Our Employee Benefits and Executive Compensation practice now offers on-demand “crash courses” on diverse topics. You can access these courses on your own schedule. Keep up to date with the latest trends in benefits and compensation, or obtain an overview of an important topic addressing your programs.

In each compact, 15-minute installment, a member of our team will guide you through a topic. This on-demand series should be of interest to all employers that sponsor benefits and compensation programs.

In our newest installmentTzvia Feiertag, Member of the Firm in the Employee Benefits and Executive Compensation practice, in the Newark office, presents “HIPAA Privacy and Security Rule Compliance.”

While employers themselves are not directly regulated by the Privacy and Security Rules of the Health Insurance Portability and Accountability Act (“HIPAA”), most employers that sponsor group health plans have ongoing compliance obligations. This crash course offers a brief overview of who and what is covered by these rules, why employers should care about HIPAA compliance, and five tips to maintain compliance.

Click here to request complimentary access to the webinar recording and presentation slides.

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers in August 2019.

This episode includes:

  • Increased Employee Protections for Cannabis Users
  • First Opinion Letters Released Under New Wage and Hour Leadership
  • New Jersey and Illinois Enact Salary History Inquiry Bans
  • Deadline for New York State Anti-Harassment Training Approaches
  • Tip of the Week

See below to watch the full episode – click here for story details and video.

We invite you to view Employment Law This Week® – tracking the latest developments that could impact you and your workforce. The series features three components: Trending News, Deep Dives, and Monthly Rundowns. Follow us on LinkedInFacebookYouTubeInstagram, and Twitter and subscribe for email notifications.

Our colleagues Maxine NeuhauserNathaniel M. GlasserDenise Dadika, & Anastasia A. Regne

Following is an excerpt:

In Wild, which we discussed in a recent client alert, plaintiff Justin Wild (“Wild”) alleged that his employer, Carriage Funeral Holdings (“Carriage Funeral”) failed to reasonably accommodate his disability (cancer) and unlawfully discharged him in violation of the LAD because he used medical marijuana, as legally permitted by CUMMA. Carriage Funeral terminated Wild’s employment after he tested positive for cannabis following an on-duty motor vehicle accident.

The trial court dismissed the lawsuit holding that the fact Wild tested positive for cannabis  constituted a legitimate business reason for his discharge because cannabis use (medical or otherwise) remains prohibited under federal law. In rendering its decision the trial court relied on a provision in the law stating that CUMMA did not require employers to reasonably accommodate licensed use of medical marijuana in the workplace. The Appellate Division reversed, holding that the fact that CUMMA did not “require” employers to accommodate an employee’s use of  medical marijuana in the workplace, did not affect an employer’s requirement under the LAD to reasonably accommodate an employee’s disability, which could include an employee’s off-duty and off-site use of medical cannabis. …

Read the full article here.

Our colleague Amanda M. Gomez 

Following is an excerpt:

Additionally, employers that can demonstrate a good faith effort through proactive measures to comply with the Act may be able to mitigate liability should a claim arise. Similar to “safe harbor” provisions in equal pay laws in Massachusetts and Oregon, such proactive measures should include regular audits of compensation practices. While these measures do not create a complete defense, employers that successfully present evidence of a “thorough and comprehensive pay audit” with the “specific goal of identifying and remedying unlawful pay disparities” may avoid liquidated damages. The key word here is “remedying”; employers that conduct pay audits, but then fail to take steps to correct unlawful pay discrepancies revealed by the audit, will not reap the benefits of the “safe harbor” defense and could instead find themselves without the proverbial port in a storm.

Notably, the Act goes further than most other comparable state wage discrimination laws by mandating notification to employees of employment opportunities. Employers must make reasonable efforts to provide notice of internal opportunities for promotion on the same calendar day the opening occurs. These announcements must disclose the hourly or salary compensation, or at the very least a pay range, as well as a description of benefits and other compensation being offered. Failure to comply with these provisions could result in fines of between $500 and $10,000 per violation. …

Read the full post here.

Our colleague Amanda M. Gomez 

Following is an excerpt:

After a long legislative battle, the New York State Gender Expression Non-Discrimination Act (“GENDA” or “Law”), which was signed into law and became effective on January 25, 2019, explicitly added “gender identity or expression” as a protected class under the state’s non-discrimination laws. Now, under a proposed state regulation, the New York State Division of Human Rights (“DHR”) would amend its regulations, codified in NYCRR §466.13, prohibiting discrimination on the basis of gender identity, gender expression, and transgender status to conform with the Law.

