Tag: labor and employment

EEOC Provides Guidance on Reporting Non-Binary Gender Employees

Over the last few years, many employers have implemented diversity and inclusion programs, whether official or unofficial, emphasizing a work force that includes a wide variety of individuals based on, among other categories, race, gender, and sexual orientation.

Internally, companies have updated employment policies, expanded the scope of anti-harassment trainings, created avenues for diverse mentorship, and implemented changes to create workplaces that include and support a diverse office culture.

Externally, a number of states too have begun to update government documents to accommodate diverse individuals, including those who identify their gender as non-binary. For example, California recently enacted legislation permitting individuals to identify as female (F), male (M), or non-binary (X) on their drivers’ licenses.

Yet many employers with non-binary employees have been concerned as to how to appropriately report all of their employees on the federal EEO-1 reports and still comply with the law. As we previously reported, in 2017, the EEOC made it clear that the protections offered by Title VII include an “individual’s transgender status or the individual’s intent to transition,” “gender identity,” and “sexual orientation.”

The EEOC guidance also went further, stating that “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner” is sex-based harassment.  It is clear, therefore, that non-binary individuals must be afforded protections regarding their gender identity.  However, the EEO-1 report, which requires employers with over 100 employees to submit data specific to their employees’ gender and race/ethnicity, limits the gender categories to either male or female.  Employers with non-binary employees therefore have had no category to indicate the correct gender identity of these individuals, and several questioned whether it was appropriate (or even legally compliant) to request that non-binary employees choose a marker for which they do not identify.

Last month, the EEOC offered guidance by updating its Frequently Asked Questions to address this issue.  In the FAQ, the EEOC advises that employers “may report employee counts and labor hours for non-binary gender employees by job category and pay band and racial group in the comment box on the Certification Page,” and further provides examples as to how employers may comply with submitting the EEOC-required data in the future for those employees who identify as non-binary.

While describing these details in a comment box as opposed to checking a pre-marked gender identity box is not as streamlined or efficient as some employers would have hoped, it is at least a step toward ensuring that employers have a means to comply with reporting requirements and support their employees by acknowledging the gender identity of their choice.

© 2019 Foley & Lardner LLP

For more on diversity in the workplace, see the National Law Review Labor & Employment law page.

Changing Course: “Contract Coverage” is the New Standard for Unilateral Action

The National Labor Relations Board (NLRB) departed from precedent last week when it addressed whether an employer’s unilateral action under a collective bargaining agreement was lawful.

The case in question – M.V. Transportation, Inc. and Amalgamated Transit Union Local #1637, AFL–CIO, CLC., Case 28– CA–173726 – concerned what standard the Board should apply to determine whether a collective bargaining agreement grants an employer the right to take certain unilateral actions, without further bargaining with the union. Under prior case law, the Board had applied the “clear and unmistakable waiver” standard, under which the employer would be found to have violated the Act unless a provision of the collective bargaining agreement specifically refers to the type of employer decision at issue, or mentions the kind of factual situation that the case presents.

In M.V. Transportation, the Board noted that several appeals courts have rejected the “clear and unmistakable waiver” standard in favor of a “contract coverage” standard, including, importantly, the United States Court of Appeals for the District of Columbia Circuit, which, by statute, has full jurisdiction to review NLRB decisions.  Under the “contract coverage” standard, the decision-maker must examine the plain language of the collective bargaining agreement to determine whether the action taken by an employer was within the “compass or scope of contractual language granting the employer the right to act unilaterally. The Board cited the example of a collective bargaining agreement that broadly grants the employer the right to implement new rules and policies and to revise existing ones, noting that under such circumstances, an employer would not violate the law by unilaterally implementing new attendance or safety rules or by revising existing disciplinary or off-duty-access policies.

