The National Labor Relations Board (“NLRB”) announced that it is releasing a final rule (the “Rule”) on February 26, 2020 revising the prior joint-employer standard used to hold franchisors or businesses that use employees hired by third parties jointly liable for violations of federal labor law. The NLRB stated that this change in the Rule would allow “greater precision, clarity, and detail” in interpreting the joint-employer standard and incorporated the nearly 29,000 comments it received on the Rule which was initially proposed in 2018.

Under the prior Browning-Ferris standard, a company could be required to bargain with another employer’s union and/or face liability under the National Labor Relations Act if the company merely reserved the right to exert control over those employees’ terms and conditions of employment, however attenuated or indirect the right may be. Such ruling often exposed employers, such as franchisors or parent companies, to lawsuits due in part to the uncertain nature of what constituted “indirect” control.

Effective April 27, 2020, the Rule clarifies that joint employment will only be found in scenarios where a company exercises “substantial direct and immediate control” over the “essential terms and conditions” of employees.

Specifically, the Rule:

  • Specifies that a business is a joint employer of another employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment;
  • Clarifies the list of “essential terms and conditions” as: wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction;
  • Provides that to be a joint employer, a business must possess and exercise such substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees as would warrant a finding that the business meaningfully affects matters relating to the employment relationship;
  • Specifies that evidence of indirect and contractually reserved but never exercised control over essential terms and conditions, and of control over mandatory subjects of bargaining other than essential terms and conditions, is probative of joint-employer status, but only to the extent that it supplements and reinforces evidence of direct and immediate control;
  • Defines the key terms used in the final rule, including what does and does not constitute “substantial direct and immediate control” of each essential employment term;
  • Makes clear that joint-employer status cannot be based solely on indirect influence or a contractual reservation of a right to control that has never been exercised.

The Rule can be found here, and a factsheet issued by the NLRB can be found here.

The Hogan Lovells Employment Team will continue to monitor the Rule and provide further updates as they develop. For further information related to the Rule, or any other employment matter impacting your business, please contact the authors of this article or the attorney you regularly work with at Hogan Lovells.

Pay equity continues to be a complex and evolving issue for employers. Although the Equal Employment Opportunity Commission (“EEOC”) recently ended its Component 2 pay data collection, employers still face substantial challenges and developments relating to pay equity, including state law developments, public pressure, and litigation. This article briefly summarizes some of the recent developments.

EEO-1 Component 2 Pay Collection Over. In 2019, employers scrambled to comply with a surprising court order resurrecting a requirement to submit employee pay data to the EEOC for calendar years 2017 and 2018, known as “EEO-1 Component 2.” Please see our prior client alerts for more details on what employers were required to submit. On February 10, 2020, the U.S. District Court for the District of Columbia approved the EEOC’s request to deem this collection completed. The February 10 order ends, for now, the federal government’s first-ever broad-based collection of pay data. While this collection is complete (for now), the EEOC and the Office of Federal Contract Compliance Programs (“OFCCP”) (which covers federal contractors), still place a high priority on compensation discrimination in compliance activities directed to individual employers. In fact, the EEOC continues to pursue compensation discrimination claims, including settling an EEOC lawsuit as recently as January of this year. The OFCCP, in its 2018 Directive, explicitly states that OFCCP’s priority is eliminating pay discrimination.

New Legislative, Litigation, and Public Pressure on Employers. Even without Component 2 pay data collection, employers face increasing legislative, litigation, and public pressure regarding pay equity. On the legislative side, state and local jurisdictions have been active. For example, New York recently amended its law which previously required equal pay for women and men performing “equal work.” The new law now extends to “substantially similar” work and to protected classes beyond sex, such as age, race, or sexual orientation. Colorado became the first state to pass legislation requiring employers to include a compensation range in every job posting. And Alabama passed its first pay equity law.

Several state and localities have also banned asking applicants about salary history, believing that consideration of past pay perpetuates disparities among women and minorities. California, Massachusetts, New Jersey, and New York, among others, have some form of salary history inquiry ban in effect. On February 6th, the U.S. Court for Appeals for the Third Circuit reversed a lower court injunction that prohibited the City of Philadelphia from enforcing its salary history inquiry ban. In doing so, the court reasoned that the ban advanced a substantial government interest in closing wage gaps, and rejected an argument that this interest should yield to an employer’s asserted right, under the First Amendment, to discuss the issue of pay.

Employees have also continued to bring wage discrimination claims against an array of industries, including well-known technology, media, legal services, manufacturing and retail companies, as well as universities.

