Tag: labor and employment

Recognizing Juneteenth and Strengthening Company Culture: Tips for Employers

Several prominent companies across the nation recently announced that they would observe Juneteenth as a holiday. This new trend of observing Juneteenth comes in the wake of several weeks of protests across the world advocating for an end to racial injustice and police brutality. These protests have generated discourse across the country, including in workplaces, about systemic racism and what actions we all can take to address the issues. Although Juneteenth is not a new holiday, recognizing and observing the holiday is one of many proactive measures that employers can take to demonstrate their commitment to fostering diverse and inclusive workplaces and to promoting racial justice.

What Is Juneteenth?

Juneteenth is the oldest nationally celebrated commemoration of the end of legal slavery in the United States. Although the Emancipation Proclamation was issued on January 1, 1863, the news did not reach enslaved Black people in Galveston, Texas, until June 19, 1865, where it was met with shock and jubilation.

The newly-freed people in Galveston celebrated after the announcement, and the following year, freedmen and freedwomen organized the first of what became the annual celebration of “Jubilee Day” on June 19 in Texas. Over time, the annual celebration spread from the Black community in Texas to the rest of the United States. Juneteenth celebrations focus on education, history, self-improvement, culture, and pride.

Who Is Observing Juneteenth?

Many companies have announced they will make Juneteenth an annual corporate holiday. The decision to observe Juneteenth in the workplace comes as more employers voice their support for racial justice. Other companies have also announced donations to organizations promoting racial justice.

How Can Employers Observe the Holiday?

Give employees a paid day off.

Consider observing Juneteenth as a company holiday and giving employees a paid day off as the company would for other observed holidays. This can help remind employees that the employer believes that the history of all its employees matters and that it is taking an active stand to promote racial justice.

If closing to observe Juneteenth is not a viable option for a company, they may want to consider alternatives. For example, some companies plan to remain open and give full-time non-exempt workers the option of taking the day off with full pay or working the day with time-and-one-half pay.

Honor Juneteenth in the workplace.

Recognizing Juneteenth in the workplace can strengthen a company’s commitments to its mission, vision, and values to promote a diverse and inclusive workplace and to foster social and racial justice.

There are many ways that employers can commemorate Juneteeth in the workplace:

  • Invite guest speakers to the workplace to speak on current issues;
  • Sponsor relevant workplace activities (on-duty and off-duty); or
  • Engage in the same kinds of activities that the company engages in for other commemorations for people of color.

Participate in local Juneteenth events.

Many communities across the country host Juneteenth celebrations. These events include parades, rodeos, cookouts, live concerts, and community outdoor activities. Consider hosting a company-sponsored booth or contest in these community events.

Is Juneteenth an Observed Holiday?

Juneteenth is an observed holiday in 47 states and the District of Columbia, but it is not a mandated federal holiday. Texas was the first state to recognize Juneteenth as a state holiday in 1980. A more comprehensive history of Juneteenth can be found here.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Mama Always Said, ‘Tell the Truth,’ Especially When It Comes to COVID-19

Since the outbreak of the COVID-19 pandemic earlier this year, employers have been placed in the position of having to deal with numerous conflicting legal and moral obligations.  Prior to the pandemic, by virtue of the Americans with Disabilities Act and similar state and local laws, employers were greatly limited in the questions they could ask perspective and current employees about their individual health conditions.  Similarly, unless they were seeking a workplace accommodation, employees did not have to disclose their personal health conditions to their employer.

In the battle to quell the pandemic, the rules have changed significantly.  Employers have greater leeway to ask questions related to the pandemic and employees who may have medical conditions previously unknown to the employer are disclosing them because of their concerns about increased susceptibility to becoming infected by the virus.  At the same time, getting quick and reliable information about an employee’s COVID-19 status may be difficult.  Frequently, an employee will only receive an initial verbal confirmation of a positive test and have to wait days for the written report.  Complicating matters are reports in the media of employees who have falsely told their employer they tested positive.  In some of the reported cases, upon hearing of a positive test, the employer shut down its entire operation for a deep cleaning only to later have the employee retract their statement they were positive.  In some of these falsification incidents, employees are now facing criminal prosecution.  What is an employer to do?