While the Board did choose to adopt the “contract coverage” standard, it did not totally abandon the “waiver” concept. It warned that if an agreement does not clearly cover the employer’s disputed act, and that act has materially, substantially and significantly changed a term or condition of employment constituting a mandatory subject of bargaining, the employer will have violated the law unless it demonstrates that the union clearly and unmistakably waived its right to bargain over the change, or that its unilateral action was privileged for some other reason.

In a move that is becoming more common in NLRB cases, the Board also decided to apply the new standard retroactively in all pending unilateral change cases where the determination of whether the employer violated the law turned on whether contractual language granted the employer the right to make the change in question.

Under the new standard, employers should take care in collective bargaining to make sure that the plain language of the collective bargaining agreement supports any unilateral action that the employer wants to reserve the right to take. The language should be clearly written and explicit in its grant of authority, and its meaning should be clear when applying ordinary principles of contract interpretation. By doing that, the employer can assure that its unilateral action does not violate the law or the agreement.

Copyright © 2019 Godfrey & Kahn S.C.

DHS Proposes Fee of $10 to File H-1B Petition

Department of Homeland Security (DHS) has proposed a fee of $10 per H-1B petition. The agency considers this to be an “appropriate, nominal fee” to recover some costs involved.

In January 2019, DHS published the rule establishing an H-1B electronic registration system. At that time, no fee was proposed, but the “door was left open.” In mid-August, DHS announced that there would be a fee.

As to what information will be required, that is still a bit up in the air – again, the door is left open by DHS. The agency wants enough information to be able to check for fraud, duplicate registrations filed by the same company, and to ensure that those selected during the registration period ultimately file H-1B petitions. In addition to company identification, each registration would include the beneficiary’s:

  • Full name
  • Date of birth
  • Country of birth
  • Gender
  • Passport number

Each registration also will require the petitioner to complete an attestation about the “bona fides” of the registration. Frivolous registrations, DHS warns, “may be referred to appropriate federal law enforcement agencies for investigation and further action as appropriate.” Under a “catch-all,” DHS could require: “any additional basic information requested by the registration system to promote certainty.”

Some concerned about frivolous registrations suggested that information include job title, worksite address, salary offers, SOC code, LCA wage level, and specific educational qualifications. Others suggested including disclosure of any recent labor violations or disputes and EEOC complaints and whether the petitioner is H-1B dependent. DHS rejected these ideas (for now), noting that much of that information would be used to review eligibility once an H-1B petition is filed.

Questions remain about what DHS does with the information it gathers during the electronic registration. In accordance with the Administration’s “Buy American, Hire American” Executive Order,  DHS is already gathering and sharing much information on its H-1B Data Hub. The public can search the number of H-1B approvals and denials by company and by year. The public also can see, by employer, the number of approved H-1B petitions by salary and degree type. In addition to making the information public, DHS has stated in a description of the H-1B registration tool that it “may share the information with other Federal, State, local and foreign government agencies” and “may also share [the] information, as appropriate, for law enforcement purposes or in the interest of national security.” The full scope of this statement is not yet known.

It is unclear whether the electronic registration will be ready in 2020 or when the promised trial period for stakeholders will occur.

Jackson Lewis P.C. © 2019

ARTICLE by Amy L. Peck of Jackson Lewis P.C.
For more on DHS filing, see the National Law Review Immigration Law page.

Employers Beware: SC Abolishes Common-Law Marriage

On July 24, 2019, South Carolina joined the ranks of Alabama, Pennsylvania, and others in abolishing future recognition of common law marriages in the state.  The state will continue to recognize all common law marriages in effect before this date, but they will be subject to a higher standard of proof.  On and after July 25, 2019, all South Carolina marriages will require the issuance of a marriage license.

This ruling from the South Carolina Supreme Court came after many legislative attempts at abolishing common law marriage failed.  The court determined the paternalistic reasons behind the original recognition of a common law marriage, e.g., the stigma of unwed mothers, children out of wedlock, and the logistics of the “circuit minister” or other official required to cover a large territory, no longer apply.  With the elimination of future common law marriage recognition, the court also handed down a new standard of proof parties must meet to continue to be considered married under common law.  Probate cases in South Carolina use the “clear and convincing evidence” standard to prove marriage, and now this standard applies to the living too.

