Category: Labor & Employment

New Year, New Changes for California Employers in 2024

As 2024 quickly approaches, so, too, do many new obligations and restrictions for employers with California employees.

Below, we summarize significant changes to hiring and workforce management, litigation, wage and hour, and other California employment laws taking effect in the new year.

Unless otherwise noted, all new laws discussed below will be effective as of January 1, 2024.

HIRING & WORKFORCE MANAGEMENT

Restrictive Covenants

California has long been the nation’s leader in limiting employers’ use of restrictive covenants. SB 699 and AB 1076 make the California Business and Professions Code (the “B&P Code”), which generally voids restrictive covenants in California, even stricter.

As we previously reported, SB 699 broadens the B&P Code by adding a new Section 16600.5 that:

  • provides that any agreement void thereunder is also unenforceable in California regardless of where and when the agreement was signed;
  • makes it explicitly unlawful for employers to attempt to enforce or enter into a noncompete agreement (rather than simply voiding such agreements); and
  • grants current, former, and prospective employees a private right of action against employers that attempt to enforce or enter into a noncompete agreement.

AB 1076 further builds on these prohibitions by creating a new Section 16600.1, which makes it unlawful for employers to include noncompete clauses in employment agreements or to require an employee to enter into a noncompete. In addition, as we detailed here. As noted above, prior to these amendments, the B&P Code only voided such restrictive covenants.

AB 1076 also establishes a new notice obligation with which employers must comply by February 14, 2024. Specifically, employers must notify current and former employees who were employed after January 1, 2022, and are subject to an unlawful noncompete, that such agreement or clause is void. This notice requirement also extends to remote employees (current or former) who reside in California, even if the employer has no physical presence in California, as well as former employees who did not work in California during their employment but have since moved there.

Discrimination Protections for Off-Duty Cannabis Use

For the second year in a row, California enacted new employment protections for cannabis users under the state’s Fair Employment and Housing Act (FEHA). As we outlined here, last year’s AB 2188 amended FEHA to prohibit discrimination on the basis of off-duty, off-site use of cannabis, as well as on the basis of testing positive for the presence of non-psychoactive cannabis metabolites in an employee’s or applicant’s hair, blood, or bodily fluids.

SB 700 builds on these protections by further amending FEHA to prohibit employers from inquiring about applicants’ past cannabis use. Importantly, the law exempts from coverage situations in which an employer is permitted under state or federal law to obtain information about an applicant’s prior cannabis use from the person’s criminal history. Moreover, the law does not preempt state or federal laws requiring employers to test applicants or employees for controlled substances. Both SB 700 and AB 2188 will take effect at the start of the new year.

Anti-Retaliation Protections

California law provides applicants and employees who engage in certain protected activities with a variety of anti-retaliation protections. SB 497 further expands these protections by creating a rebuttable presumption of retaliation if an employer disciplines or takes adverse action against an employee or applicant within 90 days of the employee or applicant engaging in conduct protected by California Labor Code §§ 98.6, 1102.5, and 1197.5. This protected conduct includes, but is not limited to:

  • complaining about unpaid wages;
  • complaining about unequal pay violations, including being paid at wage rates less than the rates paid to an employee of the “opposite sex”;
  • disclosing the employee’s own wages;
  • discussing the wages of others;
  • inquiring about another employee’s wages;
  • aiding and encouraging another employee to exercise their rights under the law; and
  • whistleblowing.

Employers may rebut this presumption by establishing that there was a legitimate, non-retaliatory reason for the adverse action.

Paid Sick Leave

As we previously reported, this fall, the California Legislature amended and expanded employers’ paid sick time obligations under the Healthy Workplaces, Healthy Families Act (HWHFA). The overall structure of the HWHFA remains the same, but as of January 1, 2024, SB 616 increases the amount of paid sick time that employers must provide— from three days or 24 hours to five days or 40 hours. Importantly, employers may still choose either to front-load and offer a block grant of paid sick time at the beginning of each year or to use an accrual-based method. As before, with an accrual-based policy, all unused time carries over from year to year.

For accrual-based policies, SB 616 also does the following:

  • increases the cap of paid sick leave that employees can use each year from three days or 24 hours to five days or 40 hours;
  • increases the cap of the total amount of paid leave an employee may accrue from six days or 48 hours to 10 days or 80 hours; and
  • requires that employees accrue paid sick leave at either (1) no less than one hour for every 30 hours worked or (2) an alternative rate under which employees accrue (and are allowed to use) no less than three days or 24 hours of paid sick leave by the employee’s 120th calendar day of employment and no less than the greater of five days or 40 hours of paid sick leave by the employee’s 200th calendar day of employment.

To help employers comply with their new obligations under SB 616, the California Labor Commissioner’s office recently updated its “California Paid Sick Leave: Frequently Asked Questions” guidance and published an updated Paid Sick Leave poster and employee notice.

Leave for a Reproductive Loss

SB 848 creates protected leave for eligible employees who experience a “reproductive loss.” The new law applies to employers with five or more employees, and eligible employees are those who have been employed for at least 30 days prior to the leave. Employers must grant eligible employees up to five days of leave following a reproductive loss. The law broadly defines “reproductive loss” and includes failed adoption, failed surrogacy, miscarriage, stillbirth, and unsuccessful assisted reproduction. Similar to bereavement leave, which the California Legislature enacted in 2023, reproductive leave days must be taken within three months of the loss but do not have to be taken consecutively. Reproductive loss leave is not required to be paid, but it can be paid under the employer’s existing applicable paid time off policies, such as vacation, personal leave, or sick leave.

Workplace Violence Prevention Plans

Current California Division of Occupational Safety and Health (“Cal/OSHA”) regulations require employers to adopt an Injury and Illness Prevention Program (IIPP). SB 553 requires virtually all California employers to have in place by July 1, 2024, a written Workplace Violence Prevention Plan as a stand-alone section in their IIPP or as a separate document. Importantly, employers already covered by Cal/OSHA’s Violence Prevention in Health Care standard (the “Cal/OSHA Health Care Standard”) are excepted from SB 553’s scope, given that the Cal/OSHA Health Care Standard already requires such employers to establish, implement, and maintain workplace violence prevention plans.

SB 553 outlines several specific requirements for the Workplace Violence Prevention Plan, including detailing how the employer responds to any threat or act of violence that occurs in the workplace, procedures to identify and evaluate workplace hazards, and procedures for employees to report violent incidents or threats of violence. Employers must also provide specific training on the Workplace Violence Prevention Plan to employees, including an initial training when the Workplace Violence Prevention Plan is first established and then annually thereafter. Moreover, employers are also required under SB 553 to maintain training records and a violent incident log, which identifies, among other things, where and when a violent incident occurs, the type of violence that occurred, and a description of the incident.

Along with SB 428, beginning January 1, 2025, SB 553 also adds several new protections to the process through which employers may seek temporary restraining orders (TROs) and injunctions on behalf of an employee, including:

  • allowing TROs and injunctions to be sought not only when an employee is subjected to violence or threats of violence but harassment as well, and
  • authorizing collective bargaining representatives to seek TROs and injunctions on behalf of employees.