Trust but Verify

The vast majority of employees are honest and deeply concerned about their employer’s response to COVID-19. Therefore, if an employee reports they have tested positive, the employer should not wait for written verification and immediately begin to follow the Centers for Disease Control or local health authority protocols.  At the same time, employers should take all possible steps to verify the accuracy of what the employee is reporting.

In cases of suspected fraud, here are some steps an employer can and should take:

  1. Require the employee to provide written confirmation.  As noted above, employers should understand that a written confirmation of a positive COVID-19 test may not be immediately available to the employee.  Many test sites provide only a verbal response with the written verification following days later.  Employers should still require written confirmation of the verbal positive result.
  2. While waiting for written confirmation of test results, ask the employee specifically where and when they went for testing and verify the accuracy of that information.  In one case reported in the media, a suspicious HR manager determined that the hospital where the employee claimed to have been tested was not even performing COVID-19 tests.
  3. Carefully examine any written documentation provided by the employee.  Doctor’s notes and other non-detailed information can be verified by a Google search to determine that the practitioner is real.  A phone call to that practitioner should be able to easily confirm the truth of the matter on the documentation.
  4. Communicate to employees in advance that falsification of employee records and information, especially something as critical as a positive COVID-19 test, can be grounds for discipline, including termination of employment.

© 2020 Foley & Lardner LLP

For more on employer’ COVID-19 considerations, see the National Law Review Coronavirus News section.

COVID-19 Daily Self Screening Video

Daily self-screening is one of the simplest ways to help stop the spread of COVID-19. Designed to educate employees, COVID-19 Daily Self-Screening video provides an overview of symptoms and steps a staff member can take to help break the chain of transmission, if they do get sick. Part of a series aimed at supporting a “Work Together, Healthy Together” workplace health and safety program, our videos are intended to be shared with you workforce. In connection with Polsinelli’s efforts to provide resources and support to businesses in our own communities and beyond, we hope you and your team find this valuable.

© Polsinelli PC, Polsinelli LLP in California

How Business Owners Can Watch For Fraud

Fraud can quickly take down a successful business, or at the very least create significant issues for you to deal with. As a business owner, it’s important that you know how to watch for fraudulent activities by your employees. Here are a few tips for approaching the subject in your business:

Be careful who you hire

Preventing fraud begins before you even hire your employees. As you work through the selection process, be sure to investigate your potential hires, especially those who deal with finances. You can use a background check, credit report and social media check to look for any red flags.

Protect your business with anti-fraud policies

You should always have company policies in place that state that fraud is not accepted and that includes specific procedures to help prevent and deal with fraud.

Consistent analysis

Use data analysis to double-check the transactions of your business. This can help catch any errors or possible instances of fraud.

Educate your employees

Though you may have the definition of fraud and your stance against it in your company policies, that doesn’t mean that your employees are aware. Especially for new hires, create fraud education and training for them to complete.

Make it easy for whistleblowers to come forward

Create a company culture that is honest and open. This can help draw employees who are willing to call out fraud when they see it. Create procedures that allow whistleblowers to feel safe coming forward and reporting misconduct.

Watch for red flags

As an employer, it’s important to keep an eye on your employees. You have a unique opportunity to spot red flags like employees that live beyond their means or have significant financial struggles.

Don’t let any suspicious activity slide. Be sure to quickly and thoroughly address anything that you notice that could be indicative of fraud.

© 2020 by Raymond Law Group LLC.

Do You Need to WARN Your Employees?

The swift onset of the 2019 novel coronavirus (COVID-19) pandemic caused lost revenue and financial hardship for many employers. Some quickly instituted layoffs as a cost-saving measure. Others went out of business altogether.