Our workforce is transient.  Employees residing in South Carolina often move across state lines for work and personal reasons.  And many companies with principal offices outside South Carolina choose to open locations in South Carolina.  For that reason, this ruling reaches beyond state lines, and it is important for all employers to understand its implications upon benefit plans and leaves of absence.

After July 24, 2019, it no longer is enough for employees claiming an employee is a “spouse” for employee benefit plan purposes simply to establish they were married under the common law of South Carolina.  Now, the critical factor is the date as of which that marriage was established.  The documents submitted to prove the marriage (e.g., tax returns, documents filed under penalty of perjury, introductions in public, contracts, and checking accounts) must also reflect this timing.

This Court decision will also have implications for employees in South Carolina seeking to take a leave of absence under the Family and Medical Leave Act to care for a spouse with a serious health condition.  Before July 25, 2019, eligible employees could take a leave of absence under the FMLA to care for a common law spouse with a serious health condition.  Yet after this Court ruling, employees can only take FMLA leave to care for a common law spouse if that common law marriage was established on or before July 24, 2019.  Employers should remember that under the Department of Labor’s FMLA Regulations, employees can be required to provide reasonable documentation evidencing the existence of a valid marriage.

Jackson Lewis P.C. © 2019

Inclusion Does Not Stop Workplace Bias, Deloitte Survey Shows

In Deloitte’s 2019 State of Inclusion Survey, 86% of respondents said they felt comfortable being themselves all or most of the time at work, including 85% of women, 87% of Hispanic respondents, 86% of African American respondents, 87% of Asian respondents, 80% of respondents with a disability and 87% of LGBT respondents. But other questions in the company’s survey show a more troubling, less inclusive and productive office environment, and may indicate that simply implementing inclusion initiatives is not enough to prevent workplace bias.

While more than three-fourths of those surveyed also said that they believed their company “fostered an inclusive workplace,” many reported experiencing or witnessing bias (defined as “an unfair prejudice or judgment in favor or against a person or group based on preconceived notions”) in the workplace. In fact, 64% said that they “had experienced bias in their workplaces during the last year” and “also felt they had witnessed bias at work” in the same time frame. A sizable number of respondents—including 56% of LGBT respondents, 54% of respondents with disabilities and 53% of those with military status—also said they had experienced bias at least once a month.

Listening to those who say they have witnessed or experienced bias is especially important. When asked to more specifically categorize the bias they experienced and/or witnessed in the past year, 83% said that the bias in those incidents was indirect and subtle (also called “microaggression”), and therefore less easily identified and addressed. Also, the study found that those employees who belonged to certain communities were more likely to report witnessing bias against those communities than those outside them. For example, 48% of Hispanic respondents, 60% of Asian respondents, and 63% of African American respondents reported witnessing bias based on race or ethnicity, as opposed to only 34% of White, non-Hispanic respondents. Additionally, 40% of LGBT respondents reported witnessing bias based on sexuality, compared to only 23% of straight respondents.

While inclusion initiatives have not eliminated bias, Deloitte stresses that these programs are important and should remain. As Risk Management previously reported in the article “The Benefits of Diversity & Inclusion Initiatives,” not only can fostering diversity and inclusion be beneficial for workers of all backgrounds, it can also encourage employees to share ideas for innovations that can help the company, keep employees from leaving, and insulate the company from accusations of discrimination and reputational damage.

But building a more diverse workforce is only the first step, and does not guarantee that diverse voices are heard or that bias will not occur. Clearly, encouraging inclusion is not enough and more can be done to curtail workplace bias. And employees seeing or experiencing bias at work has serious ramifications for businesses. According to the survey, bias may impact productivity—68% of respondents experiencing or witnessing bias stated that bias negatively affected their productivity, and 70% say bias “has negatively impacted how engaged they feel at work.”

