime victims to take time off work to appear in any court proceeding in which their rights as a victim are at issue. The law does not apply to all crimes and employees must comply with requirements for requesting leave.

–          Paid Family Leave Benefits Expanded: California is broadening the definition of “family” within the Paid Family Leave (PFL) program effective July 1, 2014, to allow workers to receive partial wage replacement benefits while taking care of siblings, grandparents, grandchildren, and parents-in-law.  As before, the right to receive state PFL benefits is separate from whether an employee has a protected right to take time off.  Importantly, the definition of “family” was not modified in leave statutes such as the California Family Rights Act (CFRA).

Wage and Hour Laws

–          Attorney’s Fees for Bad Faith Wages Claims: This new law authorizes an award of attorney’s fees and costs to an employer who prevails in an action brought for the non-payment of wages, fringe benefits or health and welfare pension fund contributions, only when a trial court finds that the employee brought the court action in bad faith.

–          Labor Commissioner Lien: New law provides the Labor Commissioner with authority to create and record a lien in any county in which an employer’s property may be located in order to satisfy an order, decision or aware that has become final against the employer.

–          Criminal Penalties for Wage Withholding Violations: Employers who fail to remit withholdings from an employee’s wages that were made pursuant to state, local, or federal law may now face criminal penalties in addition to any other liability.

Immigrant Protections

–          Retaliatory Threats to Report Immigration Status: New law permits the suspension or revocation of an employer’s business license for threatening to report or reporting an employee’s suspected or actual citizenship or immigration status, or the suspected or actual citizenship or immigration status of a family member, to a federal, state or local agency because the employee, former employee or prospective employee exercised their rights under the Labor Code, Government Code, or Civil Code.  The law provides a civil penalty up to $10,000 per violation and contains no requirement that the employee exhaust administrative remedies prior to bringing a civil action under a provision of the Code unless the Code explicitly requires exhaustion.  Individuals may also be criminally liable for extortion for such reports or threatened reports.

Miscellaneous

–          Garment Manufacturer Displays: New law requires that garment manufacturers display their name, address and registration number at the front entrance of a place of business.

As many of these changes impact the language in employee handbooks and other policies, employers should begin the process now of coming into compliance.  We welcome you to consult EBG for further information on any of the above laws and their impact on your business.Cal

By Nancy L. Gunzenhauser

With the Supreme Court’s influential decision in June, declaring the Defense of Marriage Act unconstitutional, the tides are moving in favor of federal legislation on gay, lesbian, and transgender workplace rights.  On November 7, 2013, the Senate passed the Employment Non-Discrimination Act (“ENDA”), prohibiting employment discrimination on the basis of both sexual orientation and gender identity.

ENDA has quite the history in Congress; it has been introduced in every legislative session since 1994, except for one year.  Throughout the bill’s history, it has also undergone changes in the protections guaranteed.  The first ENDA bill, introduced by a bipartisan group in the House on June 23, 1994, prohibited discrimination on the basis of sexual orientation of the employee or an associate of the employee.  The bill did not provide for a disparate impact claim. This version had a broad religious exemption.  In 2007, the House’s version of ENDA included gender identity as a protected category for the first time.  By the following Congressional session, both houses’ versions of ENDA included gender identity as a protected category.  Prior to this Senate’s passage of ENDA, neither house of Congress has ever passed any form of an ENDA bill.  The Senate came close to passing the bill in 1996 with a 49-50 vote.

Several senators, on both sides, disagreed with ENDA’s religious exemption.  Two amendments were brought by Senators prior to the vote.  The first, introduced by Rob Portman (R-Ohio), sought protection against retaliation of religious employers who receive funding through government contracts; this amendment passed.  A second amendment, introduced by Pat Toomey (R-Pa.), sought a broader religious exemption to secular companies who are affiliated with religious associations or societies; this amendment did not pass.

Notwithstanding the procedural hurdle of passing in the Senate, ENDA faces a large challenge in the 113th Congressional House of Representatives.  Leaders of the Republican-controlled House have indicated opposition to ENDA; although there may be greater pressure than before to at least consider the bill. It is likely that this bill may be lost in the south wing of the Capitol.

ENDA proposes new federal law; however, twenty-one states (and the District of Columbia) already have laws prohibiting discrimination in employment on the basis of sexual orientation and/or gender identity.  Many cities or municipalities also have workplace protections for LGBT employees.  According to the Human Rights Campaign, 88% of Fortune 500 companies already have policies prohibiting discrimination based on sexual orientation.

By Laura A. Stutz

Earlier we posted about the increase in domestic violence and the reauthorization of the Violence Against Women Act, which was extended in February 2013, and expanded to provide coverage to both male and female victims of various types of domestic violence.  (See With Domestic Violence Increasing, What Should Employers Do?”)  A growing number of states have followed the federal lead and undertaken steps to protect domestic violence victims.  On July 17, 2013, New Jersey joined those states and enacted the New Jersey Security and Financial Empowerment Act (S-2177) (“SAFE Act”) to protect victims of domestic violence and sexual assault (as defined by N.J.S.A. 2C:25-19 and N.J.S.A. 30:4-27.6) from employment discrimination.

The SAFE Act, effective October 1, 2013, seeks to prevent employment discrimination against employees for taking time off from work to seek treatment or legal assistance or to engage in other activity relating to the offense.  The law also covers employees who are close family members of victims of domestic violence and sexually violent offenses.  The Act defines close family member as a child, parent, spouse, domestic partner, or civil union partner.

The Act applies to New Jersey employers with 25 or more employees and provides 20 days of unpaid job-protected leave to eligible employees in the 12-month period following the incident.  Intermittent leave may be taken in intervals no shorter than a day.  The leave is in addition to any leave the eligible employee may already be entitled to under the Family and Medical Leave Act, 29 U.S.C. §2601 et seq. (“FMLA”), or the New Jersey Family Leave Act (“FLA”), N.J.S.A. 34:11B-1 et seq.  If the domestic violence-related leave request would also be covered under the FMLA or FLA, the leaves will run concurrently.  Employers are permitted to request documentation to support the leave request.  Such documentation is to be maintained strictly confidential unless disclosure is voluntarily authorized in writing by the employee or required by law, rule or regulation.

The Act requires New Jersey employers to conspicuously display a notice of employees’ rights under the law and to “use other appropriate means to keep its employees informed.”  The form of notice is to be provided by the Department of Labor and Workforce Development; what is necessary for compliance with the “other appropriate means” provision is not yet clear.

Employers should consider federal and state legal requirements when addressing requests for leave or other accommodations for victims of domestic or sexual violence, and should review their leave policies and procedures to ensure compliance.

Our colleagues Maxine Neuhauser and Amy E. Hatcher have written a client advisory: “Employer Posting Requirements Under New Jersey Law.” Following is an excerpt:

The list of employee notices that New Jersey employers are required to post has grown this year. Accordingly, as 2012 comes to a close, New Jersey employers should take some time to review the notification requirements relating to employees’ workplace rights and responsibilities under state law.

Employers are mandated under New Jersey law to display official posters informing their employees of the law relating to employee rights and responsibilities. An employer that fails to comply with these requirements may face monetary fines and other penalties.

Generally, to comply with these regulations, an employer must post the most recent version of the posters in locations visible to all employees and applicants for employment. Employers should display these notices in areas accessible to all employees, such as a lunchroom, break-room, or human resources office. New Jersey also requires that certain of the notices be distributed to employees. This article serves as a reminder and summary of New Jersey’s notification requirements applicable to most employers.

Click here for the full advisory, “Employer Posting Requirements Under New Jersey Law.”