Likewise, following the #MeToo and Time’s Up movements, which have not lost their strength, activism on gender and diversity has driven many public companies to report their gender pay gap. To date, companies such as Amazon, Apple, Bank of America, Citigroup, Goldman Sachs, Intel, Microsoft, UnitedHealth Group, and Wells Fargo, among many others, have shared their pay equity numbers. Such disclosures serve as a reminder that amid growing pressure from various constituencies, including investors, employees, boards and the public, pay equity issues are in the forefront.

Conclusion. Addressing pay equity is an important objective, but not a simple exercise. It involves judgments concerning company pay structures, processes and policies, whether, when and how to conduct pay equity analyses, how to use the results, and whether any analyses are conducted under attorney-client privilege for the purpose of legal advice. And the answers to these questions may be different from case to case, depending on the location(s) where the employer operates, changes in the law, as well as practical goals and considerations. Internal management, counsel, statisticians, and compensation consultants all have a role concerning the issue, and their roles should be carefully considered and integrated as appropriate.

For more information on pay equity or other employment law issues, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.

Last week, New Jersey Governor Phil Murphy signed an amendment to the New Jersey WARN Act, dramatically expanding the Act’s reach.  Effective July 19, 2020, the amendment makes the Act one of the most stringent state WARN acts in the country.

Here are the key changes:

  1. WARN is now triggered by any termination of 50 or more full-time or part-time employees in New Jersey, whether at a single or multiple sites. Previously, the Act was triggered only if at least 33% of the workforce was affected at a single site of employment or 500 full-time employees are terminated in total.  The Act also previously applied only to the termination of full time employees.  And the kicker: An out-of-state transfer or a transfer to a site in New Jersey beyond 50 miles now qualifies as a “termination of employment” under the Act.
  2. Notice period increased from 60 days to 90 days. New Jersey employers covered by the Act now must provide 90 days’ notice of a termination.
  3. Severance mandated for all employees. Employees terminated as part of a WARN-covered event are now entitled not just to 90 days’ notice, but also to severance of 1 week for every year of employment.  Employers cannot condition this severance on a release.  If employers want a release, they will need additional consideration.
  4. Additional penalty for failure to comply. Employers who fail to comply with the required notice period are still required to issue back pay for the time the period of non-compliance.  However, NJ employers now also must pay an additional 4 weeks of severance to each terminated employee if they fail to meet the notice period.

These are big changes that will affect how layoffs are conducted in New Jersey. New Jersey employers should consult counsel if there is a potential layoff on the horizon.

As sophisticated employers know, an employer must track and comply with developments not only in federal law, but also state and local law. This blog post details key changes in employment laws in the Commonwealth of Virginia in 2019, as well as upcoming changes in 2020, including new personnel records disclosure and paystub requirements.

Employers Must Provide Employment Records Upon Employee Request

As of July 1, 2019, all employers in Virginia must turn over employment records upon the written request of a current or former employee, or that employee’s attorney. The records must show (i) the employee’s dates of employment; (ii) the employee’s wages or salary during employment; (iii) the employee’s job title and job description during employment; and (iv) any injuries sustained by the employee during employment (if applicable). See Va. Code §8.01-413(B). Upon written request, employers have 30 days to comply or provide written notice of delay in responding. That notice buys the employer another thirty days and must specify the reason for the delay. Should the employer fail to comply with the written request for a personnel file, the employee can issue and enforce a subpoena, and willful noncompliance may result in the employer being ordered to pay fees associated with enforcement. For further information, please see our blog post on this law.

#MeToo Animates Legislature: NDAs That Operate to Conceal Details of Sexual Assault Claims Void

As of July 1, 2019, employers are forbidden from requiring employees or prospective employees to execute or renew provisions in non-disclosure agreements that have the purpose or effect of concealing details of claims or rape, forcible sodomy, aggravated sexual battery, or sexual battery as a condition of employment. Va. Code § 40.1-28.01. Any existing provisions executed by employees or prospective employees are void and unenforceable as contrary to public policy. As a result, no employer can enforce the terms of any NDA executed by an employee or prospective employee where doing so would prohibit the employee from disclosing the sexual assault offenses mentioned above. Arguably, this provision does not apply to a separation agreement or other agreement executed in connection with a separation from employment (since such agreement would not be entered into “as a condition of employment”), however, this view has not yet been tested in the courts.