Deloitte says that modeling inclusion and anti-bias behavior in the workplace is essential, stressing the concept of “allyship,” which includes, “supporting others even if your personal identity is not impacted by a specific challenge or is not called upon in a specific situation.” This would include employees or managers listening to their colleagues when they express concerns about bias and addressing incidents of bias when they occur, even if that bias is not apparent to them or directly affecting them or their identity specifically.

According to the survey, 73% of respondents reported feeling comfortable talking about workplace bias, but “when faced with bias, nearly one in three said they ignored bias that they witnessed or experienced.” If businesses foster workplaces where people feel comfortable listening to and engaging honestly with colleagues of different backgrounds, create opportunities for diversity on teams and projects, and most importantly, address bias whenever it occurs, they can move towards a healthier, more productive work environment.

Risk Management Magazine and Risk Management Monitor. Copyright 2019 Risk and Insurance Management Society, Inc. All rights reserved.
For more on workplace discrimination issues, please see the National Law Review Labor & Employment law page.

Note To Chicago Employers: Expansive New Work Scheduling Rules Take Effect July 2020

The Chicago City Council passed the Chicago Fair Workweek Ordinance on July 23, regarding advance scheduling notice for certain employees in certain industries, including healthcare, hotels, restaurants, and retail, among others. Chicago Mayor Lori Lightfoot has already indicated that she will sign the new ordinance in short order, describing it as the most expansive worker scheduling policy in the country, including the first in the country to cover healthcare employers.

The ordinance, which goes into effect in July 2020, imposes significant administrative requirements relative to the employer/employee relationship. Chicago employers should consider familiarizing themselves with them now in order to avoid penalties in 2020.

Details and Penalties of the New Ordinance

The ordinance will require covered employers operating in the City of Chicago to provide employees with 10 days advance notice of scheduled work, generally beginning on July 1, 2020. After June 30, 2022, the period of required advance notice of the work schedule will increase to 14 days. The work schedule must be posted in a conspicuous location at the workplace, or must be emailed upon the request of the employee.

In addition, the ordinance provides a carve-out for smaller employers, only applies to employees who earn less than $50,000 annually or $26.00 per hour or less, and does not apply to independent contractors or day and seasonal laborers.

Employers generally covered by the law are those who have 100 or more employees (in total, not just in Chicago), or 250 or more employees in the case of nonprofit entities. Restaurants covered by the ordinance are those with more than 30 locations and at least 250 total employees (and franchisees with four or more locations). Of the total employee count, for the employer to be governed by the law, at least 50 of their employees must be “covered” employees.

If employers make changes inconsistent with the requirements of the ordinance, the employees must receive compensation. The amount of compensation will depend on the nature of the scheduling change.

Right to Decline Work Scheduled

Employees under the ordinance have the right to decline any work scheduled that does not comply with the required advance notice period. Further, if an employer alters an employee’s schedule after the deadline, depending on the particular circumstances, the employer may be required to pay the employee an additional hour for each altered shift. The ordinance also prohibits retaliation against the employee for exercising rights conferred by the scheduling ordinance.

A number of exceptions do apply. For example, schedule changes caused by power outages, blizzards, a mutually agreed-upon shift trade, or a schedule change that is mutually agreed upon by the employer and employee and confirmed in writing.

The Chicago Department of Business Affairs and Consumer Protection has been tasked with enforcing this new ordinance. Employers who violate this law will be subject to a fine of between $300 and $500 for each offense. The law also establishes a process by which an employee may initiate a civil action under the law, beginning with a written complaint to the department.

 

© 2019 BARNES & THORNBURG LLP
For more employment ordinances nation-wide, please see the Labor & Employment law page on the National Law Review.