Regardless of whether employees suffered job losses as a result of layoffs or business shutdowns, employers may have had, or still have, a duty to provide notice of these job losses under the Worker Adjustment and Retraining Notification Act (WARN Act).

Many states also have their own so-called “mini-WARN” laws. For Wisconsin businesses, the applicable state law is the Wisconsin Business Closing and Mass Layoff Law (WI-WARN).

WHAT IS THE WARN ACT?

The WARN Act protects workers, their families and communities by requiring employers to provide at least 60 calendar days’ advance written notice of a plant closing or mass layoffs affecting certain numbers of employees. Under state law, if applicable, the notice period and the content of the notice may be different.

The purpose of the WARN Act is to provide workers and their families with transition time to adjust to the prospective loss of employment, to seek and obtain other jobs, and, if necessary, to enter skill training or re-training that will allow these workers to compete successfully in the job market.

Typically, obligations under the WARN Act arise when an employer has sufficient advance knowledge of the need for a plant shutdown or mass layoff such that the employer would be able to give employees the required 60 days’ advance notice. The plant closings and layoffs caused by the COVID-19 pandemic, however, were anything but typical. Many employers felt the need to act quickly and, as such, failed to issue WARN Act notices.

DOES THE WARN ACT APPLY TO YOUR BUSINESS?

Coverage under the WARN Act and similar state laws depends on the size of your workforce. Coverage under the WARN Act is triggered by having 100 or more employees in the U.S. In contrast, WI-WARN covers Wisconsin employers with 50 or more employees in the state. Who is considered an employee for purposes of coverage is dictated by statute and generally excludes new and low-hour employees.

DOES THE WARN ACT APPLY TO YOUR LAYOFFS?

The duty to provide WARN Act notice is triggered by either a plant closing or mass layoff, which are defined as:

  • A plant closing (referred to as a business closing under Wisconsin law) is a permanent or temporary shutdown of a single site of employment, or of a facility or operating unit at a single site, that results in an employment loss for 50 or more full-time employees. This threshold is lowered under WI-WARN to 25 or more full-time employees within a single municipality.
  • A mass layoff is defined as any workforce reduction that:
    1. Does not result from a plant closing, and
    2. Creates an employment loss affecting either 50 or more employees and at least 33 percent or more of the employers’ total active workforce at a single site of employment or, alternatively, 500 or more employees. Under WI-WARN this threshold is lowered to 25 employees or 25 percent of the workforce, whichever is greater.

Before jumping to the conclusion that there is a duty to provide WARN Act notice, an employer should carefully analyze whether they are covered under the law and, if so, whether the actions taken meet the plant closing or mass layoff definitions.

ARE THERE EXCEPTIONS TO THE APPLICATION OF THE WARN ACT?

There are many exceptions and nuances under the WARN Act and state law. Two pertinent exceptions in light of the current pandemic are:

  1. Layoffs of less than six months: If a temporary layoff lasts less than six months, an employer is not obligated to comply with the 60-day notice requirements of the WARN Act.
  2. Unforeseeable business circumstances: The WARN Act allows an employer to order a plant closing or mass layoff before the conclusion of the 60-day notice period if the closing or layoff is caused by “business circumstances that were not reasonably foreseeable as of the time that notice would have been required.” A government-ordered closing of an employment site that occurs without prior notice also may be considered an unforeseeable business circumstance.

To date, the U.S. Department of Labor and, in Wisconsin, the Department of Workforce Development, have provided no guidance on whether the business circumstances exception would apply to shutdowns and layoffs caused by the COVID-19 pandemic. Some attorneys and commentators believe that the exception could apply to certain industry sectors such as restaurants, bars and other service-sector employers who were subject to state government-mandated shutdowns.

