On Sunday September 30, 2018, while many of us were busy setting our Fantasy Football lineups, outgoing Governor Jerry Brown signed a number of work-related bills arising in response to the #MeToo movement that will substantially alter employers’ exposure to liability for workplace harassment, prohibit many common practices used to reduce adverse publicity surrounding workplace harassment claims, and impose additional training and inclusion requirements.

SEXUAL HARASSMENT OMNIBUS BILL, SB 1300

The most far-reaching of the new laws is SB 1300, the Sexual Harassment Omnibus Bill, which amends the California Fair Employment and Housing Act (“FEHA”).  Under SB 1300, FEHA will now expressly affirm some harassment-related court decisions and disavow others, embedding into the statute the following legal concepts and ever-expanding scope:

• The plaintiff in a workplace harassment suit is only required to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that
  

Scrutiny of the gender pay gap in the U.S. and abroad has intensified in recent years and shows no sign of diminishing in the short term.

In the U.K., both private and public sector employers with at least 250 employees are now required to publish gender pay data. This is an annual obligation to publish details including the organization’s overall gender pay gap, the percentages of male and female employees across four quartiles and the gender pay gap in relation to bonuses. The deadline for the first reports was April 4, 2018, for private sector employers and March 30, 2018, for public sector employers.

Meanwhile, in the U.S., the Equal Employment Opportunity Commission continues to identify pay discrimination enforcement actions among its strategic priorities, and a number of states (e.g., California, Delaware, Oregon, etc.) have recently enacted more stringent laws aimed at achieving pay equality in the workplace.  Alongside these

When an employee goes out on continuous (not intermittent) leave under the Family and Medical Leave Act (or analogous state law), the employer must decide whether to turn off the employee’s email access during the leave.  If the employer has a standard practice that applies to other comparable leaves of absence, then the employer should follow that practice for FMLA leave as well.  But if the employer has no existing practice, what practice should it adopt?

On the one hand, employees should not be expected to work while they are on FMLA leave and, generally, should not work.  Turning off the email access demonstrates the employer’s seriousness about compliance with this principle, precludes a one-off supervisor ignoring this principle and asking the employee to do something, and prevents the employee from ignoring this expectation and instead doing work (and making a claim later that he or she is entitled to

The OFCCP’s recent Directive, issued on August 24, 2018, signals a move towards greater transparency in the compensation review process for contractors.  With this new Directive, the OFCCP has rescinded former Obama-era guidance on compensation review, for a more open and transparent process.  The OFCCP sent out 750 corporate scheduling announcement letters to contractors on September 7, 2018, so compliance reviews may be imminent for a number of employers.

Highlights

Pay Analysis Groupings

The Directive sets out the OFCCP’s procedures for grouping similarly-situated employees for statistical compensation analysis.  The OFCCP explains that it analyzes compensation for similarly-situated employees by:

• developing pay analysis groupings (PAGs); and
• statistically controlling for further structural differences within the PAGs and individual employee characteristics, such as tenure, prior experience, education and grade level.

In a significant change, the OFCCP will use the contractor’s compensation hierarchy and job structure to run its analysis, provided that:

Forty-five years after the law “for professional equality,” the wage gap between women and men persists. In order to overcome this, the law “for the freedom to choose one’s professional future” imposes new measures on companies. The French law “for the freedom to choose one’s professional future” was definitively adopted on 1 August 2018 by the French Parliament and approved on 4 September by the Constitutional Council (Decision No. 2018-769 DC of 4 September 2018); it was published in the Journal Officiel on 6 September 2018.

The overriding principle is that all employers must have as an objective the removal of the pay gap between women and men (new article L. 1142-7 of the Labor Code). Further, while there is no penalty for non-compliance with this principle in itself, certain provisions of the law are mandatory and subject to sanctions if not respected.

Of particular note are provisions that apply

The U.S. Department of Labor (“DOL”) recently released two new opinion letters relating to the Family and Medical Leave Act (“FMLA”), which provides eligible employees the right to unpaid, job-protected leave for certain family and medical reasons.  The DOL also issued “new” forms relating to FMLA leave, which should be used on a going-forward basis.

The full opinion letters are available here and here, and the new forms are available here.

Organ Donors

In the first opinion letter, the DOL addressed the question of whether leave resulting from organ donation, including post-operative treatment, could qualify for FMLA leave.  The brief answer:  Yes, so long as the need for leave meets the FMLA’s definition of serious health condition.  An employee’s organ donation can qualify as a serious health condition when it involves “inpatient care” or “continuing treatment.” See 29 C.F.R. §§ 825.114, .115. And, since an organ donation

The French law “for the freedom to choose one’s professional future” definitively adopted on 1 August 2018 by the French Parliament and approved on 4 September by the Constitutional Council (Decision No. 2018-769 DC of 4 September 2018) was published in the Journal Officiel on 6 September 2018. The law strengthens the fight against sexual harassment and sexist behavior in companies.

Under the new law, by 1 January 2019 at the latest, certain employers will be required to take measures to combat sexual harassment and sexist behavior in the workplace:

• The obligation to appoint the following points of contact:

(i) A point of contact in companies with at least 250 employees, responsible for guiding, informing and supporting employees in the fight against sexual harassment and sexist behavior (new article L. 1153-5-1 of the French Labor Code). The objective is to enable victims of such acts to identify a

Following the “Call to Action”[1] that was issued by the White House and the U.S. Department of Treasury in October, 2016 concerning what the Obama Administration perceived as overuse of non-compete agreements, a number of states have revised their laws regarding non-competes.

In 2016, prior to the “Call to Action,” Idaho passed a law that established a presumption that an employee’s breach of a non-compete agreement caused irreparable harm to the employer.  However, the legislature reconsidered that move.  In July of this year, the Idaho legislature repealed the presumption, placing the burden back on the employer to prove that it suffered harm to a legitimate business interest.

In 2016, Utah imposed numerous requirements and restrictions on non-compete agreements.  Rather than the previous common law requirement that the agreement only restrict a former employee for a reasonable time, the new law voids any agreement that restricts a former employee

As of July 1, 2018, Georgia is now one of 16 states that have banned the use of a hand-held cell phone while driving.  Under the new Hands-Free Georgia Act (House Bill 673), drivers in Georgia may not:

• Physically hold or support a wireless communication device or stand-alone electronic device with any part of the body;
• Write, send, or read any text based communications on such devices;
• Watch a video or movie on such devices; or
• Record or broadcast a video on such devices.

The Hands-Free Georgia Act does allow drivers to use a single button on a wireless device to make a voice phone call.  Under the new law, drivers may also use a wireless device for voice-to-text communications and for navigation purposes.   Drivers may use a wireless device in a lawfully parked vehicle, but not while the vehicle is at a stop light or in stopped

Derived from EU Directive 2001/23/EG, the German law on Transfer of Business (“TUPE”) protects employees in a business transfer situation. As a starting point, TUPE transfers the employment of affected employees from one employer to another on their existing terms and conditions. However, a potential  impact of recent decisions by the German Federal Labor Court on TUPE is that, even many years after restructurings and – supposedly – concluded transfers of business transactions, employees may claim ongoing employment with their original employer (”transferor”) if it is held that no transfer of business actually occurred.

The case law in this area has continued to develop based on rulings by the Federal Labor Court/ (“BAG”). Recently the BAG rendered two decisions (BAGE 8 AZR 265/15 and BAGE 8 AZR 309/16) with far reaching consequences for companies doing business in Germany.

How long after a “transfer” will the Courts intervene?

In the most