“Bikini Baristas” Ordered to Cover-Up

The 9th Circuit court of appeals has enforced the City of Everett, Washington’s Dress Code Ordinance and amendments to the Lewd Conduct Ordinances. These ordinances require employees of “Quick-Service” facilities to cover “minimum body areas” (the dress code ordinance specifically stated that it was targeting an apparent influx of “bikini barista stands”). The owner of “Hillbilly Hotties,” a coffee stand where employees wear only bikinis, and several of the bikini baristas themselves challenged the ordinances as unconstitutionally vague. Plaintiffs also alleged that the Ordinances violated their First Amendment right to free expression.

The Court of Appeals reversed a lower court ruling that prohibited enforcement of the Ordinances on the ground that they are unconstitutionally vague. The appeals court explained that a person of ordinary intelligence would be able to understand the terms in the Ordinance and would be adequately informed of which body areas cannot be exposed or displayed.

The Ninth Circuit also concluded that Plaintiffs’ first amendment claim faltered based upon their failure to show a great likelihood that their intended message would be understood by those who received it. The court found that the baristas’ acts of wearing pasties and g-strings in close proximity to customers did not necessarily convey the baristas’ purported message of female body confidence and empowerment.

Read the full decision here.

 

© 2019 Proskauer Rose LLP.
This article was written by Anthony J Oncidi and Cole D. Lewis of Proskauer Rose LLP.
For more on First Amendment questions please see the National Law Review Constitutional Law page.

New York State Legislature Enacts Sweeping Changes to Combat Sexual Harassment

On June 19th, the New York State Senate and Assembly voted to pass omnibus legislation greatly strengthening protections against sexual harassment. While the bill, SB 6577, is still waiting for the Governor’s signature, Governor Cuomo supported the legislation and plans to sign the bill when it is sent to his desk. The legislation is the product of two legislative hearings that took place early this year, inspired by a group of former legislative staffers who have said they were victims of harassment while working in Albany, NY. The bill includes several provisions directly affecting private employers. These provisions include:

  1. The New York State Human Rights Law (“NYSHRL”) will expand the definition of an “employer” to include all employers in the State, including the State and its political subdivisions, regardless of size. Additionally, the definition of “private employer” will be amended to include any person, company, corporation, or labor organization except the State or any subdivision or agency thereof.
  2. Protections for certain groups in the workplace will also be expanded. While non-employees, such as independent contractors, vendors, and consultants, were previously protected from sexual harassment in an employer’s workplace, they will now be protected from all forms of unlawful discrimination where the employer knew or should have known the non-employee was subjected to unlawful discrimination in the workplace and failed to take immediate and appropriate corrective action. Similarly, harassment of domestic workers will now be prohibited with respect to all protected classes and will be governed under the harassment standard outlined in (3), below.
  3. The burden of proof for harassment claims will be greatly lowered. Any harassment based on a protected class, or for participating in protected activity, will be unlawful “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” Unlawful harassment will include any activity that “subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories.” Also, employees will no longer need to provide comparator evidence to prove a harassment, and, presumably, discrimination claim.
  4. The law will also alter the affirmative defenses available to employers accused of harassment. The Faragher/Ellerth defense, which allowed employers to avoid liability where the employee did not make a workplace complaint, will no longer be available for harassment claims under NYSHRL. However, an affirmative defense will be available where the harassment complained of “does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
  5. The statute of limitations to file a sexual harassment complaint with the New York State Division of Human Rights (the “Division”) will be lengthened from one year to three years.
  6. The amendments specify that they are to be construed liberally for remedial purposes, regardless of how federal laws have been construed.
  7. Courts and the Division will be required to award attorneys’ fees to all prevailing claimants or plaintiffs for employment discrimination claims and may award punitive damages in employment discrimination cases against private employers. Attorneys’ fees will only be available to a prevailing respondent or defendant if the claims brought against them were frivolous.
  8. Mandatory arbitration clauses will be prohibited for all discrimination claims.
  9. The use of non-disclosure agreements will be severely restricted. Non-disclosure agreements will be prohibited in any settlement for a claim of discrimination, unless: (1) it’s the complainant’s preference; (2) the agreement is provided in plain English and, if applicable, in the complainant’s primary language; (3) the complainant is given 21 days to consider the agreement; (4) if after 21 days, the complainant still prefers to enter into the agreement, such preference must be memorialized in an agreement signed by all parties; and (5) the complainant must be given seven days after execution of such agreement to revoke the agreement. The same rules apply to non-disclosure agreements within any judgment, stipulation, decree, or agreement of discontinuance. Any term or condition in a non-disclosure agreement is void if it prohibits the complainant from initiating or participating in an agency investigation or disclosing facts necessary to receive public benefits. Non-disclosure clauses in employment agreements are void as to future discrimination claims unless the clause notifies the employee that they are not prohibited from disclosure to law enforcement, the EEOC, the Division, any local commission on human rights, or their attorney. All terms and conditions in a non-disclosure agreement must be provided in writing to all parties, in plain English and, if applicable, the primary language of the complainant.
  10. Employers will be required to provide employees with their sexual harassment policies and sexual harassment training materials, in English and in each employee’s primary language, both at the time of hire and during each annual sexual harassment prevention training. Additionally, the Department of Labor and the Division will evaluate the impact of their model sexual harassment prevention policy and training materials every four years starting in 2022 and will update the model materials as needed.