LITIGATION

No More Automatic Stay During Appeal of Motion to Compel Arbitration

SB 365 amends the California Code of Civil Procedure to state that trial court proceedings will no longer be automatically stayed when a party appeals an order denying a petition to compel arbitration. Under SB 365, beginning in the new year, courts are permitted to exercise discretion as to whether to stay trial court proceedings while an appeal is heard. This is significant because should a court determine that a stay is not warranted, an employer may be forced to continue defending itself in court from claims that may yet ultimately be subject to arbitration if the employer’s appeal is successful.

Privileged Communications Regarding Sexual Assault, Harassment, or Discrimination

Current California law makes certain publications and communications privileged, meaning that individuals who make the communications may be protected from liability for libel and slander. Included among these privileged communications are those related to sexual harassment. As such, if an employee makes a complaint of sexual harassment, without malice, to an employer, California law provides that the employee may not be liable for making such complaints.

AB 933 expands the types of communications that are privileged from liability to include communications regarding:

  • sexual assault;
  • sexual harassment;
  • an act of workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination or an act of retaliation against a person for reporting workplace harassment or discrimination; and
  • an act of cybersexual bullying.

Individuals who have made such a communication may assert the privilege to bar liability if they are sued for making defamatory statements based on their own experience as victims of such incidents. In addition, such individuals may recover attorneys’ fees and costs, treble damages, and punitive damages if they prevail in a suit for defamation.

WAGE & HOUR

Wage Theft & Misclassification

AB 594 temporarily authorizes prosecutors through January 1, 2029, to pursue civil or criminal actions against employers that violate California Labor Code provisions related to wage theft and misclassification. Courts can grant prosecutors, including city, county, and state prosecutors, the Attorney General, and district attorneys, money damages (which must first be applied to employee payments), injunctive relief, and reasonable attorneys’ fees and costs that the Labor Commissioner would be entitled to seek. In addition, AB 594 clarifies that with respect to prosecutorial actions, any agreement between an employee and employer that purports to limit representative actions or to mandate private arbitration will not apply.

Minimum Wage

California’s minimum wage rate will increase to $16.00 per hour for all employers, regardless of size. This increase from $15.50 per hour is a result of an inflation adjustment made pursuant to Labor Code § 1182.12, which requires the California Director of Finance to calculate and increase the minimum wage depending upon the U.S. Consumer Price Index for Urban Wage Earners and Clerical Workers.

This increase also affects wage and hour exemptions that are based upon a salary floor that is two times the state minimum wage, such as the administrative, professional, and executive exemptions. As such, beginning January 1, 2024, the minimum salary threshold for these exemptions will increase to $66,560 per year.

Additionally, the minimum compensation threshold for the computer software exemption, which is not tied to the minimum wage rate like the administrative, professional, and executive exemptions, will also increase in 2024. For salaried employees, this threshold will be $115,763.35 per year. For hourly employees, this threshold will be $55.58 per hour. Employees must also continue to meet the applicable duties test to qualify for an exemption.

As a reminder, municipalities also continue to set local minimum wages that are higher than the state requirement.

Wage Notices

AB 636 amends the notice requirements for the Wage Theft Prevention Notices that employers must provide to nonexempt employees in California. In addition to the previously required information, such as rate of pay, regular payday, and right to paid sick leave, AB 636 requires that wage notices also contain information about the existence of a federal or state-declared emergency in the county where the employee is to be employed if it was issued within 30 days before the employee’s first day of work and may affect the employee’s health and safety during employment. The California Department of Industrial Relations has published a template that reflects this newly required information, as well as the amended paid sick leave requirements under SB 616.

In addition, AB 636 adds information required in notices for employees in California under an H-2A agricultural visa. This includes information describing employees’ rights and protections, including the right to meal and rest periods, transportation travel time, and employee housing rights. This new information for agricultural visa workers must be included in the wage notice starting March 15, 2024.

INDUSTRY-SPECIFIC AND OTHER BILLS

Health Care

SB 525 establishes new minimum wage rates for covered health care employees at covered health care facilities as of June 1, 2024. The law defines these terms as follows:

  • “Covered health care facilities” include, but are not limited to, facilities part of an integrated health care delivery system, acute care hospitals, acute psychiatric hospitals, special hospitals, licensed skilled nursing facilities (if owned, operated, or controlled by a hospital, integrated health care delivery system, or health care system), licensed home health agencies, outpatient clinics of hospitals, community clinics, urgent care clinics, physician groups, county correctional facilities that provide health care services, and ambulatory surgical centers certified to participate in Medicare.
  • “Covered health care employees” are those who provide patient care, health care services, or services supporting the provision of health care. They include contracted or subcontracted employees under certain circumstances.

The relevant minimum wage rate varies under the law depending on which of four tiers the covered health care facility falls within. For example, covered health care facilities with at least 10,000 full-time employees fall within the first tier of SB 525, so the minimum wage for these facilities’ covered health care employees is as follows:

  • From June 1, 2024, to May 31, 2025, inclusive, $23 per hour;
  • From June 1, 2025, to May 31, 2026, inclusive, $24 per hour; and
  • From June 1, 2026, and until adjusted below, $25 per hour.

Additional information regarding the four tiers, including which covered health care facilities are included therein and the minimum wage schedule applicable thereto, is available here.

Fast Food

Last year, California revolutionized the fast food industry when it adopted AB 257, also known as the Fast Food Accountability and Standards Recovery Act (the “FAST Recovery Act”). As of January 1, 2023, the FAST Recovery Act was supposed to create, among other things, a Fast Food Council responsible for establishing and implementing binding minimum standards for wages, hours, training, and working conditions. However, a court order stayed the law from taking effect late last year pending the outcome of a voter referendum scheduled for November 2024 (the “Referendum”).

This year, legislators worked with fast food industry and labor union representatives to reach a compromise in the form of AB 1228, which raises the minimum wage for fast food workers and significantly modifies the FAST Recovery Act. Provided that its supporters withdraw the Referendum by January 1, 2024, AB 1288, until January 1, 2029, repeals the FAST Recovery Act and establishes a Fast Food Council with more limited authority to recommend employment regulations. AB 1228 also eliminates provisions in the prior law regarding joint liability for fast food franchisors for their franchisees’ civil liability for employment law violations.

In addition, beginning April 1, 2024, AB 1228 raises the minimum wage rate for fast food workers in the state to $20 per hour. Beginning January 1, 2025, AB 1228 authorizes the Fast Food Council to establish annual minimum wage increases through January 1, 2029, up to 3.5 percent or the rate of change in the U.S. Consumer Price Index for Urban Wage Earners and Clerical Workers, whichever is lower. The law also preempts local municipalities from establishing higher minimum wage rates for fast food restaurant employees specifically; however, local municipalities are still permitted under the law to establish a higher minimum wage that is generally applicable to all industries.

Importantly, AB 1228 applies to “national fast food chains,” which the law defines as limited-service restaurants that share a common brand or are characterized by standard options for décor, marketing, packaging, products, etc., and are primarily engaged in providing food and beverages for immediate or off-premises consumption.

