On October 10, 2019, Governor Gavin Newsom signed into law California Assembly Bill 51 (“AB 51”), with an effective date of January 1, 2020.  AB 51 prohibits an employer, as a condition of employment, from requiring an employee to sign an arbitration agreement.  The prohibition applies even if the employer provides the employee with the opportunity to opt-out of the agreement to arbitrate.  However, AB 51 also provides that it does not invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act (“FAA”).  Any person who violates AB 51 is guilty of a misdemeanor, punishable by imprisonment in a county jail, not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or both.  Violation of AB 51 also exposes an employer to investigation by the Department of Fair Employment and Housing (“DFEH”) and potential civil litigation brought either by the DFEH on behalf of an aggrieved individual or, if the DFEH declines to initiate litigation, by the individual in a private suit.

On December 9, 2019, the Chamber of Commerce of the United States and other business groups filed a complaint for declaratory and injunctive relief in the United States District Court

In Missouri, the new Victims Economic Safety and Security Act (“VESSA”) allows an employee to request from his/her employer: 1) unpaid leave (for an individual who works for a business employing 20-49 employees—up to one workweek; for an individual who works for a business employing 50 or more employees—up to two workweeks), and/or 2) reasonable safety accommodations. Note that VESSA does not cover employers with 19 or fewer employees. VESSA became effective on August 28, 2021.

Among other things, to be entitled to leave and/or accommodations under VESSA, the employee or his/her family or household member must have experienced domestic or sexual violence. When an employee makes a request under VESSA, an employer is permitted to ask the employee for a statement to help the employer assess the employee’s eligibility.

In addition, the employee’s request for leave and/or accommodations must be related to the domestic or sexual violence. Specifically, an employee may take unpaid leave from work to address such violence by:

• Seeking medical attention for, or recovering from, physical or psychological injuries caused by such violence.
• Obtaining services from a victim services organization.
• Obtaining psychological or other counseling.
• Participating in safety planning, temporarily or permanently relocating, or taking
  

Last month, the Colorado Supreme Court finally resolved a longstanding issue in Colorado employment law: whether employers may have a policy or agreement that provides for forfeiture of accrued but unused vacation.  The Court’s answer was “no.”

In deciding Nieto v. Clark’s Market, No 19SC553 (Colo. June 14, 2021), the Court clarified the meaning of a troublesome provision of the Colorado Wage Act.  C.R.S. 8-4-101(14)(a)(III) defines “wages” to include:

(III) Vacation pay earned in accordance with the terms of any agreement. If an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee.

The employer in Nieto case argued (among other things) that the phrase “in accordance with the terms of any agreement between the employer and the employee” modified the phrase “the employer shall pay,” thus allowing employers to avoid the obligation to pay for unused vacation by adopting a policy to the contrary.  The Colorado Supreme Court disagreed, holding that the phrase in question modifies the phrase “earned and determinable.”  Therefore, under the Act, whether vacation is “earned and determinable” is

Private employers with more than 100 employees and federal contractors and subcontractors with 50 or more employees are required to annually submit certain workforce demographic data to the Equal Employment Opportunity Commission (“EEOC”). Employers meeting the reporting thresholds submit this data through an EEO-1 report, which collects data about employees’ by gender, race/ethnicity and job groupings. The previously announced deadline for submitting EEO-1 reports for 2019 and 2020 was July 19, 2021. Recognizing the impact of the pandemic on workplaces and the requirement to submit two years of EEO-1 data through a new process, however, the EEOC has further extended the submission deadline to August 23, 2021.

Submission of these EEO-1 reports is mandatory.  Filers who have questions regarding the data reporting and/or submission processes or requirements should visit the Filer Support Center on the EEOC’s website at https://eeocdata.org/EEO1/support.