The proposed regulation would amend NYCRR 466.13(b) to define “gender identity and expression” as “a person’s actual or perceived gender-related identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including but not limited to, the status of being transgender.” The change would match the definition in the Law.  Additionally, the phrase “gender identity or expression” would replace “gender identity” throughout the regulation. A new section, NYCRR 466.13(c), would also be added to clarify that “gender identity or expression” is now explicitly a separate protected class under the Human Rights Law. …

Read the full post here.

Many retail employers require their employees to agree to arbitrate employment-related disputes as a condition of employment. The United States Supreme Court has repeatedly emphasized that workplace arbitration agreements are enforceable according to their terms, and state law that restricts such enforcement is preempted by the Federal Arbitration Act (“FAA”). Notwithstanding those pronouncements, states, such as New York and New Jersey, have crafted legislation designed to nullify an employee’s agreement to arbitrate certain employment-related claims.

In response to the #MeToo movement, New York and New Jersey have enacted legislation banning workplace arbitration agreements covering sexual harassment and discrimination claims. On April 12, 2018, New York State, as part of its 2018-2019 budget, amended § 7515 of the New York Civil Practice Law and Rules (“CPLR”) to prohibit employers with four or more employees from incorporating mandatory, pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations of claims of sexual harassment. Additionally, any such clause in a contract entered into after the effective date of the law would be rendered null and void.

On June 19, 2019, the New York legislature passed a bill (which, as of the date of this post, has yet to be signed into law) that makes sweeping changes to New York’s harassment and discrimination laws. Among other things, the bill again amends § 7515 of the CPLR to ban mandatory pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations of claims of workplace discrimination generally, not just sexual harassment claims and renders any such clause null and void.

On March 18, 2019, New Jersey Governor Murphy signed legislation that declares unenforceable any “provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment.” N.J.S.A. 10:5-12.7(1)(a).  The law further provides that “[n]o right or remedy under the [Law Against Discrimination], or any other statute or case law shall be prospectively waived.” N.J.S.A. 10:5-12.7(1)(b). Both provisions can be construed to prohibit the waiver of a right to a jury trial as required by an arbitration agreement.

Many observers have questioned whether these laws restricting arbitration would be preempted by the FAA. A recent decision in the Southern District of New York, Mahmoud Latif v. Morgan Stanley & Co. LLC, No. 18cv11528 (DLC), 2019 U.S. Dist. LEXIS 107020 (S.D.N.Y. June 26, 2019), confirms that state laws targeting enforcement of arbitration agreements are vulnerable to attack on FAA preemption grounds.

As discussed below, in Latif, the court held that New York’s ban on the arbitration of sexual harassment claims was unenforceable as preempted by the FAA. The court also stated, in a footnote, that the as yet unsigned June 19, 2019 New York legislation would be preempted by the FAA for the same reasons. Latif suggests that employers covered by the FAA can be more confident that their agreements seeking to arbitrate employment-related claims will be enforceable.

Continue Reading Southern District of New York Rules Federal Law Preempts New York State Law Banning Arbitration of Sexual Harassment Claims

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers in July 2019. Both the video and the extended audio podcast are now available.

This episode includes:

  • State Legislation Heats Up
  • NLRB Overturns Another Long-Standing Precedent
  • SCOTUS October Term 2018 Wraps Up
  • Tip of the Week: How inclusion and trust can increase innovation in the workplace

See below to watch the full episode – click here for story details, the video, and the extended audio podcast.

Stay tuned: Sign-up for email notifications and subscribe to the extended podcast edition on your preferred platform – Apple PodcastsGoogle Play, OvercastSoundcloudSpotifyStitcher.

This edition of Take 5 highlights compliance with cutting-edge issues—such as pay equity, workplace violence, and artificial intelligence (“AI”)—that have a significant impact on retailers. We also provide an update on National Labor Relations Act (“NLRA”) compliance and New York City drug testing to assist you in navigating an increasingly complex legal landscape.

Watercooler (and Bathroom) Conversations Among Co-Workers About Work-Related Matters Are Not Always Protected Concerted Activity Under the NLRA

RyAnn M. Hooper

Historically, a conversation between two or more employees about working conditions or other terms or conditions of employment is deemed protected activity under the NLRA, and an employer cannot retaliate against the employees for taking part in such a conversation or for their content. On April 10, the National Labor Relations Board (“Board”) issued a decision in which it made clear that these are not absolute principles. In rejecting the findings of an administrative law judge, the Board explained that such conversations are only entitled to the NLRA’s protection when the chatter is work-related and made with the intent to insight collective action among the workforce. In Quicken Loans, Inc., 367 NLRB No. 112 (April 10, 2019), the Board held that bathroom remarks made by a mortgage banker to a co-worker complaining vociferously about the employer’s routing of a client call to him, which was overheard by a manager and involved swearing about the client, was not protected. Because the Board found that this griping was purely a matter of the complainer’s concerns and it did not have any goal of “mutual aid or protection” or seek collective action, the discharge of the co-worker was upheld.