Hospitality and Business Service Providers

In the spring of 2021, California enacted legislation (SB 93) requiring covered employers in the hospitality and business services industry to notify and offer to rehire qualified former employees who were laid off during the COVID-19 pandemic. “Covered employers” include hotels or private clubs with 50 or more guest rooms, airports, airport service providers, event centers, and, in certain situations, retail and commercial buildings. Under SB 93, eligible employees are only entitled to these recall rights through December 31, 2024.

SB 723 broadens the scope of employees’ recall rights under SB 93 in three important ways. First, SB 723 expands the definition of “laid-off employees” who are entitled to recall rights. Under SB 93, “laid-off employees” are those workers: (1) who were employed by their employer for at least six months during the 12-month period before January 1, 2020, and (2) whose most recent separation from active service was due to the pandemic. Under SB 723, “laid-off employees” are those workers: (1) who were employed by their employer for at least six months; (2) whose most recent separation from active employment occurred on or after March 4, 2020; and (3) whose most recent separation from active employment was due to the pandemic.

Second, SB 723 establishes a presumption for determining whether a separation from active employment is “due to the pandemic.” Under the new law, separations due to a lack of business, a reduction in force, or other economic/non-disciplinary reasons will be presumed to be a result of the pandemic.

Finally, SB 723 extends the law’s sunset from December 31, 2024, to December 31, 2025.

WHAT EMPLOYERS SHOULD DO NOW

  • Consult with counsel regarding agreements with current and former employees to determine whether any contain any unlawful restrictive covenants. Revise any such agreements, as necessary, to comply with SB 699 and AB 1076.
  • Identify any current employees or former employees who were employed after January 1, 2022, who may be subject to an unlawful noncompete provision, and send them a compliant notice under AB 1076 by February 14, 2024.
  • Seek advice from counsel before attempting to enforce restrictive covenants against current, former, or prospective employees in California.
  • Review drug-screening policies and practices to ensure that you do not screen for non-psychoactive cannabis metabolites except as explicitly permitted under AB 2188.
  • Review interview, onboarding, and hiring policies and practices to ensure that you do not inquire about an applicant’s past cannabis use unless specifically permitted under SB 700.
  • If not already in place, adopt a compliant Workplace Violence Prevention Plan or update your IIPP to include the same.
  • Train employees regarding the Workplace Violence Prevention Plan and implement a process for maintaining relevant training and compliance records and a violent incident log.
  • Ensure there is a robust system for documenting any disciplinary or other adverse action taken against employees in light of the rebuttable presumption established under SB 497.
  • Review and revise leave of absence policies and practices to add protected time off for reproductive loss, and train managers and human resources personnel to appropriately respond to and track this leave.
  • Update paid sick leave policies to comply with SB 616, post the Labor Commissioner’s updated paid sick leave poster, and distribute the Labor Commissioner’s updated employee notice.
  • Review hourly wage rates for nonexempt employees and salary levels for employees who are exempt under the professional, administrative, and executive exemptions to ensure they continue to meet new wage requirements.
  • Prepare to use the updated Wage Theft Prevention Notice template (or revise your current notice if not using the template) for nonexempt employees hired on or after January 1, 2024.
  • If you are an employer in the health care sector, fast food, or hospitality/business services, review your policies and practices to ensure that they comply with the new industry-specific laws.
©2023 Epstein Becker & Green, P.C. All rights reserved.
For more news on 2024 California Employment Laws, visit the NLR Labor & Employment section.

U.S. Employment-Based Immigration Year in Review: Many Changes Made, Many Changes Promised

Looking back at 2023, many of the employment-based immigration changes proposed and implemented by various U.S. government agencies focused on increasing efficiency and alleviating strain on our immigration system. There was increased focus on creating consistency in adjudications of benefits, new programs aided in the reduction of processing times across all U.S. government agencies and new programs focused on attracting and retaining talent in STEM, artificial intelligence, and emerging technology fields.

Quick Hits

  • In 2023, we saw program-level changes to the content and format of Form ETA-9089 and Form I-9 employment verification procedure for employers. Significant changes to H-1B and F-1 programing as well as for domestic visa processing are proposed and expected in 2024.
  • Combined policy and processing changes that several agencies implemented confirm prioritization of STEM fields and labor market competitiveness. These changes include designation of additional STEM fields, an executive order on artificial intelligence, updated extraordinary ability and outstanding researcher guidance specific to STEM occupations, and expansion of premium processing for OPT/STEM applicants and national interest waiver filings.
  • USCIS significantly updated processing for certain dependents and EAD holders including a return to bundled dependent adjudication, elimination of biometrics fees, decreased automatic extensions for EAD renewals, increased validity periods, and extension of premium processing.

Program Changes to Streamline and Increase Efficiency

U.S. government agencies have prioritized the modernization of the U.S. immigration framework to enhance efficiency, user experience, and overall program effectiveness.

PERMANENT LABOR CERTIFICATION PROCESS AND NEW ETA-9089

U.S. employers rely heavily on the U.S. Department of Labor’s (DOL) permanent labor certification process to sponsor foreign workers for U.S. permanent residency. The online platform and application form transitioned significantly this year. Effective June 1, 2023, a new version of the Form ETA-9089 became effective via the Foreign Labor Application Gateway (FLAG) platform. The new Form ETA-9089 and the transition to the FLAG platform aim to streamline the permanent labor certification process and increase efficiency with the goal of improving lengthy DOL processing times.

FORM I-9 AND VIRTUAL VERIFICATION

In the United States, employers are required to verify an employee’s identity and work authorization at the time of hire and complete a Form I-9. A new version of Form I-9 became effective on August 1, 2023. At the same time, the U.S. Department of Homeland Security (DHS) introduced a new rule allowing certain qualifying employers to complete the Form I-9 process through an alternative virtual procedure. The changes to the I-9 program aim to increase employer compliance given the abundance of post-pandemic dispersed and remote workforces.

PROPOSED RULE TO MODERNIZE H-1B PROGRAM

On October 23, 2023, DHS published a notice of proposed rulemaking (NPRM) to amend various regulatory sections to update the H-1B program. The proposed changes involve setting policies for providing deference to previously approved cases without change, clarifying the requirements for meeting H-1B standards, allowing certain F-1 students to remain in the United States for a longer period of time by extending cap-gap extensions, ensuring the integrity of the H-1B lottery, and safeguarding against H-1B quota misuse through improved verification procedures. Following the close of the public comment period on December 22, 2023, DHS will likely finalize the various updates through one or more final rules. It is possible the H-1B cap provisions may be finalized in time for the fiscal year (FY) 2025 H-1B cap season.

STATESIDE VISA RENEWAL PILOT PROGRAM

The Federal Register notice from State Department was published on December 21, 2023 confirming the roll out of a stateside visa renewal pilot program. The State Department will begin with H-1B visa holders and will allow 20,000 participants to renew their visa stamps in the United States, without traveling overseas to apply at a U.S. embassy or consulate. This program will run from January 29, 2024 to April 1, 2024. A list of specific criteria is outlined in our recent article, “Stateside Visa Renewal Pilot Program Set to Begin in January 2024.”