BCLP has been tracking enacted biometric privacy statutes and proposed legislation across the United States. This Alert provides a map highlighting the current status of biometric privacy-related laws and pending legislation. Existing laws have led to a boon of class action litigation for claimed violations of biometric privacy rights. It is therefore imperative that businesses remain informed of their obligations, which are increasingly expanding and arising in new jurisdictions. BCLP continues to monitor as newly proposed legislation proliferates. Please check back here periodically for updates.

Click here to read the Alert in full.

Illinois Governor J.B. Pritzker recently signed into law an amendment to the Illinois Employee Sick Leave Act (ESLA), permitting employees to take leave for a covered family member’s “personal care.”

Enacted in 2017, the ESLA requires Illinois employers to permit employees to use half of their annual accrued sick leave under an existing sick leave policy for absences related to the illness, injury, or medical appointment of certain family members. For example, an employee who accrues 40 hours of sick leave each year is entitled to use 20 hours of such time for family leave purposes. Notably, the ESLA does not require employers to provide paid sick leave—it only applies to those employers who already provide leave to their employees. So, once an employer offers sick leave, it must allow employees to use available leave for family-care purposes listed in the ESLA.  For more information on the ESLA, please refer to this earlier article.

Under the recent amendment to the ESLA, employees must now be permitted to take sick leave for the “personal care” of a “covered family member.”

• “Covered family member” includes an employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.

Employers in the U.S. should remember that they may be required to pay for employees’ COBRA coverage this year.  The American Rescue Plan Act of 2021 provides that, for periods of COBRA coverage between April 1 and September 30, 2021, that were triggered by an involuntary termination of employment or a reduction of hours, 100% of the COBRA premium will be paid by the employer, health plan, or insurer, and the premium expense will be reimbursed by the federal government through a refundable FICA tax credit.

For more information, see the helpful blog post by our colleagues in the Employee Benefits and Executive Compensation group, which can be found here: DOL Flies Alone: Guidance on the 100% COBRA Subsidy under the American Rescue Plan Act of 2021. 

Restrictions on inquiring into, or using, criminal history information are not new to Illinois employers.  For years, Illinois employers been precluded from using an applicant’s arrest history when making hiring or other employment decisions.  And, in 2015, Illinois joined the list of “ban the box” states by precluding employers with 15+ employees from inquiring into or considering the criminal record or criminal history of an applicant until after the applicant was selected for an interview or had received a conditional offer of employment.

Effective March 23, 2021, the restrictions have tightened again, through amendments to the Illinois Human Rights Act (“IHRA”), which borrow concepts from the Equal Employment Opportunity Commission (“EEOC”) and the Fair Credit Reporting Act (“FCRA”).

Restricted Use of Conviction Records

The new IHRA provisions make it a civil rights violation for an employer to use a “conviction record” as the basis for any employment decision, including hiring, promotion, discipline and discharge, unless:

1. There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; OR
2. The granting or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals
   

Employers preparing to reopen their places of business have many logistical considerations, including compliance with state and local health orders relating to face coverings, temperature and wellness screenings, and other measures designed to help keep employees healthy and safe during the COVID-19 pandemic. Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its own “Return to Work” guidance by adding Q&A guidance on how employers should handle a “high risk” employee, i.e., an employee with an existing and known disability that may make the employee more susceptible to severe illness from COVID-19.  The guidance is a helpful reminder to employers that even actions taken with the best of intentions may not comply with legal obligations and restrictions.  Below are three important questions for employers to consider in light of the EEOC’s updated guidance.

How does the Interactive Process Apply to COVID-Related Requests for Accommodation?

Under the Americans with Disabilities Act (the “ADA”), employers are obligated to consider requests from a disabled employee for reasonable accommodations to the employee’s work environment that would permit him or her to perform the essential functions of the job. While the EEOC’s

Our colleagues from the Employee Benefits group have posted several articles important to our Employment and Labor clients. Please click here to see articles on:

Families First Coronavirus Response Act Part 1 of 2: Small Employer Tax Credits Families First Coronavirus Response Act Part 2 of 2: Impact on Employer Health Plans