The majority of these changes will take effect 60 days after the legislation is enacted, with the exception of the “employer” definition expansion, which will take effect after 180 days, and the extended statute of limitations, which will take effect after 1 year. In light of these changes, New York employers should alter their practices and policies to conform with these new requirements. We are monitoring this legislation and will provide updates as new information becomes available.

 

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.
Written by Sean J. Kirby and Danielle Thompson of Sheppard, Mullin, Richter & Hampton LLP.
*Myles Moran, a Sumer Associate in the New York office, assisted with the drafting of this blog.
For more on employment law, see the National Law Review page on Labor & Employment.

 

 

#MeToo-Inspired Laws Hit the Midwest: Illinois Passes Anti-harassment, Pay Equity, and Board Diversity Legislation

After ending 2018 with a slew of new employment laws, Illinois continues to enact legislation impacting employers. Following the example set by California, Washington, and other states recently, the Illinois legislature passed four new bills targeting equity, transparency, and discrimination last week, and Governor J. B. Pritzker is expected to sign them into law. This gives Illinois companies the opportunity to reevaluate their policies and practices with regard to sexual harassment, equity, and discrimination.

Illinois State Law Changes

  • Sexual Harassment (Senate Bill 75)

As the #MeToo movement continues to be a top priority of state legislatures throughout the country, Illinois joins several other states, such as Arizona, California, Delaware, Oregon, Louisiana, Maine, Maryland, New Jersey, New York, Tennessee, Vermont, and Washington, in passing proactive legislation on the topic. SB 75 contains several provisions designed to prevent harassment and discrimination in the workplace.

First, the law limits unilateral nondisclosure agreements and mandatory arbitration agreements relating to sexual harassment and employment discrimination claims. It remains to be seen whether, upon challenge, courts will find this law and others like it that prohibit arbitration agreements to be preempted by the Federal Arbitration Act.

The legislation also requires employers to disclose to the Illinois Department of Human Rights (IDHR) by July 1, 2020, and each July 1 thereafter, the total number of final adverse administrative rulings or judgments in the preceding year and whether any equitable relief was ordered. In addition, SB 75 requires employers to disclose to the IDHR during an investigation the total number of settlements entered into during the preceding five years that relate to any act of alleged sexual harassment or unlawful discrimination. However, the law prohibits the IDHR from relying on the existence of any settlement to support a finding of substantial evidence.

SB 75 also permits employees who are victims of gender-based violence to take unpaid leave and requires hotels and casinos to provide employees working in isolated spaces with panic buttons to prevent sexual harassment or assault.

Finally, under this law Illinois joins California, New York, Delaware, Connecticut, and Maine in requiring employers to hold annual sexual harassment training for all employees. Like New York’s law, SB 75 calls for the IDHR to produce a model sexual harassment training program, including a program specifically tailored to the restaurant and bar industry.