However, for the majority of employers who have continued to operate as an essential business or are receiving government relief funding such as Paycheck Protection Program funds, the answer is far less clear. It remains to be seen how the state and federal governments will accept this exception in circumstances where operations have continued in some capacity, mass layoffs were contemplated prior to the COVID-19 pandemic or where an employer knows now that it will need to do a mass layoff as soon as federal funding ceases.

WHAT, IF ANYTHING, SHOULD AN EMPLOYER DO?

Employers should consider these six actions:

  1. Determine if you have enough employees to be covered by the WARN Act or state-specific mini-WARN laws.
  2. Calculate whether the employment losses occasioned by a business shutdown or layoff would meet the coverage numbers set forth under applicable law.
  3. In the case of a temporary layoff, determine, to the extent possible, whether it will exceed six months (if not, the WARN Act does not apply).
  4. Because a layoff that lasts more than six months could trigger coverage, it is important to monitor the expected length of any current temporary layoffs. If a layoff is extended beyond 6 months due to business circumstances, notice is required when it becomes reasonably foreseeable that the extension is required.
  5. Even if the unforeseeable business circumstances exception applies, an employer still must provide as much notice as possible under the circumstances. The notice must provide a brief description of why the employer could not provide the full notice period.
  6. Consider whether it makes sense to play it safe and send notices even if the employer hopes to rehire workers within six months. A possible downside to this approach is that it could result in the laid-off workforce being motivated to find other jobs.

The bottom line is that the application of the WARN Act can be complicated. This complication is exacerbated by the fact that the law, while well-intentioned, did not anticipate how it should be applied in the face of a pandemic. If you think you may need to WARN your employees, seek legal counsel to help navigate these complicated laws.

Copyright © 2020 Godfrey & Kahn S.C.

For more on the WARN Act, see the National Law Review Labor & Employment law section.

The CDC Warns Against Using Antibody Testing Results to Make Workplace Decisions

This week, the Centers for Disease Control and Prevention (the “CDC”) released interim guidelines addressing COVID-19 antibody testing. The CDC expressed concerns about the current accuracy of antibody testing and advised businesses against using the results of antibody testing (also known as serologic testing) to make any decisions about returning workers to the workplace.

Although the guidance notes that antibodies may offer some protection from reinfection and may decrease the likelihood that an individual infects others, the CDC has determined that there are myriad issues with the effectiveness of current antibody testing, including widespread false positive results. The CDC guidance states that “additional data are needed before modifying public health recommendations based on [antibody] test results, including decisions on discontinuing physical distancing and using personal protective equipment.” The CDC also recommends that even if individuals have tested positive for COVID-19 antibodies, they should continue to take precautionary measures (such as wearing facemasks) to prevent the spread of infection.

As the U.S. Equal Employment Opportunity Commission (“EEOC”) has not weighed in on this issue to date, it is still unclear whether employers’ use of antibody testing to inform workplace return decisions might implicate the Americans with Disabilities Act (“ADA”) or other discrimination laws.  But given the direct affirmative guidance from the CDC, employers should continue to refrain from using antibody or serologic testing results to determine which workers may return to the workplace.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Corbin Carter at Mintz.
For more CDC Guidance, see the National Law Review Coronavirus News section.

Michigan Ramps Up Workplace Safety Regulations and Enforcement Powers Under New Executive Order

Gov. Whitmer released detailed new workplace safety regulations on Monday, May 18, 2020 through Executive Order 2020-91 (Order). The Order also provides the State of Michigan with enhanced enforcement capabilities and greater consequences for employers who disregard the rules. The Order does not identify an expiration date for the new workplace rules.

New Workplace Safety Rules

The Order sets out 17 general workplace safety rules that apply to all employers who are conducting in-person operations during the coronavirus pandemic, pursuant to Executive Order 2020-92. While some of these workplace safety rules are restated from previous executive orders, others – such as the requirement that employers designate one or more workplace supervisors to oversee COVID-19 control strategies – are new. New rules include mandated COVID-19 employee training and the development of a daily entry self-screening protocol for all employers.