The New Jersey Equal Pay Act: How to Assess Compliance 

Marc A. Mandelman and Ann Knuckles Mahoney

With the first anniversary of New Jersey’s Diane B. Allen Equal Pay Act (“Act”) approaching, now is an excellent opportunity for retailers to be reminded of the heightened awareness of employees to pay equity issues and to take steps to ensure compliance with the Act. The Act is one of the most expansive equal pay laws in the nation, with a broad definition of “protected class” and a narrow list of factors that would justify pay disparities. Retailers can assess potential noncompliance by taking the four-step approach outlined in the article “4 Steps For New Jersey Equal Pay Act Compliance,” which was recently authored by David W. Garland and Marc A. Mandelman, Members of the Firm at Epstein Becker Green, and Anthony J. Campanelli and Kevin R. Corbett, Partners at Deloitte Financial Advisory Services LLP. (A subscription to Law360 is required to access the full article.) More information on the legal requirements of the Act can be found in our Act Now Advisory titled “New Jersey Enacts Sweeping Equal Pay Law.”

Avoiding Workplace Violence: Steps to Take Now 

Elizabeth K. McManus

As incidents of workplace violence continue to make headlines, employers are increasingly aware of the potential threat of violence in the workplace and their obligation to provide workplaces that are “free from recognized hazards that are causing or are likely to cause death or serious harm,” as set forth in the Occupational Safety and Health Act’s general duty clause.

To proactively prevent and address incidents of workplace violence, employers should consider taking the following steps now:

  1. Adopt a Comprehensive Workplace Violence Prevention Policy. A workplace violence prevention policy should clearly define “workplace violence” and refer to a broad range of prohibited behaviors, from verbal assaults to threats or acts of physical violence or damage to property.
  2. Train Your Workforce. Conduct training sessions to disseminate the workplace violence prevention policy, and teach employees and other staff the proper channels for reporting threats or incidents of violence.
  3. Document Reported Incidents and Investigate. Keep careful records of any reports of potential or actual workplace violence. Any threats or actual incidents of violence should be immediately, thoroughly, and appropriately investigated.
  4. Carry Out Additional Actions, as Needed. Periodically review your reporting records to determine if there are any patterns or trends emerging that must be addressed.

New York City Bans Pre-Employment Marijuana Drug Testing

Ann Knuckles Mahoney

New York City recently passed a law prohibiting employers, labor organizations, and employment agencies, and all of their agents, from requiring a prospective employee to submit to a marijuana or tetrahydrocannabinols (commonly known as “THC”) drug test as a condition of employment. The law includes several exceptions and does not apply, for example, to transport-related positions, such as positions requiring a commercial driver’s license, and safety-related positions. If drug testing is required by a collective bargaining agreement, the law will not apply to such testing. Since drug testing is common in the retail industry, retailers with operations in New York City should ensure compliance with the law before it becomes effective on May 10, 2020. Retailers in New York City will need to review their drug-testing policies and procedures, and cease pre-employment testing of cannabis and THC, unless an applicable exception applies. Additionally, job postings should also be reviewed to ensure that they do not reference impermissible testing.

Artificial Intelligence for Recruitment and Selection in Retail

Matthew Savage Aibel

Companies are increasingly using AI in their recruitment and selection of employees. Usually, AI is used as a part of a third-party “digital hiring platform.” These products, explicitly or implicitly, promise to reduce or eliminate the bias of hiring managers in making selection decisions. These technologies can hold a particular appeal in retail, where there may be an inclination from a hiring manager to hire for a certain look. (Abercrombie & Fitch was infamously sued over such allegations.)

The digital hiring platforms use AI to grade applicants based on a variety of purportedly objective factors. For example, a platform may scan thousands of resumes and select applicants based on education level, work experience, or interests, or rank applicants based on their performance on an aptitude test—whatever data point(s) the platform has been trained to evaluate based on the job opening. Some even go a step further and analyze candidates’ facial expressions, eye contact, or tone of voice during video interviews. The appeal of these technologies is obvious, and they may streamline a cumbersome and expensive hiring process for retailers.