  • Equal Pay Act (House Bill 834)

HB 834, like recent legislation in Colorado, Washington, and Maine, prohibits employers from screening prospective employees based on salary histories and bars employers from requesting or requiring prospective employees to provide their salary history as a condition of being considered for employment. Importantly, the law expressly states that it does not apply to current employees applying for promotions or transfers with the same employer. The law also expressly permits discussions about an applicant’s expectations with respect to compensation and benefits.

HB 834 would ban employers from requiring employees to sign a contract or waiver that would forbid the employee from discussing compensation information (though human resources employees and supervisors may be prohibited from disclosing compensation information learned in their jobs).

This legislation amends Illinois’s Equal Pay Act of 2003. The law previously prohibited discrimination in pay among jobs that require “equal” skill, effort, and responsibility, but the new law will require employers to compare jobs that require “substantially similar” skill, effort, and responsibility. It also now requires that any factor that accounts for a pay differential must not be “based on or derived from a differential in compensation based on sex or another protected characteristic,” must be job related and consistent with business necessity, and must account for the entire differential. Employers that violate the law may be subject to compensatory or punitive damages. These changes to the Illinois Equal Pay Act may, therefore, call for a fresh look at an employer’s pay equity analysis.

  • Lower Threshold for “Employer” under the Illinois Human Rights Act (House Bill 252)

HB 252 amends the Illinois Human Rights Act (IHRA) and provides that “employer” includes any person employing one or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation. This significantly expands the previous definition of employer, which included any person employing 15 or more employees in Illinois (matching Federal Title VII’s requirements).

  • Disclosure of Board Demographics (House Bill 3394)

HB 3394 requires publicly traded companies based in Illinois to report the demographics of their board and executives, including the self-identified gender and race of each member of its board. The University of Illinois will then publish an annual report card on Illinois companies’ diversity. Companies will also need to report on their policies and practices for promoting diversity. A previous version of the bill would have required companies to include at least one woman, one African-American, and one Latino on their boards, but these requirements were removed from the bill before it was passed by the state legislature.

Practical Takeaways for Employers

Employers should be acutely aware of how these legislative changes affect their workplaces. To prepare for the implementation of the laws above, employers doing business in Illinois may consider doing the following:

  • Ensuring their sexual harassment and discrimination policies comply with the requirements outlined in SB 75
  • Adopting annual sexual harassment trainings that cover the standards set forth in Illinois law and federal law and preparing for such trainings
  • For employers with under 15 employees that were previously not covered by the IHRA, reevaluating policies to ensure they are in compliance
  • Limiting the use of arbitration or nondisclosure agreements with respect to harassment claims where necessary, and revising all employment agreements to ensure their nondisclosure and arbitration clauses meet the standards set forth in SB 75
  • Adjusting hiring or recruitment processes to eliminate questions about salary history as required by HB 834
  • Conducting privileged pay equity audits to evaluate compliance with the amended Illinois Equal Pay Act

Although #MeToo has not changed the fundamentals of federal discrimination law, the cultural shift continues to place new obligations on employers.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
This post was written by Kayla A. McCann and Sarah J. Platt at Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
More on Employment & Pay Equality on the National Law Review Labor & Employment page.

Colorado Enacts Equal Pay for Equal Work Law, Effective 2021

Colorado Governor Jared Polis signed the Equal Pay for Equal Work Act (Senate Bill 85) into law on May 22. The intent of the new law is to help close the gender pay gap in Colorado and ensure that employees with similar job duties are paid the same wage rate regardless of sex, or sex plus another protected status. Unless a referendum petition is filed, the law goes into effect on January 1, 2021, providing employers with 19 months to come into compliance. Key points of the legislation follow.