Virginia Enacts New Paystub Law

Effective January 1, 2020, Virginia requires employers to provide employees with a detailed paystub every pay period. The paystub, which can be in paper or electronic form, must contain (i) the name and address of the employer; (ii) the number of hours worked by the employee in the pay period; (iii) the employee’s rate of pay for those hours; (iv) the gross wages earned by the employee during the pay period; and (v) the amount of, and reason for, any payroll deductions. See Va. Code § 40.1-29(C). Before this new law went into effect, Virginia employers only needed to provide gross wages and deductions on a paystub, and only had to provide such a paystub upon employee request.

Several Exemptions Under the Virginia Minimum Wage Law Repealed

As of July 1, 2019, certain classes of employees are no longer exempt from Virginia’s minimum wage law, including theater cashiers, ushers, and concession attendants. Va. Code § 40.1-28.9(A).  Going forward, these employees must be paid the Virginia minimum wage (which is the same as the Federal Minimum Wage: $7.25 per hour) or the employer is subject to penalties including 8% annual interest on wages owed but not paid, plus any attorneys’ fees incurred in connection with the enforcement of the statute. Va. Code § 40.1-28.12.

Expected Future Developments

Due to the recent Democratic control of the Virginia General Assembly and Governor’s mansion, we expect the General Assembly may enact more employee-friendly laws in 2020. For instance, legislators have already introduced a bill that would increase the Virginia minimum wage to $15.00 per hour by 2025, with additional increases thereafter to account for inflation.. If other nationwide trends offer any insight, Virginia may also contemplate bills relating to paid sick leave, ban-the-box, additional protections for LGBTQ workers, and prohibiting the enforcement of non-competes against low-wage workers.

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For more details about these legal developments or other employment law questions, ask one of the authors of this blog post or the Hogan Lovells lawyer with whom you work.

As sophisticated employers know, an employer must track and comply with developments not only in federal law, but also state and local law. This blog post details key changes in employment laws in the District of Columbia in 2019, as well as upcoming changes in 2020, including changes to paid family leave and minimum wages.

D.C.’s Universal Paid Leave Act Approaches Full Implementation on July 1, 2020

As discussed in our prior blog post, D.C. employers began paying payroll taxes in July 2019 to fund paid family and medical leave benefits, which will become available to eligible employees under D.C.’s Universal Paid Leave Act (“UPLA”) starting July 1, 2020. See D.C. Code § 32-541.  UPLA benefits, which will be administered by the D.C. Government, include up to 8 weeks of paid leave benefits for new child bonding, 6 weeks to care for a family member with a serious health condition, and 2 weeks for the employee’s own serious health condition. In total, employees can receive up to 8 weeks of paid leave benefits under the UPLA per year.  Additional information about the new program, including a required Paid Family Leave Employee Notice that employers must provide to employees about UPLA benefits by February 1, 2020, can be found in our blog posts here and here.

Victims of Domestic and Sexual Violence are Now Covered under the D.C. Human Rights Act

Effective February 8, 2019, the District of Columbia’s Human Rights Act (“DCHRA”) prohibits discrimination against employees on the basis that they or their family members are victims of domestic violence, sexual offenses, or stalking.  See D.C. Code § 2-1402.11.  Additionally, employers must make reasonable accommodations for such employees when accommodation is necessary to ensure the employee’s (or the employee’s family member’s) security and safety, as long as the accommodation would not cause the employer undue hardship.  With certain exceptions, employers must maintain as confidential any information provided from such employees that is related to an employee’s or employee’s family member’s status as a victim of domestic violence, a sexual offense, or stalking.

D.C.’s Minimum Wage Will Increase to $15.00 per Hour

On July 1, 2019, the D.C. minimum wage rose to $14.00 per hour, and on July 1, 2020, it will increase to $15.00 per hour. See D.C. Code § 32-1003. Thereafter, it will be adjusted each year based on changes in the cost of living.  The upcoming increase to the minimum wage is part of a series of increases originating from the District’s “Fair Shot Minimum Wage Amendment Act of 2016.”  Additionally, tipped workers must be paid $5.00 per hour beginning July 1, 2020.  For information on last year’s minimum wage increase, please see our blog post on the topic.

D.C.’s Wage Garnishment Fairness Amendment Act Exempts Many Lower-Wage Workers from Garnishment

On April 11, 2019, the protections provided under the Wage Garnishment Fairness Amendment Act of 2018 went into effect.  Employees whose disposable wages in a given week do not exceed 40 times the District of Columbia minimum wage (40 times the current minimum wage of $14.00 per hour equals $560) are exempt from garnishment for that week altogether.  The Act also requires notice to debtors when a writ of attachment is served on their employer and allows debtors to file a motion in Superior Court to exempt certain wages from garnishment due to financial hardship.  See D.C. Law 22-296; D.C. Code § 16-572 to -573.