PREMIUM PROCESSING PROGRAM

Throughout the year, we have seen substantial expansion of the premium processing program. In January 2023, premium processing became available for I-140 immigrant petition filings for multinational managers or executives and those requesting a national interest waiver. On March 6, 2023, USCIS expanded the premium processing program to include I-765 Applications for Employment Authorization filings for F-1 students requesting pre-completion Optional Practical Training (OPT), post-completion OPT, and STEM OPT extensions. On June 12, 2023, USCIS began phasing in premium processing for change of status filings for F-1, M-1, and J-1 students and their dependents. The expansion of this program demonstrates an overall USCIS commitment to reduce processing times for U.S. immigration filings.

Prioritizing STEM Fields

The U.S. government has emphasized the importance of STEM fields and maintaining U.S. global competitiveness through various initiatives and policy updates.

DESIGNATION OF NEW STEM FIELDS

On July 12, 2023, DHS added eight new fields, including Landscape Architecture, Mechatronics, Robotics, and Geospatial Intelligence, to the STEM Designated Degree Program List. F-1 students completing academic programs in the newly designated fields will be eligible to apply for an additional two years of occupational practical training (OPT) to gain practical work experience in the United States.

EXECUTIVE ORDER ON AI

President Biden signed Executive Order 14110 on October 30, 2023, focused on maintaining U.S. leadership in artificial intelligence (AI) and emerging technologies. The executive order directs the various U.S. government agencies to set policies to globally attract and retain talented individuals in these fields. It instructs the State Department and DHS to streamline visa processing for individuals coming to the United States to work or study in these areas and also encourages DHS to streamline the green card process. The executive order urges DOL to address shortages of workers in STEM fields and AI.

EVIDENTIARY GUIDANCE FOR EB-1 EXTRAORDINARY ABILITY AND OUTSTANDING PROFESSOR AND RESEARCHER IMMIGRANT PETITIONS

On September 12, 2023, USCIS updated its policy guidance on Extraordinary Ability and Outstanding Professor and Researcher classifications. The revisions include new examples of evidence, with a notable emphasis on STEM occupations, reflecting a commitment to facilitating immigration pathways for individuals with expertise in science, technology, engineering, and mathematics.

Processing Changes for Dependent Filings and EAD Applications

CONCURRENT ADJUDICATION

The settlement in Edakunni v. Mayorkas brought significant modifications to USCIS adjudication policies for H-4 and L-2 dependents and associated EADs. Effective January 25, 2023, USCIS reverted to bundled adjudication of principal and dependent applications when concurrently and properly filed with the principal H or L applicant. Reviewing these applications together, whether in regular or premium processing, speeds up the approval process for H-4, L-2, and EAD applications, making things more efficient and predictable for families. In alignment with this change, USCIS eliminated the $85 biometric services fee and attendance at a biometrics services appointment for Form I-539 applications, extending relief to various categories where the required biometrics process delayed USCIS adjudication and its final decision on the requested benefit.

AUTOMATIC EXTENSION OF EADS

On October 27, 2023, USCIS stopped automatically extending certain work permits (EADs) for 540 days and went back to the pre-COVID-19 allotment of 180 days. This affects people renewing their work permits as of October 27, 2023. However, those renewals filed prior to this date, or those that had already received a 540-day extension, will continue to be honored.

VALIDITY PERIOD FOR EADS AND ADVANCE PAROLES

On September 27, 2023, USCIS extended the validity period for initial and renewal EADs to five years for certain foreign nationals including those with pending adjustment of status applications under Immigration and Nationality Act (INA) 245. On December 8, 2023, USCIS updated the Retrogression section of its Employment-Based Adjustment of Status FAQs confirming that USCIS will also approve Advance Parole (AP) applications for a five-year period. These changes aim to reduce strain on the immigration system by reducing the frequency of renewal filings and also provide relief and consistency for those impacted by immigrant visa backlogs.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more news on US Employment-Based Immigration Laws, visit the NLR Labor & Employment section.

Looking Ahead: New California Employment Laws for 2024

In the past few months, California Governor Newsom has signed numerous new employment laws affecting California employers of all sizes. Below is a summary of some of the laws going into effect in 2024.

Workplace Violence Prevention Safety Plan

California will become the first state to demand employers to create an “effective” workplace violence prevention plan, train employees, and prepare/maintain records regarding workplace violence, starting July 1, 2024. SB 553 covers virtually all employers. “Workplace violence” is defined as “any act of violence or threat of violence that occurs in a place of employment that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury.”

Not only must employers prepare a written prevention plan that is accessible to employees, they are also required to keep a “log” of every “workplace violence incident” and implement requisite training when the plan is first established. Moving forward, employers will need to provide training on an annual basis. Additionally, certain training records must be maintained for one to five years, depending on the type of record. For more information on the new law, please review Sheppard’s recent blog post on this topic here.

Paid Sick Leave Expansion

SB 616 amends California’s Healthy Workplaces, Healthy Families Act of 2014 to raise the amount of paid sick time employees can obtain each year from three to five days (or 40 hours) for full-time employees. The law also expands the annual accrual limit from six days (or 48 hours) to 10 days (or 80 hours).

Employers using the “front-loading” method of allowing paid sick leave must now supply five days (40 hours) at the beginning of the year. Employers using a different accrual process must now guarantee an employee has at least 40 hours of accrued sick leave by the 200th calendar day of employment, in addition to the requirement that employees have at least three days (24 hours) by the 120th day of employment. Employees must be allowed to use at least five days (40 hours) each year. For additional information, please review Sheppard’s recent blog post on this topic here.

Minimum Wage Increases

On January 1, 2024, the statewide minimum wage will increase to $16 per hour. The minimum exempt salary for California employees will rise from $64,480 to $66,560. In addition to the increase in the state minimum wage, many localities have their own minimum wage requirements that are higher than the state’s minimum wage.

Notably, the minimum wage increase for specific industry employers, such as healthcare facilities, begins June 1, 2024. The new minimum wage for healthcare facilities will range from $18 to $23 per hour, depending on the size and location of the facility. Fast food workers will also see a similar increase, to $20 per hour, beginning April 1, 2024.

No Automatic Stay During Appeals of Motions to Compel Arbitration Decisions

SB 365 amends the California Code of Civil Procedure with the intention of not automatically staying trial court proceedings when a party appeals an order denying a motion to compel arbitration. This law allows courts to use their discretion as to whether to stay proceedings while an appeal is heard. The law will likely be contested in court, on the basis that it is preempted by the Federal Arbitration Act (“FAA”). For additional information, please review Sheppard’s recent blog post on this topic here.

Prosecution for California Labor Code Violations

AB 594 empowers local prosecutors to pursue a civil or criminal action for violations of the California labor code that arise within their jurisdiction. The law also states that any agreement between the employer and employee that attempts to “limit representative actions or to mandate private arbitration” will not be enforceable.

Rebuttable Presumption of Retaliation

SB 497, known colloquially as the “Equal Pay and Anti-Retaliation Act, amends the California Labor Code to create a rebuttable presumption of retaliation if an employee is disciplined or terminated within 90 days of engaging in certain protected activity. Employers also are responsible for a civil penalty of up to $10,000 per employee for each violation, to be awarded to the employee who faced retaliation. For more information on the new law, please review Sheppard’s recent blog post on this topic here.

