The Employment Law Landscape in 2020

Proskauer - Law and the Workplace

2019 was a busy year for lawmakers across the nation, underscoring the need for employers to remain apprised of all the new laws that will be taking effect in 2020. Below we summarize some of the significant developments employers should be on the lookout for in the new year.

Sexual Harassment and Discrimination Laws

On August 12, 2019, Governor Andrew Cuomo of New York signed into law a bill that, as previously reported, significantly strengthened and expanded workplace anti-discrimination protections in New York State. For additional information regarding the developments already in effect, refer to our previous posts.

In terms of changes still to come, contracts and other agreements entered into on or after January 1, 2020, that prevent the disclosure of information relating to any future claim of discrimination on the basis of any protected characteristic will be unenforceable, unless the provision notifies the individual that it does not prohibit them from speaking with law enforcement, the Equal Employment Opportunity Commission, the New York State Division of Human Rights (“NYSDHR”), a local commission on human rights, or an attorney retained by the individual.   Likewise, effective February 8, 2020, the New York State Human Rights Law will be expanded to include all employers in the state, regardless of size. And, effective August 12, 2020, the statute of limitations for reporting claims of sexual harassment to the NYSDHR will be extended from one to three years.

California Governor Gavin Newsom signed AB 9 into law on October 10, 2019. The law, effective January 1, 2020, will extend the statute of limitations period for employees to file claims of discrimination, harassment, and/or retaliation with the California Department of Fair Employment and Housing (“DFEH”) from one to three years. After receiving a right-to-sue letter from the DFEH, employees will then have one more year to file a civil action in court.

On August 30, 2019, California enacted SB 778. The bill, effective immediately, has extended the time for employers with five or more employees to provide sexual harassment prevention training from January 1, 2020, to January 1, 2021. Covered employers are required to provide two hours of training to supervisory employees and at least one hour of training to all nonsupervisory employees in the state. In addition to training employees by January 1, 2021, employers are required to repeat the training every two years. The training must include, among other things, information regarding federal and state statutory provisions prohibiting sexual harassment and the remedies for such conduct, practical examples aimed at instructing supervisors in the prevention of harassment, and must be inclusive of harassment based on gender identity, gender expression, and sexual orientation. For additional information on California’s recent legislative activity, please refer to our previous post.

As we previously reported, Connecticut recently expanded employer obligations relating to sexual harassment training and notice requirements. Connecticut employers with three or more employees are now required to provide sexual harassment training to all employees by October 1, 2020. Previously, the law only required employers to provide such training to supervisory employees. The Act also requires employers with at least three employers to post a notice regarding “the illegality of sexual harassment and remedies available to victims of harassment” in a prominent and accessible place.”

Effective October 1, 2020, Oregon’s Workplace Protection Act will prohibit employers from entering into agreements with employees or applicants that contain a nondisclosure provision, non-disparagement provision, or any other provision that has the “purpose or effect of preventing the employee from disclosing or discussing conduct” related to discrimination and harassment on the basis of any protected category under state law, unless it is the complainant’s preference to have such provisions and the complainant is provided at least 7 days to revoke the agreement after signing. For additional information, refer to our original post.

Arbitration Agreements

In October 2019, California enacted AB 51 which prohibits employers from requiring applicants and employees to sign arbitration agreements. As enacted, the prohibition will only apply to arbitration agreements entered into on or after January 1, 2020. Although the statute expressly states that it does not intend to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act (“FAA”), it has already been challenged on grounds of FAA preemption. A similar prohibition passed in New York was successfully challenged on grounds of FAA preemption earlier this year. For additional information, refer to our earlier posts.

Paid Leave Laws

In Nevada, SB 312, which will become effective on January 1, 2020, requires private employers with 50 or more employees in the state to provide certain employees working in the state with up to 40 hours of paid leave per year, to be used for any purpose, including non-medical, personal reasons. Temporary, seasonal, and on-call employees are exempt from coverage under the law. For additional information about the new law, refer to our earlier posts.

As we previously reported, effective January 1, 2020, employers in Duluth, Minnesota with at least five employees nationwide will be required to provide eligible employees with paid leave for their own medical needs, those of a family member, or other covered reasons. The City has issued its final rules and revised its FAQs to provide additional guidance on the Ordinance. Under the Ordinance, eligible employees will accrue one hour of paid sick leave for every 50 hours worked, up to a maximum of 64 hours. Employers may limit paid sick leave usage to 40 hours per year and can elect to frontload at least 40 hours of paid sick leave each year.

Employees in Washington D.C. will become eligible for paid leave benefits under the Universal Paid Leave Amendment Act beginning July 1, 2020. Employees in D.C. will be able to access up to eight weeks of paid leave to bond with a new child, up to six weeks of paid leave to care for a covered family member with a serious health condition, and up to two weeks of paid medical leave to care for the employee’s own serious health condition. For additional information, refer to our earlier posts.

And, finally, Maine was the first state to pass a law requiring employers to provide paid leave for any reason. The Act Authorizing Earned Employee Leave will go into effect on January 1, 2021, and it will require employers with more than 10 employees to provide employees with up to 40 hours of paid personal leave per calendar year. Under the Act, employees will accrue one hour of paid leave for every 40 hours worked. For additional information about the Act, refer to our original post.