New Sexual Harassment Training and Payroll Reporting Requirements for Employers of Tipped Workers

The Tipped Wage Workers Fairness Act of 2018, which went into effect December 13, 2018, among other things, imposes sexual harassment training requirements on employers of tipped workers and requires certain such employers to submit payroll data through a third-party payroll provider.  Specifically, employees of such employers must receive sexual harassment training from the D.C. Office of Human Rights (“OHR”) or an OHR-certified provider every two years.  Managers, owners, and operators must also be trained every two years, and training for managers must be in-person.  New employees must be trained within 90 days of hire.  Employers have until December 12, 2020 to complete the training for employees hired before the Act’s effective date.  Additionally, as of January 1, 2020, employers of tipped employees (except for hotel employers) must use a third-party payroll provider that submits quarterly reports through the Department of Employment Services (“DOES”) self-service portal, no later than 30 days after the end of each quarter, certifying that each employee was paid at least the required minimum wage, including gratuities.  See D.C. Law 22-196.

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For more details about these legal developments or other employment law questions, ask one of the authors of this blog post or the Hogan Lovells lawyer with whom you work.

The District of Columbia Department of Employment Services (“DOES”) recently released a Paid Family Leave Employee Notice (“PFL Notice”) that D.C. employers must provide to employees by February 1, 2020.   The PFL Notice, which is available here, contains information about the paid leave benefits that will be available under D.C.’s Universal Paid Leave Amendment Act of 2016 (“ULPA”) starting July 1, 2020

As we explained in a prior post, the UPLA establishes a program funded by employer tax contributions that will provide employees with partial wage replacement benefits for (1) parental leave for new child bonding (up to 8 weeks per year); (2) family leave to care for a family member with a serious health condition (up to 6 weeks a year); and (3) medical leave for the employee’s own serious health condition (up to 2 weeks a year), with a cap on total paid leave benefits provided to an employee at 8 weeks annually.

Beyond posting the PFL Notice by February 1, 2020, employers have an ongoing duty to provide the PFL Notice, either physically or electronically, to employees in three situations after February 1, 2020:

  1. to all employees at least once between February 1, 2020 and February 1, 2021, and at least once a year thereafter;
  2. to all new employees at the time of hire; and
  3. to any individual employee when the employer receives direct notice of the employee’s need for leave for an event that could qualify for PFL benefits.

In addition to complying with these notice requirements, employers should be reviewing their current leave policies to determine whether revisions are needed before UPLA benefits become available in July. The PFL Notice does not address coordination of PFL and employer-provided leave benefits. For currently available information about how PFL benefits may intersect with employers’ own leave policies, see our prior post here. DOES is expected to publish final benefits regulations soon, which may provide additional guidance on how to coordinate existing leave policies with the new law.

As part of an ongoing project to update its guidance and technical assistance documents, the Equal Employment Opportunity Commission (“EEOC”) last week issued a statement rescinding its 1997 Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment (the “Policy Statement”)EEOC policy statements do not have the force of law, but they are often relied on as guidance by both EEOC investigators and courts.  Last week’s announcement brings the EEOC’s policies in line with recent Supreme Court decisions recognizing the enforceability of employment-related arbitration agreements under federal law; however, the enactment of several state statutes restricting the use of such agreements in the #MeToo era leaves the terrain unsettled.     

The EEOC rescinded the 1997 Policy Statement—which had deemed mandatory arbitration of employment-related disputes inconsistent with the purposes of Title VII and other federal civil rights laws—because the Policy Statement conflicted with subsequent Supreme Court decisions holding that employment-related arbitration agreements are generally enforceable under the Federal Arbitration Act (“FAA”).  The EEOC’s rescission announcement referenced numerous Supreme Court cases, including Epic Systems Corp. v. Lewis, 138 S. Ct.  1612 (2018), which held that arbitration agreements waiving class or collective claims are enforceable (see our prior post here ), and Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019), which held that class arbitration of employment disputes is not required when an arbitration agreement is ambiguous as to the arbitrability of class claims (prior post here).   