Their use, however, is not without risk. The Illinois Legislature just passed a bill, likely to be enacted into law, entitled the “Artificial Intelligence Video Interview Act.” This law imposes new notice and consent requirements upon all employers hiring for positions in Illinois. There are other risks and considerations as well, including the potential for hidden bias, disparate impact, disability accommodation, and data privacy. Companies using digital hiring platforms must take steps to mitigate against these risks, including conducting due diligence on the products, or else they may be susceptible to a lawsuit.

Read the Take 5 on our website.

Our colleagues 

Following is an excerpt:

On July 2, 2019, New Jersey joined IllinoisNevadaNew MexicoNew York City, and Oklahoma in enacting employment protections for authorized users of medical cannabis. New Jersey’s new medical cannabis law (“Law”), which became effective upon signing by Governor Phil Murphy, amends the state’s Compassionate Use Medical Cannabis Act (“CUMCA”),[1] N.J.S.A. 24:61-2, et seq. Among other measures, the Law prohibits employers from taking an adverse employment action against a current or prospective employee based on the individual’s status as a registered qualifying user of medical cannabis. Under the Law, an “adverse employment action” means “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.” In addition, the Law requires employers that maintain drug-testing policies to offer applicants and employees the right to respond, in specific ways, to a drug test that comes back positive for cannabis.

Specifically, if an employee or applicant tests positive for cannabis, the Law requires the employer to provide written notice offering the individual the right to provide a “legitimate medical explanation” for the positive test result or to request a retest of the sample. The individual has three days after receiving the notice to (i) provide the explanation, which may include authorization for the use of medical cannabis issued by a health care practitioner, proof of registration with the state’s newly created Cannabis Regulator Commission, or both, or (ii) request a confirmatory retest of the original sample at the individual’s own expense. …

Read the full post here.

As previously reported, last week the Massachusetts Department of Family and Medical Leave (“DFML”) announced several changes, both substantive and procedural, to the state’s Paid Family and Medical Leave program (“PFML”). This week, the DFML has provided further guidance on changes to the worker notice requirements, issued new workplace posters, and posted the final regulations.

Updates to Notice Requirement

As part of its June 14, 2019 announcement, the DFML changed the deadline for employers to provide required notices to workers for a second time, now setting the deadline for September 30, 2019. The DFML issued the new model notices this week in English, and we anticipate the other languages will follow soon.

If an employer provided written notices to its workforce prior to the June 14, 2019 announcement, the employer must now provide an addendum sheet, which explains the updated program dates and contribution rates. The addendum will be provided by the DFML this week.

The DFML has provided additional guidance as to the procedures for the worker acknowledgement component of the required notices. As we previously reported, one component of the required notices provided to both W-2 and 1099-MISC workers is the requirement that employers obtain either a written acknowledgment of the receipt of the notice, or a statement indicating the worker’s refusal to acknowledge the notice. When a worker fails to acknowledge receipt of the notice, the DFML will consider the employer or covered business entity to have fulfilled its notice obligation, as long as the employer can establish that it provided each member of its current workforce with the notice and an opportunity to acknowledge, or decline to acknowledge, receipt of said notice. The DFML clarified that employers should not send the notices, addendums, or acknowledgment forms to the DFML, but should instead retain them pursuant to the employer’s document retention policy.

New Poster Information

The English and Spanish versions of the new workplace poster are now available, and the DFML states that additional translations will be available this week. Employers are required to provide the poster in English and in each language that is the primary language of five or more individuals in the employer’s workforce if the posters are available from the DFML.

Final Regulations

 The DFML has also released an unofficial version of the final regulations, which offer guidance on the rights and responsibilities of both employers and employees under the state’s PFML. The official version of the final regulations will be available from the Secretary of State’s Office on or before July 1, 2019. We will have a follow-up post reviewing any substantive changes to the regulations.

What Massachusetts Employers Should Do Now

In addition to the steps we have previously suggested, Massachusetts employers should consider the following actions:

  • If PFML notices were already provided, issue the addendum.
  • If PFML notices were not provided, use new templates to prepare notices.
  • Post the new English workplace poster and the Spanish poster if applicable, and monitor the DFML website for any other relevant posters
  • Ensure that there is a system in place for retention of all documents related to the notices to workers.
  • Regularly check the DFML website for updates.
  • Consider attending an educational session on the PFML. There are currently three scheduled educational sessions: in Dartmouth on June 24, 2019; in Rockland on June 26, 2019; and in Springfield on June 28, 2019.