Reproductive Loss Leave

SB 848 requires employers to offer a leave of up to five days following a “reproductive loss event,” which is “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” The leave is restricted to 20 days within a 12-month period, and employees must be allowed to take their leave non-consecutively. Leave may be unpaid, but employees must be permitted use sick leave or other paid time off if they so choose. Information provided to the employer by the employee relating to the leave must remain confidential and cannot be disclosed, unless required by law. SB 848 also forbids retaliation for an employee’s use of this leave.

Noncompete Agreements

SB 699, which becomes operative January 1, 2024, clarifies that existing law prohibits noncompetition covenants regardless of where or when the agreement was signed, even if the covenant was signed outside of the state. An employer will now commit a civil violation for entering into or enforcing a void noncompete. Employees will also now have a private cause of action against their employer.

In a similar vein, AB 1076 requires employers to contact all current or former employees who were employed after January 1, 2022, and had (or have) contracts containing a noncompete clause, informing them that the noncompete clause is void. The notice must be completed by February 14, 2024, and is required to be in writing and delivered to both the last known physical address and email address of the employee. If an employer fails to send this notice, it constitutes a violation of California’s Unfair Competition Law. For additional information, please review Sheppard’s recent blog post here.

Emergency or Disaster Declaration Information

Effective January 1, 2024, AB 636 expands the information required in employers’ wage theft notices. This new law requires these notices include information regarding “[t]he existence of a federal or state emergency or disaster declaration applicable to the county or counties where the employee is to be employed” that affect employees’ health and safety during their employment. While the California Labor Commissioner’s office is preparing a notice template by March 1, 2024, employers should bring their notices up-to-date in the interim.

Cannabis Use

AB 2188 amends the California Fair Employment and Housing Act (“FEHA”) to prohibit an employer from discriminating against an employee or applicant because of the employee’s or applicant’s cannabis use off the job and away from work. Notably, this new law does not permit an employee to possess, be impaired by, or use cannabis while working, meaning employers may continue to enforce any policies they have prohibiting employees from possessing, being impaired by, or using cannabis while on the job. For additional information on the protections around employees’ cannabis use, please review Sheppard’s blog post here.

Takeaways

These new employment laws are extensive. Employers should evaluate and revise relevant policies and practices, including employee handbooks and employment agreements containing restrictive covenants, to ensure compliance. Employers should also start preparing workplace violence prevention plans to be in compliance by July 1, 2024.

Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.
For more news on 2024 California Employment Laws, visit the NLR Labor & Employment section.

New York Further Limits Scope of Non-Disclosure Agreements in Employment Discrimination Cases

On November 17, 2023, New York Governor Hochul signed a bill into law making significant changes to New York’s law on nondisclosure agreements.  The amendments went into effect immediately and apply to agreements entered into on or after the effective date.  There are three key changes that further restrict the use of NDA provisions in certain employment settlement agreements. On the whole, these changes are good for New York employees who have experienced harassment, discrimination, or retaliation in the workplace.

New York’s Non-Disclosure Agreement Laws
First, to provide some background on New York’s Non-Disclosure law: in 2018, in the midst of the #MeToo movement, the New York legislature passed into law budget bill S. 7507–C, which provided for the addition of an entirely new section into the New York General Obligations Law, Section 5-336.  Section 5-366, one of the original #MeToo statutes, was intended to limit the use of confidentiality agreements that prevent victims of sexual harassment from disclosing the harassing conduct in a way that might prevent future harassment.

Originally, Section 5-336 provided that no employer could include a non-disclosure condition in a “settlement, agreement or other resolution of any claim” involving sexual harassment, unless the “condition of confidentiality is the complainant’s preference” and the complainant was provided twenty-one days to consider the condition plus seven days to revoke the agreement after signing it.  In other words, a non-disclosure could only be included in an employment settlement involving claims of sexual harassment if the term was the complainant’s choice, and if the parties complied with the twenty-one day consideration time period, plus the seven-day revocation period.  Bill S. 7507-C also added a new section to New York’s civil practice law, NY CPLR § 5003-b, which applied the same restrictions to non-disclosure agreements included in stipulations, decrees, or settlement agreements for filed claims or causes of action.

In 2019, New York amended the statute with bill A. 8421 to ensure that the law’s non-disclosure restrictions apply to any prohibited discrimination: the 2018 law only applied to claims invol+ving sexual harassment.  The 2019 amendments also required that any such non-disclosure condition must be provided in writing in plain English (and, if applicable, the primary language of the complainant) before the twenty-one day consideration time period could start.

In addition, the 2019 amendments clarified that any such nondisclosure condition is void if it restricts the complainant from participating in several activities, including testifying or complying with a subpoena conducted by the appropriate local, state, or federal agency, or filing or disclosing facts required to receive unemployment insurance or other public benefits to which the complainant is entitled.

Finally, the 2019 amendments expanded the law’s applicability to a “contract or other agreement” between an employer and an employee or potential employee that “prevents the disclosure of factual information related to any future claim of discrimination” unless such provision notifies the employee or potential employee that the provision does not prohibit them from speaking with law enforcement, the Equal Employment Opportunity Commission, the state division on human rights, a local commission on human rights, or an attorney retained by the employee or potential employee.  While not as expansive as the 2018 and 2019 restrictions to nondisclosure conditions included as a part of post-claim settlement agreements, the 2019 amendment importantly extended some boundaries to employment contracts to restrict employers from limiting employees and prospective employees from later speaking out about claims of discrimination under the enumerated circumstances.

Gaps in New York’s Non-Disclosure Agreement Laws Pre-2023
As discussed above, originally, Section 5-336 prohibited employers from requiring a nondisclosure provision in a release agreement involving claims of discrimination, unless confidentiality was the employee’s preference and the employee was given twenty-one days to consider the agreement and then seven days to revoke it.  In practice, this meant that, even if the employee preferred the inclusion of a nondisclosure agreement in the release agreement, the agreement could not go into effect (and the employee could not receive any settlement payment) at least until after the passage of twenty-eight days.  This lengthy delay had little, if any, effect on employees’ desire (or lack thereof) to include a nondisclosure provision in the agreement, and only resulted in considerable delay in finalizing settlements.

Furthermore, originally, employers were permitted to include penalizing liquidated damages and clawback provisions in nondisclosure agreements.  These sometimes required the employee to pay back the entire settlement payment plus exorbitant liquidated damages in the case of breach.  These extreme provisions sometimes spooked employees from settling, fearful that a vindictive employer might accuse them of breach to embroil them in an expensive lawsuit about whether a breach had occurred.

Finally, originally, Section 5-336 applied only to claims involving “discrimination,” but did not specify whether it also applied to claims involving retaliation for reporting discrimination, or for claims involving discriminatory harassment.  This meant that some employees who had experienced discriminatory harassment in the workplace, or who had reported discrimination and were retaliated against for doing so, could be forced into signing nondisclosure agreements without any of the restrictions provided by Section 5-336.

