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What Employers Need to Know about New York State’s New Discrimination and Harassment Laws: Part 2

On June 19, 2019, the New York Legislature voted to reform New York discrimination law. See NYS Assembly Bill No. A8421.  Although Governor Andrew Cuomo is expected to sign the bill, as of August 7, 2019, it still has not been delivered to him.

This post will focus on changes regarding mandatory arbitration and non-disclosure clauses, the Faragher-Ellerth defense and damages awards.  Below is a summary of some of the provisions in the bill including those covered by our prior post on the expansion of the New York State Human Rights Law (“NYSHRL”), and the effective date of each provision.

Colorado Employers Face New Employment Laws

With Colorado’s return to one-party control, Colorado employers face a spate of new employment laws. Employers in Colorado should review their practices, policies, and procedures to ensure that they are in compliance with these new laws.

Colorado Chance to Compete Act—“Ban the Box” Legislation: Under the new law, an employer may not state in an advertisement or application that a person with a criminal history may not apply to the position. The employer also may not inquire about or require the disclosure of an applicant’s criminal history in an initial application. The law takes effect on September 1, 2019, for employers with 11 or more employees, and September 1, 2021 for employers with fewer than 11 employees.

Equal Pay for Equal Work Act: The law prohibits an employer from discriminating between employees on the basis of sex by paying an employee of one sex a wage rate less than the rate paid to an employee of a different sex for substantially similar work, regardless of job title. The law also prohibits an employer from seeking or relying on a prospective employee’s wage rate history to determine a wage rate. Finally, employers may not prohibit employees from discussing their wage rates. The law takes effect January 1, 2021.

Criminal Penalties for Wage Violations:  Employers who willfully refuse to pay a wage claim or falsely deny the validity of a wage claim over $2,000 may be liable for felony theft. The penalty for theft ranges from $50 to $1,000,000 depending upon the

Off-Payroll Working Rules

From April 2020 the responsibility for determining whether engagements with individuals who provide their services through an intermediary (typically a “PSC”) are within the off-payroll working rules shifts to the client for engagements in the Private Sector, with the burden of  operating PAYE and collecting National Insurance Contributions (“NICs”) falling on the relevant “fee payer” in the work supply chain.

Although it is encouraging that HMRC have reconfirmed that it does not intend to carry out targeted campaigns into previous years when individuals start paying employment taxes following the reforms, we expect that HMRC will take a robust approach to the enforcement of the new rules.

There is an enormous amount of work to be done across the private sector to ensure that medium/large businesses who are dependent on a flexible workforce are ready in time for the changes in April 2020.

Status determination and communications

When clients have determined an individual’s status for the off-payroll working rules, the client will be required to pass the determination to the party they directly contract with, as well as the individual worker.  Significantly, clients will also need to provide reasons for the determination.

It is hoped this will be an incentive to clients to take care in making determinations – reducing the risk of “blanket” assessments and limiting status disputes.

Businesses must therefore adopt internal policies to make proper status determinations for engagements and communicate these to individuals and their contract counterparties effectively.

HMRC promise plenty of guidance, targeted communications as well

What Employers Need to Know about New York State’s New Discrimination and Harassment Laws

In 2018, in response to the #MeToo and #TimesUp movements, New York State enacted laws to provide stronger protections against workplace sexual harassment, including mandating that New York employers have a complaint and investigation process and a sexual harassment policy, and provide their employees with training.

On June 19, 2019, the New York Legislature voted to further reform New York law and to extend protections under the New York State Human Rights Law (“NYSHRL”) to employees of all protected categories from all forms of discriminatory harassment in the workplace.  See NYS Assembly Bill No. A8421.  The bill is expected to be signed by Governor Andrew Cuomo, who supported the measure.

Once enacted, some provisions will take immediate effect while others will be phased in over the course of one year.  Here is the timeline for some of the provisions:

California Employers Have Less Than Six Months To Complete Sexual Harassment and Abusive Conduct Training

In September 2018, California passed SB 1343, which expanded the sexual harassment training requirements for California employers.  Previously, employers with 50 or more employees were required to provide at least two hours of sexual harassment training to all supervisory employees within six months of their assumption of a supervisory position and once every two years thereafter.

SB 1343 expands the training requirement in two key ways.  First, it requires employers who employ five or more employees to provide sexual harassment training.  Second, in addition to training supervisors, employers must now provide at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every two years thereafter.  As a result, all employees will need to be retrained by January 1, 2022.

The good news for employers is that the California Department of Fair Employment and Housing (“DFEH”) is required to develop online training courses that employers can use to satisfy their obligation to provide sexual harassment training.  The bad news is that the DFEH still has not done so and there is no date certain by which the online training courses will be available.  However, the DFEH has posted a sexual harassment and abusive conduct prevention toolkit, which includes a sample sexual harassment and abusive conduct prevention training.  It is available here: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SexualHarassmentandAbusiveConductPreventionTrainingToolkit.pdf.  However, unlike the online training courses that will be available, the toolkit is intended to be used in conjunction with a qualified trainer.

With only six months until the end

Managing mental health issues at work

This week is UK Mental Health Awareness Week.

Managing mental health in the workplace is an increasing priority for employers, with a recent survey highlighting costs to business of nearly £35 billion a year due to sickness absence, reduced productivity and staff attrition.

The employment law issues associated with poor mental health are complex and include stress, personal injury, disability discrimination, bullying and harassment and unfair dismissal.