Prohibited Conduct and Scope

The Act prohibits employers from:

  • paying differing wages based on an employee’s sex or on the basis of sex in combination with another protected status (disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry) unless one of the statutory exceptions apply;

  • seeking the wage rate history of a prospective employee or relying on a prior wage rate to determine a wage rate for the position in question;

  • discriminating or retaliating against a prospective employee for failing to disclose their wage rate history;

  • discharging or retaliating against an employee for asserting the rights established by the Act, invoking the Act’s protections on behalf of anyone, or in assisting in the enforcement of the Act;

  • discharging, disciplining, discriminating against, coercing, intimidating, threatening, or interfering with an employee or other person because they inquired about, disclosed, compared, or otherwise discussed the employee’s wage rate; and

  • prohibiting an employee from disclosing wage rate information.

The Act defines “employer” broadly to include “the state or any political subdivision, commission, department, institution, or school district thereof, and every other person employing a person in the state.”  “Employee” is defined as “a person employed by an employer.”

Exceptions to the Act

The Act allows exceptions to the prohibition against a wage differential based on sex if the employer demonstrates the difference in wages is reasonably based upon one or more factors, including:

  • a seniority system;

  • a merit system;

  • a system that measures earnings by quantity or quality of production;

  • the geographic location where the work is performed;

  • education, training, or experience to the extent that they are reasonably related to the work in question; or

  • travel, if the travel is a regular and necessary condition of the work performed.

In relying on these factors, the employer must not rely on prior wage rate history to justify a disparity in current wage rates.

New Employer Obligations

The Act also imposes new affirmative obligations on employers. Once the Act is in effect, employers must:

  • announce to all employees employment advancement opportunities and job openings, and the pay range for the openings; and

  • maintain records of job descriptions and wage rate history for reach employee for the duration of their employment, plus two years.

Private Right of Action and Enforcement

Employees have a private right of action in district court to pursue remedies specified in the law. They need not first file administrative wage discrimination complaints with the Colorado Department of Labor and Employment before bringing suit.

The Act sets a two-year statute of limitations; a violation of the statute occurs each time a person is paid a discriminatory wage rate.

An employee may recover both economic damages (measured as the difference between the amount the employer paid and what the employee would have received had there been no violation) plus additional liquidated damages, equal to the amount of the economic damages. The liquidated damages provision is intended to compensate an employee for the delay in receiving amounts due. Employees may also recover attorneys’ fees and costs, and obtain legal and equitable relief, which may include reinstatement, promotion, and a pay increase.

The Director of the state Department of Labor and Employment is also authorized to enforce actions against an employer involving transparency in pay and employment opportunities, including fines of between $500 and $10,000 per violation. An employer’s failure to comply with the Act for one promotional opportunity or job opening is considered one violation.

Good Faith Defense and Wage Audits

An employer may avoid liquidated damages for a violation if it can establish that it had reasonable grounds for believing it was not in violation of the Act. The Act states that one factor to be considered in determining good faith is whether the employer had completed within the prior two years a “thorough and comprehensive pay audit of its workforce, with the specific goal of identifying and remedying unlawful pay disparities.”

Rebuttable Presumption Regarding the Failure to Keep Records

If an employer fails to keep required wage records and is later sued, the Act permits the court to impose a rebuttable presumption that the records not kept by the employer contained information favorable to the employee’s wage claim and the jury may be instructed that the failure to keep records is evidence that the violation was not in good faith.

Lessons for Employers

With pay equity issues increasingly in the news, we expect this new legislation to spur an uptick in litigation after it goes into effect in 2021. Because these are inherently fact-intensive cases, litigation involving the new Equal Pay for Equal Work Act will be complex and protracted. Colorado employers should audit and review their compensation systems now in order to identify and address potential problems. Consideration should be given to involving outside counsel in these audits in order to cloak them with the attorney-client privilege against public disclosure.

Copyright © by Ballard Spahr LLP
This post was written by Steven W. Suflas and Rachel R. Mentz of Ballard Spahr LLP.
Read more labor and employment news on the National Law Review’s Employment law page.