The EEOC’s announcement also emphasized the Supreme Court’s holding in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991), that employees subject to arbitration agreements can still file EEOC charges and states that “[n]othing in this rescission should be construed to limit the ability of the Commission or any other party to challenge the enforceability of a particular arbitration agreement.”  In 2014, the EEOC sued an employer whose arbitration agreements allegedly required employees to give up their right to file charges with the EEOC or state and local fair employment practices agencies.  The employer ultimately prevailed before a federal district court, but the case remains pending before the U.S. Court of Appeals for the Eleventh Circuit.  It remains unclear how vigorously the EEOC will  challenge what it perceives to be overbroad arbitration agreements going forward.

The EEOC’s rescission announcement did not address recently enacted state laws restricting mandatory arbitration of sexual harassment and/or other discrimination claims in the wake of #MeToo—including, for example,  California AB 51, which goes into effect January 1, 2020 (see our post here), and similar laws in Maryland, New Jersey, and New York (prior posts here, here, and here).  As explained in our previous posts, it is uncertain whether these laws will be considered preempted by the FAA, and at least one federal district court has already compelled arbitration pursuant to the FAA notwithstanding New York’s law prohibiting mandatory arbitration of discrimination claims.

Employers should continue to monitor developments with the assistance of counsel in this rapidly changing area of law.

On December 17, 2019, the National Labor Relations Board (“NLRB”) held that confidentiality mandates during pending workplace investigations are lawful.  This ruling overruled the NLRB’s recent precedent that such mandates infringe on the rights of employees (union or non-union) under the National Labor Relations Act (“NLRA”) to engage in “concerted protected activity”, which includes the right to discuss discipline or ongoing disciplinary investigations involving them or their coworkers.

This decision, Apogee Retail LLC d/b/a Unique Thrift Store v. Kathy Johnson, case number 27-CA-191574 and 27-CA -198058, relieves employers of the existing burden to establish, on a case-by-case basis, that its interest in conducting a specific confidential investigation outweighed the employees’ interest in exercising “concerted activity” rights. It further resolves conflict on this issue between the NLRB and the Equal Employment Opportunity Commission (“EEOC”) which advocates for employers to maintain the confidentiality of discrimination investigations to the extent possible in order to encourage bias victims to come forward, particularly in sexual harassment cases.

A recap of the changing precedent:

A 2015 NLRB decision known as Banner Health Systems found that employer instructions not to discuss ongoing workplace investigations were unlawful unless an employer could demonstrate that for any investigation where confidentiality was required, the integrity of the investigation would be compromised without it.  The Banner Health dissent protested that the Board was not balancing competing employer/employee interests in workplace rules as required, but had instead put a thumb on the scale on the employee side.  A subsequent development in a 2017 NLRB decision involving Boeing announced a new test for analyzing business interests in a workplace rule with workers’ rights by designating the rule into one of three categories : Category 1 where a rule is presumptively legal because there is no infringement on workers’ rights or the employer’s interest outweighed the employee’s  interests; Category 2 which requires greater individual scrutiny as to a rule’s adverse impact on NLRA-protected conduct; and Category 3 rules which are presumptively unlawful as the adverse impact on NLRA rights is not outweighed by the employers interest in the rule.

In Apogee, the Board applied the Boeing analysis and found that open investigation confidentiality rules fit squarely in Category 1. The majority held that Banner Health had failed to recognize the importance of confidentiality assurances to both employers and employees during an ongoing investigation–in terms of ensuring the integrity of the investigation, obtaining and preserving evidence, encouraging prompt reporting of unsafe or discriminatory behavior without fear of retaliation and protecting employee sensitive personal information.

Apogee is a 3 to 1 decision with a strong dissent by the NLRB’s outgoing and last Obama administration appointee. In responding to the dissent, the majority reiterated that the current standard requires workplace rules to be viewed from the “perspective of an objectively reasonable employee who is aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job” – a practical standard that incorporates the realities of today’s workplace.

Practical implications for employers:

Apogee provides a welcome bright line rule for employers who have a strong interest in maintaining the integrity of its internal investigations. Confidentiality rules that narrowly bar only disclosure of what is discussed in the course of an open investigation are intended to prevent witness coaching, aligning of stories, retaliation, privacy violations and the chilling of cooperation – all formidable barriers to getting to the truth. The #Me-too movement revealed that fear of retaliation is one of the top reasons that victims of sexual harassment do not come forward.  And while 100% confidentiality in discrimination and other misconduct investigations can never be guaranteed, nor should it ever be promised, requiring parties and witnesses to not disclose on-going investigative information keeps a check on the rumor mill and advances the interest of employers and employees.