In addition to the general workplace safety rules, the Order identifies numerous industry-specific workplace safety rules to combat the spread of COVID-19. Industries that must comply with these specific rules are: employers whose work is performed outdoors; construction; manufacturing; research laboratories (excluding labs that perform diagnostic testing); retail stores that are open for in person sales; offices; and restaurants and bars.

Enhanced Enforcement Powers

Previously, employers who failed to follow COVID-19 workplace safety rules were subject to a misdemeanor punishable by up to a $500 fine and/or 90 days in jail. The Order now provides two new routes for enforcement. First, the workplace safety rules are given the force and effect of regulations adopted by the state agencies that oversee workplace health and safety. Such agencies are given full authority to enforce the rules, and any challenges to penalties must move through the agencies’ administrative appeals process. Second, the Order states that violations of the workplace safety rules are also violations of the Michigan Occupational Health and Safety Act (MIOSHA). As a result, Michigan’s Occupational Safety and Health Administration will have the authority to conduct investigations into violations, issue penalties and distribute cease operation orders.

In addition, because the Order mandates employee training on how to report unsafe working conditions, employers should anticipate the possibility of such internal reports or MIOSHA investigations. Employers should also be mindful not to retaliate against employees who file such complaints.

© 2020 Varnum LLP

For more on worker safety measures in states and federally, see the National Law Review Labor & Employment Law section.

To Reverify or Not: Form I-9 and Lawful Permanent Residents

On Friday, May 15, the U.S. Department of Homeland Security (DHS) issued a notice clarifying to employers that they cannot reverify Lawful Permanent Residents (LPRs) who presented evidence of permanent residence status that was unexpired at the time of the employee’s initial Form I-9, Employment Eligibility Verification, regardless of later expiration. While employers were never required to reverify LPRs, there has long lacked specific instruction on this, leading many involved in human resources across Pennsylvania and New Jersey to conduct reverifications of LPRs in violation of federal law.

What is Form I-9?

Form I-9, Employment Eligibility Verification (“Form I-9”), is used to:

verify the identity and employment authorization of individuals hired for employment in the United States.” All employers in the United States must are required to implement procedures for the use of Form I-9 that ensure its proper completion for each individual that is hired for employment in the United States—citizens and noncitizens alike.

Federal law requires employers to “allow employees to choose which document(s) they will present from the Lists of Acceptable Documents” that is included with Form I-9. As the DHS M-274, Handbook for Employers, notes, in “Section 1, an LPR may choose to present a List A document (such as Form I-551, Permanent Resident Card, commonly referred to as a Green Card) or a List B and C document combination (such as a state-issued driver’s license and unrestricted Social Security card).”

LPRs are issued a Form I-551, Permanent Resident Card (LPR Card) as evidence of permanent resident status. If an individual is an LPR and presents a valid LPR Card when completing Form I-9, the LPR Card is deemed a sufficient “List A” document, thereby rendering successful the employer’s verification of the individual’s identity and ability to work in the United States. An employee need not present any further evidence. Acceptable LPR Cards include:

  • Those issued from January 1977 to August 1989 that have no expiration date;
  • Currently unexpired, but with 10-year expiration dates; and
  • Currently unexpired, but with 2-year expiration dates.

To Reverify or Not to Reverify?

The DHS notice informs that employers who successfully complete the Form I-9 verification process with an LPR Card that either did not have an expiration date or was a 10- or 2-year LPR Card that was unexpired at the time of verification must not seek to reverify the employee in the future even if the LPR Card later expires.