Employers can do much to manage the impact of poor mental health on their business, with a focus both on encouraging good mental health in the workplace through awareness, education and appropriate support frameworks, and on how best to manage mental health issues that do arise.

Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers manage mental health workplace issues. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Employment and Labor practice group.

Caught Between a Rock and a Hard Place: #MeToo Movement Creates Challenges for Directors

The #MeToo movement continues to make headlines across the globe, toppling more than 200 powerful U.S. company leaders in entertainment, media, sports and a variety of other industries.  According to EEOC reports, sexual harassment charges have increased by 14% and EEOC-filed lawsuits asserting harassment have increased by 50%.  Larger amounts of cash are being paid to settle harassment suits, and those amounts may be minor compared to the reputational damage of being tried in the court of public opinion.

Directors have long grappled with how to oversee company “culture” and employee behaviors.  Now many boards find themselves wedged between a rock and a hard place, as they struggle to balance the need for swift action when a complaint is made versus the need for appropriate due process rights for the accused.

Boards increasingly are expected to investigate stale and non-actionable claims and off-duty conduct.  They are also expected to treat wrongdoers swiftly and severely.  Employees and stockholders push for transparency in investigations, as boards temper the need for transparency with the risks of defamation, tort or other claims that may be brought by the accused, as well as personal privacy rights when dealing with controversial, off-duty conduct.

The potential unintended consequence of polarizing genders also must be monitored by the board.  Recent research found that two-thirds of male executives hesitate to hold one-on-one meetings with women in more junior positions for fear they could be misconstrued.  This behavior effectively deprives one gender of valuable mentorship and opportunities to interact with

Meet the CCPA: New Privacy Rules for California Employees

Employers with operations in California should be aware of the California Consumer Privacy Act (“CCPA”), a new privacy law that applies to data collected about California-based employees.   HR professionals should be aware that, although the CCPA refers to “consumers,” as currently drafted the CCPA’s definition of a “consumer” will apply to California-based employees.

Which employers will have to comply with the CCPA?

Employers with employees in California will need to comply with the CCPA if their business falls into one of the following three categories:

  • Their business buys, sells, or shares the “personal information” of 50,000 “consumers” or “devices”;
  • Their business has gross revenue greater than $25 million; or
  • Their business derives 50% or more of its annual revenue from sharing personal information.
  • What are the key implications of having to comply with the CCPA?

    The Employers who have to comply with the CCPA will be subject to the CCPA’s:

  • Expansive definition of “personal information”;
  • New notice requirements for California-based employees, which notices describe the employer’s collection of and use and disclosure of personal information
  • New data privacy rights for California-based employees, including the right to access, delete, and opt out of the “sale” of personal information;
  • Special rules for the collection and use of personal information of minors;
  • Requirement to implement appropriate and reasonable security practices and procedures;
  • Enforcement provisions, including a statutory damages framework; and
  • Private right of action for employees.
  • The CCPA will go into effect in early 2020, and employers who must comply should be

    NYC Lactation Policies Going into Effect on March 18, 2019

    In October 2018, the New York City Council passed two bills, Int. 879-2018 and Int. 905-2018, to supplement existing federal and state laws concerning lactation accommodation policies in the workplace.  Currently, New York State Labor Law Section 2016-c  mandates employers to provide employees with a reasonable number of breaks; and a private sanitary space, other than a restroom, with a chair and flat surface on which to place the breast pump and other personal items, to express breast milk during the workday.

    Effective March 18, 2019, Int. 879-2018 requires NYC employers, with four or more employees, to provide lactation rooms[1] with an electrical outlet, as well as refrigerators, in reasonable proximity to work areas, for the purposes of expressing and storing breast milk.  Those employers who cannot provide a lactation room, as required under the new law because of undue hardship, are required to engage in cooperative dialogue with affected employees to find a reasonable, alternative accommodation.

    The second measure, Int. 905-2018 requires employers to “establish, and distribute to all new employees, policies describing lactation room accommodations, including the process by which an employee can request such accommodation”.  The policy shall: (1) specify how an employee can submit a request for a lactation room; (2) require the employer to respond to such a request no later than five (5) business days; (3) provide a procedure to follow when two (2) or more individuals need to use the lactation room at the same time,

    New French Measures Affecting Employees and Employers Following Yellow Vest Demonstrations: Exemptions for 2018 Exceptional Bonus and 2019 Overtime

    January 7, 2019

    Categories

    French Parliament passed a bill last December 21, 2018 introducing urgent economic and social measures to improve employees’ purchasing power.

    One measure concerns the payment of an exceptional bonus of up to 1,000 euros net, exempted from social contributions and income tax, to employees earning up to 3 times the yearly minimum wage. Another is an exemption from certain social contributions and from income tax for any overtime worked as from January 1, 2019.

    The exceptional bonus measure concerns those employees that earn up to three times the minimum wage and is capped at 1,000 euros. The bonus must be paid between December 11 and March 31, 2019. Existing bonuses or those provided by employment agreements, company practices, collective or company labor agreements, and planned salary increases cannot benefit from the exemptions.

    The amount of this bonus may only vary according to the level of remuneration, employee classification, effective presence during 2018 and working time. If an employer decides to grant a bonus to all of its employees, only those having earned up to € 53,945 in 2018 will benefit from the exemptions. As a reminder, social contributions amount to up to 25% for employees and 42% for employers. An employee without a spouse or children who earns up to three times the minimum wage, would pay up to 14% of income tax.

    This bonus needs to be provided for by a company collective agreement or an agreement entered into with the personnel representatives. It may alternatively be unilaterally determined

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