On December 16, 2019, the National Labor Relations Board (the “Board”) issued a new decision that strengthens employers’ right to restrict employees from using company email for non-work reasons. Caesars Entertainment, No. 28-CA-60841 (NLRB Dec. 16, 2019). In so doing, the Board overruled its controversial 2014 decision in Purple Communications, which held that employee use of an employer’s email systems for statutorily protected communications under Section 7 of the National Labor Relations Act (“NLRA”) (e.g., discussing terms and conditions of employment and/or union organizing) on nonworking time must presumptively be permitted by employers who give employees access to their email systems, even if all other nonwork use of such systems is prohibited.

Specifically, in Caesars Entertainment, the Board held that an employer does not violate the NLRA by establishing or enforcing restrictions on the nonbusiness use of its IT resources—including email—unless either:

(1) “there is proof that employees would otherwise be deprived of any reasonable means of communicating with each other”; or

(2) there is “proof of discrimination” in the establishment or enforcement of the restrictions.

The Board explained that the first exception would apply in “rare” circumstances where the email system “furnishes the only reasonable means for employees to communicate with one another.” The Board underscored the difficulty of proving this exception applies by referencing the fact that “in modern workplaces employees also have access to smartphones, personal email accounts, and social media, which provide additional avenues of communication” other than employer-provided email.

As for the second exception, in determining whether email restrictions are lawful and not discriminatory, employers should consider the Board’s 2007 decision in Register Guard (which had itself been overruled by Purple Communications). In Register Guard, the Board gave examples of when discrimination in access to Company email might exist, including when an employer “permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees.” On the other hand, the Board explained that “nothing in the [NLRA] prohibits an employer from drawing lines on a non-Section 7 basis,” such as “between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.” The Register Guard Board also noted that if the evidence proved that the employer’s motive for line-drawing was antiunion, that too could violate the NLRA.

As a result of the Caesars Entertainment decision, employers should review their employee handbooks and other policies and procedures to determine whether it is sensible to make any changes to reflect this change in the law. For more information on this development or other labor and employment questions, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.

New York employers – New York State has gifted you an early holiday present – a requirement to update your handbook, comply with a new law immediately or potentially face steep consequences.

On November 8, 2019, Governor Cuomo signed into law a bill prohibiting employment discrimination based on an employee’s or a dependent’s “reproductive health decision making,” “including, but not limited to, the decision to use or access a particular drug, device or medical service.” Colloquially known as the “Boss Law” this State law joins New York City in making reproductive health decisions a protected category. Notably, while these new laws protect employees from discrimination on the basis of reproductive health decisions, they do not specifically require employers to provide particular reproductive health benefits to employees.

Before January 7, 2020 all New York employers are required to update their employee handbooks to include a notice of employees’ rights and remedies under this law.  Although many employee handbooks already include “catch-all” provisions within their equal employment, anti-discrimination and/or sexual harassment policies, we recommend that this change be explicitly spelled out in an employee handbook, as New York went through the unusual step of inserting this handbook requirement into the law.

Specifically, under Section 203-e of the New York State Labor Law employers are prohibited from:

  1. Accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making without the employee’s prior informed affirmative written consent;
  2. Discriminating against or taking any retaliatory personnel action against an employee with respect to “compensation, terms, conditions, or privileges of employment” because of or on the basis of the employee’s or dependent’s reproductive health decision making; or
  3. Requiring an employee “to sign a waiver or other document” that denies the employee the “right to make their own reproductive health care decisions.”

Consequences for violating the law could be severe.  Employees have a private right of action and can seek remedies including back pay, benefits, and reasonable attorney’s fees and costs, as well as injunctive relief and/or reinstatement against any employer that “commits or proposes to commit” a violation of the law.  Moreover, the law permits liquidated damages “equal to one-hundred percent of the award for damages…unless the employer proves a good faith basis to believe that its actions…were in compliance with the law.”

If an employer retaliates against the employee (defined as “discharging, suspending, demoting, or otherwise penalizing an employee for: (a) making or threatening to make, a complaint to an employer, co-worker, or public body, that rights under the section have been violated; (b) causing to be instituted any proceeding under or related to this section; or (c) providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into a violation of a law, rule or regulation”) an employee may be entitled to a separate award of civil penalties.

Further guidance is expected from the Department of Labor with respect to the requisite notice, but in the meantime employers should be sure to update their handbooks and consider adding this protected category to any existing materials.