The Key Changes to New York’s Non-Disclosure Agreement Law
Responsive to these shortcomings, New York bill S4516, signed into law and effective immediately on November 17, 2023, amends Section 5-336 of the New York General Obligations Law in three ways.

First, and most prominently, employers settling claims of unlawful discrimination, including discriminatory harassment, or retaliation, may not include a term or condition that requires the employee to:

  1. Pay liquidated damages if they violate the nondisclosure or nondisparagement clause;
  2. Forfeit all or part of the consideration (payment) for the agreement if they violate the nondisclosure or nondisparagement clause; or
  3. Make an affirmative statement, assertion, or disclaimer that the employee was not subject to unlawful discrimination, harassment, or retaliation.

It is not entirely clear whether Section 5-336, as amended, applies to asserted claims that are being resolved by agreement as well as to standard separation agreements where no claim has been asserted.  The newly added Section 5-336(3) states that “no release of any claim” shall be enforceable if the above unlawful provisions are included.  The broad “no release of any claim” language suggests that the legislature intended this section to apply to all release agreements, including standard separation agreements or any agreement before claims have been asserted, such as the employment contracts discussed above.  However, some paragraphs in the statute, including Section 5-336(3), are limited to agreements “resolving such claim[s],” which may indicate that the amended section applies only to agreements resolving asserted claims and not to pre-claim release agreements.  Until a court clarifies whether the requirement applies only to agreements resolving asserted claims, parties might elect to remove these terms from pre-claim release agreements to ensure compliance with the new law.

Note that the 2023 amendments expand Section 5-336 to address the gap mentioned above: now, nondisclosure conditions in settlements resolving claims of discrimination, discriminatory harassment, or retaliation, are all restricted by the same measures.

The second key change added by the recent amendments effective November 17, 2023, is that the previously mandatory twenty-one-day consideration period is now waivable (“the complainant shall have up to twenty-one days to consider [a confidentiality provision]”) pre-litigation.  However, the twenty-one-day consideration period is still mandatory if the discrimination claim has been filed in court, pursuant to N.Y. CPLR § 5003-B.  Furthermore, the amendments do not change the seven-day revocation period.  Therefore, while an employee may choose to waive the twenty-one-day period for a nondisclosure provision in a pre-litigation settlement agreement, the seven-day revocation period is still mandatory.  Hopefully, this will ease up tensions at the end of settlement negotiations and permit employees and employers to resolve their disputes quickly.

Third, in addition to the above key changes, the recent amendments state that Section 5-336 now applies to independent contractors, in addition to employees and potential employees.  As of October 2019, the New York State Human Rights Law (NYSHRL) protects both employees and nonemployees, such as contractors, subcontractors, temporary workers, “gig” workers, and other non-employee persons providing services pursuant to a contract, from discrimination, discriminatory harassment, and retaliation.  With the 2023 amendments to Section 5-336, now independent contractors already protected from discrimination by the NYSHRL can take advantage of the same protections from nondisclosure agreements as employees.

Impact of the Amendment and Implications for Employees
These amendments are sure to have a considerable impact on employees’ settlement negotiations with employers.  New York employers are still able to pursue claims for breach of nondisclosure or nondisparagement clauses, but they are no longer able to set an agreed-upon liquidated damages amount or clawback the consideration provided.  This change therefore places more power in the hands of employees.  However, employers may feel more vulnerable to breach following these amendments, and offer lower settlement amounts because they are less willing to settle absent a liquidated damages or clawback provision.  However, if one goal of amending the law is to equalize the parties’ bargaining power, these amendments are one step towards that goal because they reinforce the principle that employers should not be able to, and now cannot, pressure employees into draconian liquidated damages and clawback provisions.

Importantly, these amendments also forbid the inclusion of an affirmative disclaimer that the employee was not subject to unlawful discrimination, harassment, or retaliation.  While in practice, these disclaimers seem to be of limited practical value, employers have historically pushed for their inclusion in settlements involving these claims.  It is therefore good news for employees that these disclaimers are now unlawful.

Failure to abide by the new law may render nondisclosure provisions with these objectionable terms unenforceable.  Employees and their counsel should carefully review their New York separation, severance, and settlement agreements to ensure compliance with the amended Section 5-336.

Katz Banks Kumin LLP Copyright ©
For more news on New York NDAs in Employment Cases, visit the NLR Labor & Employment sections.

Teenagers Making a Buck Over School Break? Employers Beware: The Department of Labor Dictates When and Where

For many kids (and school staff), the last bell before winter break heralds freedom and fun. But many teenagers also use the extended time off from school to squeeze in some extra paid work. That means employers should brush up on their obligations under child labor laws. Doing so is especially important since the United States Department of Labor (DOL) announced an increased focus on identifying and stopping unlawful child labor earlier this year. On the heels of this initiative, we outlined best practices for manufacturing employers to avoid inadvertent use of child labor.

In this article, we outline key child labor requirements for companies across industries, as compliance with these requirements is likewise under the DOL’s microscope. Namely, the DOL enforces the Fair Labor Standards Act (FLSA) regulations which dictate when and where children aged 14 to 17 can work. The DOL can (and has been with increasing frequency) investigate employers to review compliance with these parameters — and penalize employers who do not comply.

RESTRICTIONS ON WORK HOURS

Under FLSA regulations, children aged 14 and 15 may not work:

  • During school hours;
  • More than 3 hours on a school day, including Friday;
  • More than 8 hours on a non-school day, such as during winter break;
  • More than 18 hours during a week when school is in session;
  • More than 40 hours during a week when school is not in session, such as during winter break — meaning no overtime for this group; or
  • Before 7:00 a.m. or after 7:00 p.m. (except between June 1 and Labor Day, when the evening hour is extended to 9:00 p.m.) — meaning, you guessed it, no work after 7:00 p.m. during winter break.

Keep in mind that state laws often set stricter work hours requirements. For example, while the FLSA does not restrict work hours for children aged 16 and 17, many state laws do.

RESTRICTIONS ON WORK ENVIRONMENTS

FLSA regulations also ban 14- and 15-year-olds from working in anything other than a list of specified environments. For example, they may work in:

  • Most office jobs;
  • Most retail and food service establishments;
  • Occupations like bagging groceries, stocking shelves, and cashiering;
  • Intellectual or artistically creative occupations, like as a musician, artist, or performer;
  • Limited kitchen work involving cleaning and preparation of food and beverages (but no “cooking” unless certain conditions are satisfied, and no baking); and
  • Clean-up work and grounds maintenance (so long as certain power equipment is not used).

For the 16- and 17-year-old cohort, the FLSA prohibits working in “Hazardous Occupations,” which are identified in a series of “Hazardous Occupation Orders” (“HOs”). The HOs prohibit working in or with:

HO 1 Manufacturing and storing of explosives.
HO 2 Driving a motor vehicle and being an outside helper on a motor vehicle.
HO 3 Coal mining.
HO 4 Forest fire fighting and fire prevention, timber tract management, forestry services, logging, and sawmill occupations.
HO 5* Power-driven woodworking machines.
HO 6 Exposure to radioactive substances.
HO 7 Power-driven hoisting apparatus.
HO 8* Power-driven metal-forming, punching, and shearing machines.
HO 9 Mining (other than coal mining).
HO 10 Meat and poultry packing or processing (including the use of power-driven meat slicing machines).
HO 11 Power-driven bakery machines.
HO 12* Balers, compactors, and paper-products machines.
HO 13 Manufacturing brick, tile, and related products.
HO 14* Power-driven circular saws, band saws, guillotine shears, chain saws, reciprocating saws, wood chippers, and abrasive cutting discs.
HO 15 Wrecking, demolition, and shipbreaking operations.
HO 16* Roofing operations and all work on or about a roof.
HO 17* Excavation operations.