Artificial Intelligence and Data Privacy

On August 9, 2019, the Artificial Intelligence Video Interview Act was signed into law in Illinois. The Act requires employers that use videotaped interviews to: (i) notify applicants that their video interviews may be analyzed by AI; (ii) provide applicants information regarding how AI works and what characteristics it will use to evaluate them; and (iii) receive written or oral consent to being evaluated by such AI. Under the Act, employers may only share applicants’ videos with individuals who have the requisite expertise or technological skill to evaluate an applicant’s fitness for a position. Additionally, applicants have the right to request that their videotaped interview—along with any copies of the video—be destroyed within 30 days of the receipt of such request.

New York State recently enacted the Stop Hacks and Improve Electronic Data Security Act (the “SHIELD Act”). The Act imposes new requirements concerning breaches of private information and also imposes additional substantive data security requirements on business that own or lease the private information of New York residents. While the Act’s breach notification provisions took effect on October 23, 2019, its new data security requirements will take effect on March 21, 2020.  For additional information, refer to our Client Alert, available here.

Recreational Marijuana and Pre-Employment Drug Testing

As we previously reported, effective May 10, 2020, New York City’s Fair Chance Act will be amended to prohibit employers from requiring applicants to submit to testing for the presence of marijuana as a condition of employment. The law, however, contains exceptions for those who apply to work in areas involving public safety, such as law enforcement personnel and construction workers.

Nevada followed suit with AB 132, which prohibits Nevada employers from refusing to hire a prospective employee on the basis of a pre-employment drug test that indicated the presence of marijuana. That law, effective January 1, 2020, also provides that where an employee is required to submit to a drug test within the first 30 days of employment, the employee has the right to take another test, at their own expense, to “rebut the results of the initial screening test.” Firefighters, emergency medical technicians, and other employees whose positions could affect the safety of others are exempted from the law.

Illinois became the eleventh state to legalize recreational use of marijuana when Governor Pritzker signed the Cannabis Regulation and Tax Act (“CRTA”), which takes effect on January 1, 2020. Under the CRTA, employers will retain the right to adopt and enforce zero tolerance or drug-free workplace policies. In addition, employers may consider an employee “to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance.” It should be noted, however, that under the Illinois Right to Privacy in the Workplace Act, employers are prohibited from discriminating against an employee because of their use of a “lawful product” outside the workplace. Effective January 1, 2020, marijuana will be considered a lawful product for purposes of the Act. Additionally, employees must be provided a “reasonable opportunity to contest” the basis of an employer’s “good faith belief” of their impairment due to marijuana. For additional information, refer to our original post.

Salary History Inquiries

Effective January 6, 2020, employers in New York State will be prohibited from relying on the wage or salary history of an applicant in determining whether to make an offer of employment or in determining wages. Additionally, employers will be prohibited from seeking an applicant or current employee’s salary or wage history from the applicant, current employee, or their current or former employer. For additional information on the new law’s requirements, please refer to our previous post.

New Jersey also enacted its own salary history inquiry ban. Effective January 1, 2020, it will be an unlawful employment practice for an employer to: (1) screen a job applicant based on the applicant’s salary history, including, but not limited to, the applicant’s prior wages, salaries or benefits; or (2) to require that the applicant’s salary history satisfy any minimum or maximum criteria. An employer may, however, consider salary history in determining salary, benefits, and other compensation for an applicant and may verify the applicant’s salary history where the applicant “voluntarily, without employer prompting or coercion” provides the employer such information. For additional information regarding these new requirements, please refer to our original post.

Effective March 13, 2020, employers in Cincinnati with 15 or more employees located within the City will be prohibited from inquiring about or relying on an applicant’s prior salary history in determining starting salary. The Prohibited Salary History Inquiry and Use Ordinance prohibits employers from: (i) inquiring about an applicant’s salary history or requesting reports or other information to determine or verify salary history; (ii) screening job applicants based on their current or prior compensation or salary history; (iii) relying on salary history in negotiating an employment contract, determining salary or compensation, and deciding to offer employment; or (iv) refusing to hire, retaliating, or disfavoring an applicant who chooses not to disclose their salary history. For additional information on the new law, please refer to our previous post.

Likewise, many municipalities have enacted their own bans on salary history inquiries, including Kansas City, Missouri, and Toledo, Ohio.

Supreme Court Docket

The Supreme Court is also poised to decide a very important issue for employers.  On April 22, 2019, the U.S. Supreme Court granted certiorari in three separate cases that raised the question of whether Title VII’s prohibition of harassment on the basis of sex extends to discrimination on the basis of sexual orientation or gender identity. Having heard oral arguments on October 8, 2019, the Supreme Court is expected to rule on this issue in 2020.

The Supreme Court is also expected to hear arguments in a pair of cases that will decide the scope of the ministerial exception to claims of discrimination under federal law.  The ministerial exception exempts religious employers from certain discrimination claims on the grounds that courts should not second guess these employers’ decisions as to who ministers their faith.

Given the legal requirements set to go into effect this coming year, employers should review their workplace policies and practices to ensure that they are prepared to comply.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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