However, when an individual that is an LPR presents the following to an employer during the Form I-9 verification process, it is necessary to reverify:

  • Expired LPR Card and Form I-797, Notice of Action (which is issued when an individual applies to renew an LPR Card), that indicates the LPR Card’s validity has been extended. Employers should consider these documents as acceptable “List C” evidence, requiring reverification at the end of the extension period. Note that the employee must still present a valid, unexpired “List B” document to satisfy the initial Form I-9 verification.
  • Form I-94 or Form I-94A, Arrival-Departure Record, containing an unexpired temporary I-551 stamp and a photograph of the individual. When presented, these documents are acceptable “List A” evidence. Employers must conduct a reverification no later than when the I-551 stamp expires, or one year after the issuance of Form I-94 or Form I-94A, Arrival-Departure Record, should the record not indicate an expiration date.
  • Current foreign passport with a photograph and either a temporary I-551 stamp or I-551 printed notation on a Machine-Readable Immigrant Visa. Additionally, if the current, foreign passport is, in the rare instance, endorsed with “CR-1,” rather than an I-551 stamp, the employer is reminded that the “CR-1” endorsement is the equivalent of an I-551 stamp. Employers must conduct a reverification when the I-551 stamp or I-551 printed notation on the Machine-Readable Immigrant Visa expires. If there is no expiration date listed, the reverification must occur no later than one year from the date that the I-551 was stamped or “CR-1” was endorsed in the foreign passport.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more on employment verification, see the National Law Review Labor & Employment law section.

COVID-19 Layoff or Pretext for Age Discrimination?

The recent, unprecedented changes to our country and its workforce due to the COVID-19 pandemic have upended the lives of millions. The economic fallout continues and in many instances, employers simply have no choice but to lay off large swaths of their employees due to the lack of business/revenue. And these employers have legitimate reasons for doing so and view this as a heart-wrenching but necessary step.

At the same time, a small subset of employers may decide that, even though mass layoffs are not necessary, they will still lay off certain, older employees. In this scenario, there is no legitimate business need driving the termination but an opportunity to let go of older employees who often have higher salaries. Or the employer is concerned that older employees may trigger additional costs in terms of insurance or paid time off because of their susceptibility to COVID-19. Similarly, the employer may hold stereotypical views that older employees are less likely to function well in a virtual/remote work setting that requires technological skills.

As such, the employer’s claim that it had to lay off the older employee due to the pandemic could be a pretext for age discrimination. The question is, how do courts make this call? The answer to this question centers on how an employee can prove that the employer’s purported reasons were just a mask for illegal behavior.

Signs That The Layoff May Be Age Discrimination

Each case will be reviewed based on its own facts and merits, so no “one size fits all” approach can apply when analyzing age discrimination and pretext claims. In the context of COVID-19 layoffs, there are some red flags that may suggest that the employer is targeting an employee(s) because of their age rather than a legitimate business need to reduce the workforce. These red flags include:

  • The company institutes a relatively small-scale layoff, which includes a number of more experienced, older, and higher paid employees
  • Younger, less experienced, and less expensive employees are retained and in some cases take over the work of the departed, older workers
  • Comments by decision-makers reference (or had referenced) the experience level, age, higher salaries, nearness to retirement, etc. of the older employees
  • The employer hires new, younger employees within a relatively short period of time after the older employees are let go

Many companies will be required to provide laid off employees with specific, written information about the employees it chose to lay off, including their job titles and ages. This is helpful information to assess whether age discrimination may have motivated the termination decision. But often it will be necessary to dig deeper into the employer’s data about the laid off employees to see if a correlation between the termination decision and their ages emerges.

Legal Standards For Age Discrimination And Pretext Claims

The key federal law that prohibits age discrimination in employment is aptly named the Age Discrimination in Employment Act (ADEA). It prevents an employer from discharging or otherwise “[discriminating] against any individual… because of such individual’s age.” 29 U.S.C. § 623(a).

To win, a plaintiff “must prove by a preponderance of the evidence that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-178 (2009). Circumstantial evidence, as opposed to direct evidence of discrimination (which is less frequently available to plaintiffs), is analyzed under a three-part test created by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Note that the Supreme Court clarified that federal employees have a less onerous legal burden to prove in age discrimination claims as compared to private sector employees. Babb v. Wilkie, No. 18-882 (2020).