The asterisk* indicates that there are student-learner and apprenticeship exemptions, which typically involve specific criteria that employers must meet in order to employ a 16- or 17-year-old in the occupation. (Please note: No 14- or 15-year-old is ever permitted to work in an HO.) This winter break, remember that “HO, HO, HO” is generally a “no, no, no” for minor employees.

BOTTOM LINE: BE CAREFUL WITH THE KIDS!

Employing minors can be a great way for them to gain valuable real-world experience and, of course, money. But employers should take care to ensure that their minor employees are scheduled appropriately and are not permitted to work in any prohibited tasks or with any prohibited equipment. Don’t let the extra help around the holidays trigger a DOL investigation or child labor law violation!

© 2023 Foley & Lardner LLP
For more news on Employing Minors Over Holiday Break, visit the NLR Labor & Employment section.

Chicago’s New Paid Leave and Paid Sick Leave Ordinance Delayed Six Months

Just over a month after passing the Chicago Paid Leave and Paid Sick Leave Ordinance (the Ordinance), which brought sweeping new paid leave and paid sick leave requirements to employers with Chicago employees, the city has amended the Ordinance to delay its effective date and limit the number of covered employees.

As amended, the Ordinance will not take effect until July 1, 2024, rather than December 31, 2023. In addition, the Ordinance no longer covers employees who have worked merely two hours within the city in any two-week period. Instead, the Ordinance now reverts to the definition of “Covered Employee” found in the current Chicago and Cook County paid sick leave ordinances: an employee who has worked at least 80 hours in any 120-day period within the city’s geographic limits.

The amended Ordinance also potentially gives employers an opportunity to remedy Ordinance violations before being subject to claims for non-compliance. Specifically, employees will be prohibited from filing claims against their employers until the earlier of 16 days or the next regular payday after the employer’s alleged violation. While described by some as a “cure” period, there is no requirement that an employee actually notify their employer of an alleged violation before bringing a claim. For employers concerned about fielding claims for inadvertent violations, this change may be small comfort.

With the effective date of the Ordinance delayed until July 1, 2024, Chicago employers now have six more months to prepare for its new requirements. In the meantime, the city’s current paid sick leave ordinance remains in effect, so for now that benefit is business as usual for Chicago employers.

© 2023 Much Shelist, P.C.
For more news on Chicago’s Paid Sick Leave Ordinance, visit the NLR Labor & Employment section.

COVID Vaccine Class Action Reminds Employers to Individually Consider Accommodations

Tyson Foods, Inc. (“Tyson”) is no stranger to religious accommodation lawsuits over the impact of its COVID-19 vaccine mandate given its continued efforts to operate through the height of the pandemic in 2021—but the battle just heated up with a proposed class action complaint filed in the Eastern District of Arkansas.

Tyson’s recent troubles derive from its 2021 vaccine mandate (the “Vaccine Mandate”) requiring all leadership team members to be vaccinated by September 24, 2021, all corporate team members to be vaccinated by October 1, 2021, and all other team members to be vaccinated by November 1, 2021. The Vaccine Mandate coincided with an OSHA rule (which the Supreme Court subsequently ruled unconstitutional) requiring workers with at least 100 workers to be vaccinated or to produce weekly test results showing that they were virus-free. Tyson, a huge company with warehouse operations, clearly fell within its ambit and had strong incentives to keep its workforce safe.

Notably, while in place, the OSHA rule required employers to grant medical and religious exemptions from the mandate. Likewise, Tyson’s Vaccine Mandate required Tyson to afford reasonable accommodations to employees with sincerely-held religious beliefs that prevented them from receiving the vaccine, as required by the OSHA rule. However, various plaintiffs have alleged that the only accommodation typically offered to religious objectors was to be placed on an unpaid leave of absence called LOA+, which lasted approximately one year. Plaintiffs claim that requests to telework were refused in favor of this unpaid leave.

One of the first suits to be filed was Reed, et al., v. Tyson Foods, Inc., No. 21-CV-01155-STA-JAY, 2022 WL 2134410 (W.D. Tenn. June 14, 2022), in which several plaintiffs sought injunctive relief against the Vaccine Mandate in part on religious and disability theories under Title VII and the ADA. Though parts of the case were allowed to proceed, these specific claims were dismissed without prejudice for failure to exhaust administrative remedies. Tyson also succeeded on defeating religious claims based on the Religious Freedom Restoration Act (“RFRA”) on a motion to dismiss in another Tennessee case, after failing to secure dismissal in another, similar case based on Title VII and the RFRA. Compare Johnson v. Tyson Foods, Inc., No. 21-CV-01161-STA-JAY, 2023 WL 3901485 (W.D. Tenn. June 8, 2023) with Hayslett v. Tyson Foods, Inc., 636 F. Supp. 3d 900 (W.D. Tenn. 2022). The latter case settled out-of-court in July 2023.

Beyond these, Tyson also faced other single-plaintiff suits on religious vaccine accommodation grounds in Tennessee, Kentucky, and Missouri, with varying results. Matthews v. Tyson Foods, Inc., No. 1:22-CV-1192-STA-JAY, 2023 WL 25733 (W.D. Tenn. Jan. 3, 2023)(motion to dismiss denied under Tennessee state law); Collins v. Tyson Foods, Inc., No. 1:22-CV-00076-GNS, 2023 WL 2731047 (W.D. Ky. Mar. 30, 2023)(motion to dismiss granted under RFRA, ADA, and Kentucky state law, but denied under Title VII); Reese v. Tyson Foods, Inc., No. 3:21-05087-CV-RK, 2021 WL 5625411 (W.D. Mo. Nov. 30, 2021) (motion to dismiss granted as to public policy and invasion of privacy claims, but denied under state discrimination law). Some of these cases were subsequently settled, as well.

On November 16, 2023, plaintiff Sarah Pearson brought a proposed class action complaint in Pearson v. Tyson Foods Inc., 4:23CV01080, purporting to represent:

All Arkansas based Tyson employees or former Arkansas based Tyson employees who worked remotely (telework) prior to August 3, 2021, who requested a religious accommodation to continue working remotely (telework) in response to Tyson’s COVID Vaccine Mandate, and who were instead placed on LOA+ by Tyson;

and

All Arkansas based Tyson employees or former Arkansas based Tyson employees who worked remotely (telework) prior to August 3, 2021, who requested a religious accommodation when Tyson ended its COVID Vaccine Mandate on October 31, 2022, and who were subsequently not reinstated to the same job and terminated.