The McDonnell Douglas framework for an ADEA claim for layoff due to age discrimination is as follows:

STEP 1/prima facie case (burden on plaintiff)

  • They belong to a protected class (older than 40 years old)
  • They were qualified for the job and performing in accordance with the expectations of their employer
  • Employer terminated their employment
  • The employer replaced plaintiff with an individual who was comparably qualified to the plaintiff, but substantially younger, or that they were laid off under circumstances that give rise to an inference of age discrimination

STEP 2 (burden on defendant)

  • Employer must produce evidence that its actions were the result of legitimate and non-discriminatory reasons

STEP 3 (burden on plaintiff)

  • Employee must prove that the non-discriminatory reason(s) offered by the employer in Step 2 were not true reasons, but were a pretext for discrimination based on age.

The Supreme Court held that “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-7 (2000). Also, Reeves allows the trier of fact to consider the evidence used to establish a prima facie case of discrimination (first prong of McDonnell Douglas) when they are deciding the final prong of McDonnell Douglas framework. How the employer treats similarly situated (but younger) employees plays a key role in age discrimination cases.

How Can Older Employees Protect Their Rights?

For employees in the private sector, a charge of age discrimination must be filed with the Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory act (that is the notice of the layoff). The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a state or local law that prohibits employment discrimination on the same basis.

For age discrimination, however, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination.

Note: federal employees have a different charge filing process. Visit www.eeoc.gov for more information.

 

© 2020 Zuckerman Law

ARTICLE BY Eric Bachman of Zuckerman Law.
For more on discrimination in hiring and firing, see the National Law Review Labor & Employment law section.

New York City Ban on Pre-Employment Drug Testing Takes Effect May 10, 2020

Starting May 10, 2020, New York City employers may not require prospective employees to submit to testing for the presence of marijuana or tetrahydrocannabinols (or THC, the main psychoactive component of marijuana) in an individual’s system as a condition of employment. Currently, neither New York state nor New York City have any general ban on drug testing during employment.

The long-awaited ban, which was passed in April 2019 and is included as an amendment to the New York City Human Rights Law, outlines several exceptions based on the employer’s industry and the prospective position. These include, for example, police or peace officers, positions requiring a commercial driver’s license or those governed by Department of Transportation regulations, positions subject to testing under federal or state regulations or grant conditions, and positions requiring the supervision or care of children, medical patients or vulnerable persons. The new law also exempts positions that will be subject to a collective bargaining agreement that already addresses pre-employment drug testing for those prospective employees. The amendment also includes an exception for positions with the potential to impact the health or safety of employees or the public as identified by the New York City Commission.

In March 2020, the New York City Human Rights Commission issued proposed rules, which include proposed categories for safety sensitive roles, including positions that require regularly working on an active construction site, or power or gas utility lines, positions regularly operating heavy machinery, positions in which an employee operates a motor vehicle on an approximately daily basis, or positions in which impairment would pose an immediate risk of death or serious physical harm to the employee or others. The public comment period for the proposed rules has passed, but the expected finalizations of these rules has been delayed as a result of the COVID-19 pandemic.

The amendment bans only pre-employment testing for marijuana; it does not address testing for any other substance or mid-employment marijuana testing. However, all New York state employers should be mindful of the potential application of the New York medical marijuana law and applicable employment-related protections, including its relation to disability protections and accommodations under antidiscrimination laws.

Failure to adhere to the new ban on pre-employment screening can result in civil penalties up to $250,000 as well as consequential and punitive damages and attorneys’ fees.

Employers in New York City should review their existing drug-testing policies to confirm that they are in compliance with the new law, as well as contact their testing vendors to ensure any pre-employment tests comply with the new law.

 

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.

ARTICLE BY Nicole A. Truso of Faegre Drinker, legal clerk Kerry C. Zaroogian contributed.
For more on drug testing, see the National Law Review Labor & Employment Law section.