For each, Pearson recites the allegations required to sustain a class action: numerosity (in excess of 50 putative class members, per her complaint), commonality, typicality, and adequacy. These allegations can prove tricky in the case of sincerely-held religious beliefs and leaves of absence, but not necessarily impossible. Compare Robinson v. Gen. Motors Co., No. 4:15-CV-158-Y, 2015 WL 13731154 (N.D. Tex. Oct. 21, 2015) (denying class certification in part because “determining individual class members would require the Court to wade through thousands of leave requests and evaluate each individual’s circumstance . . . to determine whether a GM employee even qualifies . . .”) with Jennings v. St. Luke’s Health Network, Inc., No. 5:23-CV-1229, 2023 WL 5938755 (E.D. Pa. Sept. 12, 2023) (denying without prejudice motion to strike class action allegations in religious discrimination vaccine case, pending discovery).

Here, Pearson’s complaint reveals numerous specific allegations which are likely specific to her, including that Tyson offered her an in-person job in a different city once the Vaccine Mandate ended, which she declined.  However, it remains to be seen if Tyson’s alleged policy of placing all religious objectors on leave may break through the barriers to commonality, typicality, and adequacy otherwise posed by, e.g., different religions, belief systems, communications with human resources, and leave requests.

Following these recent developments, employers are advised to remember that religious discrimination accommodation requests should not be taken lightly, and should result in an individualized interactive process with each employee. Even apparently implausible religious beliefs, associated with religions that do not otherwise espouse such beliefs, may be (or be deemed by a court to be) sincerely-held.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.
For more news on COVID-19 Vaccine Mandates, visit the NLR Labor & Employment section.

EEOC Takes Action to Address Mental Health Discrimination in the Workplace

Employers must take notice that the United State Equal Opportunity Commission (EEOC) is cracking down on companies that discriminate against workers because they have a mental health condition. Mental health conditions, such as major depressive disorder, bipolar disorder, and schizophrenia, substantially limit brain function. The EEOC determined these disorders constitute disabilities under the American with Disabilities Act (ADA).

The EEOC has significantly increased charges against employers for alleged ADA violations premised upon mental health issues.

In September, the EEOC released its Strategic Enforcement Plan (SEP). A review of the SEP reveals that the EEOC will focus on harassment, retaliation, job segregation, labor trafficking, discriminatory pay, disparate working conditions, and other policies and practices that impact particularly vulnerable workers and persons from underserved communities, including workers with mental health related disabilities.

Hence, employers must be extremely careful when dealing with employees or prospective employees who suffer from mental health conditions.

Under the ADA and other nondiscrimination laws, employers must provide “reasonable accommodations” to qualified employees with disabilities. These accommodations are adjustments to the workplace that allow these employees to perform their job duties. These accommodations are usually not costly and can be beneficial in allowing employees to return to work, avoiding productivity losses, and promoting the recruitment and retention of qualified employees.

However, not all employees with mental health conditions require accommodations to perform their job duties. For those who do, accommodations should be individualized and developed with the input of the employee. Below is a list of examples of accommodations that have helped employees with mental health conditions to better perform their job duties. These are not all possible accommodations but provide a starting point to help employers promote an inclusive and supportive work environment. These include:

  • Flexible workplace arrangements
  • Scheduling adjustments
  • Sick leave or flexible use of vacation time
  • Individualized breaks
  • Modification of non-essential job duties
  • Additional training or support
  • Positive reinforcement and flexible supervision
  • Accommodations to the work environment, equipment, and technology
  • Regular meetings between employees and supervisors to discuss workplace issues.

It is important for all employees to be aware of their rights and provide relevant training to co-workers and supervisors. Effective implementation of these accommodations will help create a more inclusive work environment and benefit both employees and employers.

COPYRIGHT © 2023, STARK & STARK
For more news on Mental Health Discrimination in the Workplace, visit the NLR Labor & Employment section.

State and Local Hourly Minimum Wage Rate Increases are “Coming to Town” on January 1, 2024

As 2023 comes to a close, employers should be aware of the hourly minimum wage rate increases set to take effect in various jurisdictions on January 1, 2024. 22 states and more than 40 local jurisdictions will ring in the New Year with new minimum wage rates.

Minimum wage employee in the following states will be impacted by the upcoming increases: Alaska, Arizona*, California*, Colorado*, Connecticut, Delaware, Hawaii, Illinois*, Maine*, Maryland*, Michigan, Minnesota*, Missouri, Montana, Nebraska, New Jersey, New York, Ohio, Rhode Island, South Dakota, Vermont, and Washington*. Those states identified with an asterisk also have local jurisdictions with minimum wage increases effective January 1, 2024, which are higher than the applicable state minimum wage.

Employer should confirm that any minimum wage rates are adjusted properly.  In addition, employers with tip credit employees should review their tip credit notices to ensure full compliance with applicable laws (including cash wage being paid to the tipped employee and amount of tip credit claimed by employer).

© Polsinelli PC, Polsinelli LLP in California
For more news on 2024 Minimum Wage Increases, visit the NLR Labor & Employment section.

Employment Tip of the Month – December 2023

Q: What obligations do employers have when considering employee requests for time off for religious observances, especially during the holidays?

A: While employers generally are free to approve or refuse employee requests for time off, when it comes to requests for time off for religious observance, they are required by law to provide reasonable accommodations to employees for religious observances that conflict with work requirements at any point during the year, including holidays when there is an increase in such requests, unless doing so would create an undue hardship.

Title VII of the Civil Rights Act of 1964 (Title VII), applicable to employers with 15 or more employees, and similar state laws prohibit employers from discriminating against employees in hiring, firing, and other terms and conditions of employment because of their religious beliefs.

“Religious belief” is interpreted broadly by the Equal Employment Opportunity Commission (EEOC) and the courts to include not only traditional organized religions, such as Buddhism, Christianity, Hinduism, Islamism and Judaism, but also nontraditional religions and ethical and moral beliefs if they are sincerely held. Title VII also requires employers to reasonably accommodate the religious beliefs of employees unless doing so would impose an undue hardship on the employer. Reasonable accommodations can take many forms, from a work schedule modification or shift change to time off, leaving the question: What’s an undue hardship?

Until recently, the threshold to prove undue hardship was defined as “more than a de minimus” expense. Earlier this year, in Groff v. DeJoy, 600 U.S. 447 (2023), the Supreme Court of the United States did away with the “de minimus” threshold and clarified that to establish the undue hardship defense, under which the employer must show that granting the accommodation would result in a substantial burden to the employer, taking into account the particular accommodation at issue and its practical impact on the business. Under Groff, an employer must conduct an individualized assessment of a religious accommodation request and may deny it only if granting the accommodation would result in substantial increased costs in relation to the employer’s business operations.

While permitting work schedule modifications or time off to accommodate religious observances during the holidays can present administrative headaches, such accommodations often have little or no cost – save for the rare occasion when it may be necessary to hire and train a substitute employee. As a best practice, employers should permit employees to modify their work schedules or take time off for religious observation during the holidays.

© 2023 Wilson Elser
By Laura Stutz of Wilson Elser Moskowitz Edelman & Dicker LLP
For more news on Holiday Employment Tips, visit the NLR Labor & Employment section.